For many people, their mobile phone is a very personal item. Most of them won’t be willing to part with their phone and let strangers peruse its contents. But if you’re travelling to Canada, handling your phone over and letting border agents inspect it is something that you should get used to.
Just recently, Canadian Alain Philippon was arrested after refusing to hand over his mobile phone to border agents. According to reports, Mr Philippon flew into Halifax Stanfield International Airport after visiting the Dominican Republic. Upon his arrival, border agents demanded that he enter the password to unlock his phone so they could search it. Mr Phlippon refused, saying the information on his phone was “personal” and the next thing he knew, he was being arrested.
This recent incident has led some people to question if border agents in Canada indeed have the right to force someone to unlock their phone and access its contents against their will.
In the United States, the Fifth Amendment protects individuals from self-incrimination. And according to the Electronic Frontier Foundation notes, law enforcers need to secure a warrant before they can order someone to unlock a phone or computer. It is because most courts consider providing the password as a self-incriminating testimony.
However, this rule is only applicable to police officers. Although the Supreme Court has ruled that law enforcers need a warrant to compel someone to provide his or her phone password, US border agents need not to do the same. They don’t need to produce a warrant or even have individualised suspicion to conduct a “forensic” search of a traveller’s phone or computer.
In Canada, the issue of phone password has never been tried or debated in court.
As for Mr Philippon’s case, reports said he is due to appear in court on May 12. He is currently facing charges of hindering border agents under Canada’s Custom’s Act. If convicted, he could spend up to one year in jail and pay a $25,000 fine. Meanwhile, the Canada Border Services Agency has refused to reveal the reason why they want to inspect Mr Philippon’s phone.
To avoid such unfortunate scenarios, travellers to Canada are advised to just cooperate with border agents. “The term used in the (Customs) act is ‘goods,’ but that certainly extends to your cellphone, to your tablet, to your computer, pretty much anything you have,” said Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University