Canadian charged with obstruction for not giving his phone password to CBSA

[afc wimbledon]

Originally Posted by Bring_Back_Shantz

Yeah, exactly. You just gave two examples of data that they could/should check for. Kind of defeats your argument that the whole thing is moot, doesn't it?

It is not the job of CBSA to investigate either kiddie porn or drugs, it's their job to look for actual drugs or dirty magazines . If they want to move beyond looking for weed under the seat of the car they need to be held to the same standard every other cop is, get a warrant.

[V]

I always wondered if the power tripping border guards are actually good guys that are just messing with you to make you sweat, Super Troopers style.

[CaramonLS]

Originally Posted by Bring_Back_Shantz

Yeah, except that the fact that they catch people with illegal stuff on their computers would seem to indicate that perhaps the kinds of people that are in possesion of that type of data aren't particuarly intelligent.

Just because there is another way of sending that data across borders, and just because you can't stop the problem competely doens't mean you shouldn't have the tools to prevent at least some of it, and to catch some of the folks who are using, producing and/or transporting it.

So what are the limits?

If I wipe my phone before I go through border the border, do they have the right to ask me to supply my itunes password so that my phone automatically downloads everything that I used to have back on to the device?

Is looking at downloaded email valid?

[Bring_Back_Shantz]

Originally Posted by TheyCallMeBruce

So you're saying people don't travel cross border with your laptop and phones for business?

What illegal operation? Proprietary data isn't illegal. What I'm asking is, is there a procedure people can follow should something like that occur?

No, what I'm saying is that if you're going to be transporting data for work across the border you better be prepared to have it searched by the CBSA.

Your company can have all the policies it wants, but they don't trump Canadian law, and your company shouldn't be able to fire you because you complied with that law.

What I mean about the illegal activity was to draw a parallel. Your company could have a policy that says "If the police ask about this orphan killing policy, lie to them", but that doesn't trump the RCMP showing up with a search warrant. In the same way your company can have a policy that says "Don't unlock your phone for anyone including the CBSA", but that isn't going to stop them from either demanding your password, or seizing the phone untill they can unlock it.

Aside from that I would say that should they try to fire you for unlocking that phone, you'd have a pretty strong case for a wrongful dismissal suit. I think it'd be a slam dunk to go in front of a judge and say "They fired me because I didn't comply with a company policy that was in direct opposition to Canadian Law, I don't think that's fair".

So as for a procedure for what people shold do in that situation? I would say comply with the CBSA officer and if anyone at the company tells you otherwise, maybe point out that they shouldn't be asking you not to comply with Canadian law.

[V]

Maybe you can be charged for obstruction because you wiped your phone before hitting the border.

[Bring_Back_Shantz]

Originally Posted by afc wimbledon

In his phone? Their job is to make sure I'm not bringing anything in illegal on my person, that's it full stop. They want to be cops they need to be held to the same account cops are, ie go get a warrant.

Yeah, except they aren't cops, they are Border Security, which is a position that does not require a warrant, which has been held up in Canadian courts, and cited several times in this thread.

[Bring_Back_Shantz]

Originally Posted by CaramonLS

So what are the limits?

If I wipe my phone before I go through border the border, do they have the right to ask me to supply my itunes password so that my phone automatically downloads everything that I used to have back on to the device?

Is looking at downloaded email valid?

No, of course the don't, that's a pretty big leap, and a far cry from what is being tested by the case in the OP.
There is a big distiction between unlocking a device to see what data is physically on it, and getting passwords to see what data could be accessed remotely from it.
Likewise, there's a pretty big disticiton between a device that has illegal data on it, and a device that used to have illegal data on it.

Their job is to make sure you aren't actively carrying anything with you across the border that is illegal. A device that has been or could be used to do that is just fine as long as it's clean when you cross. A device that does have stuff on it? Not so much.

[starseed]

Originally Posted by FlamesAddiction

Maybe the password was something embarrassing. I had problems with my AMEX a while ago and had to give up my password to the rep. It was kind of embarrassing to tell her that my password was "6969".

Hey! That's the same passcode to my luggage!

[Bring_Back_Shantz]

Originally Posted by afc wimbledon

It is not the job of CBSA to investigate either kiddie porn or drugs, it's their job to look for actual drugs or dirty magazines . If they want to move beyond looking for weed under the seat of the car they need to be held to the same standard every other cop is, get a warrant.

You're right, it's not their job to investigate those things. It's their job to make sure people aren't bringing them across the border, and to determine if people are admissible to the country. And to do that job they've been given pretty broad search/seizure powers that have been held up in court.

If they do find that kind of illegal material in your possesion (weed in the car, or illegal porn on your phone), you're going to be arrested.

If they find evidence that you are likely to be involved in those things (texts on your phone about buying drugs, or doing something else illegal) then they can deny you entry (Canadian citizens not withstanding), that's their job.

See, you keep saying that if they want to be cops they should be held to the same requirements (search warrants). What you fail to realize, and what the court system in Canada has confirmed, is that they aren't cops, and are not held to the same requirements.

[Barnes]

Originally Posted by afc wimbledon

In his phone? Their job is to make sure I'm not bringing anything in illegal on my person, that's it full stop. They want to be cops they need to be held to the same account cops are, ie go get a warrant.

If you tried to re-enter Canada with your pants stuffed with pirated DVDs, you can be searched because they are on your person.

If you tried to re-enter Canada with your laptop full of pirated DVD rips you can't be searched because they are on your laptop behind a password?

[afc wimbledon]

Originally Posted by Barnes

If you tried to re-enter Canada with your pants stuffed with pirated DVDs, you can be searched because they are on your person.

If you tried to re-enter Canada with your laptop full of pirated DVD rips you can't be searched because they are on your laptop behind a password?

Yep, according to the Supreme Court

Border use of warrantless cellphone search only during arrests

A recent landmark Supreme Court of Canada ruling on digital privacy rights doesn't give police – or border guards – authority to look at a citizen's cellphone without a warrant unless he or she is under arrest and if the search meets other criteria, says Toronto criminal lawyer Sam Goldstein.

"R. v. Fearon applies to arrested people only – otherwise the police require a search warrant," he tells AdvocateDaily.com. "In other words, a police officer can not come up to you and relieve you of your cellphone and start looking at it."

He says that while it is true that a person's expectation of privacy is lower at the border, it only applies for security and contraband issues.

"And, as a Canadian citizen, you have a right of entry. This means you cannot be turned away from entering Canada but you can be detained/arrested," he says. "If you are not under arrest, then a border guard cannot search your phone without a warrant."

In the 4-3 divided Supreme Court of Canada decision, the high court ruled that police can conduct limited searches on cellphones without first obtaining a warrant upon making an arrest.



I will predict the courts will take a dim view of a glorified security guard trying to argue that the obstruction charge for not giving up the password gives him the right to then ask for the password.

[afc wimbledon]

Originally Posted by Bring_Back_Shantz

You're right, it's not their job to investigate those things. It's their job to make sure people aren't bringing them across the border, and to determine if people are admissible to the country. And to do that job they've been given pretty broad search/seizure powers that have been held up in court.

If they do find that kind of illegal material in your possesion (weed in the car, or illegal porn on your phone), you're going to be arrested.

If they find evidence that you are likely to be involved in those things (texts on your phone about buying drugs, or doing something else illegal) then they can deny you entry (Canadian citizens not withstanding), that's their job.

See, you keep saying that if they want to be cops they should be held to the same requirements (search warrants). What you fail to realize, and what the court system in Canada has confirmed, is that they aren't cops, and are not held to the same requirements.

Apparently they are

[Locke]

I dont think I'd have a problem with them going through my cell phone, but there would have to be a damned good reason, and there should be.

If 'general suspicion' is insufficient for police officers why would it be okay for CBSA?

If you want to go through my phone then by all means go for it, but they should need an ironclad reason, not just because they're fishing for something.

Ie. Get a warrant.

If you've got a good enough reason then a judge wont hesitate to issue a warrant. But just because I'm crossing the border and was randomly selected shouldnt be sufficient.

I understand that when going across borders most people are under fairly strict time constraints which makes obtaining a warrant cumbersome, but I'd even settle for some sort of happy middle ground but just because I own it and have it on me while I'm crossing a border doesnt seem like it should be a sufficient reason.

[Dagger]

This is ridiculous. Eroding the privacy of citizens is not OK unless there is an absolutely indisputable reason for them to do so.

[afc wimbledon]

Originally Posted by Locke

I dont think I'd have a problem with them going through my cell phone, but there would have to be a damned good reason, and there should be.

If 'general suspicion' is insufficient for police officers why would it be okay for CBSA?

If you want to go through my phone then by all means go for it, but they should need an ironclad reason, not just because they're fishing for something.

Ie. Get a warrant.

If you've got a good enough reason then a judge wont hesitate to issue a warrant. But just because I'm crossing the border and was randomly selected shouldnt be sufficient.

I understand that when going across borders most people are under fairly strict time constraints which makes obtaining a warrant cumbersome, but I'd even settle for some sort of happy middle ground but just because I own it and have it on me while I'm crossing a border doesnt seem like it should be a sufficient reason.

I have no problem with the status quo, the police have always had the right to search you after arresting you, I have no problem with extending that to a phone, but otherwise not.

[Locke]

Originally Posted by afc wimbledon

I have no problem with the status quo, the police have always had the right to search you after arresting you, I have no problem with extending that to a phone, but otherwise not.

Yeah, but we're not talking about arrest, we're talking about mild suspicion with little to no grounds besides intuition.

[afc wimbledon]

Originally Posted by Locke

Yeah, but we're not talking about arrest, we're talking about mild suspicion with little to no grounds besides intuition.

Which the courts will shoot down in about 2 seconds. I doubt the idiot keeps his job.

[llwhiteoutll]

Originally Posted by afc wimbledon

Which the courts will shoot down in about 2 seconds. I doubt the idiot keeps his job.

The courts have upheld the authority of the CBSA to examine electronic devices at border crossings. This case is not about that authority and it won't be taken away.

This case is about a very narrow set of circumstances and will serve as precedent since this argument hasn't been brought before the court before.

Applying the same standards that govern police to the CBSA is a useless exercise wince they are not governed under the same rules and that fact has been tested in court.

[afc wimbledon]

Originally Posted by llwhiteoutll

The courts have upheld the authority of the CBSA to examine electronic devices at border crossings. This case is not about that authority and it won't be taken away.

This case is about a very narrow set of circumstances and will serve as precedent since this argument hasn't been brought before the court before.

Applying the same standards that govern police to the CBSA is a useless exercise wince they are not governed under the same rules and that fact has been tested in court.

Actually the only precedent is that they can't unless you are arrested, this charge gets dismissed, you can pretty well guarentee it, the guy has an obvious Supreme Court precedent.

[Daradon]

On CBC the lawyer they had on the panel said their is no legal reason you need to give over this info. Basically the same as maintaining silence during questioning.

Of course, they could then decide to confiscate your phone, and have a tech look at it to unlock it. Though they probably wouldn't have the ability to do that in most cases. I was unsure on how long they could confiscate your phone, or keep you there. That wasn't really answered. More that, they'd probably just let it go, but it could cause a bigger problem in some cases I guess, depending on the agent/border guard.

However, he was pretty adamant that it shouldn't result in an obstruction charge.