Technology affects law, and law affects technology, because they both change over the years. But the fundamental principles underlying our laws and our rights remain constants, even as technology advances.
Some police forces and security agencies appear to be tempted to think that new techniques and devices bring to the world something entirely new, with no connection at all to the older ways of doing law or respecting rights. Consider how some agencies have apparently been gaining access to information on smartphones, without first seeking judicial authorization.
Some agencies have acquired and used devices known as "international mobile subscriber identity" catchers, or IMSI. These can discover much about the owners of the phones. Entities with access to cell phone towers can mop up huge quantities of other people's communications. And masses of data from one group can "trick" other masses of data into handing them over.
Christopher Parsons of the University of Toronto and Tamir Israel of the University of Ottawa have written a useful report questioning the unfettered use of this new tool. They point out, in polite legal language, that "some state agencies might believe they can use these devices without prior judicial authorization." If police or others are using IMSI catchers to go on informational fishing expeditions, without a warrant, that may violate the Charter.
Privacy is an ancient concept, and with good reason. Police do not have the right to enter your home and go through the contents of your filing cabinet without a warrant; the same principles must be applied to your electronic filing cabinet on your computer or smartphone. Policing in the 21st century should still adhere to the best standards of the past few centuries. To search that which is supposed to be private and closed, first show a judge that you have reasonable suspicion of wrong-doing, enough to justify entry by means of a search warrant.
But the advance of technology, and the resulting legal confusion, mean that lines are literally getting crossed. In one bizarre case, prison guards at the Warkworth Institution in Ontario seem to have had their personal phone calls intercepted by an IMSI, which the institution was using.
It's high time to get the wires disentangled.