Last Updated on January 24, 2019
Without needing an explanation, U.S. border agents have the right to demand passwords to search phones and other devices such as laptops, but they cannot download from remote, or cloud, storage.
The number of times border agents checked phones spiked by 60 per cent in 2017, when compared to 2016. Phones were checked more than 30,000 times as travellers crossed the border.
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The Department of Homeland Security says the figure is a tiny fraction of the number of people crossing the border. It says the powers are necessary in the fight against terror and child pornography.
But that has not stopped U.S. Customs setting new rules on phone searches as of January 4, limiting what agents can search and when they are allowed to search deeper by downloading from remote storage, for example.
U.S. border agents have the power to deny entry to anyone who refuses to allow their phone to be searched. They need no reason to demand a phone and the password to open and look through it.
The January 4 rules say officers must shut off connectivity before conducting the search, but travellers are advised to do that themselves so as to be certain the scope of the search is limited.
Deeper searches can only take place where it is deemed necessary for national security, and this can only happen if a higher ranked supervisor gives permission. In this case, the contents of the phone can be put on a hard drive for analysis.
Quick Facts: The Canada-U.S. Border
- Longest international border in world at 8,891km, 2,475km of which is with Alaska.
- 3 million Canadians travelled to the USA in February 2016, with 2 million moving in the other direction.
- 400,000 people and $2.4 billion in trade cross the border each day.
- Canada and US are second and fourth largest countries in the world by area.
- Canadian provinces and territories on border: Yukon, British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick.
- US states on border: Alaska, Washington, Idaho, Montana, North Dakota, Minnesota, Michigan, Ohio, Pennsylvania, New York, Vermont, New Hampshire, Maine.
If access to the phone is refused, officers can keep it for up to five days provided they fill out the necessary paper work. The phone can be kept beyond five days provided approval from management is granted.
Lawyers can point out sensitive files under attorney-client privilege, which officers must seek legal advice before excluding them from the search. Other information like a journalist’s notes or a traveller’s medical records are also subject to U.S. privacy laws.
Once the search is complete, any information taken from the device must be destroyed, unless a threat is discovered.
Border crossers can be there when the search happens, but are not allowed to see the screen of the device. They have the right to complain and must be told how to do so, while search statistics must be kept and made public. Officials plan to conduct frequent checks to ensure agents are following the rules.
Canada’s federal government privacy commissioner warned in September 2017 that Canadians should be ‘very concerned’ about phones, tablets and computers being searched by U.S. border security.
Daniel Therrien urged those crossing the border to seriously think about the information stored on their devices.
Canadian border officers are also allowed to search devices, but the key difference is this can only happen where reasonable grounds to do so can be established.
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