Digital privacy at the border: What’s in your phone?

As it stands, crossing the border back into Canada can be risky privacy-wise.

To order a search of a traveller, their briefcase, or cellphone, a border guard need only have a reasonable grounds for supposing that they have “contraband secreted about his or her body,” as the Supreme Court established in 1988’s R. v. Simmons.

Such reasonable grounds are enough for customs officers to take actions that risk subjecting travellers to some pretty embarrassing and compromising situations — such as imposing “bedpan vigils” on people suspected of using their bodies as a vehicle for smuggling drugs.

In R. v. Monney, the Supreme Court of Canada held that was the price to be paid to strike a “necessary balance between an individual’s privacy interest and the compelling countervailing state interest in protecting the integrity of Canada’s borders from the flow of dangerous contraband materials.”

That was in 1999, when cellphones were repositories of little more than contacts and call logs. Even desktop computers could hold little more than 15 gigabytes of data.

In theory, that standard still governs searches at Canadian borders. In 2008, a judge upheld a conviction, based on a warrantless search of a traveller’s laptop, concluding “it was no different than routine searches conducted, without any prior reasonable suspicion, for other forms of contraband, including searches for firearms, explosives, narcotics, undeclared alcohol or tobacco or other goods that a traveller may seek to smuggle into Canada.”

That hasn’t prevented a slew of cases from cropping up in recent years, as travellers continue to challenge the constitutionality of warrantless searches at the border.

One 2014 case, R. v. Vaillancourt, set for appeal in the near future, saw a Manitoba man pulled in for secondary questioning after border guards performed a “cursory” search of his iPhone, finding images — they believed — were child pornography. He was arrested and charged with possession.

The Manitoba man challenged the charges, arguing the search of his iPhone was unreasonable, and citing R. v. Fearon, in which the court set precedent for the treatment of cellphones and laptops. “The nature of the privacy interest in a personal digital device is qualitatively and quantitatively different from that in a purse, briefcase or filing cabinet,” wrote Justice Andromache Karakatsanis, mirroring an approach originally set up in another 2013 ruling, R. v. Vu.

In Vaillancourt, as in many similar cases, the Crown argued that the search was not unconstitutional because it wasn’t a search under the Criminal Code — it was merely a  “good” as understood under the Customs Act.

The trial judge considered whether the search ought to be governed under the framework of Fearon — namely, that investigators must prove to a judge that they have reasonable grounds to believe that a search will produce evidence and obtain a warrant prior to the search — or whether it is simply a thing being imported that may contain contraband, as the Crown argued.

Ultimately, the judge opted for the Fearon approach, but upheld the conviction, prompting an appeal. That appeal has since involved the Attorney General of Canada, and — after some procedural wrangling — appears set for hearings in the near future.

It’s impossible to predict where the court will land on the issue.

In 2014, the Superior Court of British Columbia gave a rather blunt assessment of the state of play at the border. “The border is not a Charter-free zone...but there is no detention in a constitutional sense until a specific criminal jeopardy arises,” it found.

That logic underpins a core defence of the status quo at the border. Because travellers may be effectively detained and required to submit to a search of their belongings, the nature of the detention and search is not automatically criminal, but administrative.

Gerald Chan, who practises criminal, constitutional, and administrative law at Stockwoods in Toronto, says the long-standing defence that the searches are valid under the Customs Act is a strong one.

“As a general matter, the courts do look at the purpose of the search in deciding whether or not it’s constitutional,” he told CBA National.

“That said, there are certain searches that are just so invasive by their nature that regardless of their purpose, whether it’s criminal or regulatory, it should have a higher level of privacy.”

In Monney, the Supreme Court upheld a strip search as being perfectly constitutional in order to uphold the integrity of the border. Cases like that, and Simmons, make this issue a difficult one to take on. The Supreme Court in Monney and Simmons do seem fundamentally at odds with the “heightened case law around digital privacy,” Chan says, and it’ll be up to the top court to reconcile those two trends.

There is a way to do it, he adds.

Applying the Customs Act makes sense “when you’re talking about physical items — contraband,” he explains. “Obviously the state has a pressing interesting into looking into whether drugs are being brought across the border,” he notes.

The same can’t be said for, say, an iPhone.

While the Customs Act could be reasonably applied to the hardware itself, arguing that every packet of data that lives on that phone is an object, for the purpose of the Act, is a more difficult case.

He points to the obvious example, and the common denominator for many of these cases: Child pornography.

But, even then, he notes, entering Canada with a phone containing child pornography isn’t importation in the common sense. Those files likely exist on a server somewhere else in the world — the phone maintains only a copy, or a link to the file. That original file could be just as accessible, from that phone, from within the country as outside of it.

“It’s not the same as drugs or firearms or physical contraband,” Chan notes.

These conversations are still in their infancy, he says, but they should be of particular interest for lawyers. After all, these searches could just as easily be applied to lawyers, regardless of any privileged information they may have on their phone, and there will be no judge to stand in the way.