See also Slashdot.A Quebec man charged with obstructing border officials by refusing to give up his smartphone password says he will fight the charge.The case has raised a new legal question in Canada, a law professor says.Alain Philippon, 38, of Ste-Anne-des-Plaines, Que., refused to divulge his cellphone password to Canada Border Services Agency during a customs search Monday night at Halifax Stanfield International Airport.Philippon had arrived in Halifax on a flight from Puerto Plata in the Dominican Republic. He's been charged under section 153.1 (b) of the Customs Act for hindering or preventing border officers from performing their role under the act.According to the CBSA, the minimum fine for the offence is $1,000, with a maximum fine of $25,000 and the possibility of a year in jail.
There should be a high hurdle for having to turn over personal details like cell phone contents to the state. If a judge is convinced of the need for it, on having seen sufficient evidence, that's one thing. But just on the request of somebody in a customs uniform?
Fortunately, this stuff so far is confined to the asylum: Oz, the US, Canada and the UK.
Unfortunately, Customs NZ wants us to enter the asylum too.
If there's no way for Customs to get a warrant currently, then that should likely be looked at - although the hurdle here should be high too and Customs should be spanked if they too frequently make warrant requests that are turned down.Customs is seeking new powers including requiring a person to provide a password or access to their electronic devices.The agency has also floated other possibilities including collection of biometric information and making passengers empty their pockets if asked by an officer, even if there is no reasonable suspicion.A discussion paper on changes to the Customs and Excise Act has been released, outlining a number of changes the agency wants considered. Currently, when Customs examines a person's electronic device the owner is not legally obliged to provide a password or encryption key.It is relatively uncommon for people to refuse to provide this, Customs notes in the discussion paper, but "the number who refuse may increase as technology continues to develop". If people do refuse, Customs notes it "can mean we have no way of uncovering evidence of criminal offending even when we know the device holds this evidence".
People in the Customs line are easily subject to intimidation, and a "Well, you can either unlock your phone, or you can wait here for hours and hours until we get a warrant" is coercive.
Is the whole world going mad?
From the Slashdot thread:
A friend, who is a lawyer, had confidential, lawyer-client privileged information on her laptop relating to a multi-million dollar business deal.Border guards demanded that she give them her password... They told her it was either not enter the country (and forfeit the deal) or give up her password. Her issue was that she was exposing privileged information to third parties who could, potentially, have illegally profited from the knowledge contained in that laptop.The potential for state-sponsored corporate espionage through this mechanism should not be dismissed.
At present, borders are dangerous legal limbo. This area needs deep oversight and clear paths for travellers to have recourse to constitutional rights.
HT: Robert
From the Stuff article: 'Customs also wants its officers to be able to compel people to empty their pockets if asked. It said they did not currently have that power unless they had "reasonable cause" to suspect someone was hiding something.'
ReplyDeleteSo basically they want power to search someone for, explicitly, no good reason? Boggles the mind.
A friend's sister ticked the I have no food box once but had food and got caught at Customs. In addition to a fine, she is now permanently on their watch list.
ReplyDeleteI worked with ex-customs official years ago. He told me that it is absolutely true that if you ring up customs and say Eric Crampton is carrying drugs concealed within his body cavities, you will be subject to a body cavity search.
The reason is that if customs officers don't search the basis of these tips, which may be malicious, people will look to them as possibly corrupt because they don't want to act on a tipoff.
This right to ask for passwords raises an important obligation regarding anti-corruption to ensure that passwords given to customs don't end up in the wrong hands for long enough for there to be fraud and theft before you have a chance to change bank passwords and so on.
Won't be this one then will it.
ReplyDelete