The debate over whether Apple should comply with a U.S. court order asking it to hack an iPhone belonging to one of the San Bernardino shooters has grown tense over the last week as tech executives, privacy experts and legal pundits weigh in.
The case has stirred up much debate – thanks to Apple’s concerns of creating a so-called backdoor into the iPhone – but it also has many people asking questions about what happens to smartphone data in criminal investigations.
Which got us thinking – can law enforcement agencies legally access data on your smartphone here in Canada? If so, what legal requirements have to be met?
“With respect to the case involving Apple, although raised in the U.S., this is an issue of universal importance. One principle to keep in mind is that companies need to be governed by the rule of law,” said Tobi Cohen, a spokesperson from the Office of the Privacy Commissioner of Canada.
“That being said, the issue of whether it is possible for tech companies to comply with warrants without affecting the safeguards that protect all of us is something that must also be taken into account.”
When it comes to the legalities of this question in Canada, there are two important court rulings we must look at.
In June 2014, the Supreme Court of Canada ruled that police need a search warrant to get information from Internet service providers (ISPs) about their subscribers’ identities when they are under investigation.
“In that case the Court examined the issue of whether Canadians have a reasonable expectation of privacy vis-à-vis the state in subscriber information held by their Internet service provider,” said Cohen via email.
“The Court set out excellent guidelines. When it comes to the sharing of information by companies with law enforcement, the principle of warrants is key.”
According to the ruling, a warrant is needed in all but a few very specific circumstances.
- If there are exigent circumstances, such as where the information is required to prevent imminent bodily harm.
- If there is a reasonable law authorizing access.
- If the information being sought does not raise a reasonable expectation of privacy.
“The sharing of information should, as a rule, be authorized by the court on the principle that the courts are best placed to balance the interest of the police in getting the information and the interests of individuals in having their privacy protected,” Cohen added.
In a separate ruling, in December 2014, the Supreme Court of Canada said that police can conduct a limited search of a suspect’s cellphone without getting a search warrant, but they must follow strict rules.
The court said in a precedent-setting ruling that the search must be directly related to the circumstances of a person’s arrest and the police must keep detailed records of the search.
Here are the conditions police must meet to search a cellphone during an arrest without a warrant:
- The arrest must be lawful – This is the case for any situation; it just means if the arrest isn’t lawful, then neither is the search.
- The search must be incidental to the arrest and police need an “objectively reasonable” reason to conduct the search. These include: protecting police/the accused/the public; preserving evidence; discovering evidence such as finding more suspects.
- The nature and extent of the search are tailored to the purpose of the search. This means police activity on the phone must be directly linked to the purpose they give.
- Police must take detailed notes of what they looked at on the device as well as how it was searched (e.g. which applications or programs they looked at, the extent of search, the time of search, its purpose and duration)
The ruling stated it’s best that police wait to get a search warrant for the cellphone in order to protect privacy. Authorities would need one of the three purposes above (protecting police or the public, preserving evidence or discovering evidence) to proceed without a warrant.
Whether a phone is password-protected is not a determining factor, according to the ruling.
A suspect has the right to remain silent during an arrest and not give their password; but police are able to take the phone and try to unlock it.
The RCMP declined to comment further on the legalities of retrieving data from a smartphone.
In a statement to Global News, a spokesperson with the Department of Justice Canada said, “The Criminal Code provides a wide range of judicially authorized powers that police can use to carry out investigations. These powers range from wiretap authorizations, which allow the interception of private communications, to search warrants, which allow the search of property including computers and smartphones and general production orders, which compel the production of personal information by third parties.”
According to the statement, before police can access these tools they must convince a judge there are reasonable grounds to believe that an offence has been, or will be committed, and that the investigation will produce evidence.
“Further, a wiretap authorization, a search warrant and a general warrant can also be accompanied by an assistance order issued by a court, which compels a third party to provide assistance where that assistance may reasonably be considered as required to give effect to the authorization or warrant,” read the statement.
“However, there is no specific power in the Criminal Code to compel a third party to decrypt or develop decryption tools, nor is there any requirement for telecommunications services to provide these services.”
– With files from Global News reporter Erika Tucker and The Canadian Press