Passports and passwords
May a person be forced to provide a combination to a wall safe as easily as he or she is compelled to turn over a key?
This classic legal conundrum is returning to the Canadian fore in the context of border searches with the recent guilty plea of Alain Philippon. The Quebec man was charged with refusing to provide the Canada Border Services Agency with the password to his cellphone at a border checkpoint.
The issue pits the right of states to control their borders with emerging digital privacy rights. If Canadian jurisprudence is any indication, however, it is an issue that will ultimately leave electronic libertarians disappointed.
Canadian courts at all levels recognize the right of states to “control both who and what enters their boundaries” through searches at the border. Accordingly, searches authorized under the Customs Act have all been repeatedly upheld as constitutional: at airports or other border crossings, travellers — both Canadian and foreign — have a greatly diminished expectation of privacy, and the state far greater powers of search.
Indeed, Canadian courts have held that a border search is not even a “search” in the traditional criminal context and that a routine inspection “does not give ( a traveller) any enhanced constitutional protection against self-incrimination.”
This power of search, however, is not absolute. It is tempered by the requirement that any secondary screening done at border crossings be done only when Customs officials have reasonable grounds to do so. Fitting a certain profile may qualify, as was the case for disgraced Canadian bishop Raymond Lahey. In that situation, Lahey’s travel itinerary and personal characteristics gave rise to a suspi- cion he may have engaged in illegal sex tourism. A subsequent airport search by the CBSA of Lahey’s laptop then turned up hundreds of images of child pornography.
Ultimately, despite the Supreme Court of Canada’s recent recognition of both the value and breadth of personal information contained in modern smartphones — and the increased level of protection they consequently deserve relative to police interaction — searches of personal electronics at the border are unlikely to be found unconstitutional. The diminished expectation of privacy at border crossings, and the still nebulous idea of a constitutional right to privacy in Canada generally, do not stack up against decades of jurisprudence protecting border searches.
There still remains the issue of compellability in forcing a traveller to reveal a password to a locked electronic device. Is a password, in U. S. jurisprudential parlance, an “expression of the contents of an individual’s mind”? Are issues of selfincrimination raised if one i s compelled to reveal a password? Lower Canadian courts have held that there is no issue of self-incrimination in requiring a person to reveal a password during a border search, which would seem to settle the issue in favour of the government.
The i ncreasing use of t hese electronic devices makes this an issue ripe for fresh consideration by the Supreme Court. The high court’s last substantive ruling on border searches came down in 1988. While it is by no means certain that it would reverse itself, the context of modern border searches has changed dramatically in the intervening decades.
If Canadian courts ultimately rule that the CBSA may not compel travellers to reveal passwords at border crossings, the government will not be without recourse. The device in question may be seized and held; the traveller denied entry to Canada or held in Customs limbo. As case law makes clear, though, the courts are not keen to create an artificial blind spot in terms of border crossing security, and travellers should take note of the expansive search powers granted to CBSA officers at Canadian border crossings.