This Guide Will Inform You About Your Privacy Rights .

This guide will inform you about your privacy rights related toyour devices – such as laptops, cellphones, and tablets – at theborder. It’s aimed at people crossing the border into Canada ordeparting for the U.S. through preclearance areas in Canada.Usually, the police cannot searchrandomly without suspicion, butthis isn’t the case at the border.The Charter of Rights andFreedoms applies at the border,but the courts have found that thegovernment’s interest in keepingdangerous goods and undesirablepeople out of the country givesthe CBSA more power to searchpeople and their possessions thanpolice have in other settings.The Customs Act gives theCanadian Border Services Agency(CBSA) broad powers to searchpeople and goods coming into thecountry, including the things thatpeople bring with them. Thisincludes the content – the files,photos and videos – on yourdigital devices. The files on yourdevices are “goods” under theCustoms Act, and border officerscan search goods coming intoCanada without a warrant – evenif they have no reason to suspectthat the goods are or containcontraband.Non-citizens seeking to enterCanada, including asylum seekers,may be subject to searches aswell. Under the Immigration andRefugee Protection Act, a CBSAofficer may search the luggageand personal effects of a personseeking to come to Canada at aport of entry, including electronicdevices and media. However, theofficer must have: reasonable grounds to believethat the person has notrevealed their identity or hashiddenontheirpersondocuments that are relevant totheir admissibility, or reasonable grounds to believethat the person is involved withpeoplesmuggling,humantrafficking, or document fraud.Searches of devices must belimited to identifying the person,finding documents relevant toadmissibility, or evidence of theoffences outlined above.2

Initial SearchesFront-line officers conduct initialsearches of the contents of yourdevice by browsing images, videosand files. This is meant to be acursory look at the contents todetermine that they do notcontain contraband – such as childpornography or hate literature – orevidence of a crime. Initialsearches can be random ortargeted.Anyone can be subject to arandom search. There is concernthat travellers are targeted forsearches based on their race orreligion, and that such profilingcan masquerade as a “random”search. Although any suchprofiling would be a breach of thelaw, it is extremely hard to provediscrimination. If you believe youhave been discriminated against,more information on filing acomplaint can be found below.Most of the people searched bythe CBSA are not chosen atrandom, but rather throughtargeting. People are targetedbased on information in travellers’databases – particularly for air, railor cruise ship arrivals – as well as“indicators” that the CBSA thinksincrease the likelihood that aperson’s electronic devices willcontain some form of contraband.Front-line officers conductinitial searches of thecontents of your device bybrowsing images, videosand files.3

There is no publically available list of the indicators that the CBSAuses, but anecdotally, you are more likely to be chosen for searches if you: Are importing something the CBSA deems to be suspicious, or areassociated with known importers or exporters of materials the CBSAobjects to. This could include anime and manga, which the CBSA ishighly suspicious of Have travelled to “high risk” destinations (while no list is available,this likely includes destinations in Southeast Asia, as well as Germany,Cuba and Spain) Are a single man traveling alone Exhibit nervousness or agitation Have multiple electronic devices (including hard drives) Demonstrate an interest in pornography, as indicated by filenames orfolders on your device Purchase a ticket to travel at the last minute Have coding on your suitcase that doesn’t match where you arecoming from Have unusual travel routesDuring an initial search, officersshould not carefully read everydocument or examine every photoon your device. They should onlylook at the contents for longenough to determine that they donot involve contraband (such aschild pornography), or to confirmor settle suspicions about aviolation of customs or immigrationlaw. Information found during aninitial search may be used to justifya more detailed examination.Officers can only look at contentthat is already on your device. Theyshould put the device in airplanemode and only look at localcontent (this includes emails andtext messages that are marked“read”). If the CBSA wants tosearch information only accessiblewith internet access (such as data inthe cloud), they need a warrantfrom a judge.4

Detailed SearchesIf an officer finds somethingtheyfeelwarrantscloserinspection, a more thoroughsearch can be conducted. Thesesearches are carried out byspecialists with expertise usingforensic tools.For a detailed search, yourdevice will be taken out of yourpossession. The Customs Act givesthe CBSA the power to detaingoods if an officer is not satisfiedthat the goods have been properlyscreened for admission intoCanada. Officers can also copythe entire contents of your device.5This allows the CBSA to later runpassword-cracking software toaccess anything you did notprovide a password for.According to the CBSA, copies ofthe data are not retained after theinvestigation is complete. However,we know that the CBSA can anddoes share personal informationthat it collects from examinationswith other government agenciessuch as the RCMP and withsecurity agencies such as CSIS(who may in turn share it withforeigngovernmentsforintelligence purposes).PHOTO CREDIT: TYLER LASTOVICH

PHOTO CREDIT: NEON BRANDPasswordsOfficers may ask you for yourpassword or fingerprint to accessyour device. There is uncertaintyas to whether you are legallyobligated to provide it, though theCBSA has been able to arrestpeople or threaten arrest forfailing to provide a password. TheCBSA maintains that they have theright to arrest people for failing toprovide a password, and that theymay do so where an officer hasgood reason to believe there couldbe prohibited material on a device.If you are asked and you choosenot to disclose your password orprovide your fingerprint, you riskincreasing the CBSA’s suspicionabout the contents of your device,denial of entry if you are not aCanadian citizen or permanentresident, detention or seizure ofthe device for more detailedinspection by forensic specialists(which could take months), orarrest. Hindering or obstructing aCBSA officer is an offence that cancarry fines of up to 50,000 and/or a term of imprisonment for fiveyears.6

U.S. Preclearance Areasin CanadaU.S. Customs and Border Patrolofficersareauthorizedtoadminister U.S. law in parts ofCanadian airports, train terminalsandferryterminalswheretravellers departing for the U.S.can clear U.S. customs prior toleaving Canada. In these areas,the administration of U.S. laws issubject to Canadian human rightslaws, including the Charter ofRights and Freedoms. This meansthat Canadian search and seizurestandards apply rather than U.S.ones. However, it is unclear if U.S.border officers have knowledgeand training of the appropriatelegal standards.For searching electronic devices,U.S. laws are similar to Canadianlaws: officers do not need awarrant or even reasonablesuspicion to look at your phone.This should be local content only,and nothing that requires anetwork connection to see.U.S. border officers performbasic and advanced searches.Basic searches can be performedwith or without suspicion andinvolve any search of an electronicdevice that falls short of anadvanced search.7PHOTO CREDIT: ALEJANDRO MOLINA FERNANDEZIn an advanced search, thedevice will be connected toexternal equipment in order togain access to the contents butalso potentially copy them.Advanced searches require areasonable suspicion of theviolation of U.S. laws, or a nationalsecurity concern.U.S. border officers may ask youfor your password. If you do notprovide it, the officer may refuseto preclear you for departure tothe U.S. The officer may alsodetain the device so they canperform a more advanced search.They should not keep your devicefor longer than five days, butreports show that sometimesdevices are kept for many months.

TipsIn considering which actions you take to protect your privacy, beaware that your interaction with a border officer may escalate ifthey detect that you have deliberately tried to thwart a search,especially in a manner that destroys data that you otherwisewould have been able to access, or if you have concealed the factthat the data is present at all. Leave your devices at home if you don’t need them on your trip. Make a backup of your data before you cross the border and leave ithome. This will be important if your device is detained or seized, butit also gives you the option of deleting unnecessary data from yourdevice before you cross. You may also wish to clear the entirecontents of your device before you cross the border and restore itfrom a backup afterwards. Securely delete data you do not need to travel with. This means notsimply putting it in the recycling bin, but using built-in tools inWindows (a tool called cipher), Mac (‘secure empty trash’ or srm), orLinux (shred or srm) to permanently delete data. Be aware that borderagencies have access to sophisticated forensic tools and may seeinformation about deleted data that the average person can’t. Justbecause you press “delete” does not guarantee that the informationcannot be found by a border official. Require a password to log on or access your device. An officer who isonly slightly curious and turns on your electronic device intending tobrowse the contents may lose interest when they realize they willhave to ask you for your password. Create a strong password, for example by using several randomwords (a ‘passphrase’) if possible and avoiding passwords that areeasy to guess.8

Turn off your computer before crossing the border, because securityexperts have ways of accessing your computer’s memory if it is on.This also ensures your device is locked if it is turned on for a search.Note that airport security (not CBSA) may require you to turn on yourdevice, but they are only looking at the physical integrity of thedevice and will examine content. Use two-factor authentication, in the event that the border agencyseizes one device but not the other. Use Full-Disk Encryption and require a strong passphrase to access it.Many new devices have this option built-in. This can keep your datasafe from even the most experienced analysts. However, it is not clearwhat will happen if your electronic device is detained and the borderagency is not able to access your data. Your device may be seized andnot returned. If you do not opt to use Full-Disk Encryption, you can encryptspecific critical documents or files using built-in software as well. Separate privileged and confidential documents into their own folderto make it clear they are privileged. This includes lawyers’ files, andcan sometimes include files of doctors, psychologists andpsychiatrists, and journalists. Border officers are supposed to takeprecautions not to look at privileged materials when warned thatthose materials exist, except to verify that it is what it claims to be. Intheory, they should not look at privileged files at all, but border9PHOTO CREDIT: RAW PIXEL

PHOTO CREDIT: OWEN SPENCER