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The Arrest Handbook Series: Privacy, Phones, Protest & Police
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by
Aislin Jackson
When The Arrest Handbook was last updated in 2012, smartphones were still relatively new: the first iPhone had only been released 5 years prior, and carrying them was far from universal. Now, in 2023, almost everyone has a powerful computer in their pocket at almost all times. We use these devices to communicate with our loved ones, research topics of interest to us, follow the news, take videos and photographs, make purchases and other financial transactions, and navigate our physical environment – all the while, our devices are logging our activities. Our phones are perhaps our biggest privacy vulnerability because they collect and store so much information about our social connections, finances, interests, and physical movements.
The Supreme Court of Canada recognized this vulnerability in the 2013 case R v Vu, 2013 SCC 60, writing that “present day phones have capacities that are, for our purposes, equivalent to those of computers” and “[i]t is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer.” The law about when and how police can search or seize arrestees’ cell phones has continued to develop since 2013 and is summarized in Chapter 5 of the 2023 Arrest Handbook.Â
In short, the police usually require a warrant to search your phone, but have an ability to make a limited search of your phone without a warrant if you are arrested. If your phone is passcode-protected, even if the police can legally seize and search it, you have the right to remain silent and do not have to disclose your cell phone passcode to police. Police labs have software and technology that they can use to try to open locked phones, so the police may still be able to gain access even without the passcode. One common pattern is for police to seize a phone at the time of arrest and then apply for a warrant to search it, meaning that the phone itself will be out of your hands for weeks or months.
That’s what happened to animal rights activist Amy Soranno in 2019 when she was part of a sit-in demonstration at an Abbotsford hog farm. According to the BC Supreme Court decision on whether evidence from her cellphone would be admitted at trial, Ms. Soranno was recording the day’s events, which included a mass-arrest of attendees for unlawful assembly and break-and-enter, and serving as the group’s spokesperson. The police noted that she was on her phone throughout the day and seized the phone to preserve evidence.
Ms. Soranno was not prepared for her phone to be seized and, like many of us would be, was eager to have it back as soon as possible. The police could not give her a date, but described how long the process of breaking into a protected phone would take, and that the phone might be shipped to Ottawa if she did not provide her code. She was convinced and voluntarily gave the police her phone passcode. The police found documents related to the planning of the action, videos from the day of Ms. Soranno’s arrest, as well as videos taken in the two months before her arrest that appeared to be taken from inside the barn where the sit in was held. Even though her lawyers argued against admitting the evidence from her phone, pointing out that the police gave her the misleading impression that the police would get into the phone in any case, all of this evidence was admitted and used to convict her.
People who are at risk of being arrested, like other protestors, can learn from Ms. Soranno’s experience. Three lessons that can be drawn are:
Be conscious of how you use your phone. If you are using your phone to take video or photos during an arrest or protest event, that may give the police reasonable grounds to believe that your phone contains evidence. The police would then be able to legally seize your phone;
Leave your phone at home if you can. If Ms. Soranno had done this, the police would not have been able to seize it at the time of her arrest: they would have had to take the time to get a warrant and find the phone. This would have given her time to get legal advice and back up any important information from her phone; and
Make sure your phone is backed up. If Ms. Soranno had a backup at home of all her important information stored on the phone, the police would not have been able to use the promise of getting the phone back sooner to convince her to give them the code.
More insights on your rights on electronic devices and interactions with police can be found throughout the new Arrest Handbook. We hope this resource is helpful for people most at risk of infringements on their right to privacy and free expression.
The Arrest Handbook Series: Privacy, Phones, Protest & Police
When The Arrest Handbook was last updated in 2012, smartphones were still relatively new: the first iPhone had only been released 5 years prior, and carrying them was far from universal. Now, in 2023, almost everyone has a powerful computer in their pocket at almost all times. We use these devices to communicate with our loved ones, research topics of interest to us, follow the news, take videos and photographs, make purchases and other financial transactions, and navigate our physical environment – all the while, our devices are logging our activities. Our phones are perhaps our biggest privacy vulnerability because they collect and store so much information about our social connections, finances, interests, and physical movements.
The Supreme Court of Canada recognized this vulnerability in the 2013 case R v Vu, 2013 SCC 60, writing that “present day phones have capacities that are, for our purposes, equivalent to those of computers” and “[i]t is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer.” The law about when and how police can search or seize arrestees’ cell phones has continued to develop since 2013 and is summarized in Chapter 5 of the 2023 Arrest Handbook.Â
In short, the police usually require a warrant to search your phone, but have an ability to make a limited search of your phone without a warrant if you are arrested. If your phone is passcode-protected, even if the police can legally seize and search it, you have the right to remain silent and do not have to disclose your cell phone passcode to police. Police labs have software and technology that they can use to try to open locked phones, so the police may still be able to gain access even without the passcode. One common pattern is for police to seize a phone at the time of arrest and then apply for a warrant to search it, meaning that the phone itself will be out of your hands for weeks or months.
That’s what happened to animal rights activist Amy Soranno in 2019 when she was part of a sit-in demonstration at an Abbotsford hog farm. According to the BC Supreme Court decision on whether evidence from her cellphone would be admitted at trial, Ms. Soranno was recording the day’s events, which included a mass-arrest of attendees for unlawful assembly and break-and-enter, and serving as the group’s spokesperson. The police noted that she was on her phone throughout the day and seized the phone to preserve evidence.
Ms. Soranno was not prepared for her phone to be seized and, like many of us would be, was eager to have it back as soon as possible. The police could not give her a date, but described how long the process of breaking into a protected phone would take, and that the phone might be shipped to Ottawa if she did not provide her code. She was convinced and voluntarily gave the police her phone passcode. The police found documents related to the planning of the action, videos from the day of Ms. Soranno’s arrest, as well as videos taken in the two months before her arrest that appeared to be taken from inside the barn where the sit in was held. Even though her lawyers argued against admitting the evidence from her phone, pointing out that the police gave her the misleading impression that the police would get into the phone in any case, all of this evidence was admitted and used to convict her.
People who are at risk of being arrested, like other protestors, can learn from Ms. Soranno’s experience. Three lessons that can be drawn are:
More insights on your rights on electronic devices and interactions with police can be found throughout the new Arrest Handbook. We hope this resource is helpful for people most at risk of infringements on their right to privacy and free expression.
This writing is part of a series inspired by the 2023 Arrest Handbook. Read Part 1, Heavily Policed Communities.
CIVIL LIBERTIES CAN’T PROTECT THEMSELVES