In a communication era built on mobile devices and 4G networks, humans are conducting increasingly more of their daily activities online.
Online shopping and same-day delivery mean bad weather, a cold or a busy schedule no longer equate to an empty fridge. Google Street View and 360 degree videos allow anyone with an internet connection to explore neighbourhoods and landscapes around the world. And, while it doesn’t always lead to a degree or diploma, the internet offers seemingly endless opportunities for education.
So for the millions of Canadians who surf, download, stream and store data using the internet, is there specific set of rights to privacy when crossing borders with their smartphones and laptops?
“You don’t actually have a lot of rights when you’re crossing the border,” explains Toronto-based immigration lawyer Joel Sandaluk. “What you’re getting [when you cross the border] is a benefit. No body except for Canadian citizens has a legal or constitutional right to enter Canada.”
In other words, national security trumps the individual right of people crossing the border. If a person refuses to comply with a border officer because they believe the officer’s request violates their rights, they don’t cross the border.
For example, Canada’s Customs Act allows Canadian Border Security Agency officers to search baggage and electronic devices without a warrant. This jurisdiction extends to people who aren’t planning to cross the border but are near it, in customs-controlled areas where domestic travelers might mingle with people and goods that haven’t been cleared by CBSA.
U.S. border officers are not allowed to intentionally access cloud storage, and CBSA officers are advised not to. U.S. officers are allowed to ask for the password to a laptop or mobile device, and the Canadian courts haven’t ruled whether Canadian officers can do the same or not.
According to the Office of the Canadian Privacy Commissioner, while Canadian officers should search personal devices only in cases where they believe “evidence of contraventions may be found on the digital device or media,” U.S. officers can search devices at will.
And Sandaluk warns that while refusing a personal device search will certainly result in a traveller not crossing a border, it might also be considered grounds for seizing a device.
“If an officer at a port of entry wants to seize your laptop or your smartphone they can,” Sandaluk said. “The most you can do is to withdraw your application, which isn’t a right but a practice.”
But the consequences of refusing a search don’t end there. The decision to withdraw from crossing a border is one the Canadian Privacy Commissioner cautions may be recorded and could impact future travel.
Tips for smooth sailing
Aside from complying with searches, Sandaluk suggests some general best practices when crossing the Canada or U.S. border.
First of all, he says, travellers should respond directly and simply when questioned by officers at ports of entry. People who give long, rambling responses when asked about the purpose of their travels appear nervous, which Sandaluk says can make border officers suspicious. It’s best not to give more information than necessary.
“What happens it it appears you’re being evasive which isn’t what’s happening at all. The simple thing is to just listen to the question that’s being asked and answer exactly that question, nothing more, nothing less,” Sandaluk says.
Sandaluk warns travellers who store sensitive or confidential files on laptops or mobile devices to remove them and store them elsewhere before traveling with those devices. Turning off Wi-Fi and data can also help prevent border officers from accidentally accessing cloud storage.
“As a general practice, that’s by and large, the smartest way to travel with a lot of devices, just out of abundance of caution,” Sandaluk says, adding that people who have nothing unlawful to hide aren’t typically prime candidates for electronics searches.
“The overwhelming majority of people have nothing to worry about.”
Finally, Sandaluk says one of the most common mistakes he sees travellers make when crossing borders is to attempt to cross with medication that isn’t permitted in the country they’re traveling to.
“A lot of medications, especially for schizophrenia or significant or longterm pain, may be a scheduled substance and not eligible to bring in,” he said.
“It’s usually a good idea if you’re traveling with a particular heavy type of medication to call Health Canada and make sure you’re not going to have any problems.”