Man's Refusal To Give-up Password For Cellphone Search at Border Raises Legal Questions

Border agents have been searching our cellphones for many years now now whenever we try to cross, the question of whether or not we need to assist them in their investigation however is one that is now coming before the courts. Over a month ago, we reported on the case of Alain Philippon who is currently engaged in a legal battle for having been charged under section 153.1 (b) of the Customs Act. The charge indicates that Philippon was “hindering or preventing” the border officers from performing their duties, because he refused to give-up his cellphone password to them. If he is found guilty, he faces up to a year in prison and he will be faced with a fine that ranges anywhere from $1,000 up to $25,000.


“When people are crossing the border, courts have long accepted that we have a reduced expectation of privacy,... Custom agents are able to search our bags, are able to search our goods, see if we’re bringing things back over the limit if we have contraband, weaponry, these kinds of things... [The law which allows them to do this is] an old-fashioned law that we have, that was designed before there was even such a thing as a smartphone... When it comes to searching smartphones, though, it’s really kind of a different thing, because this isn’t just a bag that is carrying some socks or some samples for your business. Smartphones are really a window to a great deal of personal information about you." says Josh Paterson, executive director of the BC Civil Liberties Association. 


Paterson proposes that there should be stricter standards that get established around the sort of searches of individuals, involving smartphones and computers, that the CBSA conducts on a regular basis. For those who frequently cross the border, the increased level of tedious scrutiny that one must subject themselves to is getting frustrating to say the least. A spokeswoman for the border agency has said that because individuals are coming to it voluntarily, that this is reason enough they (including their smartphones) should be subject to invasive searches. Does the fact that we have a destination to go to really establish reason enough to prompt criminal suspicion on our behalf, when millions of individuals travel to a new destination every single day? 

“I live in a border community which the border literally divides our two communities down the middle. Many of us work and have family on each side of the border and we share many recreational facilities, so in many ways the border isn't voluntary and is somewhat of an arbitrary line dividing our community in half. Yet over the years the officers manning the Canadian side of the border have become increasingly hostile and difficult to deal with. Many officers simply won't accept 'I have nothing to declare' and treat that as a reason to push harder and further for some perceived offense. I for one would like some clarity on this specific topic as being hassled at the border by over zealous officers has become routine.” said one Canadian citizen.  And there are many others who tell similar tales. 

When it comes to cellphones at the border, the agents are not allowed to cherry-pick and go looking through whatever phone they please (according to the law), they must have reasonable suspicion to require your property to look through. "When you look at the Customs Act, even under the enforcement section, they say an officer may search a person whose arrived in Canada within a reasonable time if the officer suspects on reasonable grounds that the person has secreted anything (illegal) on his person," said Matthew Lewans, a University of Alberta law professor. Lewans says that in regards to Philippon's case specifically, he has trouble seeing where that legitimate suspicion was raised which prompted agents to ask him for his password, to which he then refused to comply. As it stands currently, there is a lowered expectation of privacy at the border, but “there is not a negation of all privacy rights nor the rights to presumption of innocence,” affirms Sukanya Pillay, executive director of the Canadian Civil Liberties Association.  



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