Canadian policies on cellphone searches at border aren't easy to find

When you travel to the U.S., customs agents can search your smartphone, laptop and other electronic devices at will — a longtime policy that has attracted renewed scrutiny in light of President Donald Trump's controversial immigration ban.

Canadian customs agents can do the same, but unlike their U.S. counterparts, Canada Border Services Agency (CBSA) doesn't make its policy easy to find. Nor does it offer much in the way of specifics.

Legal experts say that lack of transparency makes it difficult for travellers to know their rights when a Canadian border agent asks to conduct a digital search.

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"The border is a place that makes people nervous," says Rob Currie, a law professor at Dalhousie University and director of the Law & Technology Institute at the Schulich School of Law.

"You are not inclined to assert your rights, if you even know what they are, which many people don't. And in this case, how would you know what your rights are?"

Until Friday, interim guidelines from June 2015, obtained through an Access to Information Request and provided to the British Columbia Civil Liberties Association, offered the only glimpse into CBSA's policy.

The policy is not available on the CBSA website, and legal experts were uncertain if the policy was still official.

Scott Bardsley, press secretary for the minister of public safety, confirmed that they are.

In an email sent Friday morning, after this story was first published, CBSA spokeswoman Patrizia Giolti wrote: "Border Services Officers (BSOs) are currently guided by an Operational Bulletin that explains the current legislative framework, as well as current CBSA policies regarding the examination of electronic devices."

According to CBSA policy, the agency doesn't need a warrant to search your phone, laptop, or electronic device, which all fall under the Customs Act's broader definition of "goods."

However, the policy pales in comparison to what is available in the U.S. — a document called a privacy impact assessment, published in 2009.

That document outlines in detail how U.S. customs agencies perform searches, what they do with the data copied from devices, how long the data is retained, and the circumstances under which seized data can be shared with U.S. and international law enforcement agencies.

It is available for anyone to access online.

Giolti said a similar privacy impact assessment has not been completed, but CBSA "has begun the process internally."

"We are not in a position to provide timelines at this time," Giolti wrote.

'Interim' guidelines offer glimpse

According to CBSA, "although there is no defined threshold for grounds to examine such devices, CBSA's current policy is that such examinations should not be conducted as a matter of routine."

Officers can request passwords — though not for information stored "remotely or online." And if a traveller refuses, the device could be detained for a forensic examination.

"Could they copy it all and go through it all?" asks lawyer Micheal Vonn, policy director of the British Columbia Civil Liberties Association (BCCLA). "Yes. I have no understanding that there's any impediment to them doing it if they can get in."

CBSA confirmed it can "collect data for customs purposes" but did not answer questions about where data is stored or how long it is retained.

The policy also says that officers should not arrest a traveller "solely for refusing to provide a password," even though the agency believes "such actions appear to be legally supported."

The agency does not keep statistics on the number of searches of electronic devices it conducts, Giolti said.

Who's going to challenge government?

There are a few reasons, according to legal experts, for the lack of clarity.

One is that there has been a lack of constitutional challenges in Canada, which would have the potential to force CBSA to reveal more about its practices in court — namely around compelling travellers to hand over their passwords and for the searches themselves, which are two separate issues, Currie says.

Part of the problem is that most people don't have an incentive to launch a potentially costly and time-consuming legal challenge, says Vonn.

"Who, in the ordinary spectrum of people who are just crossing the border because they need to for business, or they need to go to a conference, or they want to go shopping — who's going to take that on? Almost nobody."

Another reason is CBSA might argue that guidance governing electronic-device searches already exists — albeit as decades-old law, written before smartphones and computers were commonplace, which has been reinterpreted to apply to present-day technology.

Under this interpretation, the search of a phone is equivalent to the search of a suitcase, as both are "goods," even if one is capable of holding much more personal information.

As a result, says Currie, CBSA's approach to searching electronic devices is "based around these very broad search powers that they have in the Customs Act — most of which were written in the '70s and were not designed to accommodate the privacy interest in these devices."