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Are You Obligated to Provide Your Password at the Border?

03/10/2015 12:14 EDT | Updated 05/10/2015 05:59 EDT
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A womans hand holding smartphone.

A Quebec resident has been charged for not giving up his phone password upon his return into Canada. Alain Philippon refused to provide his password, and as a result been charged with 153.1 (b) of the Customs Act for hindering or preventing border officers from performing their role under the act.

It is an interesting move from the Canadian Border Services Agency, as to date I don't believe there is a requirement to provide your password to Canadian border officials if you are a Canadian citizen. It will be worth watching this case if it goes to court, as it will set precedence moving forward, which will affect all Canadians.

The following points should not be considered legal advice, since I am not a lawyer. However, you may want to use them as initial talking points with your lawyer before international travel.

It is generally accepted that border officials can search your phone if there is no password to access it, but to date there is no requirement for you to provide them your password. I have proposed a solution about which many privacy lawyers are discussing the legal merits: if your phone contains sensitive information, such as intellectual property for your business, have your lawyer reset your password before you travel. Have them provide you with only half of the password until it is determined that you are safe at your destination.

Most important is your right to silence. If you have legal, sensitive data such as trade secrets on your electronic devices, you likely want to exercise your right be silent, short of asking for your lawyer.

Although it requires more preparation, you may also consider wiping your device and doing a fresh install before travel, and then securely syncing your important/business files when you arrive at your destination, as some countries may compel you to provide your password and may not appreciate your inability to provide half of your password.

It is not uncommon when traveling through the U.S., for example, to have your electronic devices taken from your possession and moved to a location that is not visible to you for a period of time. I think it's reasonable to expect during this process that everything you have on your disks has been copied for their retention at this point -- including your intellectual property, sensitive documents, personal photos, and all communication such as instant messages and email.

There are already some technical experts suggesting you use duress passwords that wipe your device, but I would not recommend that -- that could have negative affects if you are considered to be tampering with evidence, or obstruction. I suggest you are better off in a position where you do not know your password, or exercise silence if in Canada.

This is all part of a broader conflict between policing agencies and their attempts to diminish privacy rights, juxtaposed with what Canadians and the courts feel are reasonable expectations of privacy.

For example, castle doctrine suggests our home is our "safest refuge", whereas the courts have accepted at the border there is a reduced expectation of privacy.

Initially computers and electronic devices were not considered to have a reasonable amount of privacy protection, but Canadian courts seem to be moving the other way, as our electronic devices have become extensions of ourselves. It is up to us to determine what reasonable is. As a Canadian, it's up to you to join the discussion on what reasonable expectation of privacy means to you.

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