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Is Your Cell Phone Really Yours?
Kristen Morris
Kristen Morris
Kristen Morris
Kristen, a graduate of Holy Trinity in Simcoe, received her B.A. in Honours Criminology from Carlton University in 2007 and her J.D. from Osgoode Hall in 2010.

Our laws are constantly changing to keep up with changes to the way we live. The most recent area of criminal law to experience this is the rules surrounding the search of cell phones by police.

Anyone with teenagers knows that texting seems to have become the main method used to communicate with others. In addition to that, most phones come equipped with cameras so our phones are also photo albums detailing the events in our lives.

So what happens when someone has a run-in with the police? How far can police go in looking through what is stored on a person's phone?

This issue is making its way through the courts in all kinds of forms. First, in February, the Ontario Court of Appeal said that if police arrest someone who has a cell phone on them, it is ok for police to take a quick look through the phone as long as the phone isn't locked by a password. Although the case dealt with a phone that did not have a password, the court did say that if the phone had been password protected or locked somehow so that only the owner could access it, then it would not have been appropriate for police to look through it without getting a warrant first. Without a password, a phone's contents, including pictures and text messages, are wide open for anyone who picks up the phone to see, including the police. With a password, there is a higher expectation that the phone's contents will be private and therefore police need a warrant to override that privacy expectation.

In March, the Supreme Court weighed in on another area of the cell phone debate -- that of getting old text messages from cell phone providers. The Court said in that case that a regular warrant is not good enough to get to that kind of information. Rather, police will need to get a warrant allowing them to intercept private communications, also called a wiretap authorization, in order to access text messages this way. This is a special kind of warrant that is normally used by police in intercepting and listening to private phone conversations. Basically, the Supreme Court is recognizing that text messaging is being substituted for actual phone conversations and should be treated that way by police. Text messages are a type of private communication so police will need to meet a higher standard when trying to access them. Because there is a higher privacy invasion in intercepting private conversations, there needs to be a higher level of protection and a higher threshold to be met in getting permission to override the expectation of privacy.

Ultimately, the only one who can protect your privacy is you.

Kristen Morris is an associate at the law firm of Cobb & Jones LLP.

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