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U.S. Border Agents Can Demand Access to Your Cell Phone

Written on Behalf of Affleck & Barrison LLP

As schools go on holiday for March Break, many of those living in Ontario will begin their vacation by crossing the border into the United States. But be aware.  U.S. border agents can demand access to your cell phone and request your password to unlock your cell phone without probable cause.

In 2017, U.S. border agents inspected more than 30,000 phones and other devices. This was found to be an increase of nearly 60% from 2016.

The U.S. Customs and Border Protection released an updated directive governing border searches of electronic devices on January 5, 2018 stating:

…border searches of electronic devices have resulted in evidence helpful in combating terrorist activity, child pornography, violations of export controls, intellectual property rights violations, and visa fraud.

U.S. DIRECTIVE: BORDER SEARCH OF ELECTRONIC DEVICES

The recently issued directive in the U.S. entitled “Border Search of Electronic Devices” provides the government with wide legal authority to search travellers’ belongings without a warrant at the border, including personal electric devices.

Basic Search

During this “basic search”, the officer may review and analyze information on the device that would be ordinarily visible by scrolling through the phone manually, including contact lists, call logs, calendar entries, text messages, pictures, videos and audio files.

Advanced Search

Border agents are authorized to perform an “advanced search” by connecting a phone to a hard drive to copy its contents for analysis when the need arises. This type of search may arise in cases where a traveller is on a watch list, there is “reasonable suspicion” of law-breaking or national security concerns. This type of analysis requires the approval of a supervisor.

Password

According to the new directive, agents have been granted the authority to request a password to open your phone without probable cause. You are allowed to refuse this request, however, doing so could result in your device being detained for further examination, your travel may be delayed, you can be denied entry if you are not a U.S. citizen or it may become difficult for the traveller to enter the U.S. on future occasions.

The Cloud

Border agents are not authorized to download old files from the cloud. They are allowed to search the data that is apparent on the phone, but cannot access anything that may be stored remotely. Officers can ask that travellers put their devices in an offline mode (airplane mode) or disable their network connectivity.

Sensitive Information

Lawyers who are crossing the border may claim solicitor-client privilege over documents by identifying sensitive documents. The officer must then consult with customs’ legal counsel and the U.S. attorney’s office to determine which files should be isolated from the regular search.

Destruction of Records

Copies of information held by U.S. customs must be destroyed following a search and any electronic devices must be returned, unless a security threat has been discovered.

WHAT TO DO WITH YOUR ELECTRONIC DEVICES WHEN CROSSING INTO THE U.S.?

It is recommended that individuals crossing the border be patient and allow the U.S. border agents to do their job. Canadians should be prepared to turn their phones over to the U.S. border agents, if asked. Canadians may be denied entry to the U.S. if they do not comply with requests made by the border agents. If assistance is requested to access your personal device, it is recommended that you comply to avoid any challenging situations.

Canadians are advised to put their mobile phones on “airplane mode” to protect their privacy, as border agents cannot download remotely or from the cloud without giving a reason.

It is highly recommended that private material be deleted from your electronics or transferred to the cloud prior to crossing the border. You may want to consider having backups of sensitive or important information on your phone in the event that your phone is detained by the government.

If you have questions regarding your rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We take all steps necessary to protect your best interests. We maintain a 24-hour emergency service line and offer free confidential consultation to all perspective clients.

 

 

Text Messages: Is there a Reasonable Expectation of Privacy?

Written on Behalf of Affleck & Barrison LLP

The Ontario Court of Appeal recently ruled that text messages seized from a recipient’s phone can be used against the sender in court.

In R v Marakah, 2016 ONCA 542, Nour Marakah appealed his conviction of multiple firearms offences arguing that the text messages used as evidence against him at trial were not lawfully obtained and should have been excluded by the trial judge.

The Court of Appeal ruled 2-1 against Mr. Marakah, stating that he did not have a “reasonable expectation of privacy” in the messages once they had been sent. Mr. Marakah was successful in bringing a section 8 Charter challenge regarding the evidence seized at his home and from his own cell phone. Section 8 of the Charter of Rights and Freedoms protects all Canadians against unreasonable search and seizure.

However, regarding the messages seized from the cellphone of his co-accused, Andrew Winchester, the Court of Appeal sided with the trial judge in finding that Mr. Marakah did not have standing to challenge the search of Mr. Winchester’s phone. The test for establishing a section 8 Charter right is to for the applicant to establish a reasonable expectation of privacy. The Court of Appeal found that once Mr. Marakah had sent the messages, they were no longer under his control. Although he told Mr. Winchester that he expected the messages to be kept confidential, his subjective expectation of privacy in the text messages was not enough to satisfy the test because his expectation of privacy was not objectively reasonable.

The Court found that Mr. Marakah knew that he had no control over what would happen to the text messages once they reached Mr. Winchester’s phone and he therefore could not have a reasonable expectation of privacy in the messages. Text messages, according to the decision, are more akin to an email or letter than voice communication.

To speak with an experienced criminal defence lawyer about your rights, please contact Affleck & Barrison online or at 905-404-1947.

To read the full decision, click here.