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law & constitutional rights

Patrina Fraser, girlfriend of Rodney Stafford, wears a t-shirt and button with the message "Justice for Tori", outside the courthouse at the Michael Rafferty murder trial in London, Ont., Friday, May 11, 2012.Dave Chidley/The Canadian Press

The headlines were as much about the evidence a London, Ont., jury never heard as they were about the evidence used to convict child-killer Michael Rafferty.

Disturbing web searches and downloads from his laptop were kept from the jury that still convicted him of the murder of eight-year-old Victoria (Tori) Stafford. The exclusion had to do with the search warrants police had obtained for his two addresses, which did not separately cover his laptop. The move reflected an emerging point of law that computers and other digital devices contain so much personal data that police need special permission to sift through them.

It's the latest in a stream of cases that illustrate the legal world's struggle to adapt long-held principles to a rapidly changing digital age. Judges, police and lawyers are facing a shifting legal landscape as the justice system grapples with the question of when and whether the vast amounts of data stored on computers and smartphones can be used in court.

At issue is how to preserve constitutional rights to privacy and to the protection from unreasonable searches in the face of the exponential growth in valuable data that now sits on your iPhone or laptop for the taking.

Every e-mail or text you send, everything you buy or search for online, is silently filed electronically. The question of who can use that information extends into almost every possible court fight, not just high-profile criminal trials: wrongful dismissal cases, insurance claims and child-custody battles. And it is an area of the law that is shifting quickly, although not as quickly as the technological change driving it.

The ruling that excluded Mr. Rafferty's laptop followed a 2009 decision in the trial of Chris Little, a Markham man charged with a double murder, that faulted police for failing to obtain a second warrant to examine the contents of his cellphone, which they had seized from the murder scene. At the core of both cases is the notion that a laptop or smartphone, because of its vast stores of data about every portion of its owner's life, is not just another object that can be picked up in a police search. It is now legally considered another "place" to be searched, and police must be specific about the information they are seeking there.

"You can see them as portals to vast amounts of information," said Abby Deshman, a lawyer with the Canadian Civil Liberties Association. "The privacy implications of giving police an untrammelled right to sift through personal details on a home computer are quite vast." Ms. Deshman points out that police can still get access to a suspect's computers and smartphones – they just have to get proper warrants, proving that they believe relevant evidence is there to be found.

Other cases that confront new problems are working their way through the system. The Supreme Court of Canada is poised to hear a challenge of an Ontario Court of Appeal ruling that said a high-school teacher from Sudbury, Ont., was entitled to a right to privacy on a work-issued laptop where it is alleged that nude pictures of an underage student were found. The appeal court ruling appeared to upend an established notion in employment law that work computers and cellphones, and the data on them, are the property of the employer.

Meanwhile, the case of a Toronto man accused in a gunpoint robbery is headed to the Ontario Court of Appeal, as the defence tries to have photos from the man's cellphone – seized by police when he was arrested – thrown out. And last year, the province's appeal court ruled that the Crown could pursue charges based on child pornography found on a seized computer, despite the fact that the initial search was in connection with fraud allegations.

High-profile cases have been vexing U.S courts as well. Just this week, a New Jersey court ruled that a trucker accused of smuggling marijuana did not have to hand over his BlackBerry password to police, although a recent federal court ruling allows police to search cellphones without a warrant. The New York Court of Appeal also ruled this week that merely viewing child pornography online was not the same as possessing it, throwing out a conviction.

The law may differ on both sides of the border, but one thing is clear: The courts are in a constant state of rewriting the rules.

"I don't think it's about reinventing the wheel. I think courts are going to have to adopt … a 'living tree' approach, where they revisit all these questions in light of dynamic change," said University of Ottawa law professor Karen Eltis, author of Courts, Litigants and the Digital Age.

Having the government try to legislate new rules would be pointless, she adds: "By the time the ink dries, and the political compromises are reached, the law is probably outdated."