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Crossing Borders – Proceed with Caution

04 March, 2017

Photo of Lawyer Hans 'John' KalinaBy Hans 'John' Kalina

police officer

Issues at the border with our southern neighbour are very much in the news. It is not surprising that some people see traveling to or from the USA as frought with trepidation and concern.

What can you expect at the port of entry, whether by land, air or sea?

First and foremost, you should expect not to have any privacy rights at the port of entry. any information that you are carrying with you is subject to inspection, seizure, copying and further disclosure by the border authorities. As a result, you carry this information entirely at your own risk. this applies regardless of whether the information is your own information or the information of any other third-party.

Moreover, I recently read an article http://fortune.com/2016/12/23/us-customs-social-media/ which indicated that the US immigration authorities are considering whether to include questions on visa applications requiring applicants to disclose usernames and passwords for their social media accounts so that the US authorities can inspect these accounts prior to issuing the visa.

Not a very encouraging situation for personal privacy rights.

Below are various perspectives from around the web. The takeaway message is that travellers have very narrow rights at the border. Customs officials have the authority to conduct very intrusive examinations and the power to arrest and detain travellers who refuse to cooperate. When travelling outside of Canada, proceed with caution and take steps to protect your privacy.

Here in Canada, the CBC reported http://www.cbc.ca/news/technology/border-phone-laptop-search-cbsa-canada-cbp-us-1.4002609

“For all the recent tales of U.S. border agents scrutinizing travellers’ phones and laptops, Anderson’s story is a reminder that, yes, Canadian border agents can and will search electronics, too.

And just like Canadians entering the U.S., foreign travellers have little choice but to comply, lest they risk the Canada Border Services Agency (CBSA) not letting them in. 

U.S. and Canadian border agents have the right to search travellers’ personal belongings without a warrant and say that right applies to digital devices, too.

While CBSA says its agents will only search information stored locally on the device, U.S. Customs and Border Protection has a much wider latitude to comb through social media apps installed on the device, remotely stored emails or files stored in the cloud.

“Officers are not to read emails or consult social media accounts on the traveller’s digital device unless the information is already downloaded and has been opened (usually marked as read) and is therefore stored on the device,” said CBSA spokesperson Patrizia Giolti in a statement sent to CBC News last month.

And while border agents can’t force you to give up passwords, you could have your devices seized, your trip delayed or even be denied entry if you’re not a citizen of the country you’re trying to enter. “

The American view is expressed at https://boingboing.net/2017/02/12/how-to-cross-a-us-or-other-b.html

‘’The most obvious step is to not carry your data across the border with you in the first place: get a second laptop and phone, load them with a minimal data-set, log out of any services you won’t need on your trip and don’t bring the passwords for them (or a password locker that accesses them) with you, delete all logs of cloud-based chat services. I use POP mail, which means that I don’t keep any mail on a server or in a cloud, so I could leave all my mail archives at home, inaccessible to me and everyone else while I’m outside of the USA or at the border.

Call your lawyer (or a trusted friend with your lawyer’s number) before you cross the border, then call them again when you’re released; if they don’t hear from you, they can take steps to ensure that you have crossed successfully, or send help if you need it.

One thing Greenberg misses is the necessity of completing a US Customs and Immigration Service Form G-28 before you cross the border. This form authorizes an attorney to visit you if you are detained at the border, but it has to be completed and signed in advance of your crossing. It also should be printed on green paper. The current version of the form expires in 2018, so you can complete it now, file it with your attorney or friend, and leave it until next year.


“If customs officials do take your devices, don’t make their intrusion easy. Encrypt your hard drive with tools like BitLocker, TrueCrypt, or Apple’s Filevault, and choose a strong passphrase. On your phone—preferably an iPhone, given Apple’s track record of foiling federal cracking—set a strong PIN and disable Siri from the lockscreen by switching off “Access When Locked” under the Siri menu in Settings.

Remember also to turn your devices off before entering customs: Hard drive encryption tools only offer full protection when a computer is fully powered down. If you use TouchID, your iPhone is safest when it’s turned off, too, since it requires a PIN rather than a fingerprint when first booted, resolving any ambiguity about whether border officials can compel you to unlock the device with a finger instead of a PIN—a real concern given that green card holders are required to offer their fingerprints with every border crossing.

Better than telling customs officials that you won’t offer access to your accounts, says security researcher and forensics expert Jonathan Zdziarski, is to tell them you can’t. One somewhat extreme method he suggests is to set up two-factor authentication for your sensitive accounts, so that accessing them requires entering not only a password but a code sent to your phone via text message. Then, before you cross the border, make sure you don’t have the SIM card that allows you—or customs officials—to receive that text message, essentially denying yourself the ability to cooperate with agents even if you wanted to. Zdziarski suggests mailing yourself the SIM card, or destroying it and then recovering the accounts with backup codes you leave at home (for American residents) or keep in an encrypted account online. “If you ditch your SIM before you approach the border, you can give them any password you want and they won’t be able to get access,” Zdziarski says.”

And from the Canadian perspective:


“Under Canada’s Customs Act, Canada Border Services Agency (CBSA) officers have widespread powers to stop and search people, and examine their baggage and other possessions and devices at any Canadian port of entry (land border crossing, air terminal or sea port).

Canadian courts have generally recognized that people have reduced expectations of privacy at border points. In this special context, privacy and other Charter rights are limited by state imperatives of national sovereignty, immigration control, taxation and public safety and security.

CBSA officers are authorized to conduct searches of people entering Canada, including examining their baggage, parcels or devices such as laptops and smart phones. These activities may be conducted without a warrant.

CBSA policy states that examinations of personal devices should not be conducted as a matter of routine; they may only be conducted if there are indications that “evidence of contraventions may be found on the digital device or media.”

If your laptop or mobile device is searched, you will likely be asked to provide the password.

Officers may only examine what is stored within a device, which includes, for example, photos, files, downloaded e-mails and other media. If you refuse to provide your password, your device may be held for further inspection. Our understanding is that the issue of whether a border security agency can compel an individual to provide a password for a personal electronic device at a border crossing is not something that has been specifically looked at by the Courts in Canada.”


“In general, the U.S. has a significant amount of discretion on how they’re going to let people into the country… When you’re at the border, courts in both countries have determined that your rights are significantly narrower in scope. So, for example, your right to be free from a search by a police officer at the border: They have a lot of discretion to search your vehicle and to search the things you bring across with you at the border.” …

“Certainly they are entitled to ask all sorts of questions, including your political affiliation and your intention for travelling to the country. The question about religion seems to offend — at least it should offend — your general sense of non-discriminatory kind of conduct by the government. But yes, they are entitled to ask questions. So without being able to demonstrate a real discriminatory intent by the question, certainly they’re able to ask.”


“I often receive calls from travelers who have had their cell phone, smart phone, PDA, iPhone, camera, and laptop computer examined by the Canada Border Services Agency (“CBSA”) during a secondary inspection. Most of the time, the traveler is outraged because the CBSA either (a) saw naked photos on the phone, (b) found the receipt for the goods they failed to declare, (c) read emails about illegal work in Canada or (d) saw a photo of them smoking drugs or using a bong, or (e) all of the above. In the initial contact, the person claims that the CBSA illegally searched the cell phone, smart phone, PDAs, iPhones, cameras, or laptop computer without a warrant.

The CBSA does not require a warrant to conduct an examination at the border. Section 99 of the Customs Act (Canada) gives CBSA officers the authority to examine goods…

It is well established that the CBSA does not require a warrant when conducting searches at the border. The Supreme Court of Canada acknowledged in R. v. Simmons that the CBSA has wide power of search at the border.

The best way to prevent the CBSA from looking at naked photos (or drug photos) on your phone is to not have them in the first place. There is nothing wrong with traveling with a clean laptop that does not connect to your email. There is nothing wrong with deleting your email accounts before you arrive at the border. Review your text messages and delete ones that you do not want anyone (including your Granny) to read.”

Information in Police databases are shared between Canada and the United States:


“CPIC (Canadian Police Information Centre) is already an important component in efforts to improve information sharing between the various components of the criminal justice community. It will continue to be integral to meeting the RCMP strategic objectives by facilitating information sharing at the national and international working levels…”


“The Michigan Law Enforcement Information Network (LEIN) is a statewide computerized information system established in 1967 as a service to Michigan’s criminal justice agencies. It is a repository of wanted person records, personal protection orders, missing persons, and vehicles that are abandoned, stolen, or impounded. Users of the LEIN system include local, state, and federal criminal justice agencies as well as other entities authorized by statute, policy, or rule.

The LEIN system is a communication network to supply information across Michigan to criminal justice agencies. It is the portal that links and provides access to various state and national databases including, but not limited to, the following: • LEIN Hot Files • Michigan Department of State Vehicle and Driver Record Information System (SOS) • Michigan Offender Management Information (OMNI) System • National Crime Information Center (NCIC) Hot Files • NCIC Interstate Identification Index (III) • National Instant Criminal Background Check System (NICS) • Canadian Police Information Centre (CPIC) • International Police (INTERPOL) • International Justice and Public Safety Network “


““There’s no restrictions on what an officer can ask you because there’s no telling what will guide an officer to follow a particular line of questioning to determine if that traveller is admissible for not,” says Dave Long, a public affairs officer with the U.S. Customs and Border Protection office in Buffalo, N.Y. And while that’s unchanged from long before Trump took office, tales from the border since his inauguration clearly show some officers are taking their unrestricted-question mandate down some odd paths.”

The lawyers at Kalina & Tejpal can assist you with border issues. Contact us at (416) 900-6999 or mail@lawyer4u.ca

Tags: criminal defence, information, legal advice

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