The ubiquity of technology has changed our privacy expectations. Nowhere is the change more obvious than with portable electronic devices. In the last decade the capacity to store and carry information has exploded. Courtesy of Edward Snowden, we know the state is delighted with the supply side. It has eagerly gobbled up every microbit of information we dare commit to the Ethernet. The need to protect and secure data has grown in lock step with the supply. Are the courts keeping up with the demand?
The Canadian and U.S. Supreme Courts are racing to decide a hot-button digital privacy issue: the legality of warrantless cellphone searches. Do cellphones, tiny libraries of private information, deserve special privacy protection? Or should the courts treat them like lint or anything else that might be found in your shirt pocket?
In Fearon, the Ontario Court of Appeal refused to exempt cellphone searches from the ordinary police power to search after arrest. (See Cellphones are just like a shirt pocket.” Wha? for our take on the Court of Appeal’s decision.) The Supreme Court will hear the case in May 2014. Meanwhile, the U.S. Supreme Court recently agreed to consider two cases — United States v. Wurie and Riley v. California — that raise the same question. It has promised to decide whether warrantless cellphone searches are legal under the Fourth Amendment. The cases will be argued in April.
This trio of cases should answer some interesting questions:
- Will the U.S. Supreme Court import the (relatively new) Canadian principle that computers are fundamentally more private and attract more protection than other searchable items like cupboards and filing cabinets?
- Will the courts develop different rules for different devices? In Wurie and Fearon, the defendants had primitive flip phones that are no longer in production. In Riley, the phone seized and searched by police was a Samsung touchscreen “smartphone” – almost everyone you’ll see today has one. Its capacity to store private information about its owner is far greater than that of a flip phone. Will that change the privacy analysis, the result or both?
- How much wiggle room will the courts leave for judges to protect privacy as technology expands? Snowden’s leaks and a series of high profile cyber-attacks (think Stuxnet or Friday’s attack on the US Federal Court database) show that the rest of us need protection from law enforcement, intelligence agencies, hackers and criminals alike, all while enjoying the benefits of electronic devices. Can the courts be flexible enough to sculpt rules that maximize freedom and privacy?