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Canadian Supreme Court Rules In Favor of Warrantless Cellphone Searches 105

An anonymous reader writes In a surprising decision, a split Supreme Court of Canada ruled this morning that police can search cellphones without a warrant incident to an arrest. The majority established some conditions, but ultimately ruled that it could navigate the privacy balance by establishing some safeguards with the practice. Michael Geist notes that a strongly worded dissent disagreed, emphasizing the privacy implications of access to cellphones and the need for judicial pre-authorization as the best method of addressing the privacy implications. The U.S. Supreme Court's June 2014 decision in Riley addressed similar issues and ruled that a warrant is needed to search a phone.
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Canadian Supreme Court Rules In Favor of Warrantless Cellphone Searches

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  • Blame Canada! (Score:5, Informative)

    by BarbaraHudson ( 3785311 ) <barbarahudson@gm ... om minus painter> on Thursday December 11, 2014 @12:47PM (#48574053) Journal
    The ruling also said that, even if the evidence was obtained through an improper search of the phone, it's still admissible [theglobeandmail.com].

    Fearon was convicted of armed robbery in a 2009 Toronto jewelry heist. Despite finding the search of his phone wasn't reasonable and breached his rights, the Supreme Court said the search was done in good faith.

    The court kept the evidence found in the phone — a photo of a gun and a draft text message referring to jewelry that said "We did it."

    Excluding the evidence, the court found, would undermine the truth-seeking function of the justice system. The minority disagreed and would have excluded the evidence because it was unconstitutionally obtained.

    • Just goes to show that having more than two political factions in the government doesn't really make a difference. Don't expect anything until it is purged, and done so on a regular basis.

      • by dryeo ( 100693 )

        The Conservatives have been appointing Supreme Court Justices long enough that now their appointees are the majority.
        Originally voted in on a "change and transparency" platform, they've since showed the change is worse for the average Canadians civil rights and the transparency is for anyone not in the government.
        Take appointing Supreme Court Justices, started out by at least getting Parliament somewhat involved in the act, the last appointee was done so quietly that I didn't even hear about the appointment

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      The ruling also said that, even if the evidence was obtained through an improper search of the phone, it's still admissible [theglobeandmail.com].

      Fearon was convicted of armed robbery in a 2009 Toronto jewelry heist. Despite finding the search of his phone wasn't reasonable and breached his rights, the Supreme Court said the search was done in good faith.

      The court kept the evidence found in the phone — a photo of a gun and a draft text message referring to jewelry that said "We did it."

      Excluding the evidence, the court found, would undermine the truth-seeking function of the justice system. The minority disagreed and would have excluded the evidence because it was unconstitutionally obtained.

      This ruling is a cowardly conceit to the End justifying the Means. It does so by completely ignoring that those means will be used for all manner of ends and not just when clearly right. I can go wander into a crowd and shoot a machine gun. If I happen to kill all drug dealing murderers, does that make it right? Of course not. This is basically the same thing. Shoot someone, see if they were wanted and then justify the blind shot since he was wanted. If he wasn't wanted? Don't mention it, lather rinse and repeat.

      Evidence should be excluded, even if a bad guy gets away, because the cops need to follow the f-ing rules.

      Basically, a bad guy got caught red handed because the cops broke the rules. Shows like 24, much less the real cops and prosecutors will never bring to trial the obviously innocent guy they arrested for clearly false reasons and expose themselves under that circumstance. They'll drop charges, offer a plea to time served and all sorts of other cons to make themselves look good.

      24 never had Keifer Sutherland beats a guy we, the audience, knew was innocent. Never showed an innocent man, at age 25 in 2014, being beaten until he confessed to killing JFKennedy, sinking the Titanic and whatever story of the week needed a confession. They don't show that shit. The closest I've ever seen was "The Shield" (great show btw) where they did torture an "innocent" guy, but the guy was only innocent of the specific crime he was being tortured for - he was a murderous drug kingpin thug and not sympathetic on any other level.

      • Evidence should be excluded, even if a bad guy gets away, because the cops need to follow the f-ing rules

        This is the part that will always make the justice system make exceptions over and over again. Remember, the bad guy isn't supposed to win. At least, that's what I learned watching television.

        • Re:Blame Canada! (Score:4, Insightful)

          by TheGratefulNet ( 143330 ) on Thursday December 11, 2014 @01:45PM (#48574639)

          except: in modern times, the bad and good guys have sort of switched roles!

          I consider most authority figures to be bad-guys or soon-to-be bad guys. power corrupts. period! so much power today for authoritarians, its guaranteed they will turn bad. no doubt at all in my mind. and look what we have, today, in our 'law enforcement' word! just read the news for a few weeks and you'll get a sample of the topsy-turvey world we now live in.

          "dont talk to cops" is a modern thing. it never used to be that way when I was growing up, but it sure as hell is a 'thing' now!

          that's just one example of the 'new normal' we find ourselves in.

          I really don't worry about terrorists or other boogeymen. but I do worry about thugs with deadly force and some random thing that would cause them to put MY LIFE at risk for some utter bullshit reason or power-trip.

          I don't need protection from the so-called bad guys. I would, however, like protection against the so-called good guys. and that's what our body of laws USED TO BE ABOUT.

          checks and balances are non-existant, now-adays.

          (unless you're rich and powerful, of course).

          • Maybe I'm naïve because I live in Canada but I don't see it being as bad as you make it to be. I'll never be naïve enough to think authorities are only working for our best interest but I'm also not willing to believe in conspiracy theories built on propaganda.

            The fact that Edward Snowden was allowed to reveal so many secrets tells me there is a lack of control on the authorities otherwise he would have been locked up and forgotten long time ago.

          • by dryeo ( 100693 )

            How old are you? I was taught to not talk to cops somewhere around '67 or '68 when graduating kindergarten. This was a time when the counter-culture was starting to roll and the establishment was willing to do anything to break it and the cops as well as city hall declared full out war on "those weirdos" who wanted fundamental rights.
            Things like the drug wars were really ramped up in that time, we were getting lots of political refugees from America with their ideology that forced them to leave the "land of

      • by Maow ( 620678 )

        This ruling is a cowardly conceit to the End justifying the Means.

        Not really. Canada is not as absolutist as the USA.

        For example, from Wikipedia [wikipedia.org] on The Canadian Charter of Rights and Freedoms:

        At common law, all evidence, regardless of how it was obtained, can be submitted in a trial.[9] The US exclusionary rule excludes all evidence acquired through the violation of the Bill of Rights. Canada has taken a middle ground, sometimes allowing for the exclusion of evidence, whenever its use threatens to bring the "administration of justice" into "disrepute."[1]

      • by Agripa ( 139780 )

        I can go wander into a crowd and shoot a machine gun. If I happen to kill all drug dealing murderers, does that make it right? Of course not.

        Law enforcement shootouts often end up with the police shooting bystanders and they are covered by qualified immunity.

    • by Anonymous Coward

      The ruling also said that, even if the evidence was obtained through an improper search of the phone, it's still admissible.

      That is consistent with Canadian law on searches.

      Unlike the USA, if you are illegally searched in Canada, the results of the illegal search might be admissible in court, provided that the illegal search doesn't "bring the administration of justice into disrepute":

      http://en.wikibooks.org/wiki/C... [wikibooks.org]
      http://en.wikipedia.org/wiki/R... [wikipedia.org]

    • by neiras ( 723124 )

      As a Canadian, I *want* to blame the USA for blazing the trail to idiotic ant-citizen laws and showing the old men who run our country how much they can screw with a lazy population with no fear of reprisals.

      But it's our own fault for allowing this to happen.

      So angry. The battle is engineering in the public interest versus government. We will have no victories in the halls of power, that much is clear.

    • Re:Blame Canada! (Score:5, Informative)

      by Mashiki ( 184564 ) <mashiki&gmail,com> on Thursday December 11, 2014 @01:33PM (#48574505) Homepage

      This really isn't news. In Canada evidence that was obtained through an improper search can be admissible anyway, so this is pretty much going along with rulings since the 1960's, reaffirmed post-1982 ratification. The law itself was updated when C-46 was passed to reorganize and fix the Criminal Code itself bringing it in line with the Charter of Rights and Freedoms. Just remember though, on appeal that same evidence that was allowed can be tossed out. Or in some cases even added in if it wasn't included in the original case. This of course is why S.7 of the charter is worded so strongly, and over the last 15 years the majority of cases have disallowed said evidence improperly obtained to be allowed.

      And this is also why the court stated in their ruling that it allows obtaining of such only via cellphones also long as there are proper notes kept. This means, the chain of evidence must be maintained, and why it's one of the key reasons that evidence gained under a improper search is thrown out. For those that don't know, we already allow "improper search" under the law--this is done via the RIDE program. [wikipedia.org]

    • The court kept the evidence found in the phone — a photo of a gun and a draft text message referring to jewelry that said "We did it."

      The guy should have just used SnapChat.

      That's what robbers, who seek external validation from their friends, do nowadays after they rob jewelry stores or liquor stores.

      I just can't believe SnapChat wasn't around in 2009.

  • I love the source document, but how about a TFA that summarizes what this is all about?

    • by Anonymous Coward

      http://www.michaelgeist.ca/2014/12/supreme-courts-privacy-streak-comes-end-split-court-affirms-legality-warrantless-phone-searches-incident-arrest/

  • The dissent (Score:5, Informative)

    by schneidafunk ( 795759 ) on Thursday December 11, 2014 @12:50PM (#48574075)

    A partial quote that summarizes the point clearly:

    "The intensely personal and uniquely pervasive sphere of privacy in our personal computers requires protection that is clear, practical and effective. An overly complicated template, such as the one proposed by the majority, does not ensure sufficient protection. Only judicial pre-authorization can provide the effective and impartial balancing of the state’s law enforcement objectives with the privacy interests in our personal computers. Thus, I conclude that the police must obtain a warrant before they can search an arrested person’s phone or other personal digital communications device. "

    • by Kkloe ( 2751395 )
      do they need a warrant to open your bag you are carrying or wallet?, or anything that can hold other things?, why should cellphones be different?
      • by Anonymous Coward

        Why do they need a warrant to search your car if you're driving around in it? Why do they need a warrant to search your house if you are there?

        • Why do they need a warrant to search your car if you're driving around in it?

          Because it would be hard to argue that the area under your spare tire in the trunk is in your "immediate control" and thus subject to search based on your arrest. And even for areas that might be argued are under your immediate control, waiting to search until they have a warrant means there would be no "but you didn't have a warrant" defense at trial.

          You might as well face it, if they arrest you in your car and impound it, they'll get the warrants they ask for.

          Why do they need a warrant to search your house if you are there?

          Fourth Amendment? Other than 1) what is i

      • do they need a warrant to open your bag you are carrying or wallet?, or anything that can hold other things?, why should cellphones be different?

        Because you could have a weapon stored in the bag or even a large wallet that could be a danger to the arresting officer. If cellphones were larger and had the potential for secret compartments in which weapons or other dangerous materials could be stored, then I'd agree with your analogy and suggest that the physical devices could be searched as well. But there's no reason an officer should be able to search data stored on the device absent a warrant.

  • the tl;dr version (Score:4, Insightful)

    by TheGratefulNet ( 143330 ) on Thursday December 11, 2014 @12:53PM (#48574123)

    "look, we have the might to do what we want, and we WANT to invade your privacy. for power-mongers like us, this is what we live for and thrive on. its why we, as bullies-with-badges, got into this field! don't take our fun away. plus, well, THINKOFTHECHILDREN and BEAFRAIDOFTERRORISTS."

    that's it, in a nutshell. the elephant in the room that no one wants to bring up.

  • ... while we are out and about and leave our smart phones at home?

    This is bat-shit crazy.

    • by geekmux ( 1040042 ) on Thursday December 11, 2014 @01:19PM (#48574385)

      ... while we are out and about and leave our smart phones at home?

      This is bat-shit crazy.

      30 years ago if you told someone that companies would work to place a GPS tracking unit on every single member of society, tracking every movement they make, along with every click, every URL, every music play, every phone call, every contact, in order to be sold over and over again...

      ...and that same society would welcome it with open arms...

      ...I'd probably be using the words "bat-shit crazy" too.

      And yet, here we are, hundreds of millions of bat-shit crazy people walking around with these "smart" phones..

      • I may have a partial answer:

        I have a passcode on my phone. How about if when asked for the passcode, I tell them, "1111," and when they enter that code, it instantly bricks the phone?

        THEN I can have a backup on the cloud and they can get a warrant for that because it's not on my person.

        Whattya think?

    • for a long time, this IS what I did. I left mine at home and chose not to risk having my privacy invaded by thugs-with-badges.

      any commercial phone that you buy, the thugs can connect a 'magic usb cable' to and get into your phone. the carriers and vendors all succumbed to the LEOs and allow this.

      but - I've seen some diy arduino (very minimalist) phones using some off the shelf gsm modules. you could, very likely, be able to create one and make it so that if there is a 'tamper' trigger, it would delete al

      • I'm with you on this.

        The part about, "destroying evidence," is dicey. Evidence only exists when probable cause exists.

        For smart phones, recall the story about cops sharing nude photos [slashdot.org]?

        While people may have been detained for some probable cause like theft, speeding, busted tail light, etc., nude selfies are not exhibits that could be submitted as evidence to support that kind of probable cause.

        Appreciate that in America, if the police get a warrant to search your house for a stolen television set, they are n

  • There's one important restriction on this new police power: they're generally only allowed to look at recently-sent / received / drafted communications. FTFA:

    the nature and the extent of the search must be tailored to its purpose. In practice, this will mean that only recently sent or drafted emails, texts, photos and the call log will, generally, be available, although other searches may, in some circumstances, be justified.

    The last bit (other searches may be justified) leaves enough wiggle-room for malicious police officers to invade privacy, but at least the principle of keeping police eyes away from data that has no direct connection to the immediate incident has been established.

    • by Anonymous Coward

      How recent is recent?

  • by Anonymous Coward

    You would likely be able to make the argument that they have searched your home without a warrant if you were to use an e-mail client that only stores the header information and does not cache the content on the phone and also use e-mail servers at your home.

    The phone is essentially the key to your home and just because they have a key to your home doesn't mean they can search it.

  • by flacco ( 324089 ) on Thursday December 11, 2014 @01:12PM (#48574307)

    I have come to understand that when courts refer to the "balance" between privacy and law enforcement or security, your privacy is about to get fucked in the ass.
     

    • by Maow ( 620678 )

      I have come to understand that when courts refer to the "balance" between privacy and law enforcement or security, your privacy is about to get fucked in the ass.

      In a report [thestar.com] on a previous ruling,

      The Supreme Court of Canada says police need a search warrant to get information from Internet service providers about their subscribers’ identities when they are under investigation.

  • We Are Not Alone (Score:4, Insightful)

    by dcw3 ( 649211 ) on Thursday December 11, 2014 @01:13PM (#48574309) Journal

    Glad to see our northern neighbors have joined us in our efforts to keep the ends justifying the means. /sarcasm

  • by Anonymous Coward

    [b] Encrypt the whole device. [/b]

    Use an App Lock and set passwords for each and every app on the device.

    Use different passwords depending on the type of app if not a unique password for every app.

    Refuse to unlock your device if (when) asked.

  • by Anonymous Coward

    The US Department of Homeland Security only needs to look in a mirror to find real terrorist.This is also applicable to Canada.

  • This is disappointing, as I've always seen Canada as much more "progressive" with these types of issues. It smells of pressure from the US government, though (hm, I wonder!).

    This will simply lead to more clever, dynamic and uncrackable encryption tactics. Making it even more difficult. So be it, I can spare the CPU cycles, my phones are getting more and more powerful. :-)

    • by dryeo ( 100693 )

      We've had a right wing government that is really good friends with the American Republican Party for long enough that they've appointed the majority of the Supreme Court.
      They believe that we should only have enough government to repress us and no more much like small government Americans.

  • Password protect your phone, then don't give them the password until they obtain a warrant. Done.

    • by vux984 ( 928602 )

      Password protect your phone, then don't give them the password until they obtain a warrant. Done.

      And there lies the rub. A 4 digit code is all but worthless to secure my private data. And a proper password makes the phone to inconvenient to actually use.

      For the moment, I've got my phone protected by a passphrase and fingerprint (Samsung Galaxy S5) but I don't really like Androids implementation:

      a) It won't fail over to passphrase only after x failed fingerprints. It should.

      b) And after x (5?) failed fingerp

      • by DMUTPeregrine ( 612791 ) on Thursday December 11, 2014 @03:05PM (#48575497) Journal
        For rooted phones, the Cryptfs Password app (Or any terminal emulator app) can be used to change the device encryption password without changing the unlock password. The encryption password is only needed on bootup, so be sure you have a way to quickly shut the phone down (lockscreen widget, customized power button long-press, etc).
      • by Anonymous Coward

        And there lies the rub. A 4 digit code is all but worthless to secure my private data. And a proper password makes the phone to inconvenient to actually use.

        You're confusing the sort of password needed to resist offline cracking, versus the sort needed to protect a hardware device. A four digit code is slightly over 13 bits and so would be almost instantly cracked if used as an encryption key or otherwise subject to offline cracking. A four digit code used for security on a device with physical access is much stronger. If the device allows you to try 4 codes then times out for 30 seconds, it will take 1,250 minutes to access the device if someone keeps trying.

        • by vux984 ( 928602 )

          You're confusing the sort of password needed to resist offline cracking, versus the sort needed to protect a hardware device.

          No. I am not.

          A four digit code used for security on a device with physical access is much stronger. If the device allows you to try 4 codes then times out for 30 seconds, it will take 1,250 minutes to access the device if someone keeps trying.

          Sure.

          That assumes the attacker has no knowledge. Simple inspection of the screen is is often enough to guess which 4 digits are being used; due

    • They have gadgets that just suck the data off your phone. My friend here in the US had one used on his during a traffic stop because the police know his history. They just plug it in suck down the data and don't say a word (before Riley). Encryption should work, but I don't think a screen lock is going to help much, though it doesn't hurt. The reality is the only %100 effective method is to never have anything incriminating on your phone EVER. GPS is a sticky wicket because your whereabouts could be recorde

    • you can't be serious, can you?

      don't you realize that cops have magic usb cables to unlock data on any commercial phone sold in the world in the last 5+ yrs?

      your little 'lock screen' gets laughed at. calea also laughs at your 'concept of privacy' that you THINK you have, but really don't.

      one poster did have a semi-good idea: keep your phone turned off and locked in the trunk inside another item that is locked. if its on on you, its under a different catagory (if I understand correctly) and so the threshold

      • by xtal ( 49134 )

        Actually, no.

        If you have a proper password, the magic cables will not work on iOS. It doesn't take long to brute force a numeric 4 digit. It takes a lot longer if that gets complicated; of course, that's harder to use, too.

        "I do not consent to any search of my vehicle or my person"

        "Am I free to go or am I being detained?"

        "I want to speak with an attorney"

        Magic words. If police have probable cause they don't need to ask; use the magic words and it'll stay that way.

    • It is unfortunate the ruling did not really address the concept of password protection whatsoever (ostensibly since it was not part of the facts in this case), though given that I'm assuming that part of the jurisprudence under appeal still holds.

      That would be the same case, when it was in Ontario court;

      [75] If the cellphone had been password protected or otherwise "locked" to users other than the appellant, it would not have been appropriate to take steps to open the cellphone and examine its contents

  • Since for many users their smartphones are the interface to the Cloud and in some cases services are provided only through the Cloud, when permission is granted by the Supreme court to police officiers to search a phone, provided they document what they are doing, it may include going much further than the smartphone itself and it includes searching the web if someone has enable automatic login to web services. This decision from the Supreme court is flawn and very imprecise.

    • by Striek ( 1811980 )

      This was actually discussed in the dissenting opinion:

      [132]
      In short, the cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices. It is not just the device itself and the information it has generated, but the gamut of (often intensely) personal data accessible via the device that gives rise to the significant and unique privacy interests in digital devices. The fact that a suspect may be carrying their house key at the time they are arrested does not justify the police using that key to enter the suspect’s home. In the same way, seizing the key to the user’s digital life should not justify a wholesale intrusion into that realm. Indeed, personal digital devices are becoming as ubiquitous as the house key. Increasingly large numbers of people carry such devices with them everywhere they go (be they cell phones, mobile computers, smart watches, smart glasses, or tablets).

      Which then went on to mention that cellphones differ from most forms of evidence in that the may continue to generate evidence after initial siezure, can continue to generate data and/or evidence unknown to the owner, and may impact the privacy of third parties as well, unbeknownst to them.

      Also - this is not a blanket inclusion of all cellphone searches incident to arrest. The majority opinion emphatically states that:

      [79]
      The law enforcement objectives served by searches incident to arrest will generally be most compelling in the course of the investigation of crimes that involve, for example, violence or threats of violence, or that in some other way put public safety at risk, such as the robbery in this case, or serious property offences that involve readily disposable property, or drug trafficking. Generally speaking, these types of crimes are most likely to justify some limited search of a cell phone incident to arrest, given the law enforcement objectives. Conversely, a search of a cell phone incident to arrest will generally not be justified in relation to minor offences (emphasis mine).

      [83]
      To summarize, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with s. 8 where:

      (1) The arrest was lawful;

      (2) The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

      (a) Protecting the police, the accused, or the public;

      (b) Preserving evidence; or

      (c) Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest;

      (3) The nature and the extent of the search are tailored to the purpose of the search; and

      (4)The police take detailed notes of what they have examined on the device and how it was searched.

      And places the onus on the Crown to

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