Privacy in the digital world is of a growing and unending concern. With the continually increasing amount of personal information stored on cell phones, from conversations with friends and loved ones, to banking; who can access this information has become incredibly important.
The advent of the “smartphone” has made the information that can be stored in a cell phone more personal, more private, and more in need of protection. The average person would likely prefer the police to search their bedroom rather than their iPhone or Android phone.
The ability of police to search your cell phone without a warrant has drawn significant attention, as seen in R v Fearon  and discussed in Your Rights in a Digital Age. Law enforcement breaching cell phone privacy is now also a concern at border crossings. Recently there have been reports of fines for refusing to unlock a cell phone for Canada Border Services Agency (CBSA) personnel. This raises the question of what privacy rights exist, if any, at a border crossing. CBSA has wide ranging powers regarding searches authorized under the Customs Act. CBSA can search or even confiscate your cell phone. There are situations where a search of a cell phone at the border can prove beneficial to an investigation and possibly aid in denying entrance into the country should there be reason to do so. While police officers cannot search a password protected cell phone without a warrant, the issue of penalties for refusing to present a border officer with your password has yet to be litigated.
The Case of Alain Philippon
The case of Alain Philippon has received quite a lot of media attention in the past two years. In March of 2015, Mr. Philippon was stopped at the Halifax airport after returning from a trip to the Dominican Republic. He was asked to unlock his Blackberry smartphone and provide CBSA agents with the password. Mr. Philippon refused to do so and was charged under section 153.1(b) of the Customs Act. Section 153.1 states: “no person shall, physically or otherwise, do or attempt to do any of the following: (a) interfere with or molest an officer doing anything that the officer is authorized to do under this Act; or (b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.” The maximum penalty for section 153.1 is a fine of $25,000 and a year in prison. Mr. Philippon entered a guilty plea. He was fined $500 and will not be facing imprisonment. News reports of the incident indicated Mr. Philippon spending the night in custody, and CBSA keeping his cell phone were factors considered.
Cell Phone Privacy and the Courts
As a result of Mr. Philippon’s guilty plea, the issue of the CBSA charging people for not providing a cell phone password has not yet been litigated in our courts. Considering the sheer amount of data that a cell phone can carry, more than one could store in any piece of luggage, it is no wonder that border officials want access.
The question that remains is where the line is drawn between security and personal privacy. Section 8 of the Canadian Charter of Rights and Freedoms guarantees all Canadians that they have “the right to be secure against unreasonable search or seizure.” Defining this line is of a fundamental significance and is likely to have long term consequences in the ways that we deal with both privacy and technology. It also serves as another example of the difficulty faced by law in adapting to modern technology, which develops at an incredibly rapid pace in comparison to jurisprudence.
This rapid evolution results frequently in the adaptation of anachronistic or ill-fitting laws to serve modern purposes. The goal of CBSA to protect all points of entry into Canada is one of great national importance. It is no great surprise that they would attempt to shoe horn the search of password protected cell phones into their powers. However, search of a cell phone is not exactly congruent the CBSA right to search luggage.
Adapting Legislation for the Modern Age
As the law develops over time to account for the balance of privacy and security concerns regarding the carriage of cellphones across borders, legislation will most certainly do so as well. Until a successful challenge is mounted, however, CBSA officers have the discretion to detain and charge individuals who refuse to comply with an order to give over the password to their personal cell phone as instanced in the case of Mr. Philippon. Until there is either a judicial decision in relation to a Charter challenge, or a parliament legislates on the subject, the border will find itself consistently struggling between border security, privacy, and protection.
Section 99 (1) (f) of the Customs Act states that:
“where the officer suspects on reasonable grounds that this Act or the regulations or any other Act of Parliament administered or enforced by him or any regulations thereunder have been or might be contravened in respect of any conveyance or any goods thereon, stop, board and search the conveyance, examine any goods thereon and open or cause to be opened any package or container thereof and direct that the conveyance be moved to a customs office or other suitable place for any such search, examination or opening.”
It is highly likely that sections of the Customs Act will be updated to allow for the search cell phones regardless of whether protected by password or not in the near future. Under section 99, officers have the authority to search your device, but there are no legal grounds for them to force you to unlock a locked phone.
Seeing change at the borders may be more challenging and less likely than with domestic policing. CBSA officers have greater powers of both search and detention than a police officer, not to mention refusal of entry. CBSA officers still need to continue to act to the best of their ability while operating within the existing legal framework. Smartphones and similar electronic devices capable of storing significant amounts of information and performing a variety of task are unlikely to disappear any time soon. There is a real need to determine where the line will be drawn between security and privacy in relation to these devices. Upholding the unassailable right of each and every citizen to privacy and protection from unlawful search and seizure is becoming increasingly important as we place more intimate information on our cell phones and other electronic devices.
To learn more about the legal implications of searches at the border and how they may affect your criminal law case, contact a Toronto criminal law firm.