Unlocking the gaps in the court’s recent ruling permitting warrantless searches of unlocked phones

Last month, the Ontario Court of Appeal ruled that police do not need a warrant to search the contents of a cell phone during an arrest if the cell phone is unlocked.

The court reasoned that, “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.”  Here is a thought experiment: let’s accept that our reasonable expectation of privacy is diminished if our phones are not locked to others.  We decide to take precaution and lock our devices.  What if the arrest takes place when no one else is around?  Should we be expected to lock our phones to “other users” when we are by ourselves in order to be protected from the prospect of a warrantless search?  Similarly, a phone can’t be locked while it is in use – does this mean that if an arrest takes place while a normally locked phone is being used, then it’s okay to search it?  The court hasn’t stated otherwise.

On a side note, if the act of locking a phone shows intent to guard one’s privacy over its contents, this need not be expressed through the creation of a technical barrier.  I don’t personally lock my phone – it’s not because I don’t value my privacy in its contents, it’s simply because I access it too frequently for it to be convenient.  If we need to express our intent to exclude others from viewing our cell phone data, we should be able to do so using a method of our choosing.  For instance by downloading a screensaver with a “do not access” icon, or even by placing one of these nifty “I do not consent to the search of this device” EFF stickers.  While these methods are less effective than using a lock in keeping others out, their use nevertheless signals an intent to safeguard privacy (just like a “do not trespass sign” signals the same intent as erecting a fence around one’s home).

As it stands, the court’s reasoning leaves too many gaps.   While left unaddressed, they will be filled in by the discretion of individual police officers during arrests, leading to uneven results.