Border guard powers unclear when it comes to cellphones

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For all the various stresses of travelling, crossing borders can be the worst. Even if you’ve got nothing to hide and you’ve declared everything — and have you, really? — you’ve got to deal with powerful border guards who can make your trip miserable.

As they search your personal effects, imagine one takes your cellphone. It’s full of personal information, photos, and more. They demand your password. Do you have to give it up?

Well, the rules obviously depend on which country’s guards you’re dealing with. But even in Canada, the laws are hazy.

Last week, Canadian border guards in Halifax laid charges against a man who refused to provide his cellphone password. It’s ignited a legal debate over how far border agents can go when it comes to search and seizure.

There’s no specific law saying you have to give up your password. Instead, Alain Philippon is charged under s. 153 of the Customs Act, which forbids trying to “hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.”

Philippon faces a possible minimum fine of $1,000 or a maximum $25,000 and the possibility of up to a year in jail.

The Constitution, however, protects Canadians against unreasonable search and seizure.

Unless you’re being arrested, law enforcement officers need a warrant to conduct a search. Even if you are being arrested, the Supreme Court of Canada’s R. v. Caslake ruling says any searches must have a “valid purpose connected to the arrest.”

In December, the Supreme Court handed the police some powerful new search tools when it okayed warrantless cellphone searches in R. v. Fearon. However, that ruling still maintained the “valid purpose” tenet, since “the information contained in such devices is often extensive, private and highly personal.”

Officers also must keep notes of what was searched and why. If they’re searching without a warrant, they must be prepared to explain why they couldn’t wait for one.

Still, that’s all about the police.

Enacted in 1985, the Customs Act predates most kinds of electronic devices you’d be carrying now — unless you’re wearing a pager — and mentions no specific rules on searching those devices. So far, no court rulings have established any sort of precedent or limit on a border agent’s search powers.

So where does that leave you? Right now, it means cellphones and other devices fall into a legal grey area. Philippon’s case could change things, but until government or the courts say otherwise, it seems border guards can search those devices and you could also be charged for refusing.

In related news, a Toronto family denied entry into the U.S. last month finally got their seized electronics back, although they’re still waiting for an explanation of why their Disney vacation was ruined.

Firas Al-Rawi and his family were en route to Disney World when U.S. customs officials at Toronto’s Pearson Airport stopped them, took fingerprints, and ultimately denied them entry. Apparently they said his family was inadmissible because they would likely not return to Canada after the trip.

Guards also seized all their cellphones and iPads and demanded the passwords. They finally got their stuff back on Tuesday, but without any explanation of why it was seized and why they were barred entry. Al-Rawi says it’s a case of racial profiling. Given that he has an Ontario medical licence, owns property there, and has children in school there, including a daughter at UofT, the family has ample reason to return.

Regardless, U.S. border agents are empowered to turn away anyone they deem unfit, and they reject about 330 people per day.

“Applicants for admission bear the burden of proof to establish that they are clearly eligible to enter the United States. In order to demonstrate that they are admissible, they must overcome all grounds of inadmissibility,” U.S. Customs spokesperson Jennifer Evanitsky, told the Toronto Star.

In most situations, border guards are holding the cards. You can try to stand up for yourself and your privacy but, at the moment, you don’t have a strong legal leg to stand on.


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