Breaching Privacy

"There was no suggestion in this case that this particular cellphone functioned as a 'mini-computer', nor that its contents were not 'immediately visible to the eye'.
"Rather, because the phone was not password-protected, the photos and the text message were readily available to other users."
Ontario Court of Appeal

Yet another one of those headache-inducing, gimmeabreak situations. In a criminal arrest of a felon apprehended after an act of public criminal violence through an armed robbery that took place in Toronto, arresting police took possession of the cellphone belonging to Kevin Fearon, and reviewed its contents in a cursory manner. What they discovered was incriminating evidence to be used against this man in his criminal trial.

Through the use of the cellphone a text message critical to the commission of the crime was obtained, along with images of a gun, and cash. Good work by the police, most would agree. But the courts often balk at any hint of evidence obtained in what they may contend represents an over-zealous and under-authorized manner.

Mr. Pearson was duly convicted in a court of law. He responded by appealing his conviction on the grounds that his rights had been violated. When police examined his cellphone after they arrested him, went his rights-entitled argument, they breached his privacy rights. The Ontario Court of Appeal felt that looking through the phone briefly to determine whether evidence relevant to the crime could be gleaned was permissible.

Anything further, however, they felt should have been pursued only after the issuance of a search warrant. Without the search warrant, had the cellphone been locked down to eyes other than those of its owner, through password protection, what resulted would have represented a breach of his privacy rights: "it would not have been appropriate", they ruled.

However, it also ruled that in this instance, the matter was resolved simply by the fact that the cellphone hadn't been locked-down by a password. So the retrieval of incriminating evidence from it passed the smell test. And everything's just fine. Except that this convicted bank robber who used firearms in the pursuit of easy cash, has taken the matter to the Supreme Court of Canada.

And damned if the Supreme Court isn't agreeing to consider the issue of whether police can legally access information on a cellphone that isn't password-protected. Let's hope and pray they reach a firmer legal conclusion than in the case they considered of a Nova Scotia woman who had attempted to buy the murder of her husband, when they ruled wrongly, in her behalf.