Cellphones, privacy and search warrants: recent decisions

Two recent appeals help to clarify privacy expectations with regard to cellphones. A third sounds a warning for workplaces where the lines between work and personal use are blurred.

In R. v. TELUS Communications Co., 2013 SCC 16, the Supreme Court found that police need a wire tap warrant, not simply a general warrant, to obtain copies of text messages.

“The only practical difference between text messaging and traditional voice communications is the transmission process,” the court found.

The search warrant in question was found to be insufficient; it was related to copies of text messages that Telus held for a short time — not to intercepted messages.

Read the decision here:

For discussion and context:

Password = Privacy Expectation

In a similar case, the Court of Appeal for Ontario ruled that if a cellphone is not password-protected, police making an arrest can search it without a warrant.

The court dismissed the appeal by Kevin Fearon of an armed robbery conviction. Fearon had argued his rights against unreasonable search had been breached.
 After he was arrested in relation to a jewellery store theft in 2009, a police officer conducting a pat-down search found a cellphone in Fearon’s pocket.
 Officers found the cellphone contained photographs of a gun and cash, and an incriminating text message.

This case does not establish any new legal tests. It endorses the principles of plain sight and expectation of privacy, applying those to new technology.

The court anticipates that future cases related to communication devices will lead to the development of legal tests, as issues are brought before appeal courts.

Fearon makes a distinction between cell phones used in a manner similar to a mini-computer, to which a higher level of privacy is attached, and a device used for communication purposes only.

The February decision is R. v. Fearon, 2013 ONCA 106

Privacy Expectations at Work

Another Supreme Court decision affects workplace computers, privacy, and search warrants. R. v. Cole is an important decision for employers and employees alike. When personal use of a computer is permitted or reasonably expected, the employee has an expectation of privacy.

“Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected,” the Court writes.

Read R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34 at:

Context and discussion:

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