Canadians need to understand that U.S. border agents can and are going through people’s electronic devices such as mobile phones and laptops. That was the message from Canada’s privacy commissioner, Daniel Therrien, at a recent meeting of the Standing Committee on Access to Information, Privacy and Ethics.
"My point is, think about what you're exposing your information to, and limit the amount of information that you bring to the U.S., because it may be required by customs officers," he said at a September 18 meeting convened to discuss the “privacy of Canadians at airports, borders and travelling in the United States.”
The event received little media coverage despite Therrien emphasizing he is “very concerned” about what is happening at U.S. borders and other ports of entry. (Vice News was one of a few outlets to give it a short story. CBC News was another.)
He noted statistics show that more people are being asked for their devices at the border each year.
Therrien stressed that as U.S. law exists today, U.S. Customs and Border Protection agents can demand to see your electric devices, request passwords, and refuse entry to anyone who declines to give them access.
No warrant is required. Border agents do not need probable cause.
Most people password their phones but remain logged into accounts for applications and websites that they access on their phones. So once a border agent is on your mobile device, they most likely have unrestricted access to more private information than many fully appreciate.
It doesn’t take much imagination to come up with a few scenarios that could get a lot of Canadians in trouble.
Photos posted to social media could be a worry for college students. Perhaps a border agent finds a photograph of them drinking when they were 18 years old. The photo could have been posted in a private Facebook group where it was believed photos could be shared without becoming public. But that doesn’t prevent a border agent from finding the photo, because they’re on an account (yours) with access to the group.
Or maybe they find a directory of private photographs you uploaded to iCloud or Google Drive to share with your partner. Those might not get you into hot water with customs but they also might not be what you want border agents reviewing with their colleagues while you sit in your car waiting to receive your phone back.
It might not even be your photo that gets you into trouble. Perhaps you were on Instagram one night and hit the “like” button on a Snoop Dogg picture where the musician was smoking marijuana. The border agent sees your red heart under that photo and asks you if you’ve ever smoked cannabis. If you say yes, he can ban you from entry to the United States. If you say no, he presses you, finds out you were lying, and can ban you from entry to the U.S.
It could be something as simple as finding uTorrent or a similar filing-sharing program installed on your laptop and that leading to a suspicion that you’ve violated U.S. copyright laws.
Perhaps they find your Twitter account, do a quick search to reveal what you’ve written there about Donald Trump, and then they begin questioning you about your disparaging remarks about the president of the United States.
Even if you keep your social-media feeds free of politics, the same thing could happen with your text messages or a WhatsApp conversation. Maybe you sent a friend a comment on Trump’s recent remarks about NFL football players who protest the national anthem and the particular border agent who’s questioning you doesn’t agree with what you texted.
Complete email and chat histories that can easily be searched for keywords could lead border agents to correspondence concerning health appointments and medical history, perhaps for a mental-health issue or addictions-counselling appointment.
From there, the border agent could ask about illicit drug use and prohibit entry to the United States for suspicion of you having used a controlled substance
That happened to a B.C. resident, as reported by Vice News last August.
“A British Columbia woman was issued a lifetime ban at the US border after officials found an email with her doctor about a fentanyl overdose she survived a year ago,” the article reads.
“Chelsea, 28, whose last name is being withheld due to fears that it could affect future employment, answered a series of questions about drug use while attempting to cross the Washington-British Columbia border. She said her phone, which didn't have a password, was searched for about two hours. During questioning after her phone was searched, she admitted to using illegal drugs before, including cocaine.”
Banned for life.
On September 13, a lawsuit was filed in the United States that challenges border agents’ unrestrained ability to search electronic devices. The American Civil Liberties Union, the Electronic Frontier Foundation, and 11 American citizens whose phones and laptops were accessed at U.S. borders sued the U.S. Department of Homeland Security. They claim that border searches of devices like mobile phones and laptops violate the First and Fourth Amendments of the U.S Constitution.
It will likely be quite some time before the matter makes its way through the courts and is eventually settled. In the meantime, Canadians’ electronic devices are open to U.S. border agents’ (and Canadian border agents’) demands for access.
At the September 18 House of Commons committee meeting, Canada’s privacy commissioner expressed concern for a lack of appreciation for what’s accessible via a phone.
"These devices contain a lot of sensitive information," he emphasized. "We should be very concerned."