Search and Seizure: Computers & Electronic Devices

1. Search and Seizure: Computers &Electronic Devices Randy Schwartz Crown Counsel Crown Law Office – Criminal (Ont.)

2. Introduction & Overview • Locating a reasonable expectation of privacy • Drafting the ITO for a computer search • Executing a computer search • Searching cell phones incident to arrest • Chat rooms and text messages

3. PART ONE:LOCATING A REASONABLE EXPECTATION OF PRIVACY

4. Computers:Reasonable Expectation of Privacy R. v. Morelli [2010] SCC 8: It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search of a personal computer. … Computers often contain our most intimate correspondence. They contain the details of our financial, medical, and personal situations. They even reveal our specific interests, likes, and propensities, recording in the browsing history and cache files the information we seek out and read, watch, or listen to on the Internet.

5. Computers:Reasonable Expectation of Privacy R. v. Polius[2009] O.J. No. 3074 (Sup. Ct.): The information in a cell phone, computer or other electronic device may relate to aspects of life that are deeply personal. It may include: * Contacts, including names, addresses, phone numbers, e-mail addresses and other personal information; * Internet Explorer, including the history of accessing websites; * Calendars; * Photographs and videos; * Text Messages; * Voice Mail Messages; * E-mail Messages; * Missed Calls; * Call Logs; and * Call Identification.

6. Computers:REP – Relevant Factors Home or Personal Use As a general proposition personal devices will have a high degree of privacy associated with them: R. v. Choudry [2009] O.J. No 84 (Sup. Ct.) R. v. Little, [2009] CanLII 41212 (Ont. Sup. Ct.) R. v. Polius [2009] O.J. No 3074 (Sup. Ct.)

7. Computers:REP – Relevant Factors Location of Use R. v. Dragos, [2009] O.J. No. 4045 (Sup. Ct.) • Computer in residence had REP; computer in hotel room reduced REP. (para 17)

8. Computers:REP – Relevant Factors Workplace Computers/Devices R. v. Little, [2009] CanLII 41212 (Ont. Sup. Ct.) • “diminished” expectation of privacy in work computer. Quon v. City of Ontario, 130 S.Ct. 2619 (2010) R. v. Cole, [2009] CanLII 20699 (Sup. Ct.); reversed 2011 ONCA 0218 See also:R. v. Ritter (2006) 402 A.R. 249 (Prov. Ct.)

9. Computers:REP – Relevant Factors Usage – File Sharing R. v. Bahr [2008] A.W.L.D. 2443 United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008) “although as a general matter an individual has an objectively reasonable expectation of privacy in his personal computer…we fail to see how this expectation can survive Ganoe’s decision to install and use file-sharing software, thereby opening his computer to anyone one else with the same freely available program.”

10. Computers:REP – Relevant Factors Maintenance R. v. Graham, [2010] O.J. No. 146 (Sup. Ct.): “…counsel submits that there is a high degree of privacy when one brings in one’s computer for corrective maintenance as most personal computers have financial information and perhaps other information of a confidential nature… I agree that in other factual situations that a court may have to consider, those other concerns might have a more prominent place. I do not have those facts before me.” R. v. Winchester, [2010] O.J. No. 281 (Sup. Ct.): Issue: Was reasonable expectation of privacy objectively reasonable? Similar to Graham as computer left with store for repairs. “…while I am not prepared to find that the applicant had no expectation of privacy in the contents of the computer when he left it at the store, I do find that this expectation was significantly reduced.” para 36.

11. IP Addresses / CNA:Reasonable Expectation of Privacy? What is the nature of the information? Does the information reveal intimate details of the lifestyle and personal choices of the individual? Is the information part of the biographical core of personal information we call “private”?

12. No REP in: • Hydro records • “electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence” and such does not give rise to a reasonable expectation of informational privacy. • R. v. Plant (1994), 84 C.C.C. (3d) 203 (S.C.C.): R. v. Gomboc, 2010 SCC 55 • Heat emanating from a house • “privacy” concerns not involved because little could be gained, in and of itself, about a person by looking at the amount of heat that emanated from his home. A warrant could not be obtained with just this information… • R. v. Tessling (2005), 189 C.C.C. (3d) 129 (S.C.C.) • Airline manifest information • The information targeted and obtained by the police amounted to nothing more than the airline's record of Chehil's public activities in transacting business with the airline. The transactional record did not reveal intimate details of his lifestyle or personal choices, nor was it specific and meaningful information intended to be private and concealed. Chehil did not have a reasonable expectation of privacy in the information, and the information-gathering was not a search within the meaning of s. 8 of the Charter. • R. v. Chehil, [2009] N.S.J. No. 515 • Owner of Postal Box • R. v. Stucky, [2006] O.J. No. 108 (Sup. Ct.) • Bank Account information • R. v. Lillico (1994), 92 C.C.C. (3d) 90 (Ont.G.D.); aff’d [1999] O.J. No. 95 (C.A.)

13. No REP in: • CNA as it relates to your cell phone number • “Cantel has, and indeed recognizes, its duty to keep personal information of it’s customers confidential, however it needs only to do so in respect of that information which tends to reveal intimate details of the customer’s personal lifestyle and choices. The subscriber’s name and address do not fall within this category.” • R. v. Edwards, [1999] O.J. No. 3819 (Sup. Ct.) • The fact that Mr. Cole is or is not a Roger’s (sic) subscriber does not in any way reveal any intimate details of the lifestyle and personal choices of the accused. …[It] is an innocuous piece of commercial information which would not attract section 8 protection. • R. v. Cole, [2006] O.J. No. 1402 (Sup. Ct.)

14. IP Addresses / CNA:REP – Relevant Factors Nature of the Information • Name and Address

15. IP Addresses / CNA:REP – Relevant Factors Who Holds the Contract? • Someone else’s name and address… • where the utility is one that all members of a household will likely use the fact that the defendant didn’t formally enter into a contract with the utility supplier does not preclude him from having standing to raise a section 8 claim • See for example R. v. MacInnis (2007), 163 C.R.R. (2d) 111 (Ont. S.C.J.) at paras. 53-54

16. IP Addresses / CNA:REP – Relevant Factors The Terms of the Contract • Service agreements • Acceptable Use Agreements • Privacy Policies • All tend to say that where the ISP has reason to suspect the user is involved in criminal activity that the ISP will provide information to the police.

17. IP Addresses / CNA:REP – Relevant Factors The Terms of the Contract R. v. Cuttell,[2009] O.J. No. 4053 (C.J.): "'... there is a reasonable expectation of privacy by an individual in their subscriber information.' However… “…in a given case, it may well be that the contract between the subscriber and the ISP would lead to the conclusion that there was no reasonable expectation of privacy in the subscriber’s name and address.”

18. IP Addresses / CNA:Reasonable Expectation of Privacy? • Re S.C., [2006] O.J. No. 3754 (Ct. Jus.) • Justice of the Peace refuses warrant because of inclusion of ISP info obtained without warrant • R. v. Connor, [2009] O.J. No. 3828 (Sup. Ct.) • For oral reasons which I delivered earlier, I found that the search warrant was validly issued and that there was no breach of Mr. Connor'sCharter rights with respect to the obtaining of his name and address from Bell Sympatico.

19. IP Addresses / CNA:Reasonable Expectation of Privacy? • R. v. Kwok, [2008] O.J. No. 2414 (Ct. Jus.) • Held that there is a reasonable expectation of privacy in the CNA • S.8 was therefore found to be violated • Evidence excluded under s. 24(2)

20. IP Addresses / CNA:Reasonable Expectation of Privacy? • No reasonable expectation based on the nature of the information (customer name and address) • R. v. Wilson, [2009] O.J. No. 1067 (Sup. Ct.) • R. v. Friers, [2008] O.J. No. 5646 (Ct. Jus.) – name alone says very little about the intimate details of the lifestyle and personal choices of the individual. • R. v. Spencer, [2009] SKQB 341 • R. v. McNeice, [2010] B.C.J. No. 2131 (Sup. Ct.) • R. v. Brousseau, [2010] O.J. No. 5793 (Sup. Ct.)

21. IP Addresses / CNA:Reasonable Expectation of Privacy? • No reasonable expectation of privacy based on the contractual agreement with the ISP • R. v. Ward, [2008] O.J. No. 3116 (Ct. Jus.) – distinguished Kwok based on user agreements • R. v. Friers, [2008] O.J. No. 5646 (Ct. Jus.) – no relationship of confidentiality as ISP “expressly disavowed confidentiality in information relating to criminal activity” • R. v. Vasic, [2009] O.J. No. 685 (Sup. Ct.) • R. v. Trapp, [2009] S.J. No. 32 (Prov. Ct.) • R. v. Spencer, [2009] SKQB 341 • R. v. Ewanyshyn, (unreported, March 29, 2009, Alta. Q.B.) • R. v. Verge, (unreported January 22, 2009, Ont. C.J.) • R. v. McGarvie, (unreported January 9, 2009, Ont. C.J.) – subjective expectation of privacy not objectively reasonable given his contractual relationship with ISP

22. IP Addresses / CNA:Reasonable Expectation of Privacy? (and only one following Kwok) R. v. Cuttell, [2009] O.J. No. 4053 (Ct. Jus.) • REP in CNA because police were able to learn intimate details – like Mr. Cuttell’s love of pornography • AND No loss of REP based on the contractual agreement with the ISP – because ISP was unable to verify which contract was in place. • Evidence admitted under s.24(2) – decision admits the law is unclear and in fact leans the other way.

23. PART TWO:DRAFTING THE ITO FOR A COMPUTER SEARCH

24. Computer Searches:Drafting Techniques Identify the Correct Offence • R. v. Morelli: Possession of child pornography vs. Accessing child pornography

25. Computer Searches:Drafting Techniques Identify the Devices

26. Computer Searches:Drafting Techniques Identify the Relevance of the Data Breadth of search: Include some explanation, in the Information to Obtain, as to why it is necessary to look at the whole hard drive to effect the search or why it’s necessary to image the whole hard drive to do a later search: Renaming files Password-protection, compression, encryption Steganography R. v. Costa, [2005] O.J. No. 3980 (Sup. Ct.) R. v. Bishop, [2007] O.J. No. 3806 (Ct. Jus.)

27. U.S. v. Comprehensive Drug Testing,579 F.3d 989 (9th Cir. 2009);revised Sept. 13, 2010 …computer files can be disguised in any number of ingenious ways, the simplest of which is to give files a misleading name (pesto.recipe in lieu of blackmail.photos) or a false extension (.doc in lieu of .jpg or .gz). In addition, the data might be erased or hidden; there might be booby traps that “destroy or alter data if certain procedures are not scrupulously followed,” …; certain files and programs might not be accessible at all without the proper software, which may not be available on the computer that is being searched; there may simply be too much information to be examined at the site; or data might be encrypted or compressed, requiring passwords, keycards or other external devices to retrieve. … The government also represented that “[s]earching computer systems requires the use of precise, scientific procedures which are designed to maintain the integrity of the evidence.

28. Computer Searches:Drafting Techniques Identify the Proposed Analysis?

29. PART THREE:EXECUTING A COMPUTER SEARCH

30. Overseizure Largest area of concern is that potential for computer search to go well beyond what is reasonable in the circumstances.

31. Overseizure R. v. Morelli [2010] SCC 8: 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.

32. R. v. Dragos, [2009] O.J. No. 4045 ( Sup. Ct.) • Warrant to search computer did not contain any limitations. • Court concluded there was no s. 8 violation: “’[the detective] and [the forensic analyst] testified that they believed it was necessary to search the computer system to establish the identity of the owner and user of the computer. The officers testified that a search for resumes and family photos would be reasonable to obtain evidence of identity of the user of the computer”.

33. R. v. Little, [2009] CanLII 41212 (Ont. Sup. Ct.) On the Treo: “…the police made no attempt to focus or minimize the scope of the search of the Treo’s contents, as the police did in searching the Blackberry in Giles. On the office computer: “I accept that file names alone are not necessarily indicative of their content. On the evidence in this case, a manual search by which each file was opened and looked at cursorily to determine whether it fell within the parameters of the warrant was not unreasonable, if the reviewing officers immediately closed those files that clearly fell outside the warrant and moved on.” para 166.

34. Protocols, Dead or Alive Protocol – the idea that a search of a computer must in some way be restricted given the shear volume of data which may be found on a computer and the inherent privacy concerns.

35. Talking to Americans Most American Courts have rejected the proposition for protocols as essentially unworkable: U.S. v. Upham, 168 F. 3d 532 (1st. Cir. 1999) U.S. v. Brooks, 427 F. 3d 1246 (10th Cir. 2006) U.S. v. Graziano 2008 U.S. Dist LEXIS 22408 at 22

36. U.S. v. Comprehensive Drug Testing,579 F.3d 989 (9th Cir. 2009) Appears to require: • search protocols • waiver of plain view • taint teams • whatever else the issuing court wants to impose

37. PART FOUR:SEARCHING CELL PHONES INCIDENT TO ARREST

38. The split R. v. Giles, [2007] B.C.J. No. 2918 (S.C.) • The police seized a email enabled smartphone from an arrestee believed to be leader of gang taken down two weeks ago. He was denied bail and the police want to know if they can read his emails and other info on the phone, and do they need any additional process to do so?

39. The split R. v. Giles, [2007] B.C.J. No. 2918 (S.C.) • Counsel argues for a “Blackberry exception” to search incident to arrest because of high degree of privacy. The argument is rejected at para 65 - 68

40. R. v. Weir, [2001] A.J. No. 869 (C.A.) “…as long as the CPU was seized properly, the information contained in it could be extracted at a later date. To adopt the analogy used by the trial judge, this is not unlike the seizure of blood in which police do not want the blood, but rather, the information that the blood can provide.”

41. R. v. Lefave, [2003] O.J. No. 3861 (Sup. Ct.) “Here, the seizure of the laptop computer was incidental to the investigation of the alleged crime of threatening or communication. The examination of the data in the computer was a reasonable procedure to determine if there was any evidence on it to connect the accused with the crime in question.” para 30

42. R. v. Polius [2009] O.J. No. 3074 (Sup. Ct.) In my view, the power to SITA includes a power to conduct a cursory inspection of an item to determine whether there is a reasonable basis to believe it may be evidence of the crime for which the arrest was made. However, any examination of an item beyond a cursory examination of it is not within the scope of the power to SITA.

43. R. v. Little, [2009] CanLII 41212 (Sup. Ct.) … to suggest that once the police had lawful possession of the Treo they could examine its entire contents without obtaining a warrant authorizing its search is to ignore the nature of the item. It was not simply a cellular telephone, but rather a personal electronic storage device. It was capable of storing data such as call logs, text messages, photographs and movies, any or all of which could include highly personal information. Its contents were not immediately visible to the eye, but had to be extracted by a police officer with specialized skills using specialized equipment. In this way, it was different from a notebook, briefcase or purse.

44. R. v. Little, [2009] CanLII 41212 (Sup. Ct.) … If the police wished to examine the information stored in the Treo, they should have applied for a warrant authorizing the search of its contents. The Treo was safely in their possession. There was no urgency to search its contents, nor were there other circumstances that made it impracticable to obtain judicial authorization for the search. The police search of the contents of the Treo violated Mr. Little’s s. 8 rights.

45. R. v. Manley, 2011 ONCA 128 (C.A.) … 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. However, I would observe it is apparent that the traditional rules defining the powers of the police to conduct a search incident to arrest have to be interpreted and applied in a manner that takes into account the facts of modern technology. While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search.

46. SEARCHING CELL PHONES INCIDENT TO ARREST Conclusion (perPolius): • Other than a “cursory inspection of an item to determine whether there is a reasonable basis to believe it may be evidence of the crime for which the arrest was made”, there should be no search of a cell phone (and, presumably, other electronic devices) without warrant.

47. END