Got a password-protected Smartphone? At the Border you still kiss your Right to Privacy Away

We Canadians like to believe we have rights. We like to believe those rights are protected by the Canadian Charter of Rights and Freedoms.

We are fools.

Our government moves to strip us of our rights every day.

The latest abuse of power stripping us of our Right to Privacy comes to us courtesy of the Canadian Border Services Agency, who can now demand the password for our smart phones. Should we mistakenly believe we have a protected Right to Privacy we will find ourselves in the same position as Quebec resident and “mere citizen” Alain Philippon.

Upon landing in Halifax from his holiday in the Dominican Republic Alain Philippon went through customs. Nothing shocking there. What was shocking was what happened when Alain Philippon refused to give up the password for his cell phone.

Canadian Border Services agents arrested him on the spot and charged him under the Customs Act for “hindering or preventing an officer from doing anything that the officer is authorized to do” as defined in that Act.

What a joke.

Here is the entirety of Section 153 of the Customs Act of Canada:

153. No person shall

(a) make, or participate in, assent to or acquiesce in the making of, false or deceptive statements in a statement or answer made orally or in writing pursuant to this Act or the regulations;

(a.1) make, or participate in, assent to or acquiesce in the making of, false or deceptive statements in an application for an advance ruling under section 43.1 or a certificate referred to in section 97.1;

(b) to avoid compliance with this Act or the regulations,

(i) destroy, alter, mutilate, secrete or dispose of records or books of account,

(ii) make, or participate in, assent to or acquiesce in the making of, false or deceptive entries in records or books of account, or

(iii) omit, or participate in, assent to or acquiesce in the omission of, a material particular from records or books of account; or

(c) wilfully, in any manner, evade or attempt to evade compliance with any provision of this Act or evade or attempt to evade the payment of duties under this Act.

Marginal note: Hindering an officer

153.1 No person shall, physically or otherwise, do or attempt to do any of the following:

(a) interfere with or molest an officer doing anything that the officer is authorized to do under this Act; or

(b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.

Naturally, the Canadian Border Services Agency would not go on record to explain why Alain Philippon was “selected” for a smartphone search, nor would they explain why they need to search smartphones at all, or the section of law under which they claim they have the authority to search smartphones.

Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University, said this is a new area of law that has yet to be tested in court.

This is a question that has not been litigated in Canada, whether they can actually demand you to hand over your password to allow them to unlock the device,” he said. “[It’s] one thing for them to inspect it, another thing for them to compel you to help them.

There are two resources you ought to read if you plan on leaving the country for a holiday.

First is from the Office of the Privacy Commissioner of Canada. It is titled “Checking In - Your privacy rights at airports and border crossings” and should be required reading for all Canadian travellors.

The second is the Privacy Handbook published by the B.C. Civil Liberties Association.

Know your rights.

Stand up for your rights.

Yes, even when it is inconvenient to do so.

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