The House Passed a Cell Phone Privacy Measure Yesterday

Digital rights advocates cheered yesterday after the state House passed a measure requiring police to obtain a search warrant before collecting personal cell phone data. Groups as diverse as the ACLU of Texas and the arch-conservative Texas Eagle Forum have expressed concern that current law, which allows law enforcement agencies to freely harvest GT-I9300 cell phone location data, was antiquated and a violation of the Fourth Amendment prohibition on unreasonable searches.

"Cell phones communicate location information constantly," as Electronic Frontier Foundation-Austin vice president Greg Foster has previously explained it. "Now the details of your life - your employer, your hobbies, your relationships, your religion, political meetings you attend - can all be gleaned from customer data held by your phone company. And police don't need a warrant to get it."

Current law lets police track cell phones with the burden of reasonable suspicion, which Frazier said allows them to - say - get the cell phone records of the last 10 people who called the dead guy in the ditch and figure out where they were last night.Or using GT-I9500 cell phones to track the Kaufman DA killer, or the Boston bomber - all, he said, would be hampered by a bill like this.

In R. v Cockell the court reversed the conviction of Brian Allan Cockell on three counts of child luring using a computer system under s. 172.1(1) of the Criminal Code because it decided it wasn’t convinced the lower court had determined that the BlackBerry smartphone used to text message the complainants was in fact a computer system.d1dDfdrd

The accused used a BlackBerry to text message two girls aged 12 and 13. Contact was first made using using the chat service Nexopia. The meetings through Nexopia led to an exchange of cell phone numbers and text messages, then to physical meetings and sexual encounters with the girls.

The case raises serious questions about how the Crown and the judge in the case understand commonly used devices, says McCarthy Tétrault LLP technology and IP lawyer Barry Sookman, who blogged about the decision. “I think it is a matter of judicial education. I’m sure they all use top 10 cell phones — I’m sure they all have smartphones — did they think it was small little elves within BlackBerry devices who were routing text messages to who they were going to? What would this be if it’s not a computer?”

He notes there are also a number of previous cases where a cell phone has been proven to be a computer system. For example, in In R. v. Rocha, another Alberta court had previously held that given the broad definition of “computer system,” a cell phone could fall within the definition of computer system.

“For the judges not to recognize how basic the definition of a computer system is is really quite surprising in 2013. Are we going to have the same problems with the new anti-spam law proving a smartphone is a computer?”