Those of you who own a cellphone (uh, everybody) understand that it is six ounces of pure personal privacy. It contains your call history and text conversations, photos, contact information of friends, and family and if you have a smartphone, your emails, music, books, media, day planner and browsing history.
In Ontario, this information may be no more private than a lint ball. Two days ago, in R. v. Fearon, the Ontario Court of Appeal applied the well-established legal principle “if it ain’t broke don’t fix it” and refused to exempt cell phone searches from the broad police power to search incident to arrest.
Under an old common law rule, the police are allowed to search a person and their immediate personal effects at the time of arrest. The search has to be reasonably connected to the arrest—your pockets are an obvious target. Fearon argued that searching his phone was intrusive and unnecessary. The Court said no, coming down in favour of the police. It refused even to decide the limits on how far the police can go in rooting around in your cell phone before the search becomes, well, just unconstitutional.
Is this a sound analysis? Assuming the search power “ain’t broke” ignores the fact that the men who developed it kept contact information on Rolodexes and sent letters by mail. It is dangerous to assume that the search power works for cell phones because it has worked for everything else.
By now, everyone knows that cell phones are fundamentally different from the other stuff you keep in your pockets.
- They contain evidence relating to intimate aspects of your existence. When was the last time you put a summary of your private life, narrated by personal conversation, in your wallet?
- The degree to which your device records your personal data is astonishing. The police are trained to search parts of the phone system and browser history that can capture your soul—work, leisure and romantic habits. On the privacy continuum, the cell phone is more like your therapist’s notes than your shirt pocket.
The law needs to evolve more quickly to keep pace with the constant and pervasive challenges to privacy in modern life.