Examining the Legitimacy of Police Powers to Search Portable Electronic Devices in Queensland

By Raj, Matthew; Marshall, Russ | University of Queensland Law Journal, June 2019 | Go to article overview

Examining the Legitimacy of Police Powers to Search Portable Electronic Devices in Queensland


Raj, Matthew, Marshall, Russ, University of Queensland Law Journal


I INTRODUCTION

Modern cell [mobile] phones are not just another technological 
convenience. With all they contain and all they may reveal, they hold 
for many [people] "the privacies of life" ... The fact that technology 
now allows an individual to carry such information in his hand does not 
make the information any less worthy of the protection for which the 
Founders fought. (1)

Consider the following scenarios:

1. A police officer stops you on the street and asks you to empty your pockets.

2. A police officer stops you in your car and asks to search you and the vehicle.

Regardless of the time of day, the location, your relationship status on Facebook, or the size of your bank account, one of the items recovered in either of the above scenarios will almost inevitably be a mobile phone. In what circumstances can the police search your mobile phone? Must they first obtain a search warrant? What will happen if you refuse to provide your passcode or fingerprint required to access your mobile phone data?

This article examines the existing legislative framework for the lawful search, by the Queensland Police Service, of a person's mobile phone. While the term 'mobile phone' appears throughout this article, this is intended to include all forms of portable electronic storage device that may be used to communicate with another (eg an iPad). It is argued that, given the wealth of information accessible from a mobile phone, the proper legal approach to categorising mobile phones is to treat them as 'homes' and not as 'containers'; that is to say, a mobile phone is more like a person's home than his or her handbag. By considering mobile phones to be more akin to homes, a police officer's power to search them will be constrained accordingly. This approach marks an important shift in the current approach to how mobile phones are treated by law enforcement, and it will help to protect individual privacy and prevent indolent policing.

What follows is an overview of the relationship between mobile phones, privacy and the law, which includes a brief comparative analysis of domestic and international law. The article then sets out the current laws governing the police search of a mobile phone in Queensland, while highlighting the impact (and desirability) of broad police search powers in this area. By way of conclusion, several recommendations are made to safeguard individual privacy and maintain public confidence in policing methods.

II PHONES, PRIVACY AND THE LAW

Since the first Australian mobile phone call at 10:4.2am on 23 February 1987, society has witnessed a 'quantum shift in mobile phone technology'. (2) There are now more mobile phone service subscribers in Australia than there are people. (3) In Australia, 96 per cent of adults use a mobile phone and 83 per cent of all mobile phone service subscribers use a smart phone (a phone incorporating a mobile internet service subscription). (4) Not only can a modern mobile phone replace possessions like watches, cameras, books, televisions, maps, wallets and laptops, it can also act as a postal service, playground, tracking device, shopping mall, personal secretary, digital diary, filing cabinet, bank and portable office. Simply put, mobile phones are 'containers in a physical sense, homes in a virtual sense and vast warehouses in an informational sense'. (5) The mobile phone in your possession is capable of containing more information than a filing cabinet, and it can retain every file or piece of data it has accessed, including 'information that most users do not know about and cannot control'. (6)

The proliferation of such powerful devices must surely test existing laws and social norms. One area where the mobile phone is challenging the status quo is with respect to police search and seizure powers. As the United States Supreme Court recently observed in Riley:

Prior to the digital age, people did not typically carry a cache of 
sensitive personal information with them as they went about their 
day. … 

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