There’s been a lot of public anxiety about crossing borders lately, particularly ones shared with the United States. Here in Canada, we tend to think that our basic rights and freedoms go with us wherever we travel between our two countries, but as a new guide by the BC Civil Liberties Association points out, that’s just not the case. The Electronic Devices Privacy Handbook breaks down your rights at the border, when you can be searched, how in-depth the searches can be and how you can protect yourself and your data. You might be surprised by how invasive these searches can get while being totally legal.
This guide is meant to cover only crossing the border from the U.S. into Canada or vice versa since other countries have different rules when it comes to their borders. The guide itself is almost 70 pages long, but pretty readable if you have an interest in knowing all the finer details of electronics searches at the border.
If you don’t have time to do that, we’ve broken down the main takeaways for you right here.
Agents can do “random” searches without suspicion
When you’re roaming around Canada, the Charter of Rights and Freedoms protects you from being randomly searched without suspicion. That’s not so at the border. Agents are allowed to search anything on your person and that includes your electronics. They can search your phone, tablet, laptop or other electronic devices at random.
There is a limit, however, to how in-depth these random searches can go, although it is not well defined. Agents are only permitted to look at documents long enough to determine they do not contain contraband (“such as child pornography or hate literature”). Questionable data found during one of these limited random searches can be used to justify a more extensive search of your devices.
They can’t access your remote data
When conducting a search, agents are only permitted to view items directly on your device. Anything that can only be accessed through the internet (like items in the cloud or posted online) cannot be legally searched by border security in an initial search. A judge-issued warrant is required to search anything not directly saved on your phone, computer, tablet, etc. The guide warns, however, that if your device is taken out of your sight, you have no way of stopping (or even knowing about) a more in-depth search of your online footprint.
But they can make copies of what’s on your device
The guide states that, “The Customs Act gives the CBSA the power to detain goods if the officer is not satisfied that the goods have been properly screened for admission into Canada.” That means agents have permission to do a more in-depth search of your device, copy files from it for further examination or even retain the device to search it more fully. They can also run password-cracking software to gain access to the device and apps if you refuse to provide your passwords.
It’s unclear if you have to provide passwords
Speaking of passwords, it’s unclear if you have to provide them to border agents when prompted or not. For one thing, civilians at the border are required to open and unpack anything border agents request them to as well as answer truthfully any questions asked of them. Agents have the power to arrest anyone for “hindering” or “obstructing” a search and may see withholding a password as one of those offences. While it has not been decided in a court of law whether individuals are required to provide passwords, the guide warns that withholding may lead to increased suspicion, denial of entry into the country, detention of the device and even arrest.
So how can you protect your data? The guide makes several suggestions starting with leaving as many of your devices as you can at home. You should also back up your device before you leave and delete any sensitive information you don’t want to be easily accessible to authorities. When you approach customs, turn off your device and ensure it is password-protected — a password won’t stop a search, but it may deter an agent who is not overly suspicious of you to begin with.
You can file a human rights complaint
The guide also encourages anyone who believes they were treated unfairly or discriminated against to file a complaint with the Canadian Border Services Agency or with the Canadian Human Rights Commission. There are also a number of advocacy groups that would be willing to listen to your situation and possibly represent you if they feel you have a strong case for discrimination at the border.