Help police but preserve rights
It is no wonder that police agencies across the country want easier access to the contents of smartphones, computers and other electronic devices to help solve crimes ranging from online financial rip-offs to possession of vile child pornography.
Personal digital data in our wired world is a deep, powerful source of evidence, a virtual treasure trove of communications, images, documents, search histories and, in the case of GPS-enabled mobile devices, travel records.
Experts say our devices often know more about us than we know, or can remember, about ourselves.
Information found on them has been used to catch and convict countless murderers, drug dealers, pedophiles and other miscreants – and their potential value to investigators is only growing as electronic gadgets become ever more integral parts of our lives.
Increasingly, however, police are stymied by passwords and encryption keys designed to keep prying eyes in the dark. Even after obtaining legal authorization to seize and search devices, those barriers mean officers can’t get at the data stored inside them.
Their understandable frustration provided the context when the Canadian Association of Chiefs of Police of Canada recently passed a resolution calling for a new law that would, with the approval of a judge, compel suspects to divulge their passwords.
Such a provision would, to be sure, represent a huge intrusion in a country that properly prizes the right to privacy. The question is whether it could be justified, and collectively tolerated, for the sake of law, order and security.
In that regard, it is useful to remember that police have long had the power, after obtaining search warrants from judges, to forcefully break down doors and enter homes to look for damning evidence.
They can also tap into telephone systems to secretly listen to, and record, private conversations provided they can similarly satisfy requirements including the demonstration of reasonable and probable grounds.
Those crucial checks and safeguards already apply as well to the seizure and search of electronic devices that aren’t password-protected or can be accessed using forensic tools.
Critics will say that forcing suspects to give up passwords as well as their devices would take the intrusion to a higher, unacceptable level by actively involving them in their own incrimination, a point certainly worth careful consideration. But there is at least one existing provision in Canada – the law making it a crime to refuse to provide a breath sample in impaired driving investigations - that does much the same thing and has nevertheless been deemed warranted.
Given the challenge police face keeping up with criminals who are armed with the latest technology and know how to use it to their advantage, could this be another area where the benefits of greater police power outweigh the loss of some liberty?
At the very least, that question should get a full airing as the federal government embarks on three months of public consultation on cybersecurity. Now is the time for Canadians to make their feelings known on this important and challenging issue.