This op-ed appeared in the Globe and Mail on March 16th, 2015.
Imagine police being able to access your communications, private photographs, call logs, records of places you’ve been and other minute and private details of your life. On Dec. 11, 2014, the Supreme Court of Canada effectively made this information available when they ruled that police can, without a warrant, search the cellphones of people under arrest in certain conditions. This decision is another backward step in the ongoing struggle to protect digital privacy.
First, cellphones are the sites of our digital lives, and they contain an ever-increasing portion of our personal lives, making them much more than simply telephones in our pockets. Cellphones are portals into every aspect of our existence: What we’ve written to whom, what pictures we have taken, who’s in our contact list, which websites we have viewed. If your phone is linked to your home computer, social networks or cloud storage accounts, it’s possible to find out nearly everything about you through a search of your phone.
In the wrong hands, that kind of power is something to fear. The court decision states that searches must be directly related to an arrest and that the officer must keep detailed notes. But who is to say, in the heat of the moment, what “directly related” means? And what if an officer sees an intimate photo, a draft of a sensitive business document, an e-mail outlining sensitive political views, and doesn’t make a note of it? Can the officer forget she saw it? Can the arrestee forget the feeling of violation? What protection do “detailed notes” offer against invasion of privacy, and how does the absence of such notes prove that privacy wasn’t violated?
Officers being human, susceptible to both error and bad judgment, there is no reason to assume that every instance of this kind will go strictly by the book.
We should not be made complacent by the fact that only “criminals” will have their digital lives laid bare. It is not uncommon for people to be arrested or detained without ever being convicted of a crime. This means that anyone whom the police suspect of committing an offence is at risk. You might be marching in a protest in downtown Toronto and arrested for failure to disperse – or, as happened to many during the G20 protests, for no reason at all – and the police would then be able to go through your phone.
In a time when government cybersurveillance has become a cause for major concern, this decision seems to be yet another blow against the laws that used to protect us. Should the current trend continue, Canadians will soon have no right to digital privacy at all. Already we know that the government has the ability, if not the legal right, to find out anything it wants about us, simply by making use of information-sharing agreements with other Five Eyes nations as well as CSEC surveillance capabilities. The Supreme Court’s ruling makes such invasions of privacy possible through our physical devices as well – police officers can now remove our phones from our pockets and peruse them at their leisure. All they need to do is find a reason to arrest us first.
But the best protection against intrusive laws is not to have them in the first place. Unfortunately, in this case, this is no longer an option.
Officers being human, susceptible to both error and bad judgment, there is no reason to assume that every instance of this kind will go strictly by the book. What will be done with the information they gather? Who will they be reporting it to? How do we trust that it won’t be misused and added to the millions of megabytes of data and metadata that are already collected about Canadians every day through projects like Levitation? How do we know photographic or audio evidence of police misconduct won’t be deleted?
There are a few things you can do to protect yourself against this kind of intrusion, but your privacy is not guaranteed. A simple step is to password-protect your phone. For now, the police cannot compel you to give up your password, although they may use other means to access your data. It would also be wise to create a video or audio record of your encounters with police, and to connect your smart phone to a cloud storage service, so that pictures and audio are immediately uploaded. However, this does not necessarily protect your files from “accidental” deletion during a search, and it may allow police to access your other documents online.
But the best protection against intrusive laws is not to have them in the first place. Unfortunately, in this case, this is no longer an option.
William Kowalski is a member of PEN Canada’s National Affairs Committee and the author of The Hundred Hearts, published by Thomas Allen, and seven other books. He lives with his family in Nova Scotia.
