Kathleen MacEachern
Kathleen MacEachern, Policy & Research Analyst
 

Fast Facts

  • Canada Border Services Agency (CBSA) defines electronic devices as “goods”, therefore they are subject to searches, but should not be made a routine to do so.
  • CBSA agents in Canada are only allowed to view information/data stored on device. In the US border service agents can search through social media, such as Facebook, Twitter, etc.
  • An encrypted phone with a strong password will be more difficult to search. Encryption works even better when the phone is turned off.
  • You could back up sensitive material, delete it and restore once you are back in your home country, although this may seem suspicious.
  • If your phone is unlocked through fingerprints, border agents can ask you to open using that function, so if you’re worried about sensitive information, it may be best to disable the fingerprint service.
  • If you refuse your password agents in Canada and the US can detain you, seize your phone, delay your trip or even not allow you into the country.
  • Those with confidential/privileged information on their phone should secure this information before arriving at the border or have a plan to ensure the safety of this information.

The Bigger Picture

Per the Office of the Privy Commissionaire of Canada, Canadian Border Service Agents have the power to stop and search people and examine their bags and possessions (such as smartphones and laptops). These actions are noted in Canada’s Customs Act, therefore can be done without a warrant. Canadian courts have yet to rule on whether a border agent can compel a person to divulge their password(s).

The Canadian Border Service Agency (CBSA) policy does state that the examination of personal devices should not be conducted as a routine search but rather if “there are grounds or indications that evidence of contraventions may be found on the digital device or media”

If your electronic device is selected to be checked you will most likely be asked to provide your password. Canadian Border Service officers have the power to search through “stored” information.

This can include; contacts, apps, photos, etc. “Officers are not to read emails or consult social media accounts on the traveler’s digital device unless the information is already downloaded and has been opened (usually marked as read) and is therefore stored on the device,” (CBSA spokesperson Patrizia Giolti. Refusal to provide your password may result in the device being held for further inspection, a delay in travels or even refusal of entry.

What Can You Do?

Think critically about what data is on your phone and what data you are willing to share and the potential consequences of refusing to submit your phone. CBSA has confirmed that they will not arrest those who refuse to release their password, but they do believe they have the right to do so.”

“CBSA may only collect data for customs purposes and may only disclose customs information if authorized to do so under section 107 of the Customs Act”. Encrypting devices and using a strong password will make it more difficult for others to access data.

The US Border:

Like Canada, the US border can only seize and search electronic devices without a warrant if there is a reasonable suspicion of wrongdoing. Border patrol statistics indicates that in the past year there has been an increase of electronic device searches. While the increase is alarming the percentage of electronic devices searched is 0.0061, so not an overly worrying number for those entering the country. US privacy advocates are recommending the use of encryption services to increase device safety and potentially removing apps temporarily. Unlike Canadian border service agents though, American Border Services agents can browse through social media applications.

Impact:

There may be an issue for businesses and organizations that maintain databases of information about clients and business contacts or those who have confidential/privileged information stored on their phone. In this instance, it is recommended to ensure privacy is a priority before you arrive at customs rather than at the border.