A person has a reasonable expectation of privacy in the contents of the USB key found in her/his pocket.
R. v. Balendra, 2019 ONCA 68, at paras. 35, 38.
In Tuduce, Gillese J.A. considered the privacy interests implicated in USB keys found in a person’s possession:
First, a USB key can store a significant amount of data. USB keys commonly hold anywhere from one to ten gigabytes of data, and USB keys with a storage capacity of over one terabyte exist. It seems likely that their storage capacities will only increase over time.
Second, data can be left on a USB key without a user’s knowledge. This data includes information about the date and time a file was created or modified and information about the user who created or modified that file.
Third, a user does not have complete control over which files an investigator will be able to find on a USB key. Data can be salvaged from a USB key through forensic analysis even after a user has deleted or “saved over” it.
It is true that a USB key is not a home computer or a cell phone. Thus, it may not always contain personal information, like a list of contacts, the contents of past communications, and information about an individual’s web searching habits.
On the other hand, however, a person’s personal USB key arguably engages more serious privacy interests than a work computer. The two key reasons why individuals have a somewhat diminished reasonable expectation of privacy in a work computer are that a work computer is not actually owned by the employee who uses it, and the employee’s use of the work computer is often subject to terms and conditions imposed by the employer. Neither of these considerations apply to personal digital storage devices like USB key.
R. v. Tuduce, 2014 ONCA 547, 314 C.C.C. (3d) 429, at paras. paras. 71-75.
Type of Information on the USB may be Relevant in the Determination of Whether the Evidence Should be Excluded
A USB key clearly has the potential to contain a great deal of personal information. However, a court may consider what data was actually contained on the USB when determining the impact that an unreasonable search of the USB key had on the applicant’s Charter-protected privacy interest. [FN]
Within its section 24(2) analysis in R. v. Balendra, for instance, the Court of Appeal for Ontario found that the appellant had a diminished privacy interest in a USB key found in his pocket, as the USB contained only data relating to other people.
R. v. Balendra, 2019 ONCA 68, at para. 72.
[FN] The second stage of the section 24(2) Charter analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused.
Stuart O’Connell, O’Connell Law Group (All rights reserved to author).