Cell Phones and the Reasonable Expectation to Privacy - Thomas Mooney

The Supreme Court’s treatment of the privacy concerns inherent in an individual’s cell phone may demonstrate a worrying trend in the Court’s stance toward digital privacy and the state’s approach to cyber security.

The Supreme Court’s decision in the case of R. v. Fearon demonstrates what is perhaps a disturbingly casual position on digital devices and our digital privacy as a whole.[1] This case involved the seizure and search of a cell phone that yielded incriminating evidence, resulting in a search warrant of Fearon’s vehicle.[2]The discussion surrounding this case involved the constitutional basis for and the expectation of privacy in the searching of a cell phone. Cell phones hold an almost hallowed position in the average person’s everyday life. They make us feel safe and secure in our knowledge that help can be summoned nearly instantaneously. With the twin factors of growing investment in the knowledge economy and the increasing feasibility of remote working, cell phones have become a core component of our productivity. They allow us to access an entire world of information services from practically anywhere there is coverage. A device of this significance, then, might be expected to hold some of the most substantial expectations of privacy. However, with the cell phone comes the societal and technological baggage of any discussion of the digital world and cyberspace.

Thus, the cell phone is the peculiar coalescence of these different principles. It is a physical device that is a piece of personal property, but also embodies all the subjective and objective societal beliefs around the use of personal data while also being our single point of access to all of our lives’ undertakings.

Under the circumstances, you might expect the phone to have the highest levels of privacy; something akin to a house, car, or something on which our livelihood relies. This may be expected, not only because of the significance a cell phone holds in our lives, but also because of the level of insight it could give the state were they to have unfettered access to its information.

Like the evaluation in Fearon, there may be substantial value in understanding how the standard for a reasonable search, outlined in Hunter, may affect our privacy interest in cellular phones. The standard in Hunter views the expectation of privacy as being a critical factor in determining the right to privacy that an individual has in a particular piece of property. However, this standard can be used both to expand and to restrict the right to privacy.[3] This standard poses a considerable risk to the right of privacy. As a society, our objective belief that our expectation of privacy may be diminished in certain situations may prove to act like a self-fulfilling prophecy. In certain situations, where we have come to expect little to no privacy, the court could sanctify that belief by finding in a section 8 related case that no expectation of privacy exists. To this end, the Hunter standard could produce a form of positive feedback loop. This positive feedback loop could occur when society has a decreasing expectation of privacy in general or toward a specific piece of property, then the court finds a subjective lack of expectation of privacy, which in turn goes on to fuel a reduced expectation of privacy, and so on and so forth.

This positive feedback loop of decreased expectation of privacy may have already begun occurring in our increasingly digital lives. It is widely accepted that, at any given moment of time, a number of entities monitor the Internet usage of private individuals. Often, these are benign bots and other algorithms designed to model the desires of users and to anticipate their spending patterns to best advertise products. Whether they are benign or otherwise, what this monitoring produces is an atmosphere of little to no privacy. This expectation of surveillance, even by private entities, actively diminishes our expectation of privacy in our mobile devices in the digital world. Whilst the Charter is primarily directed towards guaranteeing or otherwise protecting our rights from the encroachment of state entities, it is not inconceivable that the atmosphere of laxed privacy, cultivated by private entities, could allow for the degradation of our subjective privacy to a point where the state apparatus can infer that there is now a diminished expectation of privacy in many digital activities.

The threat the Hunter standard poses to our digital privacy and privacy in mobile computing devices may be compounded by the additional consideration of the state’s interest in security. It is of no surprise that with the rise in cyber-attacks coming from near peer adversaries, nations around the world have increased their interest in confronting threats in the cyber domain.[4] To this end, there are twin restricting factors on the existing and potential rights to privacy that exist in digital spaces: a contraction in our own expectations of rights and an expansion of state interest in securing the domain in which the right is exercised. This could be highly analogous to the trend surrounding aviation security after 9/11. Because of the attacks, the state had a greater interest in securing and verifying both the people and equipment that were brought on to commercial and private aircraft.[5] At the same time, due to the concerning nature of an attack of the scale of 9/11 on the American homeland, the civilian population’s expectation of privacy surrounding air travel was greatly diminished. As anyone who has travelled by air in the 21st century knows, this led to a near complete evisceration of rights to privacy whilst transiting through an airport.[6] Using this as a template, it is not unreasonable to conclude, then, that the next field to see a substantial reduction in the right to privacy is our mobile devices and their connection to our digital lives. The state would have a profound security interest in being effectively able to investigate, track, and monitor digital communications in cyberspace. It is undeniable that as ever-increasing elements of our own lives move to online platforms, so too does the commerce of crime.

The Counterargument

Moving away from policy and back to legal arguments, although there may be valid reasons for giving cell phones such heightened protection due to their significance in our ever-increasing digital lives, there is an argument to be made for the expedient nature for digital searches. As was outlined in Privacy in Peril, the feasibility of preservation of evidence is a key factor in deciding whether a judicial warrant is a reasonable prelude to a search.[7] With this under consideration, it may be difficult to separate the concept of data held on the phone from the point of entry it represents to a world increasingly based upon remote storage and cloud computing. This calls into question whether the act of simply seizing the mobile device, pending a judicial warrant, is sufficient to guarantee the preservation of any digital evidence. As a practical concern, it is becoming more and more common to hold large amounts of data in cloud storage compartments, which are not strictly held on the device but are rather accessed through the device’s telecommunications components. In this scenario, it is conceivable that an individual has their mobile device seized and, in the interim, proceeds to access whatever information was accessible by the phone but not strictly held on the phone, possibly erasing incriminating material. Additionally, it is not beyond the possibility that the phone itself could be wiped of sensitive data. Several large phone manufacturers like Apple offer this service as a point of security should your phone be lost.[8] This scenario gives credence to the argument that searches incident to arrest, that constitute a need to look at digital material held on the cell phone, may have an exigent need to preserve evidence. This would also be in line with the Supreme Court’s finding in the case of Fearon. Whether the practical considerations of the preservation of evidence will trump the moral concerns surrounding the expectation of privacy, in what is fast becoming the most private of devices, is uncertain. Given how the Supreme Court has moved in past cases, it will most likely find the practical concerns the most persuasive.

The potential damage to public privacy that could be done by the mistreatment of the expectation of privacy in cell phones can conceivably be as influential and ubiquitous as the cell phone itself.

[1] Richard Jochelson & David Island, Privacy in Peril (Vancouver: UBC Press, Vancouver, 2019) at 116. [2] Ibid. [3]Ibid at 28. [4] Canada, Public Safety Canada, National Cyber Security Strategy, (Ottawa: Public Safety Canada, 2018) at 8; United Kingdom, Cabinet office, Natural Cyber Security Strategy 2016-2021, (London: Cabinet office, 2016) at 9. [5] Jochelson & Ireland, supra note 1 at 63. [6] Ibid at 31. [7] Ibid at 130. [8] Apple Inc, “Erase a device in Find My iPhone on iCloud.com”, online: Apple Inc <support.apple.com/en-ca/guide/icloud/mmfc0ef36f/1.0/icloud/1.0>.