Can The CBSA Ask For Your Passwords? | Canada-U.S. Blog http://www.canada-usblog.com/2016/08/16/the-waiting-game-we-will-ha...

Can The CBSA Ask For Your Passwords?

By Cyndee Todgham Cherniak on August 16th, 2016

Posted in Cross-border trade, Customs Law, Legal Developments, NEXUS

The answer is, “Yes”, the Canada Border Services Agency (“CBSA”) can ask for your passwords. Not only
can the CBSA ask for your passwords, the CBSA does ask for passwords. Not only does the CBSA ask for
passwords, the CBSA will unlock your cell phones, mobile phones, smart phones, computers, etc and look
at/review your emails, your photographs, your videos, your text messages, etc. If you do not provide your
passwords, you could be arrested and charged and end up with a criminal record. Just ask Mr. Alain
Philippon.

News broke today (August 16, 2016) that Mr. Philippon has pleaded guilty (on the eve of trial) to not
providing his cell phone password to the Canada Border Services Agency (“CBSA”). Alain Philippon was
arrested by the CBSA in March 2015 and charged pursuant to section 153.1 of the Customs Act (Canada) for
failing to provide passwords. Section 153.1 of the Customs Act provides that:

“No person shall, physically or otherwise, do or attempt to do any of the following:

(a) interfere with or molest an officer doing anything that the officer is authorized to do under this Act;
or
(b) hinder or prevent an officer from doing anything that the officer is authorized to do under this Act.”

A CBSA officer is authorized under section 99 of the Customs Act to examine goods in a traveler’s
possession. The term “goods” is defined in the Customs Act to include “any document in any form”.
Electronic communications, data and documents would satisfy the definition of “goods”.

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According to the Agreed Statement of Facts, Mr. Philippon had $5000 and two PDAs in his possession. He
was sent to secondary examination where swabs of his bags registered a reading for traces of cocaine. Mr.
Philippon refused to provide the passwords to his PDAs. It is not known whether Mr. Philippon ever did
provide those passwords or if he did get his PDAs back from the CBSA.

As a result of the plea deal (to plead guilty and pay a fine of $500), we will never know whether the Nova
Scotia Provincial Court has difficulties with the CBSA arresting a person for not providing a password. This
was a smart decision by Philippon who could have been fined up to $25,000 and/or imprisoned for up to one
year. The moral of this story is that the CBSA can ask for your passwords and you may end up with a
criminal record if you do not provide the passwords.

Customs lawyers have been waiting to learn what a court would say about what first appeared to be an
extreme position taken by the CBSA. Travelers are regularly requested by the CBSA to provide passwords to
cell phones, PDAs, computers, etc. Most travelers comply for fear of the ramifications (also, most travelers
have nothing to hide, except embarrassing photos and videos).

Under Canada’s domestic laws, the police do not have an absolute right to ask for passwords. Individuals in
Canada have privacy rights and Charter rights. The rules are very different at the border.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168 or

at cyndee@lexsage.com. Alternatively, visit www.lexsage.com.

This article was originally published on www.lexsage.com. Republished with permission.

Tags: Canada Border Services Agency, CBSA, cell phone, passwords, PDA, search

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The postings on this Blog/Web Site should not be attributed to LexSage. Some of the articles are posted by
law students, and readers should use caution when relying on any post of a law student.

Cyndee Todgham Cherniak

c/o LexSage Professional Corporation
The Gooderham “Flatiron” Building, 49 Wellington Street East, Suite 501
Toronto, Ontario
M5E 1C9
Phone: 416-307-4168
Fax: 416-760-8999
Susan Kohn Ross
c/o Mitchell Silberberg & Knupp LLP
11377 W. Olympic Boulevard
Los Angeles, California
90064
Phone: 310-312-3206
Fax: 310-231-8406

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