The Supreme Court of the United States is often sharply, ideologically divided in its judgments, but last Wednesday its judges were unanimous that the police need to have a search warrant to get access to someone’s cellphone.
Most of the recent debate on police access to cellphones in Canada has been about the startling frequency with which wireless carriers have been providing access when they are asked to do so, unknown to the customer, without any search warrant – all in the wider context of electronic surveillance by a range of agencies.
The pair of decisions at the U.S. Supreme Court are not only welcome in themselves, but they bring the issue back to the basics of interactions between citizens and the state. In one case, a man was stopped because of a routine breach of traffic regulation, which led to weapons charges; in another, a drug transaction was observed. In both, the police legally made an inspection of the suspects’ pockets, looking for objects such as a gun. In each case, though, they also went through the suspects’ cellphones. By doing so, they found leads and evidence, and laid other charges. The highest U.S. court has now said that the police, by going on a warrantless fishing expedition into someone’s electronic device, went too far.
In contrast, last year, the Ontario Court of Appeal in the case of R. v. Fearon thought it perfectly legal for police to make use of a “cursory” examination of the contents of somebody’s pockets – including their cellphone.
Four centuries ago, a man’s home was said to be his castle, and warrantless searches were not permitted. Sir Edward Coke, the English judge who made that phrase famous, could have hardly conceived of the potential losses of privacy today. Your smartphone is vast in its contents. It is a database of addresses, calls, texts, photos and more, and it’s not a stretch to say that it holds more than any home or castle. As U.S. Chief Justice John Roberts put it, “A cellphone search would typically expose to the government far more than the most exhaustive search of a house.” He and his colleagues have demonstrated a better understanding of the meaning of privacy than the Ontario Court of Appeal.