Border phone search raises privacy, charter issues, say lawyers

Several thorny questions still haven't been answered in the case of a Quebec man who refused to give border officers his cellphone pass code, say privacy and technology lawyers.

Alain Philippon had said he would fight a charge of obstructing border officials but pleaded guilty Monday in Dartmouth, N.S., and was fined $500.

He was charged when he refused to unlock his cellphone in March 2015 after flying to Halifax from the Dominican Republic.

Case 'troubling' for lawyer

David Fraser, a privacy lawyer with McInnes Cooper in Halifax, says that because the case didn't go to trial, there are still serious doubts about phone searches.

"What was at issue in this case is that we are now walking around with devices in our pockets that have a huge amount of very sensitive personal information," he said Tuesday in an interview.

"The question is: Under what circumstances can a government agent just go trolling through it without a warrant?

"I do find it troubling that an individual was charged with refusing to unlock. We generally don't have an obligation to assist the police in invading our privacy."

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Where is the line?

Fraser said the courts need to clarify when and to what extent border officials can carry out those searches.

Smart phones typically contain reams of data that go far beyond what could be physically carried in hard copy in any piece of luggage as now defined under an outmoded Customs Act, he said. "I totally understand the law enforcement desire to search devices under certain circumstances.

"But what I'm most interested in would be a judge saying, under the Charter of Rights and Freedoms, where that line is and what the proper procedures are."

Phones 'not like your shoes'

Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University, said the case highlights legal and regulatory gaps.

"The powers that the Canada Border Services Agency have under the act both to search your things and to make you open them really only apply to luggage, and also things that you import," he said in an interview.

"The Supreme Court of Canada has been quite clear that our electronic devices are not comparable to luggage. It's not like your shoes."

No constitutional challenge yet

Top court rulings over the last six years have reinforced that the extent of private information now stored in cellphones and other devices requires that state searches be reasonable, regulated and contained, Currie added.

There has so far been no constitutional challenge, however, that would clarify what's expected at border crossings.

Currie said updating the Customs Act to set out exact standards for when smartphones and other devices can be examined would be a good start.

A phone really is a portal that goes well beyond the sorts of things that have been traditionally searched at the border.- privacylawyer David Fraser

Still, the border agency has been clear that it believes its officers have the authority to search cellphones, Currie said.

"The CBSA certainly feels that it has the authority to search your electronic device," he said.

"They've shown that they will indeed charge you with hindering or preventing customs officers from doing their jobs if you don't unlock the device when you are asked to do so."

Travellers left in limbo

Left in limbo are hundreds of thousands of travellers, Fraser said.

"A phone really is a portal that goes well beyond the sorts of things that have been traditionally searched at the border."

In an email, a spokesman for Public Safety Minister Ralph Goodale said the government wants to hear from experts and the general public on how to ensure safety while protecting rights during upcoming consultations on national security.

Scott Bardsley said those consultations would include border security policies.

"Canadians need to reflect on new and emerging areas of law, privacy and public safety," he said.

"We all need to think this through carefully. There are no easy answers."

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