Police Want Your Cell Phone Password
On August 16, 2016, the Canadian Association of Chiefs of Police passed a resolution calling for a legal measure to unlock digital devices. Police claim that this resolution is necessary due to high levels of criminal activity being stored and encrypted on cellular devices. Currently, there is nothing legislated in Canadian law that forces anyone to provide their password to law enforcement for their digital device.
RCMP Assistant Commissioner, Joe Oliver, made several statements regarding the urgency to attack this policy. Oliver states:
“From child abusers to mobsters — [they] are operating online in almost complete anonymity with the help of tools that mask identities and messages, a phenomenon police call “going dark.”
“The victims in the digital space are real… Canada’s law and policing capabilities must keep pace with the evolution of technology.”
Opposing the resolution, David Christopher, a spokesman for OpenMedia, a group that keeps the Internet surveillance free, claims that the Chiefs proposed scheme is disproportionate because unlocking someone’s laptop, unlocks “the key to [their] whole life”.
The federal government has started looking at issues of cybersecurity that will balance issues of privacy and online freedoms of Canadians.
Background on Canadian Privacy Law
R v Spencer was a landmark decision by the Supreme Court of Canada in 2014 that ruled that individuals have a reasonable expectation of privacy in Internet usage information. This meant that law enforcement agencies that wish to acquire subscriber information must obtain a warrant. Prior to this decision, law enforcement were simply able to request the information from Internet providers without a warrant.
In Spencer, the Supreme Court of Canada rejected the argument that Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) allowed Internet service providers to provide subscriber information with a a simple request.
Following the ruling of this case, Spencer was hailed by privacy law advocates as a monumental shift towards establishing meaningful protection of privacy and fundamental notions of liberty and human rights. However, law enforcement worries and argues that this decision creates new challenges for protecting potential child victims, specifically in the realm of child pornography.
The issue of privacy and the Internet is nothing new. Since the advent of the Internet, there has been a constant balancing act between the privacy interests of individuals and the rights of law enforcement. If law enforcement are granted the right to access an accused’s password without consent of the individual, it will no doubt be the subject of arguments infringing under the Charter of Rights and Freedoms.
We Can Help
Have you been part of a police investigation where law enforcement has demanded the password to your electronic device? Do you have questions regarding cellphone or computer searches? If so, trust the criminal law experts at Smordin Law. We are available to answer all your questions regarding PIPEDA, the Charter of Rights and Freedoms and the Criminal Code.