Canadian Courts Edging Towards A Warrant Requirement For Device Searches At Borders

The problem with border searches making a mockery of rights respected (for the most part) elsewhere in the nation isn't limited to the United States. Up in Canada, courts (and lawyers) are asking the same questions: how well are old, pre-smartphone laws holding up to today's reality? Everyone already knows what the answer is: not well. The question is: when will the Canadian government do anything about it?

Canadians -- like Americans -- have the right to be free of unreasonable searches. Unfortunately, just like in America, this right seems to evaporate when one approaches the border. According to the Canadian customs law, border guards can search a lot of stuff travelers carry without a warrant.

[S]ection 99(1)(a) of the Customs Act" gives border officers the power to, "at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts."

According to the government, this means smartphones, tablets, and laptops should be treated as "containers," with the "entire lives" stored within being nothing more than items in a box. The Canadian government has chosen to equate smartphones with briefcases, arguing the incredible amount of personal information stored on phones is just a stack of papers. It's not much different than the arguments made on this side of the border, where the government has equated smartphones to pants pockets or address books, even though smartphones contain boxes full of documents (metaphorically) -- often far more information than anyone actually keeps physically in their homes.

Border security is a bit different than regular law enforcement. Law enforcement is able to empty the pockets of detainees and make limited searches of backpacks, luggage, etc. for officer safety reasons -- mainly to prevent overlooking a weapon that could be used against them. This analogy fails when it's a smartphone, which can't be used as a weapon. Outdated analogies are part of the reason the US Supreme Court erected a warrant requirement for cellphone searches. Canadian courts appear to be headed in the same direction, but the border location of these searches complicates matters.

Unlike a briefcase or a filing cabinet, judges have found, a smartphone can contain "immense amounts of information" that touch a person's "biographical core."

They've acknowledged that laptops create detailed logs and trails of data that can be used to retrace a person's steps in ways that physical documents can't.

And lawyers have successfully argued that smartphones and laptops, far from being static stores of information, are in fact portals to the near-limitless volumes of data stored in the cloud - from social media profiles to email accounts and file-sharing apps.

It was in this context that a Manitoba provincial court judge last year made a significant ruling: just as Section 8 of the Charter of Rights and Freedoms protects Canadians from unreasonable search and seizure, that right should also apply at the border when an officer asks to search your smartphone or laptop.

If this decision is upheld, there would be a warrant requirement for cellphone searches, even at the border. This would place Canada ahead of the US in terms of privacy protections. While there is a warrant requirement in place for cellphone searches of arrestees, courts in the US have held national security priorities trump the Fourth Amendment at the border. In response, there's been a surge in the number of devices searched without a warrant, jumping from 5,000 to nearly 20,000 from 2015 to 2016 -- and nearly 5,000 PER MONTH have been searched so far this year.

And while all the discussion about warrantless device searches at the border tends to revolve around national security, three of the four cases seeking to challenge the Canadian government's stance on device searches deal with child porn. The fourth involves drug trafficking. Not exactly as advertised when pitched to the public. Cases where privacy protections would have demanded a warrant have been exempted thanks solely to the physical location of the search.