Andre Philippon, a Quebec man who refused to provide his password to the CBSA at the Canadian border in March 2015 was charged with hindering or obstructing border officials under s. 153.1 of the Customs Act. His decision to fight the charge was anticipated by the privacy law community to bring some clarity to the powers of border officials to compel travelers to turn over passwords for their devices. The fine prescribed for this offence is $1,000 – $25,000 with the possibility of a year in jail.
The CBSA’s broad power to inspect “goods” is being applied to include digital devices, and the border officials are sometimes demanding passwords. We know from the FBI v. Apple dispute how hard it is to hack into a phone, which means that a refusal to comply will generally thwart their plan to hunt through your texts, email and photos.
We know that asking permission to enter Canada lowers an individual’s expectation of privacy, but does it extend to handing over the password to your digital life? A cell phone might contain thousands of messages and photos, ranging from the trivial (LOL) to the intimate (NSFW) to the still illegal (420). Cell phones and laptops contain information completely unrelated to travel, and opening them up to inspection may be as intrusive of privacy as a search of a home.
The question of whether the CBSA’s asserted power to compel passwords is legal has never been tested in court. There are also no obvious limits on the extent of the digital investigation, which means that the CBSA may be opening apps, using stored passwords, and poking into business and personal cloud storage. How would your employer feel if the CBSA took a stroll through its network drives?
This week Mr. Philippon changed his mind and entered a guilty plea to the charge in exchange for $500 fine. The CBSA still has his phone. For now, that means the CBSA may demand your password. As you pack for your next trip, remember that you are also packing your digital suitcase, and leave anything that you don’t want the CBSA to rummage through at home.