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Here’s What To Do If A Border Guard Wants To Search Your Phone

BeyondTheNow

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I’ve loosely followed articles here and there related to this. But seeing as I rarely go into the US (the last time was 2007 and the last time I left North America was 2005) I haven’t thought too much about it.

I’m obviously not concerned about what agents would find. What concerns me is the seemingly arbitrary discretion awarded to the agents to search and the open admission that...
...the BCCLA warns that "border officers may not respect the law in this area..."

This has abuse of power written all over it. If someone can specifically clarify/clear up any misconceptions the article might imply, that would be helpful.

https://m.huffingtonpost.ca/2018/08/03/border-guards-phone-search_a_23495655/
 

brihard

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The state has absolute control over what enters the country via the Customs Act. There is a much lower expectation of privacy at a national border / port of entry than elsewhere, and this has been held up in court time and again.

Odds of your phone being searched at the border are slim, but it could happen. There have been Customs Act charges of obstructing or hindering a border guard for not providing a password. The one I'm aware of resulted in a guilty plea, so there's no court jurisprudence on the matter yet.

More recently we have R. v. Fearon, 2013 ONCA, which dealt with search and seizure of a cell phone incidental to arrest in a criminal context. That did afford considerably more privacy expectations with regards to one's cell phone when detained or arrested by police.

It remains to be seen, through case law, whether the principles in Fearon will be extended to some extent to Customs Act adjudications. I suspect border guards will retain considerable latitude to search phones and computers at the border.

If you are directed to give your password and you don't, you will unquestionably face seizure of your cell phone (and you won't get it back tilt he whole thing is done in court) and you will likely be charged.
 

trooper142

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This authority granted to them is very similar to the authority granted to MPs under DCAAR and ISDR when entering and exiting a defence establishment.

MPs have absolute authority to search your person and personal property. While entering, you may refuse but will be denied entry to the defence establishment until such time as you agree. Upon exit, you have no right to refuse, and if you do, you will be retained and your personal belongings will be searched anyways; and likely a ticket and maybe charges will follow.

I don't believe anyone has attempted to extend this authority to searching of cell phones, but if someone from the JAG could chime in?

Ultimately the use of these authorities is in the interest of security of the defence establishment and it's assets. It is well established. MPs also have the right to stop and demand the ID of anyone on a defence establishment at anytime.

The CBSA searching phones is not an abuse of authority, it is simply an interpretation of their already existing authority at the border. I dont suspect a challenge would be successful.

 

Haggis

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Please, not "Border Guards".  They are Border Services Officers (BSO). They do much more than simply "guard".

Doing anything that prevents a BSO from performing his/her duties may result in an arrest under s. 153.1 of the Customs Act (Hindering).  The threshold for hindering is similar to but lower than for Obstruction under the s. 129 of the Criminal Code.  Yes, Canadians have a right to re-enter Canada, but they and all their goods, vehicles etc. are subject to examination to ensure you are in compliance with Canadian laws, just like everyone else entering the country..

Good practices to follow are:

a.  to not store things on your electronic devices that you wouldn't want yourr family members to find; and

b. don't be a dick to someone who can ruin your day.
 

Jarnhamar

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If instructed to do so does someone crossing the border have to provide passwords for their email or social media accounts? Or provide a password for locked folders on a cell phone?
 

RocketRichard

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This.  I certainly hope that just cause is required to search Canadian citizens' phones and/or laptops...
 

Haggis

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Jarnhamar said:
If instructed to do so does someone crossing the border have to provide passwords for their email or social media accounts? Or provide a password for locked folders on a cell phone?

Just to the device to examine local content.  If you require a separate password to log onto an app on the phone (i.e. Facebook), then, no.  (https://www.priv.gc.ca/en/privacy-topics/public-safety-and-law-enforcement/your-privacy-at-airports-and-borders/#toc1a)
 

brihard

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RocketRichard said:
This.  I certainly hope that just cause is required to search Canadian citizens' phones and/or laptops...

Not on entering the country, no. The contents of your digital devices, to an extent, can be inspected for customs purposes / admissibility just like anything else. Note that inadmissibility lists also include various forms of media deemed to be obscene or hate propaganda. They have the legal authority to look for such materials that are prohibited from importing. 'Just cause' is not something with any meaning in Canadian law anyway, bu you would be thinking 'reasonable grounds'. In any case, very different thresholds apply for border / customs inspections versus criminal investigations. A Border officer has much more power to arbitrarily search at a port of entry than a police officer does on the street.

Haggis said:
Please, not "Border Guards".  They are Border Services Officers (BSO). They do much more than simply "guard".

Yup, sorry about that.
 

MARS

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The article is nothing more than fear mongering garbage, but then again, it comes from HuffPost, which is a dressed up version of a supermarket tabloid, IMO.

...the BCCLA warns that "border officers may not respect the law in this area..."

Well, this kind of hyperbole certainly suits the ends of the BCCLA.

So, nothing in the article to elaborate the basis for that statement.  Here is what the long-version of the guide actually does say, under the 'Soliciter-Client Privilege' section:

Concern remains, however, that claims of solicitor-client privilege may not be respected by CBSA officers at the border. For example, in a recent court decision, it was revealed by a CBSA officer that “he did not see any limitation on searching a lawyer or judge’s phone if they were crossing the border.”

Nothing to indicate that the guard in question was actually searching privileged files, only that the guard saw no reason to NOT search a lawyer or judge's phone, simply by virtue of being a member of either of those occupations.

Indeed, the guide actually says this (emphasis added):

To date, no court cases have put limits on the searches of electronic devices that can be conducted by the CBSA. However, the CBSA documents obtained by the BCCLA indicate that the CBSA hopes to avoid challenges to their search powers, so may be limiting searches to what they believe is allowed by the Charter.

But of course, a statement like that being included in the article or any other public statements won't sell papers, nor will it serve the ends of the BCCLA.


 

FJAG

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Brihard said:
The state has absolute control over what enters the country via the Customs Act. There is a much lower expectation of privacy at a national border / port of entry than elsewhere, and this has been held up in court time and again.

Odds of your phone being searched at the border are slim, but it could happen. There have been Customs Act charges of obstructing or hindering a border guard for not providing a password. The one I'm aware of resulted in a guilty plea, so there's no court jurisprudence on the matter yet.

More recently we have R. v. Fearon, 2013 ONCA, which dealt with search and seizure of a cell phone incidental to arrest in a criminal context. That did afford considerably more privacy expectations with regards to one's cell phone when detained or arrested by police.

It remains to be seen, through case law, whether the principles in Fearon will be extended to some extent to Customs Act adjudications. I suspect border guards will retain considerable latitude to search phones and computers at the border.

If you are directed to give your password and you don't, you will unquestionably face seizure of your cell phone (and you won't get it back tilt he whole thing is done in court) and you will likely be charged.

The Ont CA decision of R v Fearon was upheld by the SCC in a 4 to 3 judgement.

https://www.canlii.org/en/ca/scc/doc/2014/2014scc77/2014scc77.html?

I tend to agree with the dissenting judges but what I think and $4.00 will buy you a coffee at Starbucks. The SCC put down four conditions which need to be met for a warrantless search of a cell phone be legal which include that 1) there be a lawful arrest, and 2) that the search is truly incidental to arrest.

S 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure." The fact that when arrested, the common law provides for incidental searches makes such a search reasonable when done within the parameters now set down by the SCC.

The SCC has not (to my knowledge) made any determination as to what would constitute a "reasonable" search in border situations. In most situations border searches of vehicles etc are based on hunches and suspicions but are generally reasonable because there is a state interest in securing borders against contraband.

I think a cell phone is different, however. While I would consider it perfectly reasonable to check the cell phone's (or computer's) battery case for contraband or switch it on to determine if it is an active device and not a dummy stuffed with contraband, I would think that searching the phone/computer's files goes into the realm of an unreasonable "fishing expedition" for evidence unrelated to border security.

Per Fearon, even in arrest situations cell phone searches should generally only be for recent photos or emails that may be evidence of the crime at issue. While I could see that the courts could put a similar authority/safeguard on border searches, IMHO, I think that computer files for returning Canadians (as opposed to foreign visors) should be free from searches on the grounds that such searches at a border fall far below the balancing of state objectives v privacy standards that is at the heart of searches incidental to arrest. The balance should fall much more in favour of the innocent Canadian citizen's right to privacy.

On the other hand I'm not about to be the one wanting to test the law. They can search my antique cell phone and, almost as old, laptop as much as they want.

:cheers:
 

brihard

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FJAG said:
The Ont CA decision of R v Fearon was upheld by the SCC in a 4 to 3 judgement.

https://www.canlii.org/en/ca/scc/doc/2014/2014scc77/2014scc77.html?

I tend to agree with the dissenting judges but what I think and $4.00 will buy you a coffee at Starbucks. The SCC put down four conditions which need to be met for a warrantless search of a cell phone be legal which include that 1) there be a lawful arrest, and 2) that the search is truly incidental to arrest.

S 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure." The fact that when arrested, the common law provides for incidental searches makes such a search reasonable when done within the parameters now set down by the SCC.

The SCC has not (to my knowledge) made any determination as to what would constitute a "reasonable" search in border situations. In most situations border searches of vehicles etc are based on hunches and suspicions but are generally reasonable because there is a state interest in securing borders against contraband.

I think a cell phone is different, however. While I would consider it perfectly reasonable to check the cell phone's (or computer's) battery case for contraband or switch it on to determine if it is an active device and not a dummy stuffed with contraband, I would think that searching the phone/computer's files goes into the realm of an unreasonable "fishing expedition" for evidence unrelated to border security.

Per Fearon, even in arrest situations cell phone searches should generally only be for recent photos or emails that may be evidence of the crime at issue. While I could see that the courts could put a similar authority/safeguard on border searches, IMHO, I think that computer files for returning Canadians (as opposed to foreign visors) should be free from searches on the grounds that such searches at a border fall far below the balancing of state objectives v privacy standards that is at the heart of searches incidental to arrest. The balance should fall much more in favour of the innocent Canadian citizen's right to privacy.

On the other hand I'm not about to be the one wanting to test the law. They can search my antique cell phone and, almost as old, laptop as much as they want.

:cheers:

Border searches of phones/laptops are more about stuff like child porn, hate propaganda, etc. Media content can and does still constitute ‘goods’ deemed inadmissible. If you want to shake your head in bemusement at the creative naming of some truly horrendous porn, CBSA has a quarterly email listing all the titles of films, comics, and other media deemed inadmissible in the last three months.
 

FJAG

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Brihard said:
Border searches of phones/laptops are more about stuff like child porn, hate propaganda, etc. Media content can and does still constitute ‘goods’ deemed inadmissible. If you want to shake your head in bemusement at the creative naming of some truly horrendous porn, CBSA has a quarterly email listing all the titles of films, comics, and other media deemed inadmissible in the last three months.

But you have to admit that as far as a Canadian citizen who has left the country and is returning is concerned, the search for those types of items is really just a sham. This type of material is easily attainable for those individuals so inclined through a dark web transaction rather than going across the border to get it and bring it back.

All these searches are is the government taking an opportunity to peak into your computer/phone to see if there is anything offensive/criminal there. Undoubtedly it was there long before the individual left the country in the first place. I would think that someone who truly crossed the border to pick something like this up would have a better plan to bring it back than simply loading it on their phone or computer.

I liken this with a traffic stop for a busted taillight where the cop asks to search the car because "if you've got nothing to hide then why wouldn't you let us search your car." or "We're just detaining you at this point so we need to search your car for our safety." You see a couple of those in every Live PD episode.

It's a whole different story for foreign sources who may be mailing or transporting their products into the country.

:cheers:
 

brihard

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FJAG said:
But you have to admit that as far as a Canadian citizen who has left the country and is returning is concerned, the search for those types of items is really just a sham. This type of material is easily attainable for those individuals so inclined through a dark web transaction rather than going across the border to get it and bring it back.

All these searches are is the government taking an opportunity to peak into your computer/phone to see if there is anything offensive/criminal there. Undoubtedly it was there long before the individual left the country in the first place. I would think that someone who truly crossed the border to pick something like this up would have a better plan to bring it back than simply loading it on their phone or computer.

I liken this with a traffic stop for a busted taillight where the cop asks to search the car because "if you've got nothing to hide then why wouldn't you let us search your car." or "We're just detaining you at this point so we need to search your car for our safety." You see a couple of those in every Live PD episode.

It's a whole different story for foreign sources who may be mailing or transporting their products into the country.

:cheers:

I think you greatly overestimate how much time the BSOs have to dabble in speculation. Nor is it a sham, because remarkably a lot of criminals are actually really stupid and end up having this stuff on their phones.

As for your traffic stop example - not a particularly good one, because for many years now case law has made that sort of thing such a total waste of time through evidentiary exclusion that we don't bother.

Be cautious drawing too much inference from rather selective Live PD broadcasts, and applying it to what is happening north of the border on the street. We seem to operate with considerably less freedom in that regard than the US cops do. And of course, on Live PD you're also not privy to a lot of the info that the police officers have coming in as well, even in real time. I'm not saying there aren't any cops out there going on fishing expeditions. I will say that by the time they've chosen to act on the tail light that's out, they probably already know or at least reasonably (and strongly) suspect more about the car and the owner (and their activities) than they may be letting on.

I've got tremendous respect for your legal experience. I'm not confident that you're still that up to speed on what the reality looks like at the PoE or on the street for the uniformed members doing the job on the ground... There is far less freedom of action than has historically been the case.
 

Infanteer

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Brihard said:
If you want to shake your head in bemusement at the creative naming of some truly horrendous porn, CBSA has a quarterly email listing all the titles of films, comics, and other media deemed inadmissible in the last three months.

https://www.cbsa-asfc.gc.ca/alert-avis/piu-uip-eng.html

It's almost like driving past a car accident....
 

brihard

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Infanteer said:
https://www.cbsa-asfc.gc.ca/alert-avis/piu-uip-eng.html

It's almost like driving past a car accident....

That's the one! It's like a train wreck that you forget will appear in your email every few months, and 100% free of spam. Always good for a chuckle.
 

Infanteer

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I subscribed out of curiosity.  I sure I'm going to hate you within 3 months....  :tsktsk:
 

FJAG

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Brihard said:
. . .
Be cautious drawing too much inference from rather selective Live PD broadcasts, and applying it to what is happening north of the border on the street. . . .

I've got tremendous respect for your legal experience. I'm not confident that you're still that up to speed on what the reality looks like at the PoE or on the street for the uniformed members doing the job on the ground... There is far less freedom of action than has historically been the case.

Not to worry. I wasn't drawing a comparison between Canadian and US police. All I was doing was saying that, IMHO, searches of files on cell phones and computers of Canadian citizens at the border where there is no reasonable or probable grounds is like some of the nonsense that goes on south of the border. Fishing expeditions in their purest form.

Not to worry about your lack of confidence in my being up to date either. I stopped practicing law in 2006 in order to go on a three year Class B to ramrod an IT project at NDHQ. Believe me, if anyone knows that my legal currency is beyond it's "Best Before" date, it's me. On top of that criminal law was never my preferred area of practice so my knowledge of what the police on the street do is more a result of my reading and writing police procedural novels.

That said however I can still analyze case law (like Fearon) and try to forecast where the courts may go in the future. Based on a 4 to 3 decision (where even the majority considered the police actions a s 8 breach of Charter rights but considered the search an honest mistake, reasonably made by the police and therefore insufficient to exclude the evidence) and for the reasons enumerated by the dissenting judges, I conclude that a deliberate policy of searching the files of computers at the border when there are no RPGs may very well not pass muster with the SCC if a case ever gets to that level. There are currently a number of cases working their way upward.

https://www.cbc.ca/news/technology/lawyers-canada-warrantless-smartphone-searches-customs-act-1.4247036

:cheers:
 

ModlrMike

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One could argue that a cellphone, or other electronic device is simply a container, similar to any other container one might have in their possession. How is a banker's box full of personal papers any different? In that context then, it might be reasonable for CBSA to have the power to search it, as they would anything else. That being said, I agree that Sect 8 is still in play notwithstanding that the border is in essence a reverse onus atmosphere where one has to prove their bona-fides prior to entry.
 

FJAG

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ModlrMike said:
One could argue that a cellphone, or other electronic device is simply a container, similar to any other container one might have in their possession. How is a banker's box full of personal papers any different? In that context then, it might be reasonable for CBSA to have the power to search it, as they would anything else. That being said, I agree that Sect 8 is still in play notwithstanding that the border is in essence a reverse onus atmosphere where one has to prove their bona-fides prior to entry.

S 8 is not amenable to a reverse onus basis. Reverse onus legislation/regulation is at the very low end of the scale where penal consequences do not exist.

The SCC treats cell phones differently from other objects. See as follows from Fearon:

[51]                          It is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other “places”: R. v. Vu, 2013 SCC 60, [2013] 3 S.C.R. 657, at paras. 38 and 40-45. It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest.  As outlined in Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search: paras. 41-44.

:cheers:
 

Cloud Cover

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Hmmm.... searches conducted by CBSA will be examined on the basis on the underlying authority that gives them the power to search. They will not be held to a law enforcement standard under the Criminal Code, they will be held to a Customs Act standard for the purposes of conducting the search itself.  The Federal Court (the Chief Justice) has made this clear in in decisions involving other agencies with search powers that are not derived from the Criminal Code, X (Re), 2017 FC 1047 (CanLII) being a recent example of a search authorized by a law other than the Criminal Code.

Really, all of this BS about abuse of search authority is just the pet project of a bunch of activists who have connections with Matt Braga at the CBC and his pals at Vice, Motherboard and Citizens Lab.  I always go back to Tony Blair's (frustrated) comments about those who seem to want to crucify state agencies over electronic surveillance: which airplane will you send your children on board- the one where nobody has been searched and for whom there are no records for any of the passengers, aircrew, ground crew and others, or the one where there is a high degree of public confidence the authorities are diligently protecting the safety and security of those who cross borders and those who live within borders.
 
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