Something about the image of Big Brother sifting through cellphone records of 7,000 law-abiding citizens touched a nerve in Mr. Justice Michael Quigley of the Ontario Superior Court.
In a ruling several weeks ago, Judge Quigley denied police the fruits of their “high-tech fishing expedition” – uncovering a series of cellphone calls that potentially linked several suspected jewellery store robbers.
It was a classic clash between privacy and new technology, and Judge Quigley was intent on applying aging provisions to a scenario never anticipated by those who drafted them.
The police theory that precipitated the seizure had been simple. Reasoning that the robbers had probably used cellphones to execute their $500,000 heist, officers obtained a warrant to seize records for every call placed through two local transmission towers over the course of a critical, two-hour period.
In ruling the seizure unconstitutional, Judge Quigley observed that admitting the information would mean approving “an astonishingly intrusive ‘snooping' technique available to police – instead of encouraging the police to respect the legal parameters set by the Criminal Code and the Charter that limit their actions.”
The issues in the case were relatively straightforward, compared with those in a 2007 British Columbia case involving a seized BlackBerry.
The defendants – David Giles, David Revell and Richard Rempel – had been charged with cocaine trafficking, based partly on the content of 164 heavily encrypted messages stored on the memory chip of Mr. Rempel's BlackBerry.
It remained for Madam Justice Anne MacKenzie of the B.C. Supreme Court to decide whether the police had seized private communications without a wiretap authorization. She reasoned that, since the messages existed in a stored state, their seizure could not constitute an interception. Rather, she said they had been properly seized and extracted under the common law power of search incidental to arrest.
The problem both judges faced was an obligation to use laws written at a time when communications tended to involve pens, paper, file folders or a single telephone call.
“The courts are really struggling with how to reconcile the realities of technology with our own expectations about what it means to live private lives without the intruding eye of government,” says Scott Hutchison, an expert in both privacy and new technology.
Mr. Hutchison, a lawyer with Toronto-based Stockwoods LLP Barristers, said exotic legal dilemmas of this nature are arising with increasing frequency. Are utility power consumption records fair game for seizure? Is there a privacy right in the heat that emanates from your home, which police can potentially monitor for signs of marijuana grow operations?
“What really has to happen is a complete rethinking,” Mr. Hutchison said. “We cannot continue to talk about [electronic] file folders, e-mail and documents as if they were the same thing as paper folders, paper documents and letters. They have completely different properties, and our expectations around them are completely different. We can't simply take all the old cases dealing with searches and staple them onto the technology world.”
Taking BlackBerrys as an example, many people use them as a combination telephone, mailbox, photo album and schedule planner. It is too much accumulated information for police to simply have access to it all without compromising basic privacy, Mr. Hutchison said. The degree of potential intrusion is not, as he puts it, “controllable.”
He argues that the definition of what constitutes a “reasonable” search has got to change: “The real issue is not making electronic information off limits, but making sure that access is regulated using the same values as we apply to regulate real-world searches.”
Similar issues arise with laptops, another trove of personal and professional information. In a financial misconduct case, a police search should be restricted to pertinent material. “The problem is that what police regularly do is look at every single document on that computer,” Mr. Hutchison said.
His solution is the creation of “minimization requirements,” which limit the extent of the electronic intrusion to identifiable objectives – and nothing more.
Meanwhile, in a civil law context, unconfined searches have created a field day for lawyers seeking disclosure. “People say things in e-mail as if they are whispering in the ear of the person beside them and it's going to disappear into the air,” Mr. Hutchison said. “There is a joke in the civil bar that e-mail stands for ‘evidence-mail.' “Between the inevitability of using the computer and the power of forensic tools that are available today, you will almost inevitably find highly incriminating evidence that's on those computers.”
In a recent case, Mr. Hutchison's corporate client suspected that a departing employee had appropriated intellectual property with the intention of delivering it to his new employer. However, the employee mistakenly thought that he had deleted every trace in his company computer of his planning efforts, and that, by using an Internet-based account, he had left no traces of his e-mail trail.
What the employee didn't realize was that a cache containing his e-mail was located temporarily in local storage. It had a copy of the images of e-mails that he had been sending back and forth while hatching the plan.
Not surprisingly, the wealth of information that can be obtained has led to a significant increase in the use of Anton Piller orders – a civil remedy that functions as a search warrant, freezing property before a potential defendant has a chance to destroy or obscure electronic evidence.
In the electronic age, there are an ever-increasing number of tentacles being added to the information-gathering octopus, and the legal world is struggling with their grasp.
