Focus: Investigation expected to clarify border search rights

The recent launch of an investigation by the Office of the Privacy Commissioner of Canada into the Canadian Border Services Agency’s practices will help clarify how far mobile device inspections can go at the border, says an Ontario lawyer.

Shaun Brown, a partner at Ottawa firm nNovation LLP, says he hopes the investigation will provide guidance to Canadians, including lawyers, about what their rights are during searches.

“It’s a great example of the role the privacy commissioner should be playing, because there is a real lack of clarity around these issues,” he says.

In addition to the OPC’s investigation, lawyers who practise in the area expect the matter to end up before a judge in the near future. A court almost had the chance to rule when Alain Philippon, a Quebec man flying home from the Dominican Republic, was detained at a Halifax airport for refusing to unlock his smartphone for CBSA officers. However, Philippon agreed to plead guilty to a Customs Act charge of hindering or obstructing a border official on the eve of his trial last summer.

Should any border guard ask David Fraser to hand over his cellphone or laptop, the privacy lawyer has his spiel all ready to go. Regardless of the country in which he’s pulled over, the Halifax-based privacy lawyer, a partner with McInnes Cooper LLP, says he will explain to the authorities that he simply can’t unlock his devices or provide any passwords because of the possibility that they contain solicitor-client privileged information.

Without placing a call (on another phone) to the Nova Scotia Barristers’ Society for advice, he says he won’t be able to offer any help to officers in their investigations.  

“Solicitor-client privilege has been held sacrosanct, with only a couple of exceptions. Those are extremely narrow, and none of them are impacted at the border,” Fraser says. In any case, “it’s not the lawyer’s privilege to waive; it’s the client’s. In my view, that trumps virtually any other right of access to that sort of information,” he adds.  

Luckily for him, Fraser has never had to break out the speech, so he’s yet to learn first-hand whether or not the Canada Border Services Agency or U.S. Customs and Border Protection share his assessment of their search rights. He has not been asked to undergo secondary screening in recent memory, Fraser says, and is not on any watch list that he knows of.

“It would have been interesting to see how the court would deal with the charge in an age where people have such high expectations of privacy in their computer systems,” Fraser says.
“How does that play in with the reduced expectations you have at the border, when normal civilians are walking around with a huge amount of information on their devices?”

For lawyers who would rather minimize the chance of a confrontation, Fraser says there are some precautions they can take.

“One of the clichés of privacy law is the less information you have, the better. The more information you have, the greater the risk of something going wrong and the greater the risk when something does go wrong,” he says. “You should always be mindful of how much information you are carrying around.”

Earlier this year, Fraser got the chance to put his own advice into practice when making his first cross-border trip since the U.S. election last November.

“The Trump era has focused attention on this issue, but these are some specific actions that everyone should probably be taking in an age where mobile device searches are becoming more common,” he says.

Fraser left behind his regular work laptop in favour of a personal one loaded with the basics and set up for remote access. He also performed a factory reset on his cellphone in Montreal before pre-clearance for a flight to Washington, D.C.

Once on U.S. soil, he took the opportunity to reload all his phone’s regular apps and accounts, before repeating the process on the way home.  

“It’s a time-consuming and Wi-Fi-consuming process,” says Fraser, who admits that his interaction with border staff made him question the value of going through the whole rigmarole.

“I just had to answer three questions, and then it was ‘bon voyage,’” he says.

CBSA spokesman Barre Campbell said in an emailed statement to Law Times that its staff must treat any privileged documents “with sensitivity.”

“CBSA officers are exposed to the importance of solicitor-client privilege at several points during their training. This is also outlined in the guidelines in the CBSA enforcement manual,”
Campbell added.

According to Campbell, the Customs Act gives border officers the right to examine any “good” imported into Canada, including electronic media and their contents, “to ensure compliance with our laws.”

“Current CBSA policy is that examinations of electronic goods should not be a matter of routine; instead, multiple indicators must suggest evidence of contraventions may be found on a device,” Campbell said in his statement, adding that the agency “is committed to maintaining the balance between an individual’s right to privacy and the safety and security of Canadians.”

When it comes to passwords, he said, agents can only request them for access to files or information stored on the device itself.

“Passwords are not sought to gain access to any type of account, files or information that might be stored remotely or online,” Campbell said.

Despite those assurances, Law Society of British Columbia president Herman Van Ommen remains concerned by the situation. In a letter to the federal ministers of justice and public safety, he claimed demands for passwords to devices that could be expected to contain privileged information would violate Canada’s Customs Act.  

Arguing that a lawyer’s electronic device constitutes a “law office” for the purposes of a search, Van Ommen suggested a simple solution:
“We therefore seek your assurance that border service agents will not seek to obtain passwords from lawyers to their electronic devices when crossing the border into Canada. If such a request is made and a lawyer refuses it, we seek your assurance that border agents will not confiscate the electronic device or otherwise detain the lawyer. By refusing access to the password, the lawyer is only discharging his or her professional obligations as required by the various codes of professional conduct across the country,” he wrote.

Brenda McPhail of the Canadian Civil Liberties Association says carrying privileged information on devices across the border is a risk, but that it’s not only lawyers who should be concerned about their privacy. The CBSA does not keep statistics on how often it requests access to travellers’ electronic devices, but anecdotally, McPhail says, searches appear to be on the rise.

“We don’t think the CBSA should be treating a cellphone synonymously with a suitcase. They contain intimate details of people’s daily lives, so it’s quite different to going through some shirts and a few extra pairs of pants,” McPhail says.

She says travellers should assess their own risk profile when making decisions about what privacy precautions to take before a border crossing, but she warns that extreme measures could have ironic consequences.  

“If you take everything off your phone, it may actually increase an officer’s level of suspicion,” McPhail says. “We are often asked by people, and we tell them to do whatever makes them feel safe.”   

Although the CBSA has a complaints mechanism for travellers who felt mistreated during a search, McPhail says an independent external body overseeing the agency would improve the situation.

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