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Cellphone searches at U.S. border crossings – a guide

Canadian travellers ought to be very concerned with the level of searches that customs officials at the U.S. border are permitted to conduct on cellphones and electronic devices, Toronto lawyer Sharon Bauer tells AdvocateDaily.com.

“Currently once you enter the U.S., customs and border protection officers are allowed to search through your electronic devices, including your cell phones and computers. They can demand passwords and make a copy of all the data both on your electronic device as well as data stores on applications or in the cloud, says Bauer, a partner with Wolfe Lawyers.

"This is akin to a warrantless search. U.S. border protection officers get to use their discretion without having any reasonable grounds to delve through people’s electronic devices other than, generally, to protect homeland security. But that is very broad.”

The Toronto Star recently reported on Canada’s privacy commissioner, Daniel Therrien alerting a House of Commons committee that U.S. Customs and Border Protection officers have the right to examine mobile devices and even demand passwords under American law.  

He suggested Canadians should consider not taking their devices into the U.S. unless they are comfortable with having them probed, noting that the number of searches increased in 2015 and 2016.

U.S. officials can detain Canadians or refuse them entry if they refuse to co-operate. They even have the power to unlock devices without the authorization of the device’s owner, says Bauer.

“In this day and age, we keep a great deal of very personal information on our electronic devices, including our emails, banking information, even our medical information. So that is a huge concern and a violation of our privacy,” says Bauer.

The advice is to travel with caution and as little data as possible, although Bauer says this is not realistic for most people. She recommends using encryption services and strong passwords.

Bauer points to the proposed Bill C-23, the Preclearance Act, as another related concern. It would allow Canadians to clear U.S. Customs and Immigration at the Canadian port of departure. So Canadian travellers would deal with American customs officials while still in Canadian territory.

An argument floated in favour of this approach is that at least the border guards would be subject to Canadian law: the Canadian Bill of Rights, the Canadian Charter and the Canadian Human Rights Act.

“It is nice to know they will have to follow Canadian law and the nation's rules, but the question is: Will U.S. border protection officers be trained to know and understand Canadian rights?” asks Bauer.

The level of intrusiveness related to scrutiny of electronic devices such as cellphones has been equated to body cavity or strip searches. The difference, says Bauer, is that body searches require reasonable grounds, while searches of devices in the U.S. do not.

Bauer says if U.S. border guards are going to do their screening on our soil, they should not be allowed to conduct groundless searches, which are unconstitutional. There should also be transparency in the way they conduct their searches, such as recording how many they do and on what grounds. Similar to Canadian officers, they should only be allowed to search data stored on the device and not data remotely stored in the cloud or other applications. Our laws don’t allow the level of intrusiveness practised by U.S. officials, she adds.

To Read More Sharon Bauer Posts Click Here
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