These days, travellers typically cross the border with a substantial amount of private information stored on their electronic devices. While Canadian citizens have privacy rights within the country, this right all but disappears at the border. This article sets out your rights at the Canadian border and in U.S. preclearance areas, with respect to information on your electronic devices and provides various suggestions to protect such information, from inspection.
1. Your Rights at the Canadian Border
Canadian Border Security Agency (CBSA) officers have authority to search goods in any form coming into the Country with or without suspicion of those goods, which includes electronic devices. Officers may conduct initial searches, without suspicion, or may target individuals, either of which may lead to a detailed search, as set out below.
During an initial search, CBSA officers are only permitted to search information stored on your device. Officers do not have authority to search information requiring internet access to download, without a warrant. CBSA guidelines suggest that during a search without suspicion, officers should not examine the contents of the device in detail, but rather take a quick look to see if further examination may be warranted. However, this limit is not legally enforceable and the officers can examine the information stored on your device to any degree they wish.
The CBSA may target individuals at the border that match certain criterion the CBSA considers to be high-risk, such as arriving from certain countries, a last-minute ticket purchase, unusual travel routes and single men travelling alone. Further, the National Targeting Program, conducted by the CBSA, identifies high-risk individuals prior to their arrival at the border. High-risk individuals will be questioned and their devices possibly searched by border officers.
If an officer views information on your device during an initial search that leads to suspicions that a further search is warranted, or if you are targeted as set out above, they may conduct a detailed search of your device. During a detailed search, the CBSA’s power in regard to handling any information on your devices, is much broader than that of an initial search. Secondary searches permit the CBSA to copy everything on a device and retain the copies for inspection. Any information copied may be admitted to court if the searched person is charged with an offence. If such information is password protected, the CBSA may use software to crack any passwords.
CBSA guidelines indicate that during an initial search, an officer should only request passwords required to obtain information on a device. Officers should not request passwords that would provide access to information stored remotely or online. We note that CBSA guidance indicates you will not be able to input any password yourself, unless the phone is protected by fingerprint ID. Passwords provided to an officer will be recorded in their records.
There are no clear guidelines as to what will happen if a person denies to provide the password of a password protected device to an officer. The CBSA has stated that password refusal is dealt with on a case-by-case basis. Certain consequences of refusing to provide any passwords to an officer, include basis for a detailed search, detention of your device, denial of entry if you are not Canadian or a permanent resident, a fine of up to $50,000, arrest and even imprisonment for up to 5 years. We note that Courts have indicated that arresting a person who does not provide a password is justified, however this issue has not been ruled upon.
2. Your Rights at U.S. Preclearance Areas
Similar to searches by CBSA officers, in U.S. preclearance areas, U.S. Customs and Border Protection (CBP) officers do not require reasonable suspicion or a warrant to search electronic devices. A device may be subject to a basic or advanced search.
Basic and Advanced Searches
A basic search is defined as anything less than an advanced search. An officer can only conduct an advanced search if the officer is reasonably suspicious that the individual has engaged in action that violate laws the CBP has power to enforce, or if they reasonably believe that the individual is of concern to national security. During an advanced search, an officer can review, copy and analyze the contents of a device through the use of certain equipment.
Upon review of your device, if an officer determines that there is probable cause to believe that there is evidence on the device that you have made statement to the officer that is either false or deceptive, the officer may seize your device.
Individuals subject to an advanced search must ensure that the officer will be able to inspect its contents, i.e. if the device is password protected it should be provided to the officer.
Similar to searches by CBSA officers, it is unclear what will happen to an individual who does not provide a password during a basic or advanced search. However, the officer may detain the device or deny you entry into the U.S.
An effective way for any person to protect their information from inspection at the border by CBSA or CBP officers is to reduce the number of searchable documents on your electronic device, prior to travel. There are several ways to reduce searchable documents, from simply turning your device to airplane mode to wiping the device’s disk in its entirety.
As CBSA agents are only permitted to search information stored to your phone during an initial search, you should turn your phone to airplane mode prior to a search, to ensure the officer cannot download information from external servers.
Another option is to create a backup of the data on your device and delete all data from your device prior to crossing the border. If you use an online backup, you may be able to delete data before crossing the border and restore it to your device once you have crossed.
An alternative to wiping your device’s disk, is to encrypt it. Encryption will convert all information stored on the disk into an unreadable code. Only persons with access to the encryption password will be able to read the information on the disk. These days most laptop computers and cell phones have disk encryption capabilities built in. If you do not want to encrypt your laptop or cell phone disk in its entirety, you can encrypt single documents.
At a bare minimum, if your laptop or cell phone contain privileged documents, these documents should be separated from non-privileged documents. Various ways to separate such documents include maintaining separate work and personal email accounts, using separate computer accounts for work and personal matters and carrying a work and a personal cell phone. Separating documents in this manner will allow you to easily point out to a border officer which documents are privileged.
Separation of privileged documents is specifically important for documents protected by solicitor-client privilege. The authority of officers to inspect such documents is unsettled in Canada and has raised a great deal of concern by professional bodies. CBSA guidelines indicate that CBSA officers are not supposed to examine any document that is subject to solicitor-client privilege. CBP officers are supposed to contact a CBP lawyer who will assist with the handling of privileged document. The CBP’s power in this regard is only restricted to not copying such documents, unless they pose an imminent threat to homeland security.
If you have concerns about your privacy at the border or any questions in regard to the above, please contact our firm at (604) 688-4900, or email one of our lawyers at firstname.lastname@example.org or email@example.com.