It’s MY password?!?


This past week Alain Philippon pleaded guilty to hindering border officials for failing to disclose his smartphone password. The case doesn’t officially set precedent about the bounds – or lack of bounds – that border officials enjoy when inspecting people entering Canada but it nevertheless signals a changing legal landscape, and narrowing privacy rights.

 

He faced a fine of up to $25,000 and a maximum one-year jail sentence.

 

In March 2015, Mr. Philippon, like many Canadians, was returning home from a trip to a warmer climate where he likely went to escape our cold winters. His flight from the Dominican Republic landed at the Halifax airport where, as the first point of entry into Canada, he went through customs and was searched, as all visitors and residents entering the country are. Like many people who might seek entry to Canada, Mr. Philippon had a smartphone. Like many among us who wish to protect their private information, Mr. Philippon’s phone, a Blackberry, was password protected. However, in the midst of the Canadian Border Security Agency (CBSA)’s search of Mr. Philippon and his effects, he was asked to hand over his phone. He complied. CBSA officers subsequently demanded that he disclose the password to unlock his phone. He refused. And he was charged under s. 153.1 of the Customs Act with obstructing border officials.

 

He faced a fine of up to $25,000 and a maximum one-year jail sentence.

On pleading guilty this last week, Mr. Philippon agreed to pay $500 to put this whole ordeal behind him. It may have been a bargain price.

Canadians and permanent residents need to be aware of the CBSA’s powers and our corresponding duties. The Customs Act permits border officials to “examine all goods and conveyances including electronic devices, such as cell phones and laptops.” That officials can search the outsides of our devices is well known and accepted. That they may review the contents of our electronic devices is perhaps less known but likely suspected. That they may demand our passwords to access our devices is less clear.

We have a right to be free from unreasonable search and seizure and a right to silence, under sections 7, 8, and 11(d) of the Charter. So how can such invasive searches – searches that offer a window into a person’s phone log, texting history, browser searches, location data, banking information, amongst other salacious details all gleaned after compelling a person to break his or her right to silence – be constitutional?

 

This is yet another example of widening state

powers and narrowing privacy rights.

 

The conventional rationale explains that borders are unique places. Attendance at a border is considered voluntary – unlike police encounters where we may be compelled – and attendance requires submitting to inspections and invasive searches.

It is not obvious that it is constitutional to force individuals to give up passwords to their electronic devices when they appear at Canadian borders. But, as Mr. Philippon shows, that will not prevent an obstruction charge if we refuse.

This is yet another example of widening state powers and narrowing privacy rights. In the last month, the Canadian Association of Chiefs of Police has also made a call for new laws that would also compel people to disclose their electronic passwords, noting police are struggling to reveal illicit activities or investigate anonymous criminals in light of encryption software and other electronic tools. The federal government has launched a three-month public consultation into cyber-security on August 15, 2016 that will explore ways to balance individuals’ privacy interests and the state’s interest in strengthening investigative powers. Any proposals or eventual legislation would eventually need to be constitutionally tested. It may be that giving up your password won’t only be required when you’re re-entering the country.

 


mm

About Katrina Trask

Katrina Trask is a graduate student at the University of Toronto’s Faculty of Law. Prior to beginning her graduate studies, she was a legal research lawyer at the Newfoundland and Labrador Court of Appeal. Katrina’s undergraduate and law degrees are both from the University of Manitoba.