How legal it is for police to search your mobile phone in Australia?
If you ever have come across a policeman stopping you on the road and asking you to show your mobile then you have this question in mind as how it is legal for a cop to search your mobile phone in Australia. From inputs from Matthew Raj an Assistant Professor at the Faculty of Law at Bond University here is the best answer to this question.
Talking of your mobile’s security and privacy the mobile brand companies allow you to secure your phone privacy with a passcode or a pattern protection where you swipe a symbol or numbers and unlock your own phone. This security feature of locking one’s own phone saves your personal data like contacts, text messages, videos or music or any other important document.
Studying the legal aspect of police searching your phone and asking for your password to unlock your phone has different aspects varying about different country laws In 2014, a US Supreme Court decision confirmed the search and seizure of digital contents of a phone during an arrest is unconstitutional. Chief Justice John Roberts described mobile phones as: “not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”. The court seemed to recognise that, in many ways, phones are more like a home than a handbag. Therefore in July 2017, a US Federal Court judge excluded evidence obtained without a warrant using a surveillance device that tricks suspects’ phones into revealing their location.
In Canada, a narrowly divided Supreme Court ruled in 2014 that warrantless police searches of a phone following an arrest are permitted, so long as the search is directly related to the circumstances of the arrest.
The court ruled that detailed records must be kept of the search. Justice Thomas Cromwell said:
“Unwarranted searches undermine the public’s confidence that personal communications, ideas and beliefs will be protected on their digital devices. This is particularly important given the increasing use and ubiquity of such technology. It is difficult to conceive of a sphere of privacy more intensely personal – or indeed more pervasive – than that found in an individual’s personal digital device or computer”
The laws in Australia- When can police search your phone
The position in Australia is not so clear. Last year, police officers on the Gold Coast arrested Paul Gibbons, a former Australian Federal Police officer. It was alleged the officers required Gibbons to unlock his phone using his fingerprint. It was also suggested that, once seized by police, material was deleted from Gibbons’ phone.
Point to note is that police officers can search your mobile phone with your consent. A recent Queensland decision made it clear that voluntarily permitting a police officer to look at one piece of information like your phone contacts list acts as consent to look at all the information stored on the phone.
However, information stored on the phone does not include information accessed via the internet (ike your Facebook or whatsapp messages. Without a warrant or a person’s consent, police must rely on existing powers to search either before or after arrest if the police must reasonably suspect you possess an unlawful dangerous drug.
It has been recognised, in line with the aforementioned 2014 US Supreme Court decision, that while a warrantless pre-arrest search of a phone may be legally justified despite the invasion of privacy, a post-arrest search may not be.
Also the police can rely on emergency search powers to prevent the loss of evidence like when they genuinely suspect that evidence of the commission of an indictable offence may be destroyed.
Police powers to search also exist in relation to your vehicle and anything in it, which includes your phone.
In Queensland, it is an offence to possess something that has been used or is used in connection with the commission of a drug offence. So if you text another person to arrange the supply of drugs, merely possessing the phone becomes an offence.
But controversially, if you refuse to provide the police your passcode or fingerprint, you may be charged with an offence of obstructing or contravening a direction given by a police officer. This is because, in circumstances where an officer has the power to seize a phone, they also have the power to examine it.
Without the voluntary consent of an owner, a search warrant must include authorisation (under special provisions relating to warrants) to gain access to a password-protected device. In addition to obtaining a valid warrant, police must have this special provision on the face of the warrant so as to require you to provide the information necessary to access all of your electronically stored information.
As you know your mobile phone carries a great deal of information. It has your work email, personal photographs, places you’ve been, friends with whom you associate, dating preferences, levels of fitness, internet browsing history, bank account details and much more are all carried in your hand. With enough work, even the stuff you’ve deleted can end up being retrieved.
All that can be concluded finally is the fact that in Australia police needs to have clearer explanations to search your phone. The rules need to be examined carefully and proper guidelines or norms should be set when police requires to search your phone. Also public should be made aware of the laws where the search is necessary. (Inputs from various news sources as well as lifehacker.com)
As said above police should obtain your consent to search data stored on a mobile with a proper lawful procedure.