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Seizing information found in smartphones

Throughout the Greater Toronto Area, residents rely upon their cellphones for communication. Whether that communication takes the form of talking, texting or email, few who have smartphones can likely imagine going back to a time when they were not available to use. Their popularity has ramifications in many different parts of life including criminal investigations. Specifically, questions have arisen regarding what information contained within the phone is discoverable to law enforcement. Recently the issue has been in the spotlight with our neighbor to the south as federal investigators in the United States seek to access the content of an iPhone that belonged to the perpetrator in a mass shooting. As of yet, the agency seeking that access has not been successful.

For assistance in obtaining that information the Federal Bureau of Investigation asked Apple to help. When the company denied that request, the FBI secured an order that requires the maker of the phone to create software that could get past the unknown password. In response, Apple is seeking a ruling that deems the order unlawful.

In addition to the legal response, Apple's CEO also appealed to the masses. In a letter he posted online he indicated that taking such course of action could make security breaches of all iPhones easier.

Privacy issues pertaining to digital information are an issue in Canada as well. In some situations the Crown could seek such information as evidence to build a case against an accused. In the process of securing that information it is possible the information pertaining to others not tied to the investigation could be accessed as well, violating section 8 of the Charter of Rights and Freedoms with pertains to unreasonable search as seizure. As the decision reached in R. v. Rogers Communications illustrates, to be lawful, orders seeking this information cannot be overly broad.

What will ultimately happen in the Apple case remains to be seen. Regardless, individuals facing criminal charges in the province of Ontario should be sure to work with a lawyer who understands what could constitute unreasonable search and seizure.

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