Saturday, June 19, 2010

What’s intrusive?

What’s intrusive? is the title of my post yesterday at, about computer searches.

I was reading an interesting article in the Lawyer's Weekly today on the recent Supreme Court of Canada decision in R. v. Morelli, [2010] SCC 8. In his article, "Reforming Search & Seizure" (sadly, not available online), Professor Benjamin Goold makes the following comment that I tripped over while reading:

Although Justice Fish almost certainly went too far when he claimed that it is "difficult to imagine a search more intrusive, extensive or invasive of one's privacy than the search and seizure of a personal computer," the fact remains that such a search represents a serious infringement of an individual's right to be secure against unreasonable search and seizure under s. 8 of the Charter.

I have to say I'm with Justice Fish on this one. He didn't go too far in making that statement, and I'm glad to hear it.

A personal (emphasis on the "personal") computer is more than just a container of wires, chips and magnetic media. A huge amount of highly personal data resides on home computers. Think about what's on your personal computer. Probably years worth of e-mails, scanned documents, tax returns, photos, home videos. If a person already has a lawyer, the computer almost certainly contains privileged correspondence. Your browsing history shows what ailments you were looking into on WebMD . In this day and age, the personal computer has become the shoeboxes of photos on the shelf in a closet. It is the equivalent of the bundle of letters in a desk drawer. An order for the police to seize your computer is akin to an order that all of your family records should be taken.

In far too many cases, a pesonal computer is an instrument of criminality and horrible exploitation. I'm not suggesting they are sacred, only that Justice Fish is right.

[1] This case concerns the right of everyone in Canada, including the appellant, to be secure against unreasonable search and seizure. And it relates, more particularly, to the search and seizure of personal computers.

[2] It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.

[3] First, police officers enter your home, take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet — generally by design, but sometimes by accident.

These searches can be incredibly intrusive and those with a role to play in the justice system need to be reminded of that.

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