Its Own Place

“The mind is its own place,” says Milton’s Satan. And since computers have, for all practical purposes, replaced our brains, so are those, right? The Supreme Court of Canada, at any rate, agrees. In a case decided last week, R. v. Vu, 2013 SCC 60, it held that police cannot search a computer on the basis of a warrant to search the place in which the computer is found. The search of the computer requires a separate warrant.

As Justice Cromwell, writing for the unanimous court, explains,

The traditional legal framework holds that once police obtain a warrant to search a place for certain things, they can look for those things anywhere in the place where they might reasonably be; the police do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets. The question before us is whether this framework is appropriate for computer searches; in short, should our law of search and seizure treat a computer as if it were a filing cabinet or a cupboard? (Par. 1)

The answer is that it should not, because “computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach” (par. 2).

The search warrant which the police had obtained authorized a search “documentation” that would prove the ownership and occupation of the appellant’s residence. The main question for the Court was whether this was enough to authorize the police to look for such documents on the computers (or cell phones) that they might find in the residence, in addition to looking for any physical copies.

Searching a computer says Justice Cromwell, is not the same thing as searching the physical space of a residence. The amount of data to be found on a computer is huge, and that data includes things “that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search” (par. 24). From the standpoint of the privacy interests they engage, computers are unprecedented technology, unlike anything the law has had to deal with in the past. The same thing goes for cell phones: “present day phones have capacities that are, for our purposes, equivalent to those of computers” (par. 38). Not only can computers hold information that would fill up whole libraries, but they record the websites they are used to visit, the terms they are used to research, and the history of the editing of the documents they are used to create. And theirs, rather like ours in fact, is a memory that does not really forget even told to do so: a computer does not actually delete a file, but merely makes the disk space it occupied available for reuse should the need arise. Finally, a computer ― unlike, say a filing cabinet ― gives one access to information that is not physically located on it, perhaps, “in the cloud,” on servers half a world away. In short, for the police to find something in a physical place, someone needs to have put it there, and no one must have thrown it out; neither of these conditions holds on a computer.

Because computers contain information that is thus so different from information that can be found by searching a physical place, a distinct judicial authorization is required to search a computer ― an authorization to search the place where the computer is found is not enough. Nor is after-the-fact review of the reasonableness of the search of a computer. Justice Cromwell concludes that “the privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place” (par. 51).

The way it will work in practice, he explains, is that

[i]f police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant (par. 49).

Such warrant need not, however, set out a detailed protocol for the search, or exclude in advance some “areas” of the computer to be searched. Not only are such protocols likely to be difficult to draw up in advance, but after-the-fact review will also allow courts to develop better rules for governing future searches of computers. A warrant can, in appropriate cases, impose conditions on how a computer is to be searched, but it need not always do so.

Sounds right to me. And it is worth pointing out, I think, that this case illustrates the development of new privacy expectations that come with new technologies. As I suggested here, the influence of technology on privacy rights is unlikely to be a one-way ratchet leading to the eventual disintegration of the idea of privacy. Some ideas of what is and what is not private will disappear in the digital world. Others will not. And others still will appear which did not exist before. Although I have regularly expressed my skepticism about courts’ ability to deal with new technologies, this case provides grounds for at least some optimism.

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