After the U.S. Customs and Border Protection updated it’s directives on searches of electronic devices, the Privacy Commissioner of Canada is warning Canadian citizens.
When crossing to the U.S., the privacy commissioner’s guidelines advise that “U.S. border officials have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone.” These can be performed as part of a routine inspection, without evidence of any wrong doing, and without a warrant.
The updated U.S. customs directives state officers may only inspect data on the electronic devices and may not search remotely stored data, such as data that is kept in the cloud. These directives include U.S. preclearance sites in Canada.
However, they are free to inspect and copy the device with “reasonable suspicion of illegal activity or if there is a national security concern.” These are the loopholes.
The legal bar, both in Canada and the U.S., as to what constitutes “suspicion” is very low. And as was demonstrated recently by the U.S. President’s tariffs against Canadian aluminum and steel, almost anything can be considered as a “national security” concern in the U.S. in the current political environment.
It should also be noted that refusing to turn over to border officials your passwords upon request, could result in refusing you entry into the U.S. and/or your phone being detained.
When planning a trip to the U.S., Canadians may want to leave behind their laptops, tablets, and mobile phones.
From the Privacy Commission of Canada web site:
Travelling to the U.S. or other countries
Cell phone, tablet, and laptop searches at a foreign border
Canadians need to know that U.S. border officials have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone. Although infrequent, basic searches of electronic devices by U.S. officers do not require evidence of contraventions. They are performed without grounds as a routine border inspection. However, according to a new U.S. Customs and Border Protection directive, advanced searches by U.S. officials, which involve connecting to external equipment to review, copy or analyze the contents of a device, require reasonable suspicion of illegal activity or if there is a national security concern. It is important to note that the powers of border officials in many foreign countries will vary from those that exist in Canada.
According to the directive, in both basic and advanced searches, U.S. border officers may only inspect data that resides on a device and is accessible through its operating system or through other software, tools or mobile applications. They may not intentionally access information stored remotely, for instance in a cloud. To avoid doing so, they are required to ask travellers to disable internet connectivity, or where authorized, they should disable it themselves.
Travellers who are concerned about groundless searches or other aspects of the U.S. directive may wish to exercise caution and either limit the devices they bring when travelling to foreign countries, including the U.S., or remove sensitive information from devices that could be searched. Another potential measure – particularly if travelling for work and carrying protected information, for instance information subject to solicitor-client privilege – is to store it in a secure cloud which would allow you to retrieve it once you arrive at your destination.
U.S. border officials on Canadian soil (preclearance)
It is also important to note that travellers to the U.S. could encounter U.S. border officials while still on Canadian soil. At a growing number of preclearance points across Canada, U.S. border officials have the authority to examine passengers and their goods, including electronic devices, ahead of travel.
The rules in the above section on searches of electronic devices for travellers to the U.S. apply equally to searches performed at preclearance facilities. We therefore give the same advice to those concerned about these searches.
While preclearance legislation states U.S. officers must, while in Canada, also comply with Canadian law, including the Charter, a Canadian who believes a U.S. customs official has broken Canadian law has little recourse in the courts due to the principle of state immunity.
Methods of recourses are set out below. Individuals may also withdraw from the preclearance facility and thereby forego their wish to enter the U.S., a decision that may be recorded and that could impact future travel.
More: Toronto Star