We are often contacted by travelers after they have been selected (random or mandatory) for a secondary examination by the Canada Border Services Agency (“CBSA”) upon arrival at the Canadian border. Usually, the traveler had something on a laptop computer or smart phone that they did not want the CBSA to see or use against them in a court of law (for example, prohibited materials (e.g., child pornography or obscene materials (e.g., hate propaganda)), evidence of under declaration of goods, evidence of false invoices, evidence of drug use or trafficking, naked photos, etc.). They often ask whether the CBSA was allowed to conduct such invasive searches of their electronic devices.
The CBSA does have authority to search electronic devices. The CBSA may examine the baggage of any incoming passenger. Section 98 of the Customs Act (Canada) grants CBSA officers broad authority to conduct examinations. Section 99 of the Customs Act (Canada) grants CBSA officers the authority to search “any goods that [have] been imported…” The term “goods” is defined in subsection 2(1) of the Customs Act (Canada) to include “any document in any form”. This means that the CBSA may examine paper documents and electronic documents and other forms of documents.
The CBSA has a written internal policy (CBSA Operational Bulletin PRG 2015-31 “Examination of Digital Devices and Media at Port of Entry”) that is not published on the CBSA web-site, but is available through Access to Information process. CBSA Operational Bulletin PRG 2015-31 indicates the following:
- It is the CBSA’s administrative position is that electronic devices, digital devices and media, along with digital documents and software are goods;
- The CBSA takes the position they may examine electronic devices, digital devices and media that re imported into Canada;
- While there is no legislated threshold (e.g. reasonable belief of criminal activity requirement), the CBSA’s current policy is that examinations of electronic devices will not be conducted as a matter of routine;
- The CBSA’s current policy is that examinations of electronic devices will be conducted if there is a multiplicity of indicators that evidence of a contravention may be found on the electronic device);
- The CBSA’s current policy is that where undeclared goods, prohibited goods or falsely declared goods are discovered, CBSA officers are authorized to conduct a progressive examination of electronic devices for evidence to support allegations of a contravention;
- The CBSA’s current policy is that examination of electronic devices “must always be performed with a clear nexus to administering or enforcing CBSA-mandated program legislation”;
- The CBSA’s current policy is that the CBSA should not examine electronic devices with the sole purpose of looking for evidence of criminal activity (of a domestic law nature as opposed to a customs law nature);
- CBSA officers must be able to explain their reasoning when they conduct an examination of an electronic device AND their Narrative Report or handwritten notes MUST “clearly articulate the types of data they examined, and their reason for doing so”. CBSA officers must also note what indicators lead to a more extensive examination;
- CBSA officers must conduct examinations of electronic devices with as much respect for privacy as possible “considering that these examinations are usually more personal in nature than baggage examinations”. For example, if naked photos are discovered, they should be closed if they are not obscene or are evidence of the importation of child pornography;
- The initial review should be cursory in nature and increase in intensity if indicators emerge during the examination; and
- The CBSA officers should disconnect connectivity to the internet so that they cannot read incoming texts and emails that were not in the possession of the traveler at the time of importation of the device.
CBSA Operational Bulletin PRG 2015-3 also addresses the issue of passwords:
- The CBSA should not permit the traveler to input their password into the electronic device (that is, they must give the password to the CBSA officer to input into the device);
- The CBSA must record passwords provided;
- If the CBSA officer detects a contravention, he/she should deactivate the password protections on the device;
- CBSA officers should not ask for passwords for other types of accounts (such as professional accounts, social media accounts, etc.);
- CBSA officers should not ask for passwords for information stored online (e.g., webmail accounts, gmail accounts, bank accounts, eBay accounts, etc.);
- The CBSA may ask for travelers to voluntarily provide information and passwords to information stored online, but notify the traveler that he/she is under no obligation to provide it;
- The CBSA may detain electronic devices is the traveler does not provide passwords or is unable to retrieve information and must complete a Notice of Detention (K26 Form); and
- The CBSA shall not arrest a traveler for failure to provide a password.
For more information about the CBSA’s examination powers, please contact Cyndee Todgham Cherniak at 416-307-4168 or at firstname.lastname@example.org. Other useful documents are posted on the LexSage web-site. The best place to look on the LexSage website is under Customs articles and University of Windsor course materials “NEXUS/Border Infractions“.