Password protect your phone if you care about your privacy: What R v Fearon means

The portions of the twitterverse that I follow were abuzz yesterday with posts about how, in Canada, the police can search your cell phone without a warrant unless it is password protected following the release of the Ontario Court of Appeal decision in R. v. Fearon, 2013 ONCA 106.

I think this is an important case (which I also don't agree with), but it bears mentioning that the case isn't as bad as some tweets would suggest. Don't get me wrong; I think it's wrongly decided, but some of the tweets and Facebook posts I saw were a bit misleading.

In this case, the defendant was arrested after a robbery. He was properly arrested and the police found his cell phone on his person. It was an LG feature phone, not a smart phone. The phone was on and did not have a password on it. The police went looking through its contents and found incriminating photos and text messages. The police later got a warrant to forensically examine the device.

At trial, the defendant tried to have this evidence excluded arguing that there was a reasonable expectation of privacy in the contents of the phone and they police should have first gotten a warrant. The Canadian Civil Liberties Association and others intervened on appeal, arguing that there should be a cell phone exception to the general rule that allows the police to search "incident to arrest". The Court did not agree. Here's what the Court said:

[72] The problem I have with the appellant’s position and, in particular, the position of the Canadian Civil Liberties Association, is that it would appear to mark a significant departure from the existing state of the law on the basis of a record that does not suggest it is necessary. While I appreciate the highly personal and sensitive nature of the contents of a cell phone and the high expectation of privacy that they may attract, I am of the view that it is difficult to generalize and create an exception based on the facts of this case. The facts of this case, with the correct application of the existing law, suggest that the search and seizure of the cell phone at the scene of the arrest were carried out appropriately and within the limits of the law articulated by the Supreme Court in Caslake.

[73] In this case, it is significant that the cell phone was apparently not password protected or otherwise “locked” to users other than the appellant when it was seized. Furthermore, the police had a reasonable belief that it would contain relevant evidence. The police, in my view, were within the limits of Caslake to examine the contents of the cell phone in a cursory fashion to ascertain if it contained evidence relevant to the alleged crime. If a cursory examination did not reveal any such evidence, then at that point the search incident to arrest should have ceased.

[74] The appellant directed this court to statements made by the trial judge in Little, where she concluded at para. 147 that the cell phone in issue “functioned as a mini-computer”. Furthermore, the court in Little found that the contents of the cell phone “were not immediately visible to the eye” and were “extracted by a police officer with specialized skills using specialized equipment.” There was no suggestion in this case that this particular cell phone 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.

[75] If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.

[76] In short, I find myself in the same position as this court found itself in Manley. To quote from the reasons of Sharpe J.A. again, it is “neither necessary nor desirable to attempt to provide a comprehensive definition of the powers of the police to search the stored data in cell phones seized upon arrest.”

[77] It may be that some future case will produce a factual matrix that will lead the court to carve out a cell phone exception to the law as articulated in Caslake. This is not that case. To put it in the modern vernacular: “If it ain’t broke, don’t fix it.”

So what does this case really mean?

• Police cannot just search your cell phone if they want to. It has to be a search incident to arrest.
• If you are legitimately arrested AND the phone is likely to contain relevant evidence AND it is unlocked, they can do a cursory search.

So what should everyone do, regardless of this case? If you have personal information on your [smart/dumb/feature/other] phone, put a password on it. Your phone is more likely to fall into the hands of the owner of the taxicab you left it in than the police (hopefully), but you never want sensitive personal information in the hands of ANYONE. Put a password on it and use the feature that puts your "If found, contact ..." on the lock screen.