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."
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."
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?
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.
Obviously, giving officers the ability to search phones without a warrant is a bit troubling. However, the Supreme Court has made it abundantly clear that phones without pass-codes still contain intensely private information, and thus are still subject to privacy implications. It's just unfortunate that this bit narrowly passed. (4-3)
> An individual’s decision not to password protect his or her cell phone does not indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone. Cell phones – locked or unlocked – engage significant privacy interests.
- The majority ruling's statement[0]
>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?
It's a problem all right, because the police could arrest someone for littering, find evidence of drug dealing in a phone, and then retroactively claim some suspicion of the latter in order to justify more severe charges.
The technical approach to this would be to clone some existing version control system and have a country's court system run its own equivalent of GitHub, so that police could submit crimes and evidence as they are investigated/discovered but not monkey about with their own records. Of course such a system would not be cost-free, and it would still be open to abuses from both sides.
The version control system you describe was originally designed for text-based code, and would probably impose significant time costs on the officers, and delays on the suspects. Police cameras, which could be required to be turned on at any stop, or before any search/arrest would provide the same information (if the officers were required to state their cause aloud). The cameras could even be set to save 5, 10, or 15 minutes of footage before 'activated', so that the police would not be able to claim they 'were in a rush'. This system could also be automatically activated by a gunshot or other sound.
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.
Fair enough. Now how do they plan on enforcing these rules?
The way they always have, in court. If the prosecutor submits evidence taken from a phone, but doesn't show the gathering of that evidence falls under the rules, the evidence gets thrown out.
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
There may be case law that covers this, but I am genuinely curious.