What’s Intrusive?
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.
True enough, or at least arguable – I’m not sure there’s much in my personal computer that is not also in the filing cabinet beside it. True or not, in my view Morelli was wrongly decided. Justice Fish’s parade of horribles was not relevant to the facts. The question was on the legality of a search of the defendant’s computer, when a technician had seen on his computer links to child pornography sites. Based on that evidence, the police got a search warrant and searched the computer and found child pornography.
The majority went on about whether the links could consitute possession – and I think properly held that the links themselves were not possession (The dissent thought that they might.) But the issue was not possession but reasonable grounds to believe that there might be possession. Knowing that somebody visited child porn sites gives one reasonable grounds to think that one might download or save the content of the sites – as it turned out Mr Morelli had done, in fact. He was convicted on the actual content of his computer, not on the presence of the links. (All the court’s talk about what might be in a cache was not relevant either.)
The techie who reported on the links also reported that Mr Morelli had a video camera pointing at a child’s play area in the house. I don’t argue that that gave good grounds for searching his computer for child porn, even combined with the links. If parents who make videos of their kids give grounds for searches based on that, a LOT of people are in big trouble, or the police are going to be VERY busy. Finding the links to child porn did not make Mr Morelli more likely to be making it with his own kids. In any event I think the links were enough of a ground for a search, and the video set-up did not add strength to that ground.
Thanks for the comment, John. There’s a lot going on in that decision, aside from the first three paragraphs that I discuss. The ITO was clearly defective and misleading, but many people whould conclude that both the defective statement by the cop, or the full story, would be enough to justify getting a warrant.
The article appears to be online here – though for how long I don’t know.
Agreed! Despite surrounding evidence of suspicious activity, the focus here was on the computer. A personal computer is akin to an external brain that we are able to use to supplement our own. In it, we may store words and images. We may entertain ourselves, and conduct business. We can be as creative or stoic as we desire with our personal computers. They represent us. This is the nature of human-technology integration; the unconnected cyborg many of us are slowly becoming.
This relationship emphasises the intensely personal nature of the PC. Mobile devices are the next step. They are even marketed as indivualistic to meet our individual desires and needs. This means that it is increasingly difficult to regulate and monitor such devices for legal ramifactions. It’s nice to see the creativity of the Canadian legal system at work.