Who Gets To Look In Your Phone At The Border?

Here’s a thought experiment for you.

You are at airport security, beginning the always pleasant regime of scans and scrutiny that today’s flying demands. You put your carry-on bag on the conveyor, it goes through the X-ray machine, and the friendly Canada Border Services Agency officer on the other side notes that the bag is locked. She asks you to open it so she can do a check. Would you unlock it?

Change the facts slightly. Instead of your carry-on bag, the agent picks up your smartphone and finds it is secured with a password. She asks you for the password so she can inspect it. Would you?

Most think they are legally obligated to unlock the bag in the first case, but they can refuse to unlock the phone. It appears, however, that they are treated the same in Canada. At least until a court decides otherwise.

The starting point is the Customs Act. There are broad search powers under this legislation. The CBSA is permitted to inspect the person of travelers, goods, containers and receptacles that they have with them.

This is different from the rights an ordinary citizen has on the street. Police officers do not have the authority to demand these kinds of searches except in prescribed cases – where there is a warrant, or after an arrest for example. The difference for Customs is that travelers are voluntarily submitting to these searches. If they do not want to be exposed to them, they do not have to travel. That is the theory, at least.

When we are considering ordinary baggage, most people have no argument with the right to inspect. Leaving aside the clear purposes of the law (preventing bombs from getting on airplanes, for one), it has become expected in today’s world.

While it is arguable that cel phones and other electronic devices share similar considerations, there are differences. First, the information on devices involves relationships, and we have an innate privacy mindset around things we tell or hear from other people.

Also, while a bomb on a plane is a clear and present danger, the information on a cel phone is less likely to be immediately relevant. Sure, the holder might be an extremist, or could have uncomfortable or even illegal information on the phone. But will that be relevant to the flight at hand? In other words, unless the device is a bomb itself, it will probably not threaten that flight.

In a non-traveling context, the Supreme Court of Canada has held that police can search the devices of people they arrest. But the court also recognized that those devices are different from other items, meaning the searches must be conducted under narrow circumstances, and the search must relate directly to the arrest. These are different conditions than border searches.

The Supreme Court has not yet ruled if the Customs Act is an infringement of the Charter right to be secure against unreasonable search or seizure. A path to that appeared in 2015 when Alain Philippon, a Quebec man, was charged for refusing to give up his smartphone password at the Halifax airport. A trial was scheduled for 2016 but in August Philippon pled guilty and paid a fine.

Thus, the constitutionality of the Act has not been tested, and Customs officers will presumably continue to demand a password when they see fit.

That is an uncomfortable situation, especially for some travelers. Take lawyers, for example, who have longstanding rights of solicitor-client privilege. They face an uncomfortable choice: give up the password and risk penalties for breaching the privilege, or potentially be thrown in jail for failure to comply with a search request.

For non-lawyers there are other issues. Many phones are protected by a fingerprint lock. Is providing a fingerprint different than a password? What if your sweaty fingers do not unlock the phone and you have forgotten your PIN because you never use it?

And this is only Canada. Other countries are still wrestling with whether password disclosure can be forced. Even the United States, which has invoked stringent screening rules since 9/11, has not settled the issue.

This will take years to sort out. Until then, travelers need to be practical. Make the assumption that anything on your electronic devices is subject to snooping. This might mean that you only travel with a clean device, free of any data, and only download as needed from the cloud at your destination (although consider whether the CBSA officer could demand those passwords too).

There is also the art of persuasion. CBSA officials are doing a job, and you may be able to help them get where they need to be without giving up your rights. Discuss your concerns with the officer and search for alternatives that might help everyone get the certainty they need.

There are not a lot of good solutions while this uncertainty exists. For now, be aware that the risk is present and plan ahead.

This article was originally published in SaskBusiness magazine and is reprinted with their kind permission