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Cellphone searches upon arrest allowed by Canada's top court

cbc.ca

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Re: Cellphone searches upon arrest allowed by Canada's top court

#11

Post by adekok »

thangalin wrote: post #8
noarchy wrote: post #6

And what if I have an encrypted phone? Can I be compelled to turn over my password? Or my thumbprint? If I use the equivalent of a dead man's switch that wipes my phone if law enforcement tries unsuccessfully to get in, what then? There may be case law that covers this, but I am genuinely curious.

"if the cell phone 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 cell phone and examine its contents without first obtaining a search warrant." http://www.michaelgeist.ca/2013/02/fearon-decision/ http://www.canlii.org/en/on/onca/doc/2013/2013onca106/2013on... http://www.cbc.ca/news/politics/cellphone-searches-upon-arre…

By that logic, the police should be able to search your house or car if they're not locked.

The Canadian Supreme Court isn't known for it's intelligent decisions.

http://www.ctvnews.ca/w5/justice-system-scrutinized-woman-hi...

Re: Cellphone searches upon arrest allowed by Canada's top court

#12

Post by CamperBob2 »

morninj wrote: post #3
hnnewguy wrote: post #2

> The Supreme Court of Canada says law enforcement officials can go through the cellphone of someone under arrest as long as the search relates directly to the arrest and police keep detailed notes. Fair enough. Now how do they plan on enforcing these rules?

In the United States, evidence from an illegal search can't be used at trial. In Canada, the trial judge has the option to exclude illegally gathered evidence.

In the United States, evidence from an illegal search can't be used at trial.

Of course, parallel construction renders this traditional protection utterly meaningless.

Re: Cellphone searches upon arrest allowed by Canada's top court

#13

Post by jacobolus »

duaneb wrote: post #7
noarchy wrote: post #6

And what if I have an encrypted phone? Can I be compelled to turn over my password? Or my thumbprint? If I use the equivalent of a dead man's switch that wipes my phone if law enforcement tries unsuccessfully to get in, what then? There may be case law that covers this, but I am genuinely curious.

I can't speak for Canada, but in the US, if a judge orders you to provide a password, you have no choice. If you don't hand it over, this will result in you living broke forever in a prison—and you got your due process.

That’s overly reductionist. http://federalevidence.com/pdf/EvidViewPoints/aug.2012.EVP-K...

Re: Cellphone searches upon arrest allowed by Canada's top court

#14

Post by [deleted] »

duaneb wrote: post #7
noarchy wrote: post #6

And what if I have an encrypted phone? Can I be compelled to turn over my password? Or my thumbprint? If I use the equivalent of a dead man's switch that wipes my phone if law enforcement tries unsuccessfully to get in, what then? There may be case law that covers this, but I am genuinely curious.

I can't speak for Canada, but in the US, if a judge orders you to provide a password, you have no choice. If you don't hand it over, this will result in you living broke forever in a prison—and you got your due process.

[deleted]

Re: Cellphone searches upon arrest allowed by Canada's top court

#15

Post by emptybits »

If law enforcement has sufficient cause to arrest someone, then getting a search warrant after the arrest should be easy.

If it wasn't easy to obtain such warrants then either that aspect of judiciary or policy needed changing, or else it wasn't easy for a good reason!

This decision does not address (or change) whether one can be compelled to reveal a password-locked phone in Canada. At least one Canadian Civil Liberties Association suggests this decision this raises more questions than it answers. https://twitter.com/bccla/status/543124869240471552

Re: Cellphone searches upon arrest allowed by Canada's top court

#16

Post by amalcon »

The HN title matches the article title, but it's somewhat misleading. The court actually ruled that the particular case before it was not a legal search, and that cellphone searches are only allowed under specific circumstances.

It looks to me as though the circumstances are a bit too broad, but it's not as though Canadian police will suddenly be allowed to search the cellphones of everyone they arrest.

Re: Cellphone searches upon arrest allowed by Canada's top court

#17

Post by code_duck »

thangalin wrote: post #8
noarchy wrote: post #6

And what if I have an encrypted phone? Can I be compelled to turn over my password? Or my thumbprint? If I use the equivalent of a dead man's switch that wipes my phone if law enforcement tries unsuccessfully to get in, what then? There may be case law that covers this, but I am genuinely curious.

"if the cell phone 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 cell phone and examine its contents without first obtaining a search warrant." http://www.michaelgeist.ca/2013/02/fearon-decision/ http://www.canlii.org/en/on/onca/doc/2013/2013onca106/2013on... http://www.cbc.ca/news/politics/cellphone-searches-upon-arre…

The judges in the case in this article say differently:

"The majority also found that whether someone has protected their phone with a password doesn't carry much weight in assessing that person's expectation of privacy.

"An individual's decision not to password protect his or her cellphone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone," Justice Thomas Cromwell wrote."

Re: Cellphone searches upon arrest allowed by Canada's top court

#18

Post by adgr72 »

duaneb wrote: post #7
noarchy wrote: post #6

And what if I have an encrypted phone? Can I be compelled to turn over my password? Or my thumbprint? If I use the equivalent of a dead man's switch that wipes my phone if law enforcement tries unsuccessfully to get in, what then? There may be case law that covers this, but I am genuinely curious.

I can't speak for Canada, but in the US, if a judge orders you to provide a password, you have no choice. If you don't hand it over, this will result in you living broke forever in a prison—and you got your due process.

I have so many passwords that in the past I've lost access to certain encrypted files. Not even if I wanted to provide the password I would be able to. Could this be a sufficient argument in not being able to provide a decryption key?
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