Canadians can expect to have their phones searched as a part of an added security measure when travelling to the U.S.
U.S. Customs and Border Protection issued a new directive in January that allows border agents to demand the passwords to travellers' phones and other electronics without probable cause. The Department of Homeland Security says such is necessary to counter crimes such as terrorism and child pornography.
But according to immigration lawyer Henry Chang, the rules aren't as clear cut as they seem.
"There are ways they can mess with you. They can just declare you an immigration risk . . . Detain you, turn you away until you co-operate . . . That's enough to scare people into co-operating," he said.
As many as 30,000 phones were checked at the U.S. border in 2017, representing a 60 per cent increase in inspections. U.S. officials say that number is still only a miniscule percentage of all travellers that crossed the border that year. While the updated instruction was introduced six months ago, the recreational marijuana legalization set to occur this coming October could mean that Canadians can expect a higher frequency of phone searches in the next few months.
Travellers can refuse to give out their passwords, but border agents can consequently seize their phones for five days or longer, and delay (or even deny) their entry into the U.S.
Travellers must also be told the reason for the search. They can be present while border agents conduct the search, however they cannot ask to see the screen. Each search is documented and published, and regular audits will ensure border agents are following the rules accordingly.
Additionally, the new directive allows border agents to download documents that are stored in a cloud, or upload files into their own storage drives for examination. Experts suggest travellers to remove any sensitive data from their phones before reaching the border and also turning on 'airplane mode' to ensure border agents cannot remotely access files without a valid reason.
Here's a helpful summary from an article written last week byrecent developments of the 7-month old directive. These are currently the powers U.S. border agents have with regards to phone searches:
- U.S. border agents can deny entry to anyone who refuses to have their phone searched when asked. While phone searches are not meant to be conducted on every traveller as a routine, every Canadian will still subject to possible random checks. They can demand a phone and its password without probable cause.
- Officers conducting the search must first turn connectivity off, but travellers are advised to do so before approaching the border to ensure the search is limited.
- More in-depth searches are only allowed when they are deemed necessary for national security. U.S. border agents must get approval from a a higher ranked supervisor in order to do so. Once permission has been granted, the contents of the phone can then be uploaded onto a private hard drive.
- U.S. border agents can confiscate phones if travellers refuse to have them searched. Phones can be kept for up to five days, or longer with approval from a higher ranked supervisor.
- Lawyers can indicate sensitive files under attorney-client privilege. Information like journalist notes or medical files are subject to U.S. privacy laws. U.S. border agents must get legal advice before excluding such files from the search.
- Any files taken from a searched device are destroyed, unless they pose a security threat.
- Travellers may be present while the search is conducted but they cannot ask to see the screen. Search statistics must be documented and made public. Officials will conduct regular audits to ensure agents are following the rules.