Privilege, PINs and phone searches

A recent Queensland Court of Appeal judgment could significantly improve privacy rights in the modern age.

In Commissioner of Police v Barbaro [2020] QCA 230 (Barbaro), the court held that it is a reasonable excuse not to provide police with a PIN number to your mobile phone (or, presumably, any password to an electronic device), even if there is a warrant requiring you to do so, if there is information on the phone that could be protected by client legal privilege and the warrant is non-specific and would thereby allow police to access anything stored on, or accessible via, your phone.

The facts

On 22 May 2018 a search warrant was issued permitting the seizure and search of a mobile phone allegedly used by the defendant for the purpose of committing drug offences. In accordance with the terms of the warrant, police ordered the defendant to give police access to the device.1

He refused to provide his PIN on the basis that “if I give up my password … anyone can see what me and my lawyer are talking about and there’s no point even getting legal representation”.2

According to evidence given at trial, the defendant was regularly in contact with his lawyer via “text, email, Facebook and Messenger”.3 In effect, he had made a claim of client legal privilege.

While he does not seem to have been prosecuted for any drug-related offences, he was prosecuted and convicted in the Magistrates Court for, without reasonable excuse, contravening an order requiring him to provide police with the necessary assistance to gain access to information from the device.4

He successfully appealed that conviction in the District Court. The court held that protecting privileged information was a reasonable excuse for not complying with the police order. The Commissioner of Police appealed, but the Court of Appeal upheld the District Court’s decision.

The novelty of a privilege claim

The ability of police to search mobile phones for evidence of suspected criminal offences, and how this interacts with the right to privacy (given that phones are often a window into a person’s entire life) has been the subject of considerable judicial and academic commentary in recent years.

Most often, defendants have challenged warrantless searches of mobile phones, and privacy claims have been made on the basis of the right against self-incrimination (“if I give you my PIN/password, I’m admitting to having knowledge of this device”).5

In the United States, for example, the Supreme Court has held that a warrantless search of a person’s mobile phone is a Fourth Amendment violation of the right to privacy.6

In Victoria, the Court of Appeal has held that a warrantless phone search can be unlawful because it breaches a suspect’s right to privacy.7

Further, the Federal Court has overturned a warrant issued under section 3LA of the Crimes Act 1914 (Cth) because requiring ‘any’ assistance was not specific enough (ground 2), the time and place of assistance required was not specific enough (ground 3), the device to be searched was not specified (ground 4) and a mobile phone was not considered a data storage device within the meaning of the legislation (ground 5).8 Challenges to police searches of mobile phones and other electronic devices are hardly new.

The real novelty in Barbaro, though, is that the challenge to the request to provide police with access to an electronic device – even with a warrant – was based not in the general right to privacy or the privilege against self-incrimination, but the right to client legal privilege.

Why is this important?

Client legal privilege is a fundamental common law right.9 It attaches to any confidential communication, with a lawyer, for the dominant purpose of obtaining legal advice or preparing for reasonably anticipated legal proceedings.10

While no privilege would attach to a communication that was designed to avoid having to provide police with access to a phone (it would fail the dominant purpose test), all it would take is one legitimate communication with a legal representative for privileged information to be somewhere on the electronic device, and thereby to potentially provide a reasonable excuse to refuse to assist police in accessing the device entirely.

Consider just how likely it is that there is a privileged communication stored on, or accessible via, someone’s phone. When you have access to another person’s phone, you have access to their text messages, emails, social media accounts, bank accounts, photographs and videos, internet history, contacts, the most recent locations they’ve visited, and much more.

Many people have had legal representation for one reason or another, and will almost certainly have had some form of written communications with their lawyer that is accessible via their phone. In that sense, carte blanche access to the entirety of someone’s phone is all-but-synonymous with access to privileged communications with their lawyer.

By deeming the defendant’s excuse for refusing to assist police to be reasonable, Barbaro has given people named in electronic device search warrants a way to legitimately refuse to give their PIN or password to police – just claim privilege.

Any such claim would of course then need to be assessed by a judicial officer for legitimacy. But if such a claim is successful – it’s by no means guaranteed – not only is it potentially a defence against any prosecution for failing to provide assistance to police, but it may also render any consequent evidence derived from an unlawful search inadmissible (if, for example, police later access the phone through ‘other means’11 and risk inadvertently viewing privileged communications).

Where to from here?

As I see it, there are two ways forward following the decision in Barbaro.

The first, which I don’t advocate, is legislative reform. In overturning Barbaro’s conviction, the District Court noted that the protection of claiming client legal privilege may not continue to be available in the future “[i]f Parliament chooses to make relevant amendments”.12

This effectively signalled to the legislature that they could exclude client legal privilege as a reasonable excuse for failing to assist police in accessing an electronic device,13 just as they have excluded the right against self-incrimination.14 But rights such as client legal privilege should not be so easily dismissed if there is a viable alternative. And there is.

The second, and I suggest more appropriate response, is for police – not just in Queensland, but Victoria and South Australia too15 – to acknowledge the effect this decision will have on their practices.

In particular, police will now be faced with two options when seeking an electronic device search warrant: (1) apply for a warrant authorising access to any non-privileged information stored on, or accessible via, the phone, or (2) apply for a more targeted warrant seeking a specific class of information. For instance, are police primarily interested in geolocation metadata? If so, then the warrant should limit police’s search powers to that particular class of information, and not allow access to, for example, the suspect’s Facebook Messenger app.

The advantage of the first approach is that carte blancheaccess to everything except privileged information increases the chances of discovering relevant evidence. But after the court’s decision in Barbaro,it isn’t hard to imagine an increase in the number of electronic device search warrants claiming privilege over some information on the phone – defence lawyers would do their clients a disservice not to give them such advice.

This will result in assessments of the legitimacy of those claims, and if relevant, subsequent segmentation and protection of any information found to be privileged. The delay of that process may, for whatever reason, not be feasible. Conversely, the advantage of the second more targeted approach is that it may hasten the search process because it is more likely to be able to proceed without a risk of police coming into contact with the information said to be privileged.

If police and the judiciary do take this latter approach – balancing suspects’ rights with the public interest in thoroughly investigating suspected offending when drafting and evaluating search warrants for electronic devices – and the legislature does not simply abrogate client legal privilege for the sake of investigatory efficiency, the Court of Appeal’s decision in Barbaro may well herald a more nuanced approach to search and seizure in the 21st Century.

Paul McGorrery is a PhD candidate in criminal law at Deakin University. The author would like to thank Steve McDonald and Professor Marilyn McMahon for their helpful comments on an earlier draft of this article.

Footnotes
1 Police Powers and Responsibilities Act 2000 (Qld) s154(1)(a)–(b).
2 Barbaro v Queensland Police Service [2020] QDC 39 at [4].
3 Ibid at [4].
4 Criminal Code Act 1899 (Qld) s205A(1).
5 See Lisanne Adam and Greg Barns, ‘Digital strip searches in Australia: A threat to the privilege against self-incrimination’ (2020) Alternative Law Journal, advance online publication: doi 1037969X20923073.
6 Riley v California 573 US 373 (2014).
7 McElroy v The Queen; Wallace v The Queen [2018] VSCA 126, discussing the right to privacy in International Covenant on Civil and Political Rights Art 17. The evidence in this case was nevertheless admitted because the competing considerations in section 138 of the Uniform Evidence Law meant the any interference with the defendant’s privacy rights were outweighed by factors favouring admissibility: Paul McGorrery, ‘They found my iPhone’ (November 2018) Law Institute Journal.
8 Luppino v Fisher [2018] FCA 2106.
9 Baker v Campbell [1983] HCA 39.
10 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49.
11 See, for example, McCooke v Western Australia [2020] WASCA 155 at [10].
12 Barbaro v Queensland Police Service [2020] QDC 39 at [36].
13 Legislative abrogation is one of the few exceptions to client legal privilege: Baker v Campbell [1983] HCA 39 at [16]; Corporations & Securities Panel v Bristile Investments Pty Ltd & Ors [1999] WASC 183.
14 Criminal Code 1899 (Qld) s205A(2).
15 Similar offence and ‘reasonable excuse’ defences also exist in South Australia and Victoria, though: Summary Offences Act 1953 (SA) s74BW(1); Crimes Act 1958 (Vic.) s465AAA. Federal legislation also has a similar offence but no apparent ‘reasonable excuse’ defence: Crimes Act 194 (Cth) s3LA. Other jurisdictions are yet to introduce similar offences; see, for example, Paul Gregoire and Ugur Nedim, ‘Can police search through your mobile phone?’, Sydney Criminal Lawyers (23 October 2019).

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