The Right Against Unreasonable Search and Seizure and Geolocation

A recent American case has raised questions (more, again) about the future of privacy rights in the digital age and how to adapt current laws to an ever evolving technological world.

On July 18, 2013, in State of New Jersey v. Earls, 22 A.3d 114, the New Jersey Supreme Court held that the New Jersey Constitution protects an individual’s right to privacy in the location of his or her cell phone and that police must therefore obtain a search warrant, based on probable cause, to access this information. The section of the New Jersey Constitution at issue in State v. Earls is nearly identical to the text of the Fourth Amendment, and the Court engaged in a discussion of Fourth Amendment case law in addition to State precedents.

The specific facts of the case began with a string of burglaries suspected to have been committed by the Defendant Thomas Earls. Police contacted T-Mobile directly without a warrant on three separate occasions and obtained detailed information on the location of Earls’ cellphone. The information led police to a motel room – and to Earls and the stolen goods. Earls sought to have the evidence excluded by arguing that he had a reasonable expectation of privacy in the contents of his cell phone and that police were therefore required to obtain a warrant. The American Civil Liberties Union, among others, presented an amicus brief, similarly arguing that individuals have an expectation of privacy in geolocation information

The Court engaged in a lengthy discussion of the 21^st-century social reality of cellphone use, as well as the technical functioning of cellphones and geolocation devices, explicitly acknowledging that the law must be responsive to technological developments. Noting that most people in the United States today use cellphones, the Court rightly noted that “people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by government in that way”. It is evident in the Court’s reasoning that it is keenly sensitive to the ever-expanding array of legal issues which arise due to advances in technology – “what was problematic in 2006 is plainly invasive today”.

Much of the discussion in the Court’s judgment turns on what is known as the third-party doctrine – an exception to the warrant rule which entitles government officials to access without any legal formality information which you have given to someone else. But does the disclosure of private information to a telecommunications company imply that a person no longer expects this information to be held in confidence?

The Court disagreed and noted that individuals often have no choice but to disclose personal details to their cellular provider: “This is not a voluntary disclosure in a typical sense; it can only be avoided at the price of not using a cellphone”. It compared the disclosure of information to a cellphone operator to the disclosure of information to a bank, noting that no one would expect personal banking information to be obtained without court permission. Accordingly, disclosure to a third party cannot in every case be taken as an abdication of a consumer’s privacy interest. The New Jersey Court’s judgment is a further attack on the third-party doctrine, a product of the 1970’s, when questions were already being raised about whether the disclosure of private information is truly always voluntary.

American legal commentators expect that the decision in State v. Earls will be followed by other state courts, particularly in light of other strong state and federal precedent weighing towards heavier protection of digital privacy rights. In the immediate term, the judgment will likely have a widespread impact on police tracking activities. As reported in a New York Times article in 2012, tracking by police with the help of geolocation devices is widespread across the United States, more often than not with no court oversight.

Surprisingly, Canada has gone the opposite direction of State v. Earls and has held that seizing information from cellphones without court permission is not a violation of the Section 8 Charter right against unreasonable search and seizure.

In R. v. Fearon, 2013 ONCA 106, the Ontario Court of Appeal held that the Defendant’s Charter rights were not violated when police officers searched his cellphone in the course of an arrest on burglary charges. Somewhat surprisingly, the Court held that the search of the cellphone fell within the common law doctrine of search incident to arrest because the cellphone was not password protected or locked. It would follow then, according to the Court’s reasoning, that anything on the suspect’s person, in his car or in a bag he is carrying would be free to be searched, as long as it is not under lock and key.

The Ontario Court of Appeal also rejected the Appellant’s argument that the Court should create a “cellphone exception” to the common law doctrine of search incident to arrest, concluding that the contents of a cellphone are no different than what an individual may carry in his purse or wallet.

Is the Canadian position merely the product of a different legal system and different interpretation of privacy rights and guarantees against search and seizure, or does it represent an example of Canadian courts lagging behind technological advances?