Here's What You Need To Know Before You Cross The Canadian Border
Of course, privacy advocates continue to argue that CBSA's authority to search electronic devices shouldn't be exercised in the same manner as a briefcase or suitcase, because hand-carried electronic devices now have the capacity to store a very large amount of personal or business information. However, these attempts have been unsuccessful.
Handling of password protected devices
CBSA officers have the authority to charge a traveler with a criminal offence for refusing to provide the password to their device under Section 153.1 of the Customs Act, which makes it an offence to interfere with or hinder a CBSA officer. The offence is punishable by a fine of up to $25,000, and imprisonment for up to 12 months.
Of course, it's more likely that one of more of the following will occur:
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At the very least, a refusal to provide the password for a smartphone or laptop will significantly increase the CBSA officer's level of suspicion. This may prompt a more aggressive inspection and/or a more detailed examination of the electronic device.
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Although Canadian citizens and permanent residents cannot be refused entry to Canada, other foreign nationals could be denied for failing to establish that they are admissible.
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CBSA could detain the electronic device for further examination. Under Section 101 of the Customs Act, goods that have been imported may be detained by a CBSA officer until they're satisfied that the goods have been dealt with in accordance with the Act (or any other Act of Parliament that prohibits, controls, or regulates the importation or exportation of goods). However, in R. v. Gibson, the Provincial Court of British Columbia found that detention of an electronic device for a full, forensic examination (i.e. copying data, utilizing password-cracking software, etc.) would require reasonable suspicion.
Limited protection available
Although the courts have not limited CBSA's authority to search smartphones and laptops at the border, one of the agency's internal Operational Bulletins has attempted to impose a few limits on such searches.
For example:
- In R. v. Gibson, the Provincial Court of B.C. held that the
definition of "goods" didn't include data stored in the cloud, or stored
remotely on devices that weren't in possession of the traveller,
meaning this data can't be searched. Although R. v. Gibson isn't
necessarily binding outside of B.C., CBSA's Operational Bulletin appears
to have adopted the decision, which means that it should apply at all
ports of entry.
- CBSA's Operational Bulletin states that passwords are not to be
sought to gain access to any type of account (including any social,
professional, corporate, or user accounts), files, or information that
might potentially be stored remotely.
Despite the fact that an electronic device is actually very different from a suitcase, Canadian lower court decisions don't currently recognize the distinction. The issue may eventually be addressed by the Supreme Court of Canada but, for the moment, CBSA officers appear to have the authority to perform suspicionless searches of smartphones and laptops in the context of a border inspection.
Here's What You Need To Know Before You Cross The Canadian Border
Canada Border Services Agency officers have the authority to charge a traveler with a criminal offence for refusing to provide the password to their device. At the beginning of this year, I discussed the issue of border searches of electronic devi