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‘How would you know what your rights are?’: Secret policies govern cellphone searches at the Canadian border

When you travel to the U.S., customs agents can search your smartphone, laptop and other electronic devices at will — a longtime policy that has attracted renewed scrutiny in light of President Donald Trump’s controversial immigration ban.

What you may not realize is Canadian customs agents can do the same. 

But unlike the U.S., the Canadian government has not made public its policies on how those searches are conducted — or even revealed if formal policies exist at all.

Legal experts say that lack of transparency makes it difficult for travellers to know their rights when a Canadian border agent asks to conduct a digital search.

“The border is a place that makes people nervous. You are not inclined to assert your rights, if you even know what they are, which many people don’t,” says Rob Currie, a law professor at Dalhousie University and director of the Law Technology Institute at the Schulich School of Law. “And in this case, how would you know what your rights are?”

What is known is that the Canada Border Services Agency (CBSA) doesn’t need a warrant to search your phone or laptop, which both fall under the Customs Act’s broader definition of “goods.”

But how that search is conducted — whether agents can compel you to turn over your password, say, or make a copy of the data on your device — remains unclear.

The U.S. government, on the other hand, published its policy on electronic device searches in 2009.

“I don’t know if it’s simply not available, not advertised or literally does not exist,” says lawyer Micheal Vonn, policy director of the British Columbia Civil Liberties Association (BCCLA).

“And I don’t know that it … would be to their benefit to put any of that in writing.”

CBSA did not respond to multiple requests for comment, including an emailed list of questions about its border search policies, such as how often electronic-device searches take place.

‘An invitation to abuse’

In the absence of a formal policy, it’s not clear:

  • How a Canadian customs officer decides to search a traveller’s phone, laptop or electronic device, and how that search is conducted.
  • Under what circumstances data is copied or download from a device, how long the data is retained and with which agencies the data is shared.
  • How searches of electronic devices are tracked, if they are tracked at all.

If search-related decisions are made at the discretion of an officer — rather than based on a formal policy — it gives “a lot of latitude” to the front line, according to Vonn. “And when you’re talking about people’s rights, you must shape discretion. Not to do so is an invitation to abuse,” she said.

Canadian Border Services Agency

Lawyer Micheal Vonn believes Canadian border agents could download or copy all of the information on a device, if they wanted to. (Jonathan Hayward/Canadian Press)

The U.S. Department of Homeland Security — which includes Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) — conducted a review of its practices in 2009. It is available for anyone to access online.

The review, known as a privacy impact assessment, outlines how U.S. customs agencies perform searches, what they do with the data copied from devices, how long the data is retained for, and the circumstances under which seized data can be shared with U.S. and international law enforcement agencies.

The Office of the Privacy Commissioner of Canada says it has never received a similar privacy impact assessment from CBSA, according to spokesperson Tobi Cohen.

‘Interim guidelines’ offer a glimpse

Perhaps the closest thing to an official CBSA policy on device searches are internal interim guidelines dating from June 2015, obtained via access-to-information legislation and shared with the BCCLA by an unidentified source.

At that time, CBSA told officers that “although there is no defined threshold for grounds to examine such devices, CBSA’s current policy is that such examinations should not be conducted as a matter of routine.”

Officers could request passwords — though not for information stored “remotely or online.” And if a traveller refuses, the device could be detained for a forensic examination.

“Could they copy it all and go through it all?” asks Vonn. “Yes. I have no understanding that there’s any impediment to them doing it if they can get in.”

Currie, however, suspects that border agents would still need a warrant to perform a forensic search, but couldn’t say for sure — and the issue hasn’t been tested in court.

Canada Border Services Agency shoulder patch

Most people don’t have the incentive to mount a potentially costly and time-consuming legal challenge against the government’s border-search policies, legal experts say. (CBSA)

CBSA also recommended at the time that officers not arrest a traveller “solely for refusing to provide a password” — pending the outcome of a highly publicized court case — even though the agency believed “such actions appear to be legally supported.” (The court case was resolved last August through a guilty plea and $500 fine, meaning some of these troublesome questions never played out in a judicial setting.)

As a result, both Vonn and Currie say it’s not clear whether CBSA still favours this recommendation.

“We’ve been really urging people not to take this as the state of play,” Vonn says.

Who’s going to challenge the government?

There are a few reasons, according to legal experts, for the lack of clarity.

One is that there has been a lack of constitutional challenges in Canada, which would have the potential to force CBSA to reveal more about its practices in court — namely around compelling travellers to hand over their passwords and for the searches themselves, which are two separate issues, Currie says.

Part of the problem is that most people don’t have an incentive to launch a potentially costly and time-consuming legal challenge, says Vonn. 

“Who, in the ordinary spectrum of people who are just crossing the border because they need to for business, or they need to go to a conference, or they want to go shopping — who’s going to take that on? Almost nobody.”

Another reason is CBSA might argue that guidance governing electronic-device searches already exists — albeit as decades-old law, written before smartphones and computers were commonplace, which has been re-interpreted to apply to present-day technology.

Under this interpretation, the search of a phone is equivalent to the search of a suitcase, as both are “goods,” even if one is capable of holding much more personal information.

As a result, says Currie, CBSA’s approach to searching electronic devices is “based around these very broad search powers that they have in the Customs Act — most of which were written in the 70s and were not designed to accommodate the privacy interest in these devices.”