The Cops Can Pretty Much Always Search Your Smartphone in Canada

[jimmy olsen]

Canada once again reveals its despotic character 

The Cops Can Pretty Much Always Search Your Smartphone in Canada

On Monday night, Alain Philippon, a Canadian citizen, was passing through customs at a Nova Scotia airport when border patrol officers demanded that he provide the password to his smartphone. Philippon refused. He was promptly charged with obstructing border security, a criminal charge under the Canadian Customs Act, which he plans to fight in court.

Philippon's legal battle against this absurd abuse of power is principled and important. It is also probably futile. Canada's laws surrounding search and seizure are flimsy, malleable, and—by American standards—draconian. Nowhere is this fact more apparent than in Canadian law surrounding cellphone searches. Just months after the U.S. Supreme Court unanimously ruled that police officers need a warrant to search a smartphone, the Canadian Supreme Court ruled the exact opposite, holding that the invasion of privacy involved "was not particularly grave." Barring a shift in court personnel, a similar ruling is likely in Philippon's case.



Why is Canadian search-and-seizure law so awful? The problem traces back to Canada's Charter of Rights and Freedoms, an analog to America's Bill of Rights. Whereas the Bill of Rights' Fourth Amendment declares flatly that "the right of the people" to be free from "unreasonable searches and seizures ... shall not be violated," the Charter takes a more nuanced (that is, squishy) view. Section 8 gives everyone "the right to be secure against unreasonable search or seizure"—but Section 1 says this right is subject to "reasonable limits prescribed by law" that are "demonstrably justified in a free and democratic society."

This outward balancing of rights and limits, now called proportionality, essentially gives judges carte blanche to curtail rights when they believe a more pressing interest has arisen. Canadian judges need only show that the law abridging the right is necessary, rationally connected to a proper purpose, and significantly beneficial to society. In last year's case, the court decided that warrantless cellphone searches are constitutionally kosher because they "may serve important law enforcement objectives." If a warrantless search of a cellphone is OK post-arrest, it's probably also permissible at border patrol, where everyone's expectation of privacy is significantly diminished.

Defenders of the Canadian system like to point out that America's Fourth Amendment prohibits only "unreasonable searches and seizures," giving judges wide latitude to determine which searches are actually "reasonable." But the U.S. Supreme Court has consistently held that the warrant requirement is the rule, and warrantless searches the exception, usually justified only by safety concerns in exigent circumstances. And even when a warrant is not required, law enforcement generally must still have "reasonable suspicion" that criminal activity is afoot before performing a search. Canada's Charter, by comparison, lets judges dispense with the warrant requirement pretty much willy-nilly, so long as they can articulate some plausible justification.

This distinction becomes exceedingly important in a situation like Philippon's. The leading American case on electronic border searches, issued by the 9th Circuit, dictates that law enforcement must have a "reasonable suspicion of criminal activity" before breaking into password-protected files. Current Canadian law, on the other hand, would seem to let custom agents force their way into any electronic device—sans warrant, sans reasonable suspicion—in the name of border security.

Both American and Canadian doctrines of privacy rights in a digital age are undergoing a sea change as judges grapple with increasingly tech-savvy criminals. (American judges have been especially stumped by the questions of self-incrimination when it comes to password protection and forced decryption; one court held that suspects can be forced to unlock a phone protected by fingerprint but not a phone protected by a written passcode.) At this point, however, it's pretty clear that the Canadian Charter is not nearly as protective of digital privacy as the Fourth Amendment. Even when they don't get it right, American judges are at least seriously thinking about how the Constitution protects our electronic devices from intrusive searches. Canadian judges seem to have put digital privacy roughly on par with free speech—a nice idea in theory, but just not worth it in fact.

                                                                                               
Future Tense is a partnership of Slate, New America, and Arizona State University.

[Barrister]

You have no expectation of privacy at the border.

[Tonitrus]

If you're a citizen of the country that you're entering, there is no good reason you shouldn't.

[grumbler]

If you're a citizen of the country that you're entering, there is no good reason you shouldn't.

It depends on whether the government of the country is willing to grant that expectation to its citizens.  Remember that most countries are like Canada, where rights are given by the government, not like the US, where rights are human and the government only has the power to infringe on them that the people give it.  Those are two completely different starting points.

[Tonitrus]

If you're a citizen of the country that you're entering, there is no good reason you shouldn't.

It depends on whether the government of the country is willing to grant that expectation to its citizens.  Remember that most countries are like Canada, where rights are given by the government, not like the US, where rights are human and the government only has the power to infringe on them that the people give it.  Those are two completely different starting points.

And that reminds my of one problem I had with the article above...it makes a big play comparing Canadian rights vis-a-vis U.S. rights to privacy...but I thought we also ignore those rights and allow searches of electronic devices at the border as well?

[Tonitrus]

If you're a citizen of the country that you're entering, there is no good reason you shouldn't.

It depends on whether the government of the country is willing to grant that expectation to its citizens.  Remember that most countries are like Canada, where rights are given by the government, not like the US, where rights are human and the government only has the power to infringe on them that the people give it.  Those are two completely different starting points.

And that reminds my of one problem I had with the article above...it makes a big play comparing Canadian rights vis-a-vis U.S. rights to privacy...but I thought we also ignore those rights and allow searches of electronic devices at the border as well?

Or maybe I am wrong...

http://www.wired.com/2014/01/scotus-border-gadget-searches/

[Jacob]

The cops != border agents.

The whole thing is predicated on border agents having powers the police do not, and that crossing the border is different from going about your everyday activities inside the country.

[Tonitrus]

The cops != border agents.

The whole thing is predicated on border agents having powers the police do not, and that crossing the border is different from going about your everyday activities inside the country.

Meh, the way I see it, if you're a citizen of said country, and you're physically inside it, you should be under the same legal protections regardless of having just entered from outside.

Of course, call me a hippie, but this whole freedom thing should be pretty universal. 

[jimmy olsen]

Border searches are not the issue, the article plainly says that  the cops in Canada can search anyone's phone within Canada for virtually any reason.

[Jacob]

The cops != border agents.

The whole thing is predicated on border agents having powers the police do not, and that crossing the border is different from going about your everyday activities inside the country.

Meh, the way I see it, if you're a citizen of said country, and you're physically inside it, you should be under the same legal protections regardless of having just entered from outside.

Of course, call me a hippie, but this whole freedom thing should be pretty universal.

Sure.

But that does not make calling border agents "cops" convincing, nor does it change the fact that you can have all your possessions thoroughly searched, as an American, when you leave the country simply because the border agents feel like it.

[Jacob]

Border searches are not the issue, the article plainly says that  the cops in Canada can search anyone's phone within Canada for virtually any reason.

The article is suspect.

[Tonitrus]

I did not call border agents "cops".    (though they are both agents of law enforcement, so I think it is kinda splitting hairs).

And I make no pretense of arguing facts, more for freedom in the philosophical sense. 

Of course U.S. customs can search the possessions of Americans returning from outside the country mostly without cause.  Should they able to?  I don't believe they should have any more right to do so than any other law enforcement agent at any other time within the U.S.'s jurisdiction.

[Admiral Yi]

So you think customs laws should be nothing more than a suggestion.

[alfred russel]

So you think customs laws should be nothing more than a suggestion.

There is a big difference between searching my luggage where I could have an explosive, drugs, anthrax, or worst of all cuban cigars, and searching smartphone or laptop files.

[Admiral Yi]

I was responding to Tonto.