The ruling, which can be read in full here, permits law enforcement to search text messages, photos, emails, and call logs — all without a warrant and with no judicial oversight. It’s difficult to overstate just how invasive such searches can be. Fifty-five per cent of Canadians now use smartphones that hold an enormous amount of information about our private lives. And, as the dissenting justices point out in the narrow 4-to-3 Supreme Court ruling, you don’t even need a smartphone to be at risk: “Even dumb cell phones enable access to text message history, which can provide a transcript of years of private conversations” in addition to “pictures, call history, and contacts.”
Journalists bare their watchdog teeth
It’s no wonder journalist Heather Mallick describes this narrow Supreme Court ruling as “one of the most sinister in its history.”
“Though I try to delete everything dodgy — it is a work phone — the fact is, it is not a mere snapshot, it is an oil painting built up over years. There are more personal details in my cell phone than in my house, which ironically the police do need a warrant to enter.”
In their strongly worded opposition, the three dissenting justices led by Justice Karakatsanis got right to the heart of the matter. “In short, the cell phone acts like a key or portal which can allow the user to access the full treasure trove of records and files that the owner has generated or used on any number of devices.”
Vague parameters lead to questions
The court did set some limits to the scope of searches, but kept them problematically vague. For example, where the ruling suggests police should search only “recently sent or drafted” emails, text messages, photos and call logs, it then goes on to say that “these are not rules, and other searches may in some circumstances be justified.”
The ruling was not a hit with Canadians online. OpenMedia, Canada’s leading digital rights organization, and my employer, had its Facebook page inundated with hundreds of outraged comments.
Here’s just a flavour. “The logistics of it are insane - I work in a trade with time sensitive private corporate information. If I got arrested for something trivial, that does not give them right to snoop through sensitive emails and such. What if they leaked something and I was later found innocent and released? It’s a potential nightmare.”
The ruling came as a surprise, given that the same court unanimously ruled in favour of strong digital privacy rights in June. It’s also all the more disappointing given that earlier this year the U.S. Supreme Court ruled unanimously that police cannot search cell phones without a warrant.
Canada behind the States on privacy
That Canadians now have fewer cell phone privacy rights than Americans should be a warning call to all of us. And, sadly, this alarming Supreme Court ruling comes on top of a whole series of recent threats to the digital privacy of Canadians.
These include the passage of Peter MacKay’s wildly unpopular online spying Bill C-13; shocking revelations about the government’s spy agency, Communications Security Establishment Canada, monitoring law-abiding Canadian air travellers; and news that the government is building a comprehensive new system to collect and analyze what Canadians are posting to social media.
What can Canadians do about this? Chris Malmo, writing in Vice, recommends that Canadians set strong passcodes on their phones. According to the legal experts Open Media has spoken to, police do not have the power to compel you to hand over your passcode. And if your phone has built-in encryption, then use that too.
The vulnerable should not need to secure themselves
But Canadians shouldn’t have to resort to technical measures to secure their privacy from the state. And given the current government’s terrible track record, the situation will continue to worsen unless we push back. Justice Minister Peter MacKay is already threatening to introduce spying powers even more invasive than his recently passed Bill C-13.
In light of the Supreme Court ruling, it’s clear Canadians cannot rely on judicial interpretation of Section 8 of the Charter of Rights and Freedoms, which protects against unreasonable search and seizure, when it comes to safeguarding the privacy of their cell phones. However, there’s nothing to stop any government from passing comprehensive privacy legislation to ensure Canadians can be as secure in their digital homes as they are in their bricks-and-mortar residences.
The government may or may not shift
Nobody’s holding their breath for action from the current government. MacKay has already given the Supreme Court ruling a warm welcome, and it ties in nicely with his government’s broader anti-privacy agenda, even despite massive concern from grassroots principled conservatives.
However, 2015 is an election year, and Canadians will finally have a chance to hold politicians of all stripes to account for their stance on privacy. With polls revealing that Canadians are overwhelmingly opposed to online spying, it’s a real opportunity to force decision-makers to start listening to citizens instead of powerful police and spy agency bureaucracies.
Open Media has been working alongside a massive non-partisan Protect Our Privacy Coalition as well as leading experts, partner organizations, and over 10,000 Canadians to crowdsource positive solutions to address our privacy deficit.
There has been an amazing response to this project, and right now researchers at OpenMedia are sifting through all the input we’ve received. We’ll be using it to develop detailed, effective, crowdsourced policy recommendations to safeguard the privacy of every resident of Canada from government surveillance. Then we’ll go to decision-makers from all the parties, large and small, and challenge them to pledge to implement what Canadians want.
You can learn more about Open Media’s campaign to safeguard privacy by checking out the Protect Our Privacy Coalition.