Criminal Law

Cell searches a serious privacy intrusion


OTTAWA — Canadians should be ``very concerned'' about their cellphones, computers and other electronic devices being searched by U.S. border agents, the federal privacy czar says.

Privacy commissioner Daniel Therrien told a House of Commons committee Monday that U.S. Customs and Border Protection officers can look at mobile devices and even demand passwords under American law.

Therrien cited statistics indicating U.S. border searches of mobile phones had increased between 2015 and 2016.

``These devices contain a lot of sensitive information,'' Therrien said. ``We should be very concerned.''

New Democrat MP Nathan Cullen asked if that means no Canadian should cross the border with a phone, laptop or tablet unless they have ``great comfort'' with a U.S. border official inspecting the contents.

``Yes, as a matter of law,'' Therrien said, though he acknowledged officers would not have time to inspect everyone's devices, given the huge numbers of people that cross the border daily.

Therrien agreed with Cullen's suggestion that nothing in law could prevent U.S. border officials from peeking at a senior Canadian official's ``playbook'' on a trade negotiation.

Cullen said one of his constituents was denied entry to the U.S. on health-related grounds because information on the person's phone indicated a prescription for heart medication.

``And I thought, well, this is a strange invasion of one's privacy.''

Therrien said Canadians should assess the ``risk tolerance'' they have to their information being examined by U.S. officers.

``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.''

Canadian law also allows border officers to inspect cellphones, since they are treated as goods, Therrien told the Commons committee on access to information, privacy and ethics.

But he noted Canada's border agency has a policy of limiting searches to cases where an officer has grounds to do so — for instance, because a phone might contain information about contraband items.

Therrien said his office had received a ``small number of complaints'' about Canadian border officers searching cellphones.

Last spring, Therrien expressed concern about U.S. plans to demand cellphone and social media passwords from foreign visitors.

In a letter to the House of Commons public safety committee, he warned that recent pronouncements from the Trump administration could mean intrusive searches — even at preclearance facilities in Canada.

In February, John Kelly, then U.S. homeland security secretary, suggested at a hearing that American officials could ask people entering the U.S. about the Internet sites they visit as well as passwords to help assess their online activities.

Kelly's proposal prompted an American coalition of human rights and civil liberties organizations and experts in security, technology and the law to express ``deep concern.''

In an interview with, Toronto criminal lawyer Jill Presser says searches of smartphones, computers and other electronic devices represent potentially significant intrusions of privacy.

“This is because the content of our internet searches, text-based conversations, shopping, reading, banking and other numerous online activities may be stored, documented or artefacted on our electronic devices,” she says.

“We live our lives digitally to a large degree now, and we engage in much of that online electronic living with the expectation that it will remain anonymous and free from the peering eyes of the state.”

Presser, principal of Presser Barristers, says even with the diminished expectation of privacy at international border crossings that has long been recognized by Canadian courts, U.S. border searches of electronic devices are problematic.

“Widespread border searches without suspicion or articulable cause threaten to leave Canadians with the unpalatable choice between having their innermost lives reviewed by U.S. officials, or being denied entry to that country,” she says.

Presser, who often handles cases where technology intersects with the law, says the privacy issue concerns around travelling to the U.S. should give pause to some venturing across the border.

“Canadians travelling to the United States might be well-advised to choose instead between going with no electronic devices or devices purged of private information, or staying home in the true north, strong and free,” she says.

— With files from

© 2017 The Canadian Press

To Read More Jill Presser Posts Click Here