By Meghan McDermott, Staff Counsel (Policy), BC Civil Liberties Association
Today, the BCCLA is re-launching an online guide about privacy rights related to electronic devices – such as laptops, cellphones, and tablets – at the border. It’s aimed at people crossing the border into Canada or departing for the U.S. through preclearance areas in Canada. The guide comes in both a short and a long version and outlines the current law and policy related to device searches, best practices for travellers to protect their privacy, and what to do if you’ve had your device searched at the border.
The Charter of Rights and Freedoms applies at the border, but the courts have found that the government’s interest in keeping dangerous goods and undesirable people out of the country gives the Canadian Border Services Agency (CBSA) more power to search people and their possessions than police have in other settings.
The CBSA’s broad powers to search people and goods extends to the content on digital devices, such as your files, photos, and videos. These files are “goods” under the Customs Act, and border officers can search goods coming into Canada without a warrant – even if they have no reason to suspect that the goods are or contain contraband. Non-citizens seeking to enter Canada, including asylum seekers, may be subject to searches to verify identity and/or admissibility.
CBSA officers conduct initial searches of the contents of a device by browsing images, videos, and files. This is meant to be a cursory look to determine that they do not contain contraband – such as child pornography or hate literature – or evidence of a crime. Initial searches can be random or targeted. Information found during an initial search may be used to justify a more detailed examination, which may include copying the contents of the device.
CBSA officers can only look at content that is already on your device. They should put the device in airplane mode and only look at local content (this includes emails and text messages that are marked “read”). If the CBSA wants to search information only accessible with internet access (such as data in the cloud), they need a warrant from a judge.
If you are asked and you choose not to disclose your password, you risk increasing the CBSA’s suspicion about the contents of your device, denial of entry if you are not a Canadian citizen or permanent resident, detention or seizure of the device for more detailed inspection by forensic specialists (which could take months), or arrest.
Here are some tips on how to protect your privacy at the Canadian border and in US preclearance zones:
- Leave your devices at home
- Make a backup of your data before you cross the border and leave it home. This will be important if your device is detained or seized, but it also gives you the option of deleting unnecessary data from your device before you cross.
- Securely delete data you do not need to travel with.
- Require a password to log on or access your device.
- Create a strong password, for example by using several random words if possible.
- Turn off your computer before crossing the border, because security experts have ways of accessing your computer’s memory if it is on. This also ensures your device is locked if it is turned on for a search.
- Use two-factor authentication, in the event that the border officer seizes one device but not the other.
- Use Full-Disk Encryption and require a strong passphrase to access it.
- If you do not opt to use Full-Disk Encryption, you can encrypt specific critical documents or files.
To read the full handbook, visit https://bccla.org/edevice.
You can also find it on Clicklaw.