Privacy and the Right to Search

Headlines in the Canadian broadsheets and schlock newspapers last Friday screamed indignantly about "Disturbing evidence kept from the Rafferty jury". The reference was to a trial underway in Canada of a malignancy disguised as a human being who was convicted over the weekend of the sexual assault and murder of a young girl in Western Ontario.

The perennially huffy National Post columnist Christie Blatchford grumbled about judges keeping evidence from juries because they "don't wholly trust" them. She was referring to damning information from the accused's computer demonstrating he is a sexual predator that was not allowed in evidence. The judge ruled that the police acted illegally in not obtaining a secondary warrant to seize and search the contents of the killer's laptop.

Her article mixes two clearly distinct issues: the question of whether judges indeed needlessly keep facts from juries for a variety of reasons -- an accusation I am not in a position to comment on -- and the question of whether the authorities should be required to get a specific warrant to seize and search someone's computer.

It is essential to separate the two, because the latter has sweeping implications for protecting privacy and the rights of individuals.

Our computers, tablets and smart phones are central to our lives. We often have an intimate relationship with them and treat them (forgive the pathetic fallacy to follow) as confidante and confessor. The confessions stored in their memory are in rare instances heinous and criminal, and the authorities should be able to access them, as they would a file cabinet in a house, IF they are investigating a serious wrongdoing. But, as with a physical search of a house, the police should be required to get a warrant for which cause has been demonstrated to a member of the judiciary.

As much as the convicted killer in this case deserved the life sentence awarded (or worse), it would reinforce a dangerous precedent for all of us if the contents of his computer could be accessed without a warrant. The amount of sensitive private information many of us have on our computing devices justifies legal supervision of who, when and how they can be accessed.

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