Reasonable Doubt: The thoughtpolice are among us

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      We all deserve and desire some privacy.

      The nature and degree of privacy we expect varies greatly between individuals.

      Take the girl on Powell Street yesterday (August 1). Tim Burton has turned the unit block of Powell Street into 1960s San Francisco for the week and is on set with Christoph Waltz. Although not part of the film, she had no problem tanning in the nude on the roof of her four-story apartment building, waving and dancing for the large crowds below who were taking pictures and waving back during filming breaks.

      Most of us are more protective of our privacy. Our interest in protecting our privacy goes far beyond what we look like in the buff.

      The inside of a person’s mind is probably the most private area imaginable. Nobody knows what goes on in there except the person thinking those thoughts. Spouses, parents, friends, children, and colleagues cannot penetrate its thick, bony walls (unless you happen to be Professor Xavier).

      Indeed, the mere idea of others trying to uncover one’s thoughts was one of the most compelling themes in George Orwell’s famous work, 1984.

      Today, we are eerily close to the state being able to read and prosecute our thoughts. That is because many of us deliberately or recklessly use computers and other electronic devices (smart phones especially) to track our thought processes, intentions, and desires. We couple those with the date, time, and place of those thoughts.

      Imagine the fruits of a search of someone’s home or office conducted even 15 years ago (I use that benchmark because that was the first time I had an email address. At the time, most computers lacked Internet access and cellphones were only beginning to store contact information, which had to be clumsily entered on a tiny numerical keypad).

      We might have found some medication, books or magazines, banking and financial records, and some personal belongings such as collectors’ items or sports equipment. Probably, we would not know where those came from, why they were there, to whom they belonged, or if the residents were even aware of their existence. We might be able to infer what use was made of them, but this might be tough.

      Now, imagine what could be garnered from a forensic search of a smartphone. A police officer, in the confines of a private computer lab, could read all your correspondence with your friends, family, and lover(s) in text messages and emails. He could see your browsing history and search engine results. He could see your photos. He could see what you had read, what notes you made and exactly when you did so. He could see your calendar, your contacts, your friend’s photos, and your social media accounts. He could see what your interests are based on what apps you have used, when you have used them, and what information you collected or sent out in those apps. He could also track your movement to know where you were when you did all of the above, which is a further intrusion of privacy, in and of itself.

      Someone searching my phone could tell that I bike to work and what my average and top speeds are. He would know that I like skiing and that I am planning a holiday. He would know that I went to Nanaimo last weekend and where I stayed and far, far more that I do not want that hypothetical officer or the general public to know about.

      That worries me, not because there is anything wrong with what I did, but because it is my business and nobody else’s.

      By looking through my cell phone and knowing that I accessed certain information and at what time and in what place, a third-party can virtually track my thought processes as I go about my life. He can also find out about my future intentions with considerable accuracy.

      Times are changing and our laws should too. Presently, there is disagreement in the law as to precisely what the police can and cannot look at when they find cell phones and other electronic devices as part of a search.

      Keep in mind that a search can be conducted pursuant to a validly issued search warrant or it could be conducted without one, such as during a traffic stop or at the border. In one case, a police officer took the driver’s camera and searched through all of his photos. The basis for this was that he hoped to find evidence to prove that the person he had pulled over for speeding, after clocking his speed with a radar gun, was speeding. The senior constable in that case searched through the entire contents of the camera while sitting in the driver’s car.

      However, in one case presently before the Supreme Court of Canada, RCMP officers testified that it was their standard practice to seize and examine all electronic devices they find when searching for “documents” in a house. Historically, they would have been limited to looking for things like mail and drug prescriptions in a desk drawer or countertop.

      Presently, the RCMP, other police agencies, and some courts regard electronic media in the same way that they would desk drawers or counter-tops. Obviously, this disregards the breadth and nature of information that can be collected from electronic devices when searching those items relative to a desk drawer. Frankly, it’s a poor and not-so-subtle excuse on the part of police to collect more information about us, which is part of a snowball rolling down a hill. The information is collected, indexed, and made available to literally thousands of people we have never met, possibly in dozens of countries we have never visited. Over the course of one’s lifetime, this can be a tremendous amount of information.

      Of course, we expect that the police will investigate crime and enforce the law. That said, citizens in contemporary democracies do not expect that the state will be able to intrude on their personal affairs unless there is good reason for doing so. In legal terms, that good reason is known as “reasonable grounds”. That means that police are expected to have a reasonable basis for believing that their search will likely reveal evidence of a crime. It has to be more than speculation. Otherwise, the state will have intruded into our personal space with no reason to do so.

      These laws are not there to protect criminals. They are there to protect the rights of each and every person whose business is nobody’s but their own. Take one simple example that might often occur: you lose your cell phone or it is stolen. Drug dealers, wanting a cellphone associated with an unsuspecting dupe (you) keep and use that phone. The police execute a search warrant authorizing them to take “documents” from that drug dealer and seize your phone.

      As part of their standard practice, they read through all your text messages and emails, look at your browser history, and look at your calendar. They also answer incoming phone calls and speak with the people who phone your phone. They look at where you have been and open a file on you. They flag your vehicle registration, driver’s license, and passport in their records which they share with border agents, CSIS, and other government agencies. They cross-reference your name with similar spellings and dates of birth. This is how innocent people end up on no-fly lists or being interrogated in Syrian dungeons.

      Of course, we trust police, but they are only human. A police officer responding to a 911 call at your home might have access to information suggesting that you are associated with organized crime or terrorism when nothing could be further from the truth. Imagine how that officer will behave with you given that information.

      I admit it: the above is a bit of fear-mongering. It is fortunately, and in all likelihood, a worst-case scenario. A far more likely scenario would be a person unknowingly buying something on Craigslist from a criminal, that criminal later being arrested and police finding the buyer’s contact information and correspondence in the phone among that criminal’s actual clients.

      Quite apart from that is our intrinsic freedom to go about our lives free from such interference, free to think whatever we want to, knowing that those thoughts stay within our head and that we do not risk persecution, prosecution, or huge inconvenience for mere thoughts. The freedom to collect and store those thoughts is intrinsically linked to our right to have those thoughts.

      Our privacy must be balanced against the needs of police to enforce the law for our collective good. This becomes a thorny issue, depending almost entirely on each person’s desired level of privacy.

      For many, if the state wants that information, then it should come back with a warrant (one authorizing the search and seizure of my electronic devices). 

      Michael McCubbin operates a busy litigation practice in downtown Vancouver, focusing on criminal, constitutional, and administrative law. Reasonable Doubt appears on on Fridays. You can send your questions for the column to its writers at A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.


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      Michele Baillie

      Aug 3, 2013 at 4:13pm

      The RCMP is responsible for security of the government and stability of the current system; functioning amorally and apolitically as soldiers do. It accomplishes this task- wholesale surveillance of people of interest to the Government (did you know John Lennon was considered a threat to the Canadian Government by the RCMP?) just as other entities do in different countries around the world such as the Israeli Mossad, the American C.I.A. and British M.I. 6 under the Authority of Her Majesty; The Queen


      Aug 3, 2013 at 4:15pm

      The author may trust police.Perhaps he has never done an illegal drug and never written an article like the one he just did.Perhaps he has never actually had to deal with police.Those of us who have,do not trust police for good reason.First,the war on drugs has cut society into very different factions.Then there is the war on terror.The environmental movement has been labeled terrorists,for an example.The police are just a small faction of the security state,as we are now told almost daily.Everything is intercepted and analysed.Just the use of one wrong word in an e mail can put you on some very scary lists.I have sat in court rooms and watched ,helplessly as police lie under oath.I have watched them alter testimony to try to fit new facts and have even heard judges caution them on this.Caution but not sanction.The police,the security sector,the courts and the government all consider themselves above the law.They are seldom if ever arrested and even less often convicted and then even less do any real penance.How can such people be expected to conform to any kind of restraint?


      Aug 4, 2013 at 11:56am

      I believe the author said it best himself " This is a bit of fear mongering".

      Phu R. Yu

      Aug 5, 2013 at 10:37am

      Through the "Snowden leaks" it's come out that just with your email address, the government can inspect ALL of your activity. And without a warrant, it's as easy as a click away...and this was 5 years ago.


      Aug 6, 2013 at 11:45am

      Seriously, you guys give me thumbs down for quoting the author. Your arguments is so weak...