Your cellphone contains just about anything and everything someone could want to know about you — and Canada Border Services Agency (CBSA) officers have the right to inspect your device. And if you don’t comply, they might even confiscate your phone.
Devices such as cellphones and laptops are classified as “goods,” according to CBSA policy. Under the Customs Act, officers have the authority to examine them as part of a routine examination.
“As with other goods crossing the border, travellers are legally obligated under the Customs Act to present their electronic devices for inspection by the CBSA,” said CBSA spokesperson Nicholas Dorion in an email to Global News.
However, the agency’s policy states that personal devices should only be searched when officials have reason to believe a device will contain “evidence of contraventions,” or proof you have violated a law through files or information “known or suspected to exist” on your phone.
“Examinations should only occur where there is a multiplicity of indicators, or further to the discovery of undeclared, prohibited, or falsely reported goods,” said Dorion.
If that sounds vague, that’s probably the point, said David Fraser, a Halifax-based privacy lawyer.
“I think the CBSA really is wanting to keep all their options open,” said Fraser.
“Their job is made easier by Canadians not knowing what their rights are, and where the line might be drawn.”
The CBSA does not require a warrant, the Office of the Privacy Commissioner of Canada notes, and “Officers may examine devices for photos, files, contacts and other media.”
What they do with those files — and whether the CBSA can make a copy of any or all the information found on your phone — is unclear.
So how far can the search go? Passwords “are not to be sought” when it comes to gaining access to accounts that are online — such as social media or corporate accounts.
Travellers are really left few options, said Ann Cavoukian, director of Ryerson University’s Privacy and Big Data Institute and former Ontario privacy commissioner.
“When you’re at the border and there is a CBSA agent saying ‘give me your phone and your password or you can’t go through,’ therein lies the problem,” said Cavoukian.
“Are you going to say no?”
Quebec resident Alain Philippon did say no to CBSA officers in March 2015 as he arrived back in Canada from a trip abroad, and refused to unlock his phone. At first, Philippon vowed to fight the charge of obstruction against him, but later agreed to plead guilty and paid a $500 fine.
Legal experts say the case could have been a game changer.
“I’m looking forward to the next time a case like this goes forward and the person actually challenges it,” said Fraser. “I’m not sure [the CBSA is] super keen to get a case like this into court because I think there’s a strong likelihood that they would be pushed back in a significant sort of way.”
NDP public safety critic Matthew Dube said a digital device doesn’t belong in the same category as a suitcase.
“We’re not just dealing with someone rifling through someone’s underwear and their suitcase to see if they might be hiding drugs or what have you. It’s really an instrument that has infinite information,” said Dube.
“We carry our lives around with us.”
As it stands, Canadians’ rights aren’t being protected, said Dube.
“It’s incumbent upon us to move forward with some kind of legislation to create clarity around that as to what is allowed and not allowed,” said Dube.
The CBSA said there is no current directive to re-evaluate or modify its policy.
Anyone with concerns about their experience during a search at the border can file a complaint with the Office of the Privacy Commissioner.
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