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.
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.
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.
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.
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.
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.