Internet, Computers & Technology Crime

WHAT SORTS OF ISSUES ARE RAISED IN INTERNET OR TECHNOLOGY-RELATED PROSECUTIONS?

Some questions that often come up in prosecutions involving the Internet and computers include:

• Did the police have the right to get information about you from your Internet Service Provider or phone company, such as your IP address, subscriber information, phone records, or the places where your phone was used?
• Did the police have enough evidence to get a search warrant to seize and analyze your computers or cell phones?
• Did the police process the computer evidence within the legal amount of time?
• Can the police prove that you knew a certain file or piece of information was downloaded or stored on your computer?
• Can the police prove that you were the specific person who used a device to commit a crime?
• Do the police have the right to search your cell phone after you were arrested?
• Did the police use the correct forensic techniques when analyzing a computer or cell phone that was seized from you?
• Did the police “entrap” you, by giving you the opportunity to commit a criminal offence without reason to suspect you were already engaged in that crime?
• If you were communicating with someone who is under-age on the Internet, did you believe they were over 18, and did you take reasonable steps to learn their age?

WHAT HAPPENS IF THE POLICE HAVE NOT “FOLLOWED THE RULES” WHEN THEY COLLECTED EVIDENCE AGAINST ME?

If the police have not respected your privacy rights and have violated the Charter of Rights and Freedoms, a judge could decide to exclude some of the evidence that would otherwise be used against you at a trial. This means that the prosecutors may not be able to use the evidence to prove you are guilty.

For example, if the police seized your computer from your home, and a judge later rules that the police did not have enough evidence for a search warrant, the prosecutor may not be able to use any files found on the computer to prove you are guilty. This can significantly weaken the case against you, and in some cases, excluding evidence could cause the prosecution’s case to collapse.

Evidence is not automatically “thrown out” just because the police have made a mistake, however. Even if the judge agrees that the police have made a mistake, the judge will balance a number of factors to decide whether the evidence can still be used against you. For example, a judge will consider the seriousness of the police’s mistake, how much the police’s actions have interfered with your rights, and whether the evidence is so vital and compelling that excluding it would be worse for the justice system’s reputation than admitting it.

The Supreme Court has repeatedly ruled that personal computers and electronic communications have a very high expectation of privacy. This means that a judge will often consider these kinds of privacy breaches serious, making it more likely the evidence would be excluded.

HOW CAN THE POLICE PROVE THAT I SAID OR DID SOMETHING ON THE INTERNET?

The internet can often give a person a false sense of anonymity. In reality, the Internet can be a very effective surveillance tool. In theory, your every move online can be monitored and recorded, and used to identify you. Why? The technical explanation can be a bit complicated.

Every computer or other device that connects to the internet can be identified by a number, called an Internet Protocol (IP) address. When you connect to the internet, your Internet Service Provider (for example, Shaw or Telus) assigns you a unique IP address. You disclose your IP address to the websites you visit, and a website may your IP address when you access the site. If the police can learn the IP address of the computer that was used to do something on the Internet, they can then ask an Internet Service Provider to tell them which subscriber was using that IP address, which can reveal your identity.

For example, say you uploaded a copyrighted music file to a website. The website owner may not know who you are, but the computer server where you uploaded the file probably stored a copy of your IP address (e.g., “123.45.67.89”). If the website owner gives this number – 123.45.67.89 – to the police, the police can look up which Internet Service Provider is responsible for that IP address (say, Shaw). The police can then contact Shaw, and Shaw can look up which subscriber was assigned the address 123.45.67.89 on the date and time when the file was uploaded (e.g. “Bob Smith, 123 Nowhere Street, Edmonton, Alberta”). By connecting these dots, the police can easily find out which subscriber account was used to upload the file.

This is often enough to convince a judge to grant a search warrant, allowing the police to come to your house (“123 Nowhere Street”) and seize your computers to look for evidence to use against you. It may also be enough evidence for the police to place you under arrest and question you about whether you were involved in a crime.

THE POLICE CAME TO MY HOUSE WITH A SEARCH WARRANT AND SEIZED MY COMPUTER, BUT I HAVE NOT BEEN CHARGED YET. SHOULD I CONTACT A LAWYER?

Occasionally, the police will search a house and seize computers and other electronics, but will not lay charges against you until the computers are analyzed by a computer forensics expert. If this happens, it is very important that you get legal advice at an early stage. There may be steps you can take to limit how the police can use the computers that were seized. There is also the chance the police could arrest you and question you later on. Speaking to a lawyer right away helps keep all of your options open. It can also ensure you get valuable advice about how to avoid incriminating yourself, or making it harder for you to get released by the police if you are later arrested.

When the police seize evidence by way of a search warrant, they are subject to certain time limits to lay charges within, unless they apply for an extension. It is important to seek legal advice when your computer is seized, even if charges have not been laid yet.

DO THE POLICE HAVE A RIGHT TO SEARCH MY CELL PHONE IF I AM FOUND CARRYING IT WHEN I AM ARRESTED?

This is an evolving area of the law, and until the Supreme Court rules on this issue, it is hard to give a clear answer to this question. Some courts have suggested that the police have free reign search a person’s cell phone when they arrested, so long as they are searching the phone for reasons related to the arrest. Other decisions have suggested the police can do a basic or “cursory” search of the phone, but need a warrant if they are going to do a more detailed search. And some courts have suggested the police are not allowed to search a cellular phone at all, unless a judge issues a warrant first.

The Supreme Court will decide a case in the coming months that will probably clear up the uncertainty in this area of the law, and give the police with more guidance about these kinds of searches.

Your best protection against the police searching your phone without a warrant is to lock your phone with a PIN or password. Some courts have suggested that the police need a warrant to search when a phone is “locked.” In addition, if your phone allows you to encrypt its storage, this makes it more difficult for the police (or anyone else) to learn what is saved on the phone.

ARE THE POLICE ALLOWED TO COLLECT INFORMATION ABOUT ME FROM SOCIAL MEDIA WEBSITES, SUCH AS FACEBOOK?

There are a few different ways the police can gather information about you from social media websites such as Facebook, Twitter, Google Plus, Myspace, or Nexopia.

The easiest way is by simply logging into the website and accessing information you have left open to the public. You probably don’t have a reasonable expectation of privacy in information that you choose to share with the world on a social media website. For example, if you don’t take any steps to protect your Facebook photos from other users, the police are free to log on and see what you’ve posted, just like anybody else.

The police can also ask someone who has access to your social media posts to give them a copy. So for example, even if you do not let anyone but your “friends” view your pictures on Facebook, the police can ask one of your friends to send them a copy of a picture.

Although the thought of the police snooping around on Facebook may sound paranoid, it happens all the time. The police routinely use Facebook as an investigative tool to identify possible suspects, to find out whether people know each other, or see if different people have been spending out together. For example, after the Stanley Cup Riot in Vancouver, the police used images posted on Facebook to prove that people were involved in the rioting. If you do not want the police to have access to information you post on social media, you should check to see if there are privacy settings on the website that can limit who can access your information – or just don’t post anything you don’t want the police to see.

Even if you have strict privacy settings and your “friends” don’t cooperate with the police, the police may still get access to social media posts. If the police can convince a judge there is good reason to access your private posts, a judge can order a social media website to give the police a copy. So for example, if you have sent a “private message” to another on Facebook, the police could ask a judge to force Facebook to give them a copy of this message.

ARE THE POLICE ALLOWED TO READ MY EMAIL OR MY TEXT MESSAGES?

The police will usually require a judge’s permission to read private electronic communications, like emails or text messages. Most courts have found that people have a “reasonable expectation of privacy” in these kinds of messages, which means that in general, the police need prior approval (from a judge) before they can seize copies of emails or text messages, whether they are stored on your personal computer or on your email provider’s computer server.

There are also strict rules about when the police are allowed to directly intercept these kinds of private communications when they are sent from one person to another (as opposed to seizing copies stored on a server). Directly intercepting these messages is considered a form of “wiretapping,” and the police are not allowed to tap private communications unless they follow even more rigorous procedures.

It isn’t impossible for the police to get copies of your text messages or emails – they just need to get a judge’s permission first. The police will have to convince a judge that there is good reason to believe that the emails or text messages will be relevant to an investigation.

The police do not need to prove “beyond a reasonable doubt” that you have committed a criminal offence, or show that it is absolutely certain the emails or text messages will help their investigation. As long as there is a reasonable likelihood that the emails or text messages assist with the investigation of a crime, this can be enough for the police to get copies of your messages.

Of course, the rules vary from place to place. While Canadian law enforcement officials will generally require a judge’s order before they can read these sorts of electronic messages, the same may not be true in countries such as the United States. If you want to make it harder for officials from other jurisdictions to read your email or text messages, you should consider using an encryption program.

Also keep in mind that someone who receives an email or text message from you can voluntarily give a copy to the police. For example, if you used your company’s email system to send a threatening message to your boss, there is nothing stopping your boss from printing out a copy of the email and giving it to the police.

CAN A BORDER GUARD OR CUSTOMS OFFICER SEARCH MY COMPUTER OR MY CELL PHONE?

You have a much lower expectation of privacy when you enter or leave Canada than you have in day-to-day life within Canada. Courts have consistently ruled that border guards and customs officials have much more leeway to stop and search people than do “ordinary” law enforcement officers.

On the other hand, Canadian courts have also ruled that some constitutional rights guaranteed by the Charter of Rights and Freedoms apply even at the border – in other words, border crossings are not “Charter-free zones,” and there are still limits to when and how a border guard can search you or your property.

Some kinds of searches, such as a routine baggage inspection, certainly do not require a warrant from a judge, nor do they require strong, individualized suspicion that a person is carrying contraband. On the other hand, very invasive searches, like an intrusive body cavity search, may require a judge’s prior approval.

There aren’t many court decisions that relate to cell phone or computer searches at the border. The few cases that have been decided suggest that border guards have the power to conduct at least a “cursory” search of your cell phone or computer without a judge’s prior approval, even if they do not have reasonable grounds (or “probable cause”) to believe they will find evidence of a crime or a customs violation. You should expect the possibility that border guards will search your electronic devices, especially if they have some reason to at least suspect the devices contain contraband.

This document was prepared as a general overview of the law and was current as of its initial writing. It is not legal advice, and it is not a substitute for legal advice. You should not rely on this information to answer your specific legal questions, and should consult a lawyer instead.