Driven in part by advances in recording device technology such as wearable cameras and drone-mounted cameras, the trend of self-recording one’s life continues to grow. The videos recorded on these devices are popular on social media and range from the mundane to the extreme. Some even include criminal acts: illegally scaling structures and in some cases BASE jumping off of them, pushing cars and motorcycles to dangerous speeds, and all manner of other illegal acts that may endanger the performer and the public. Given that filming one’s own crimes is a stupid thing to do, it is no surprise that courts are starting to see these videos introduced as evidence against the filmmaker/offender. However, some recording devices appear to attract a lesser expectation of privacy than others, based largely on judicial perceptions of predominant use.
In R. v. Roy, 2016 ABPC 135, Judge H.M. Van Harten of the Provincial Court of Alberta made a ruling in a voir dire (an application in the course of a criminal trial to determine the admissibility of evidence) that contains an interesting discussion about individuals’ expectations of privacy in personal recording devices. In this particular case, the device was a helmet-mounted GoPro camera.
The accused in this case, Mark Roy, and a friend were riding their motorcycles in Banff National Park in the June 2014. It is alleged that park wardens witnessed Roy and his friend driving badly and speeding. One of the park wardens reported witnessing Roy popping a “wheelie”, which the warden considered to be “stunting” in violation of the Traffic Safety Act. When wardens attempted to stop Roy and his friend, the pair allegedly refused to stop and evaded the wardens during a short pursuit but were ultimately apprehended later. During the apprehension, an RCMP constable noticed that Roy had a GoPro camera attached to his motorcycle helmet and demanded that Roy turn over the camera; Roy refused. The constable then arrested Roy and seized the camera.
One of the issues in this decision was whether the GoPro had been unreasonably seized from Roy, contrary to s. 8 of the Charter of Rights and Freedoms. The RCMP obtained a warrant before accessing the images on the camera, so this issue was limited to whether the constable’s decision to take the GoPro upon arrest was itself an unreasonable seizure. Judge Harten had no trouble finding that the constable was justified in seizing the GoPro to preserve evidence incidental to the arrest.
The judge, however, went on (arguably in obiter) to discuss Roy’s reasonable expectation of privacy in the GoPro. It is this part of the analysis that raises interesting questions about privacy expectations in personal recording devices. The judge started by recognizing that (at para. 25):[i]t’s well-known that people wear helmet mounted cameras to record their adventures be they skydivers, skiers, bungee-jumpers or, as in this case, motorcyclists. These recordings often find their way onto the Internet or become the subject of “reality TV” shows.
The judge then referred to the Supreme Court of Canada decision in R. v. Fearon, 2014 SCC 77, in which the Court created a new legal framework for permitting searches of cell phones incidental to arrest. The judge cited Fearon for the proposition that:
…the expectation of privacy in one’s personal digital devices is high, the level of expectation may vary depending on the type of device and the circumstances in which it is found.
Based on this proposition, the judge found:
The user of a helmet mounted camera who is under arrest in the circumstance, in which Roy found himself here, has a significantly lower expectation of privacy.
Should privacy expectations vary with the type of device?
The judge’s interpretation of Fearon is not entirely consistent with the Supreme Court of Canada’s analysis in that case. Justice Cromwell, for the Fearon majority, affirmed the notion that a cell phone is not like a briefcase or a document (at para. 51). Instead, the Court recognized that cell phones are essentially computers. They hold an immense amount of data, which may include intimate details about a person’s life. For these reasons the search of a cell phone may be a far more significant invasion of privacy than other searches incidental to arrest (for example, the search of someone’s pockets for physical items) (at para. 58). The Court also noted two specific qualifications to its decision. First, the particular capacity of a cell phone should not affect the analysis of the legality of a search. A relatively unsophisticated cell phone should still be treated as the equivalent of a computer (at para. 52). Second, the expectation of privacy is not affected by whether the cell phone is password protected or not (at para. 53).
While the type and nature of a device is undoubtedly part of the analysis of a person’s reasonable expectation of privacy in that device, the judge’s analysis in Roy seems to have assumed too readily that a GoPro is unlike a cell phone. First, like cell phones, GoPro cameras have tremendous storage capacity. It is irrelevant whether they are password protected or not. And they are arguably as likely to contain intimate details of someone’s life as a cell phone—especially an unsophisticated cell phone. While GoPro cameras are often mounted to record the use of a vehicle, that is not their only function and they are not permanently mounted. A GoPro on a vehicle’s dash or on a helmet could easily contain video or images or someone’s children, a significant life event, an intimate encounter with another person, or routine work activities if used in the context of employment.
The device-specific, use-based approach to the analysis is unlikely to be helpful in the long term, either to law enforcement or individuals. There are a multitude of analogous recording devices on the market that come in all sorts of sizes and with a range of different functions and uses – many with network capacity that suggest an ability (but not a requirement) to publish or otherwise disclose the recorded information. A principled approach to recording devices, as suggested in Fearon, is more likely to result in a consistent and comprehensive legal framework.