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Canada Cellphones Encryption Privacy

Cellphone Privacy In Canada: Encryption Triggers Need For Warrant 111

Posted by timothy
from the rot13-baby-rot13 dept.
codegen writes "The Ontario Court of Appeal has just ruled that the police can search your cellphone if you are arrested without a warrant if it is not password protected. But the ruling also stated that if it is password protected, then the police need a warrant. Previous to this case there was no decision on if the police could search your phone without a warrant in Canada."
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Cellphone Privacy In Canada: Encryption Triggers Need For Warrant

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  • I'm setting a password right now o__O
    • You should have a password on your phone anyway... if it grows legs and walks off in a coffee shop, then the password will probably protect it (at least to the point that they won't bother taking your data from the phone and would simply factory reset it and be done with it). The fuzz snooping in your phone is far from the only reason to put a password on it, and, I would hope, is probably the least likely to be snooping in your phone by a very wide margin.

      • by J'raxis (248192)

        Actually, you should be encrypting it, not just password-protecting it. If a thief steals your phone, what with identity theft and so on all the rage nowadays, your private data might be just as valuable to him as the device itself.

  • Spread em' (Score:5, Insightful)

    by Jeslijar (1412729) on Thursday February 21, 2013 @09:07AM (#42966263) Homepage

    This seems directly equivalent to "If your front door is unlocked the police can come in and snoop around without a warrant"

    You could say the same thing with several other things like...

    "if your car is unlocked they can rummage through it legally without a warrant"

    and

    "If your fly is down, they can do a cavity search legally without a warrant"

    • by nebular (76369)

      The difference between this situation and your house or car is that the house or car is not being arrested and you don't have them on your person when you are arrested (I'd love to meet someone who can fit a car in their pocket). If you are arrested the police can go through your pockets and search your person. If you have a wallet or datebook, they'll be going through that too. The cell phone is the modern equivalent to those. If you don't put a lock on it and leave it in your pocket it's fair game like an

      • Re:Spread em' (Score:5, Insightful)

        by ark1 (873448) on Thursday February 21, 2013 @09:50AM (#42966777)
        So if I put locks on my pockets, Police won't be allowed to search them?
        • by nebular (76369)

          Sort of. In an arrest without warrant, the main reason for the search is to find anything that might harm the police officer. The other evidence, though often crucial, is secondary. If all your pockets had locks, they may have just cause to break the locks to see if you had weapons. Only other option I could see is just taking your pants (which is plausible, it's good question for a police foundations course)

          • There was just a big case in the US where finding incidental criminal drug evidence while searching for weapons in pockets was ruled Ok, but that police couldn't trump up fraudulent claims after the fact that weapon searching was going on.

            Prople were standing around, and there was no evidence police actually fealt a threat, quite a bit to the contrary, so there was no reason to search, so the search was illegal and so the drug evidence was thrown out.

            • by Synerg1y (2169962)

              This is also the #1 reason to have witnesses around when dealing with cops. You'll lose everytime it's your word against there's, but when there's 4-5 of you saying the same thing, the tables turn. I'm not saying a drug dealer walking is a good thing, but the case you mention is one of thousands of illegal search scenarios that occur every year, and most of them are unjustifiable and are never reported because they don't produce anything and the people who's rights were violated just want to move on.

        • by J'raxis (248192)

          Maybe not that specifically, but if you're carrying a locked case in one of those pockets, yes.

    • by Sponge Bath (413667) on Thursday February 21, 2013 @09:22AM (#42966445)

      1. Home owner takes trash to curb.
      2. SWAT team swoops into unlocked door.
      3. Ha! The mattress tags have been removed! Another victory for law enforcement!

      • Re:Spread em' (Score:5, Insightful)

        by c (8461) <beauregardcp@gmail.com> on Thursday February 21, 2013 @09:34AM (#42966599)

        3. Ha! The mattress tags have been removed! Another victory for law enforcement!

        I was going to point out that it's perfectly legal for the consumer to remove the tags from their own mattresses.

        But it occurs to me that the validity of the charge doesn't really matter that much after said consumer has been punched, tasered, kicked, cuffed, slammed into the police car, cavity searched, held in a jail cell with the finest local thugs, and charged with resisting arrest and removing mattress tags.

    • Actually, yes, that exact thing is in Canadian law already.

      If your desktop computer is password-protected, the police require a warrant to look through it. If not, it's fair game. The court ruling said that it's like having a lock on your house to show that it's private property. It doesn't necessarily have to be engaged, but it has to be on there. A lock or password shows that you don't want strangers to get in there without your permission.

      It's one of the many reasons my laptop is encrypted.

      Bear in mi

      • The court ruling said that it's like having a lock on your house to show that it's private property.

        Which is nonsensical reasoning because it is private property regardless of whether a lock is engaged or not. My cell phone has the ability to be locked whether I choose to use it or not and it is my property whether I choose to secure it or not.

        A lock or password shows that you don't want strangers to get in there without your permission.

        It should be the default assumption that permission is not granted. I can always acknowledge after the fact that I'm fine with someone entering my house or snooping on my cell phone but just because I forget to lock my house one day doesn't mean I'm ok with the po

      • by Mashiki (184564)

        If your desktop computer is password-protected, the police require a warrant to look through it. If not, it's fair game. The court ruling said that it's like having a lock on your house to show that it's private property. It doesn't necessarily have to be engaged, but it has to be on there. A lock or password shows that you don't want strangers to get in there without your permission.

        Not quite. They can only do it if it falls under the plain view doctrine(if you can see it, and it's dealing with, or in the commission of a criminal offence), if they're there conducting a warrant from say kiddie porn or hacking websites based on a tip or have evidence or that you're distributing for example. But they only have the warrant for say your laptop, and they see your desktop then by law the plain view doctrine states that the 'object was within view, and within the scope of the original warran

    • "if your car is unlocked they can rummage through it legally without a warrant"

      More like - if you are stopped for speeding, and you have a kilo on the back seat in plain view, they can seize it and arrest you. However, if you stashed the kilo in your trunk, they cannot open it to search without either your permission, or a warrant.

    • and "if your fly is down and they do a cavity search, you're wearing your pants backward."

    • "If your fly is down, they can do a cavity search legally without a warrant"

      Is that definitely "can" and not "must"? This is important for my, um, research.

    • by drinkypoo (153816)

      "if your car is unlocked they can rummage through it legally without a warrant"

      That's already how it works in the US, at least in California. Not locking your vehicle when told to step out has been used to imply consent to search before. Don't forget! Unfortunately my car can only be locked when the doors are closed, and when you step out of the car, cops can be intolerant of you locking them. Try to do it anyway, because that will prove you do not consent to search.

    • by Rary (566291)
      Except that they're talking about arrests. When you're being arrested, you can expect to be searched. However, there are limits on the search that can be done. This is merely a logical interpretation of the existing laws as applicable to phones.
  • So if you leave your garage door open, the police can also walk up your driveway and search your house because it's not locked...otherwise they need a warrant. That makes sense.
    • by Cyberax (705495)
      Not really. They can't legally open any "locked" doors, even if it requires to simply turn the doorknob. Though if you leave your garage door wide open then the police might still search the house because of the "crime in progress" suspicion rules.
      • Based on various news stories, anecdotes and some personal experience with similar situations, the police can search your open garage the same as your property, but they can't enter the house through the garage unless they suspect a crime in progress, etc. However, they can't start opening cabinets and closets in the garage - only what's in plain sight unless they have reasonable suspicion.

        It's sort of like many old video games. They can keep going as long as they have a clear path - they can't move that pe

    • by nebular (76369)

      Only if you keep your garage in your pocket when you are arrested.

    • Re: (Score:1, Interesting)

      by Anonymous Coward

      So if you leave your garage door open, the police can also walk up your driveway and search your house because it's not locked...otherwise they need a warrant. That makes sense.

      Yup. That is more or less exactly what the US Supreme Court said recently http://www.executivegov.com/2010/08/ninth-circuit-court-secret-gps-tracking-is-legal/ [executivegov.com]

      If his car had been behind a locked fence or in a closed garage then the police's actions would have been a "search", but because he had no physical security around his house that fact on its own means it was not a search when the police attached a GPS tracker to his car.

      This also known as the Poverty Exception to the Fourth Amendment.

  • Refreshing to see the courts stand up for the citizenry, as opposed to the police. Makes me glad that whole "let's move to the states" plan my wife had fizzled....
  • Works for me (Score:5, Insightful)

    by nebular (76369) on Thursday February 21, 2013 @09:13AM (#42966333) Homepage

    Makes sense to me. If I were to be arrested without a warrant, the police can go through all the pockets of my wallet and look at every card and piece of paper I have in there, however if I were to have a lock on my wallet, they would need a warrant to open it. The modern cell phone is very much the same as the wallet and datebook of the past. If it's not locked, they can go through it.

    • Re:Works for me (Score:4, Interesting)

      by RobinH (124750) on Thursday February 21, 2013 @09:18AM (#42966383) Homepage
      Not quite the same. Your wallet doesn't contain a log of all electronic communications you've had with other people. Remember, they're searching through the communication histories of *those* people too. That means even if you lock your own cell phone, the police can get access to communications you've had by searching other people's unlocked phones. I'm not saying that's wrong, exactly, but it's different from a wallet.
      • The better analogy if your arrested with your house keys should they then be able to search your house without a warrant? Your average smart phone does not have to much info on it but it has the keys to the cloud services that do.

        • Nope - if you are arrested while carrying your house then they may search it. Unless, of course, it is locked - in which case they have to get a warrant.

          See, it still doesn't make sense as an analogy.

      • Perhaps the analogy works if you narrow it down to something like credit cards or receipts in your wallet. There's a record on other devices that can be traced to your spending, but finding it in your wallet makes things a lot easier (for the police).

        I'm curious how secure your cellphone needs to be. For the sake of simplicity, I just use a simple pattern (a straight line) to lock my phone - it's more to keep people out for just a couple minutes if one of my dumbass friends wants to change the language sett

        • by gstoddart (321705)

          I'm curious how secure your cellphone needs to be

          Well, according to The Fine Article:

          But the court ruled Wednesday his rights were not breached. Had the phone been password-protected or otherwise locked to outside users, however, police would have needed a search warrant to examine its contents.

          It sounds like any form of lock on the phone and they'd need a warrant for it.

          Though, it is a little disappointing that if your phone isn't locked it's fair game -- I've owned phones that didn't seem to have any meth

        • by nebular (76369)

          I"m not a lawyer, but I was trained on the rules for warrants and searches for Canadian police. So my non legal view would be that yes the single line unlock would be sufficient so long as there are other possible options that could be entered and be incorrect. Like making the combination on your luggage 000. If it's locked the police can't ask you for the password, or try and guess the password without a warrant, no matter how simple it is.

      • by drinkypoo (153816)

        There's no reason why the government should ever be able to get a warrant just to see what's in your cellphone, only to verify if something they think is in there is in fact in there. They can already get your communications logs by warrant by getting them from your telecoms provider, who already knows who you called when and for how long.

        • by tlhIngan (30335)

          There's no reason why the government should ever be able to get a warrant just to see what's in your cellphone, only to verify if something they think is in there is in fact in there. They can already get your communications logs by warrant by getting them from your telecoms provider, who already knows who you called when and for how long.

          You're confusing a cellphone with a cellphone.

          Thing is, if your phone is a dumbphone that makes calls and texts, yes, the police can get the information from the carrier b

          • by drinkypoo (153816)

            You're confusing a cellphone with a cellphone.

            No, no I'm not.

            However, these days phones can also be data storage devices and carry things that your carrier will NOT have access to. Like say, your calendar. Or your games. Or your notes or other documents you may have stored. In which case the phone part is easy, but the rest of your data is a "container" like a briefcase or suitcase or safe.

            It may shock you to find this out, but I actually know this. I've at least fiddled with if not owned a phone of literally every generation we've had. Bag phones, brick phones, early feature phones, triplets, razrs, nokias, windows phone, android, you name it I have diddled it. Congratulations, you just wasted an entire paragraph babbling about shit I clearly knew.

            If you have only the default lock, that container is like a shopping bag where anyone can clearly see into it.

            Physically, yes. But why does that give the cops the right to rifle through it?

            Which is probably proper. Things like your addressbook or contact list are murkier - they may fall under the container side of things (it's your data) or be obtained from logs.

            No, it's not proper. At least in the USA, we are mea

      • by DarthVain (724186)

        This.

        There is a reason why wiretapping and other forms of telecommunication survailance require a warrent. Considering they tried to open up police powers on the internet, and the outcry was so much that the conservative government had no choice but to shitcan it (which is really saying something, they do all sorts of crazy things just because they can).

        I would not be surprised to see this challanged again.

        Apparently according to the news the actual example they used was a locked VS unlocked briefcase found

    • by PetiePooo (606423)
      To me, it's all about your "expectation of privacy." At least in the USA, that's the legal standard they use to determine whether a warrantless search is permissible. If my cellphone is locked, that is a very strong indication that I expect the contents to be private. I'm glad that at least the Canadian courts agree. I just wish the US courts did as well, but they seem to be eroding individual privacy as much as they can get by with.
  • My understanding based on a news story this morning was that if the device was in any way "locked" then they needed a warrant. Locking, even with a gesture unlock or face recognition unlock doesn't really say anything about encryption.
    • by asylumx (881307)
      Agreed. There is a difference between password protection and encryption!
    • by dpdjvan (2551774)
      "Had the phone been password-protected or otherwise locked to outside users, however, police would have needed a search warrant to examine its contents. " So I think a gesture unlock, like slide to unlock or similar default would not require a warrent but a pattern that someone set would be.
      • by RobinH (124750)
        Just to be clear, I don't think the iPhone's "slide to unlock" would qualify as locking the phone, but if you have one of those gesture locks, like on Android, where you have to slide around 3 or 4 different points in the right order, then that would qualify. I also think facial recognition would be the same, though it's iffy. What if the officer just holds it up to your face?
        • by dpdjvan (2551774)
          In that case I would completely agree with that. I think the big thing that if an outsider couldn't find the phone and be able to access it, would require a warrent for the police to access it as well. So facial recognition I would add as "otherwise locked to outside users" category.
    • by dimeglio (456244)

      There's a difference between a lock (password) and a door knob (the slide to unlock/face to unlock). Also, aren't most phone's contents encrypted? I believe the iPhone is.

      • by Spectre (1685)

        Yes, iPhones, at least on any semi-recent version of iOS are encrypted. All the remote-wipe feature (usable from, say, the Find my iPhone app) does is erase the encryption key on the phone. The contents are effectively still there, but it is computationally ridiculous* to retrieve them.

        *I should trademark the term "computationally ridiculous". I like the way it encompasses "theoretically possible ... but it would take so long that by the time you achieved the goal, all of your equipment used to get there

    • by codegen (103601)
      Wasn't my title. My title was password protection. It was changed by slashdot editors.
  • Room within a room. (Score:4, Interesting)

    by concealment (2447304) on Thursday February 21, 2013 @09:20AM (#42966421) Homepage Journal

    A real world analogy: encryption is like a room within a room.

    If you were to enter a residence, and find it divided into apartments, you'd probably have to get a warrant for each locked, separately numbered door.

    The real question is whether one individual can have multiple rooms within a room. If your phone and computer are encrypted, do they need a warrant for each?

    • Warrants are usually specific in what they can search. In the warrant says "any electronic device" then yes. If the warrant says "cell phone", then no. If the warrant is overly broad, you can probably make a case later on that anything seized was illegally obtained because the warrant was too broad to be valid.

      • by redelm (54142)

        OK, with a warrant they can search. Break anything they need to. But compelling passwords is a different matter. Sure, they might break the device trying to get what is inside, but if you don't mind (or losing it at a border), I'm far for certain they can compel passwds (but can for civil discovery).

    • by vux984 (928602)

      A real world analogy: encryption is like a room within a room.

      I -wish- my phone supported multiple "rooms".

      I want some of my data encrypted and behind password protection, but not all of it. I don't want to enter a password to make a phone call, send a text message, or pull up google maps.If someone steals my phone I can live with them accessing my contact list, call log and even text messages. I also don't care if they play a game of Tetris or Angry birds or use the calculator,

      However I do want my document

  • From the title "Cellphone Privacy In Canada: Encryption Triggers Need For Warrant" it sounded like if the Police find out you're encrypting your phone that it will trigger a warrant... because "obviously" you're up to no good.

    But from the summary, it just sounds like something that makes sense. That if they arrest you and want to access your encrypted phone, then they need a warrant.

    I'm not a huge fan of them going through the phone in any case, but at least it's preventing them from coercing you to unlock

  • by RichMan (8097) on Thursday February 21, 2013 @10:00AM (#42966909)

    My phone is protected by an electronic protection device. You have to push the "ON" button to enable interaction.
    Breaking that top-secret process violates the DMCA and means you are breaking the encryption and security apparatus on the phone.

    Thanks DMCA for not definining minimum secutiry levels.

  • Is it really going to be that hard, or very long, before the warrant is issued anyway? You were arrested, for cripes sake. So, a full search is coming your way, phone lock or no. And, since you are in Canada, I sure hope you have receipts for all those mp3's on your phone.
    • by J'raxis (248192)

      So you encrypt your devices with strong encryption and a good passphrase, not just password-protect them. Now it's still up to you if you wish to either divulge the passphrase or face something like a "contempt of court" charge. Depending on what information one is trying to secure, one might choose the latter.

    • by vux984 (928602)

      Is it really going to be that hard, or very long, before the warrant is issued anyway? You were arrested, for cripes sake.

      I'd think it depends a lot on what you were arrested for. You got drunk at a bar and punched someone...why do they need access to your phone for anything other than a fishing expedition for something else to charge you with in addition to assault?

  • The issue of a warrant is irrelevant. If my cell phone is encrypted, they can search it all they want, warrant or no warrant, and they won't get anything because it's all encrypted.

    • by RobinH (124750)
      As stated above, the title is wrong. It's saying if it's "locked" they need a warrant. Doesn't have to be encrypted.
    • by BitterOak (537666)

      The issue of a warrant is irrelevant. If my cell phone is encrypted, they can search it all they want, warrant or no warrant, and they won't get anything because it's all encrypted.

      Presumably, if a warrant were presented, you'd be compelled to provide the password, or unlock the phone yourself. Otherwise the ruling would make no sense.

  • And don't tell me that you have to. There is no case of someone being forced to do so in Canada (as it is basically the contents of your mind and you don't have to self incriminate). The police regularly have to cut open safes because the owner won't give them the combination.

    Most smart phones are pretty secure right now so if the police go fishing you are probably safe. But in some big case the phone will probably sit in evidence for a long time resulting in a hack for that (now old) version of the OS b
  • I can see the police confusing the two, but slashdot?!
  • In other articles I've read, this says password, not encryption.
    Encryption is good to have, but it seems the minimum requirement for a warrant is less than that.

  • Does the lock screen count?

  • I for one welcome our new warrent-enabled Mounties.

    Too bad I'm using a 256 key and was trained by the Canadian Army in how to resist interrogation.

    Mwah hah hah hah.

    Have fun cracking it!

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