7 tips for lawyers on guarding privilege, protecting client rights, and tracking evidence in the digital age.

Considering the extensive sensitive data that is preserved on a phone (even after deletion) is good practice for everyone to password lock their phones.

In addition to these obvious reasons, there are also specific legal reasons that make one vulnerable to police searches if ever arrested for an offence. As we indicated in a previous article, the Supreme Court of Canada held in R. v. Fearon  that is fair game for police to do a cursory search of the data contents of a phone provided that: 1) the arrest is lawful, 2) the search’s is done promptly and with a purpose that is incidental to offence(s) the suspect is arrested for, 3) the search is tailored towards this purpose, and, 4) detailed notes are kept on what was done.

However, this incidental power of arrest does not permit the police (at least at the present time) to compel individuals to provide passwords to unlock those contents. In those instances, judicial authorization (i.e. a warrant or production order) would be required.

As such, the practical effect to the present law on searches of smart phones is that privacy from state intrusion can only be meaningfully secured by the active means of setting a passcode. Anything short of that runs the risks of clients’ phones being subject to warrantless searches upon arrest. The broad permissions set out in Fearon leave very little room for sensitive information to hide.

With one phone call, a locked phone’s status quickly changes to unlocked.

In some instances, that phone call may be to counsel.  A point of caution to clients who have been afforded to speak to a lawyer on their cell phone is that once the call is over, police may seek to take the phone from their hands now that it is unlocked – thus circumnavigating the legal protection of locked phones set out above.

Therefore, when speaking to a client, it is prudent to advise them to lock their phone as soon as they hang up so as to prevent a quick Fearon-style search and seizure immediately after their call to counsel. While this conduct may be challenged after the fact, it is much better if it’s unnecessary.

Something easily forgotten, by clients and counsel, is that data can continue to transmit after arrest. 

What this means, in effect, is that emails, texts, and call history that clients are receiving may continue to download on to their smart phones (or computers). This may seem obvious or innocuous at first, but there are many reasons why this is important, particularly for counsel:

1. Emails, texts, and their contents sent by their lawyers to their clients may now be in police possession. As noted, data continues to transmit. Therefore, lawyer communications sent even months after an arrest, may still be downloaded to a phone with those accounts set up on them. Even if the phone is powered down, once charged and reconnects to the network, all that data (many months worth perhaps) will now sync with whatever email accounts, texts, or other apps that may have sensitive and/or privileged information contained within them.
2. Although lawyer communications form solicitor-client privilege, this does not prevent the police from inadvertently stumbling upon, and reading, such communications. Lawyers failing to recognize and flag the issue of possible privilege to the prosecution or police run this risk to a higher degree.
3. Even if a phone (or computer) is protected, if a production order or warrant is granted, all these pending transmission issues remain once the device is connected via cellular data, WiFi, or hardwired internet connection (if the police felt so inclined to engage the latter two).

One way to avoid this issue (to a certain degree) is to ensure you client’s cancel the cellular data plan on their seized phones as soon as possible so as to avoid unintended data transfer.

Social media can prove invaluable to a case.  However, it is also the kind of evidence that is easily susceptible to deletions or restrictions.

Therefore, one of the first questions asked of clients ought to be whether there is any potential for social media evidence assisting with the case. If so, this evidence must be preserved immediately by downloading, printing, and/or screen capturing it. This includes, but it not limited to: Twitter, Facebook, Instagram, Snapchat, etc. It may include content, photos, geocaching, or even mere transmission of data itself.

Above all, be sensitive to social media’s worth and its transience through deletion or restricted access at a later date.

The deletion of data is merely marking certain storage clusters available for reuse.

What this means is that simply deleting information does not delete it. Data is only “deleted” when it is overwritten by other data and is therefore no longer accessible and/or recoverable.

Knowing this fact about data is both a shield and sword depending on the advice you may provide in different contexts (i.e., whether to consent to a phone search, whether to retain s data recovery specialist, etc.)

Knowing that data may be intercepted or downloaded on a seized device is essential to ensuring the communications between counsel and client are secure.

When interviewing clients who have had phones or computers seized, ask them what accounts (email, text, phone, apps, etc.) were they using on the seized devices.  From there, out of an abundance of caution, you may wish to advise the client to set up new email accounts and/or texting means that are not accessible by what is in police possession.

Taking this one step further, as our firm employs, never discuss sensitive legal matters over the telephone, email, or text.  However, it never hurts to take precautions like this, even if only to ensure the client does not inadvertently discuss something you would have preferred to discuss in person at your office.