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Alain Philippon, a Quebec man that had flown back to Canada’s Halifax International Airport after a trip to the Dominican Republic, was stopped and arrested by border agents after he refused to offer up his phone’s passcode.
In a statement to CNET, a spokesperson for the Canadian Border Services Agency said Philippon was indeed “arrested under section 153.1 of the Customs Act for hindering,” and then cited that act, which “authorizes officers to examine all goods and conveyances including electronic devices, such as cell phones and laptops.”
Philippon, 38, faces a minimum fine of $1,000 and a maximum fine of $25,000 with possible jail time.
The CBC notes that in Canada, Section 8 of the Charter of Rights and Freedoms says everyone has “the right to be secure against unreasonable search or seizure.” And in the US, the Supreme Court unanimously ruledthat police must get a warrant before they can inspect cell phones, as they carry a wealth of personal information.
But this case in particular – not giving up your passcode to authorities – has never been litigated in Canada.
It’s not the same as handing over your phone; since a smartphone carries much more information than a typical “good,” offering one’s passcode could amount to self-incrimination, which is why the Fifth Amendment exists in the US, to protect people from incriminating themselves.
Here’s what the Electronic Frontier Foundation (EFF) says on this issue:
Courts have generally accepted that telling the government a password or encryption key is “testimony.” A police officer cannot force or threaten you into giving up your password or unlocking your electronic devices. However, a judge or a grand jury may be able to force you to decrypt your devices in some circumstances.
Hanni Fakhoury, senior staff attorney at the EFF, told CNET that “the standards for search and seizure are relaxed” at the US borders, and agents don’t need a warrant, or even suspicion, to search your devices. But, in one important instance, the Ninth Court of Appeals says a “forensic examination” does require “reasonable suspicion” – it’s just unclear if offering one’s passcode qualifies as a “forensic examination.”
Right now, Canadian laws don’t treat cellphones or smartphones any differently from other goods, so, they are subject to examination. But the power to demand one to offer up their password has “yet to be constitutionally tested,” the CBC notes.
Philippon’s court hearing is scheduled for May 12.