Reasonable Doubt: Any fruits or vegetables…or phones or tablets to declare?

Privacy over our personal electronic devices and crossing borders are two issues that are getting a lot of attention in the news lately. Kevin Yee discusses what privacy rights we have as Canadian citizens at our border.

I have a distinct memory of crossing the border as a kid. We were going through the Peace Arch Crossing as I sat in the backseat of the family Volvo. The border officer asked my dad if he had anything to declare on behalf of the family. My dad said no. I immediately piped up, saying it wasn’t true. See, my parents bought me a souvenir pencil that I held in my hand and I proudly waved around. My whole family turned slowly to me, turned back to the officer, and held their collective breath. I didn’t see how the officer reacted, but we were waved away. We were allowed back into Canada and on the whole drive back, my dad gave me an earful while my mom laughed hysterically.

Nowadays, crossing the border seems more complicated. We carry phones, tablets, and laptops across borders that hold all of the information about our personal and professional lives. They contain our social media accounts, our photographs, confidential e-mails, banking information, and even our Netflix watching history. Privacy over our personal electronic devices and crossing borders are two issues that are getting a lot of attention in the news lately. So what privacy rights do we as Canadian citizens have at our border?

As Canadian citizens, we have the right to be allowed back. But our personal devices are subject to inspection at the border. When approached, the Canada Border Services Agency issued a written statement:

Electronic devices and media, including laptops, cell phones and other devices are classified as ‘goods’ in the context of the border and CBSA officers have the lawful authority to under section 99 of the Customs Act to examine them as part of a routine examination.

But what if we flat out refuse to unlock the device? Put another way, are we required to give up the password that unlocks our devices? The CBSA seems to think so. Their written statement continues:

If a traveller refuses to provide a password to allow examination of the digital device, media or the documents contained therein, or if there are technical difficulties that prevent a CBSA officer from examining the digital device or media, the device or media may be detained by the CBSA officer under the authority of Section 101 of the Customs Act or under the authority of subsection 140(1) of the Immigration and Refugee Protection Act (IRPA).

Still, losing your phone isn’t the worst case scenario if you refuse to unlock your device. You can potentially be arrested for obstructing the border officer. According to Micheal Vonn of the BC Civil Liberties Association, this has happened in the past. However, Vonn isn’t aware of any recent instances. This appears to be due to the internal policies currently in place with the CBSA.

According to the CBSA’s written statement on their current policy, officers are not to make arrests over the refusal to unlock devices. This “restrained approach” is “…until the matter is settled in ongoing court proceedings”.

If this gives little peace of mind, that’s understandable. Internal policies can change on a whim. This creates quite a lot of uncertainty about what you should do if a border officer asks you to unlock your phone.

Vonn explains that we are in a legal grey area here. What’s clear is that the law says we have far less privacy rights at the border than within them. For example, it’s much easier for a border officer to legally search your backpack at the border than on your city streets. Another consideration, as Vonn argues, is that our phones, tablets, and laptops contain so much private information that they are different from backpacks or suitcases. They should be treated differently. When you consider the limits to privacy rights at a border and the higher privacy arguably attached to electronic devices, you see how these two are at odds.

How will this play out? There is a potential constitutional challenge regarding the right to privacy over our electronic devices at the border. If it goes through the courts, we could get some clarity. In the meantime, Vonn says protective measures can be taken. You can remove sensitive information on your devices if you don’t want to risk having to disclose this in a border inspection. Vonn cautions though that such steps should be taken before leaving home. The last place to protect your devices for privacy is at the border itself.

If you’re curious what Vonn does herself, she goes so far as to leave her phone at home when leaving the country. As a working professional, she is required to ensure the confidentiality of certain information on her phone. And according to her, she is encountering more and more in the legal field who are taking similar measures. Of course, Vonn recognizes that this isn’t practical or realistic for everyone. Ultimately, there is no perfect solution and each person must decide what safeguards are enough to protect their devices when crossing the border.

Note: this article doesn’t touch on privacy rights in relation to entering another country. That country’s laws have to be considered but are outside the scope of this article.

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.