Legal nuances encapsulate digital-focused reality

Let’s just start by saying I got into the media in a strange way: by getting an honours degree studying philosophy.

I can tell you from experience that, unless you’re moving further into academia or law, the best thing you can say about a philosophy degree is that, when you’re applying for a job early in your career, you always know what the first question in the interview will be: “So, why did you take philosophy?” It’s best to have an answer ready in advance.

It’s akin to listing stamp collecting on your resumé as a favourite hobby: it’s benign, but also puzzling. Maybe off-putting. People know the bare bones of what it entails, but can’t really imagine doing it. (As I think about it, that also could have been a cautionary headline for this column: “Benign, but also puzzling.”)

That being said, philosophy has been helpful to me for working in the media. Having taken enough formal logic courses to break down arguments that are fatally flawed from the outset, and having spent several years studying ethics, both have proven valuable, especially because you’re regularly exposed to people with no practical experience in either.

It’s also built a strange fascination with esoteric arguments, sometimes about small and peculiar circumstances that nag at me, but that I confess may leave others scratching their heads.

This is all a way to lead into a column about a strange little legal session that played out in Manitoba’s provincial court. It is known by the citation “Envelope #37916,” and it involves a police application to obtain three seized cellphones from the Winnipeg Police Service Evidence Control Unit for a drug investigation.

The almost 5,000-word decision in the session was to resolve an interesting question: for the purposes of applying for a search warrant for a seized cellphone, should that phone be considered a thing or a place?

The judge considered that cellphones — and other computer systems — are in an odd position in police evidence lockers. Things like guns can simply be signed out for ballistics testing and then be returned, but cellphones need a search warrant because there’s actually going to be a search of their contents.

As the argument went, what’s being taken from the evidence locker isn’t the cellphone — the police have no interest in the actual piece of technical equipment. What they want is the data and details inside the equipment.

“Currently, in Manitoba there is no single, consistent approach to search warrants seeking the forensic analysis of computer systems. Most often, the computer system in question is a cellphone seized pursuant to a warrantless, but lawful arrest or a search warrant for a premises,” the decision, by Provincial Court Judge Victoria Cornick, explains.

The problem is, if police are just searching a thing that they possess lawfully, they might not have to explain to the person granting a search warrant just what it was they were searching for — or finding. “The artificiality of the (evidence) locker search is not just a construct we should accept to make it more convenient to forensically analyze computer systems and streamline what law enforcement agencies are to report back to authorizing justices,” the judge wrote.

The issue winds up being that a cellphone can be two things: a physical item that can be seized during a physical search under one search warrant, and a place filled with a stockpile of intangible, personal and often unique data that legitimately should require a separate search warrant in order for police to be able go through it all.

And the request to obtain a search warrant should be framed in that kind of way: that police want to go into a place to look for evidence of a crime.

And that’s where Judge Cornick came down on the issue.

“Computer systems are ‘places’ for the purpose of the search warrant process where the search of the computer system has not been contemplated and authorized in an omnibus search warrant. Reporting on these warrants should include basic information about the nature of the data found in the computer system,” the judge wrote.

For many, this may risk sounding like describing any number of dancing angels as things, while considering their place as the head of a pin. But it is a functional and necessary legal distinction.

And it’s something else as well: a sweet sense of a tragic natural justice that has absolutely nothing to do with the law. Something, perhaps, more philosophical.

I wonder if cellphones and computers, as a whole in our society, haven’t indeed crossed the line into becoming “places” rather than things, and that, more and more, we live a larger and larger part of our escapist lives locked inside them.

I often ride the bus in the mornings virtually alone: by that, I mean that even though the bus has plenty of riders, only I and the bus driver are looking at anything other than the bright-lit eye of a smartphone.

Do the other bus passengers see the walkers with their dogs, bent forward into the November wind? Do they hear the repetitive squeaks and groans of old and tired bus carapaces? Does the morning sun crest the horizon for them in magnificent red, orange and pink splendour?

No, I think they have electronic places to go, and electronic places to be and to search.

And it isn’t here.

Russell Wangersky is the Comment Editor of the Free Press. He can be reached at russell.wangersky@freepress.mb.ca