Journalists who use their cellphones may want to get into the habit of password-protecting their devices in the wake of a ruling by the Ontario Court of Appeal which found police do not need a warrant to search unprotected phones.
The case in question involved the arrest of a man on suspicion of armed robbery. During the arrest police searched the man’s cellphone and retrieved information that eventually helped convict him. On appeal, the man’s lawyer argued the cellphone was analogous to a briefcase in which had been stored private documents and photos. Ordinarily, police would be required to obtain a search warrant before looking inside the briefcase, especially if they wanted to use any information they discovered in a subsequent trial.
It is a view Courts have generally upheld. In 2011, information police retrieved from a cellphone that was used to identify and eventually arrest another man in connection with importing heroin was ruled inadmissible by the Ontario Superior Court. In making its finding, the Court stated that police would be required to obtain a warrant before rummaging through a sealed box of files found in possession of a suspect at the time of arrest. In principle, said the Court, there ““is no reason why the search of a phone should be treated any differently.”
In 2009, an Ontario Superior Court jury convicted a Markham man of murder in the brutal killing of his estranged wife. During the trial however, the presiding judge ruled inadmissible evidence police obtained from the man’s cellphone because they had not obtained a search warrant.
Of course, a journalist doing her or his job isn’t the same as someone suspected of importing heroin or of murdering their estranged partner, but the decision by the Court of Appeal allowing police to search cellphones without a warrant has the potential to reach right into the contents of a reporter’s phone.
A sacred trust of any journalist is the protection of their sources. Journalists have risked contempt of court charges in order to safeguard that information, and at times have even gone to jail. Imagine if a reporter on the job covering a real-time protest was scooped up by police along with other protestors. If police rummaged through the reporter’s cellphone before releasing her, what information might be revealed? Phone numbers, links to files full of sensitive information—all conceivably would be fair game.
What if police had obtained a warrant to search the offices of a news organization, does the Court of Appeal decision mean that if reporters do not lock their cellphones police are within their rights to request and search its contents? And don’t think pressing the ‘delete’ button will protect your data. These days a competent forensic specialist would have little trouble retrieving lost data.
It may be a pain to lock your phone every time you’re not using it, but it could be a habit well worth developing.