Contemporary criminal investigations, particularly in cases of conspiracy and joint participation, routinely include search and seizure of mobile phones and access of their stored electronic data. This prompts two questions: Does the core element of the right in question, viz a ‘reasonable expectation of privacy’, arise in the case of electronically stored information? And does this investigative practice infringe the right to privacy?
Referring to the US Fourth Amendment, Justice Brandeis in Olmstead v United Statessaid that ‘the right to be let alone [is] the most comprehensive of rights and the right most valued by civilized men’. This sentiment has found approval throughout the Commonwealth (see eg Canada and South Africa, whose constitutions similarly entrench the right to privacy). The right to privacy is universally interpreted to include the right to be protected against unreasonable search and seizure, to the extent that any encroachment on the private sphere is regarded as being prima facie unlawful.
In South Africa, this right is extended by section 14(d) of the Constitution to ‘the right not to have … the privacy of [one’s] communications infringed’. In Malone v United Kingdomthe ECtHR held that the record of telephone numbers dialled by a person forms an integral part of protected telephonic communications. Thus, logically, there can be little doubt that electronically stored information, which includes text messages, photographs, and phone directory details, raises a legitimate expectation of privacy and is worthy of protection.
Protection consists of the requirement that search and seizure may only occur by virtue of a search warrant, the contents of which must be restrictively interpreted. Disregarding for present purposes the American practice of extending the reach of search warrants to include articles found ‘in plain sight’ on searched premises, the American ‘closed container’ doctrine may be conveniently applied to mobile phones: if the warrant authorises the seizure of a filing cabinet (a single, closed, opaque container), its contents remain sealed; when a mobile phone is seized under a warrant, it should be treated as a closed container and its electronic contents should only be accessible by virtue of a further warrant. (Although by no means settled law, the American experience proves instructive.)
In South Africa, search warrants may be authorized in respect of ‘anything’, an overly broad term that has been both judicially and legislatively qualified as meaning ‘any article’. Thus, by definition, the power to authorize search and seizure of intangible matter such as communications must be excluded.
Accordingly, it is submitted, once the mobile phone, the ‘article’, has been seized, the warrant’s authority is exhausted and the data stored in the phone may not be accessed. This submission, however, has not been authoritatively decided by the South African courts. One can only hope that when such a matter does come before the courts, the important normative purposes underlying the constitutionally entrenched right to privacy will be acknowledged and upheld.
John van der Berg is a senior advocate practising in Cape Town, South Africa, specialising in criminal justice and related human rights law, and the author of several works on criminal law and procedure.