Tony,
Let's say that an investigative agency arrests someone for an offence. They can seize items incidental to the arrest that are connected to the offence (or they can get a search warrant where they are required to show grounds to believe that the items are relevant to the offence). With computers, in Canada and the US (to my understanding), a search warrant is needed to actually seize the hard drive and examine its contents.
The investigative agencies can only examine the hard drives for data connected to the offence that the person is suspected of. For example, if an agency is looking for evidence of child pornography, then the officer responsible for the computer search is limited to looking for evidence of that offence. They are fettered in their ability to go beyond certain search terms or file types. They are given a lot of leeway of course. Crooks will hide their porn in file folders like "Moms' Recipes" or things like that. And if, in the process of examining the computer's hard drive, they come across something more (e.g. like evidence of drug trafficking) they can then ask a judicial authority for the ability to search for more. The computer search officer acts like a gate keeper. People store all sorts of things on a computer so, as stated, a search for child porn does not mean that the state should be allowed to search your tax files or the emails with your parents (other than for photos).
With cell phones, the law varies from country to country. The police are entitled to do a cursory search of the contents of the phone (upon a valid arrest or detention) to see what the nature of the messages / calls are. That may lead them to get a search warrant. Under border crossing regimes, these rules do not apply as the reasonable expectation of privacy in a cell phone search is much lower to negligible.
Before examining phones, the state may require judicial authority to tell them who the phone belongs to, who the IMEI number is associated to, what carrier the phone is on, etc. So a type of search warrant may be required directed to a third party company to provide information like subscriber details. They also may want to obtain from the cell provider records which show which cell towers the phone used in order to track the movement of the cell phone.
After that, the phones are sent to police labs to be 'cracked'. Blackberrys and iPhones that are encrypted may result in fruitless searches.
What the order proposes - to my understanding - is that Apple create a second version of its iOS to allow police investigative agencies to get into the phone through the back door. This concerns me.
Keep in mind that we keep taking our shoes off at airport security because of what one person did years ago.
Whether the state - whether the US or Chinese or Whoville - will do something once...would they really? I doubt it. So, even though I work in the legal system and argue in favour of the police agencies on a regular basis, I do believe that limits are required on state intrusion. And this is one of them.
Posted by: gerrysair@gmail.com
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