With the summer travel season all but in full swing, and after a US Supreme Court decision upheld President Donald Trump’s travel ban today, Canadians travelling to the US are being advised that US border agents have the right to demand the passwords of those travellers to search phones and other devices such as laptops without a specific reason.
According to the US Department of Homeland Security, this power is a necessary one to assist in the “global fight against terror and child pornography.”
Last year, the number of Canadian phone inspections by US border officials rose by 60%, according to the Canadian Citizenship & Immigration Resource Center (CCIRC) a total of 30,000 phone checks occurred during that time period.
In light of these regulations, travellers are being advised to put mobile phones in ‘flight mode’ to protect privacy, as border agents cannot download from remote, or cloud, storage without giving a reason.
Experts are also suggesting travellers remove any sensitive data and expect their phones to be searched whenever crossing into the US.
That being said, if a person denies a border guard access to their device when it’s requested, the border guard has the power to confiscate it for five days, or even longer in some cases.
In fact, according to the American Civil Liberties Union (ACLU), some people have reported having their phones held by US officials for weeks or even months.
Citizen vs. visitor
The ACLU also noted that a person’s legal status in the country can help inform them what to do if asked for a password to unlock their phone.
And although a US citizen legally can’t be denied entry into the country if they refuse to comply with a request to unlock a device or to provide a password, they might be detained or have their device seized and not returned for weeks or months.
Visa holders and tourists from visa waiver countries, however, run the risk of being denied entry if they refuse to provide a password, and they should consider that risk before deciding how to proceed.
The Department of Homeland Security is presently considering instituting a policy requiring visitors from certain countries to provide social media passwords in order to secure a visa to travel to the US (the ACLU opposes the proposal).
The ACLU also recommends that if asked to provide a password, travellers enter the password themselves, rather than divulging it to a CBP agent.
“They still might demand that you share it, but it’s a precaution worth trying to take,” said the ACLU. “If you do hand over your password, it’s likely to end up in a government database, so change it as soon as you have the chance and make sure you no longer use that password for any other account.”
What can US border agents do?
According to the CCIRC, powers of US immigration officials include:
- Denying 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.
- 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, which can take place where it is deemed necessary for national security, and this can only occur if a higher ranked supervisor gives permission. In such case, the contents of the phone can be put onto a hard drive for analysis.
- If access to the phone is refused, officers can confiscate it for up to five days provided they document the incident. The phone can be kept beyond five days provided approval is granted.
- Lawyers can point out sensitive files under attorney-client privilege. 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 US privacy laws.
- Once the search is complete, any information taken from the device must be destroyed, unless a threat is discovered.
- Border crossers may be present when the search is conducted but are not allowed to see the screen of the device.
Canada’s federal government privacy commissioner Daniel Therrien has said that Canadians should be “very concerned” about phones, tablets and computers being searched by US border security, and urged those crossing the border to “seriously think” about the information stored on their devices.
But what about Canadian border officials?
Under Canada’s Customs Act, Canada Border Services Agency (CBSA) officers also have the power to stop and search people, and examine their baggage and other possessions and devices at any Canadian port of entry (land border crossing, air terminal, or seaport).
CBSA policy states that examinations of personal devices should not be conducted as a matter of routine. They may only be conducted if there are indications that “evidence of contraventions may be found on the digital device or media.”
If your laptop or mobile device is searched, you will likely be asked to provide the password.
As well, officials may only examine what is stored on the device, which is to say, if you choose to delete any apps before crossing the border, they won’t be able to access them.