On July 18, 2018, the American Civil Liberties Union and the Electronic Frontier Foundation filed a joint Brief of Amici Curiae in United States v Donald Wanjiku, Case No 18-1973, before the United States Court of Appeals, Seventh Circuit, in Chicago, Illinois. The appeal is another case making its way through the courts in the United States and Canada raising the question whether border agents may search electronic devices without a warrant or individualized suspicion.

On April 7, 2017, Judge Elaine E. Bucklo had denied the defendant’s motion to suppress because the agents had a reasonable suspicion, based on particularized facts, that he was involved in criminal activity. It was therefore not an appropriate case to wrestle with the issue whether the balance of interests should continue to be “struck much more favourably to the Government at the border”. (See: US v Wanjiku, No 16 CR 296 (N.D. Ill. 2017), at p 15)

The ACLU and EFF argue that border searches of electronic devices without a probable cause warrant violate the Fourth Amendment. The brief emphasizes the extraordinary privacy interests that travellers have in the digital data contained on their electronic devices. Here are two highlights.

• A decade ago, a typical commercially available 80-gigabyte hard drive could carry data “roughly equivalent to forty million pages of text – about the amount of information contained in the books on one floor of a typical academic library.” Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv L Rev 531, 542 (2005) Today’s devices are even more capacious. Laptops for sale in 2018 can store two terabytes, the equivalent of more than 1.3 billion pages of text. Even tablet computers can be purchased with up to a terabyte of storage. (pp 13-4)
• Smartphones also provide large storage capacities and can hold the equivalent of “millions of pages of text, thousands of pictures, or hundreds of videos.” US v Riley, 134 S Ct 2473, 2489 (2014) Moreover, the availability of cloud-based storage, email and social media services can increase exponentially the functional capacity of a device. (p 14)

The search of an electronic device is not only quantitatively extraordinary – but also qualitatively extraordinary. The amici brief makes that point in the context of mobile devices, at pp 15-6:

“The data contained on mobile devices is also particularly sensitive because it does not represent merely isolated snapshots of a person’s life, but can span years. Indeed, ‘[t]he sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions’ or a ‘record of all [a person’s] communications.’ Riley, 134 S Ct at 2489. Much of the private data that can be accessed in a search of a mobile device has no analogue in pre-digital searches because it never could have been carried with a person, or never existed at all. This includes deleted items that remain in digital storage unbeknownst to the device owner, historical location data, cloud-stored information, metadata about digital files created automatically by software on the device, and password-protected or encrypted information.” (See also: Sophia Cope. EFF Files Amicus Brief in Seventh Circuit Supporting Warrant for Border Searches of Electronic Devices. EFFBlog. July 23, 2018)

The purpose of the Fourth Amendment to the Constitution of the United States and s. 8 of the Canadian Charter of Rights is the same. Both protect people; not places. It is not simply data on electronic devices – emails, text messages or photographs – that is threatened by warrantless searches. For it is human dignity that resides in the heart of the right to private life. And maybe it is human dignity that Justice Morris Fish touched on in R v Morelli, [2010] 1 SCR 253 where he described an electronic search this way, at para 3:

“[O]fficers take possession of your computer, and carry it off for examination in a place unknown and inaccessible to you. There, without supervision or constraint, they scour the entire contents of your hard drive: your emails sent and received; accompanying attachments; your personal notes and correspondence; your meetings and appointments; your medical and financial records; and all other saved documents that you have downloaded, copied, scanned, or created. The police scrutinize as well the electronic roadmap of your cybernetic peregrinations, where you have been and what you appear to have seen on the Internet – generally by design, but sometimes by accident.”

In Canada, the question was recently considered by Justice R. Paul Belzil in the Court of Queen’s Bench of Alberta, at Edmonton, in R v Canfield, 2018 ABQB 408 where the applicants argued, on an evidence exclusion motion, that “absent individualized suspicion” the search of a laptop and cell phone violated s. 8 of the Charter. Justice Belzil held, at para 49, that the searches fell within “the first category of routine searches” approved by the Supreme Court of Canada in R v Simmons, [1988] 2 SCR 495 where Chief Justice Brian Dickson, at para 27, described routine searches as consisting of “questioning which every traveller undergoes at a port of entry, accompanied in some cases by a search of baggage and perhaps a pat or frisk of outer clothing.”

The searches in Canfield were governed by the Customs Act, RSC 1985, c 1, s 99(1)(a) which authorizes the examination of “any goods that have been imported”. The word “goods” is defined to include “conveyances, animals and any document in any form”. The applicants argued that advances in technology have rendered the Simmons analysis obsolete particularly in light of landmark cases on digital privacy in the Supreme Court of Canada such as R v Marakah, [2017] 2 SCR 608 and R v Vu, [2013] 3 SCR 657. The ruling in Simmons is, of course, forty years old.

However, Justice Belzil rejected the invitation to engage in a technologically-based analysis concluding, at para 41, that although technological advances will continue to create legal challenges “this does not mean that well-established legal frameworks should be abandoned, absent clear direction from the Supreme Court of Canada.” It is, then, an analogue ruling for a digital world. By treating electronic devices as just another piece of baggage the ruling fails to enhance the security of personal data in the information age and diminishes the constitutional protection of human dignity.

According to data from US Customs and Border Protection (CBP), the agency conducted 8,503 searches of electronic devices during the fiscal year 2015. The number jumped to 30,200 searches during fiscal year 2017. The increase on both sides of the US-Canada border has been of concern to the Privacy Commissioner of Canada as reflected in the Commissioner’s revised guidelines dated July 2018. Although the policy of the Canada Border Services Agency (CBSA) is that electronic devices are not routinely examined, both Canadian and US agents have authority to search devices without a warrant – including at US preclearance sites in Canada. Canadian courts have not ruled on whether a border officer can compel a person to turn over their password. But the law in the United States is well settled. Requiring a traveller to hand over a password is a testimonial act, amounting to compelled speech, and would violate the Fifth Amendment. (See: ACLU and EFF. Brief of Amici Curiae, at p 5; and, On The Wire. Fingerprints or Passwords. January 28, 2017)

The Privacy Commissioner has therefore cautioned individuals entering Canada to limit the devices they travel with or remove sensitive information. The security of confidential information is of particular concern to lawyers who may have privileged client communications and documents on their devices. There is no specific provision in the Customs Act dealing with solicitor-client privilege and there has been some concern that a lawyer could be charged with evading compliance under s 153(c). Lawyers are potentially put in an untenable position because they are bound by the ethical obligations of loyalty and confidentiality. (See: The Canadian Bar Association. Privacy of Canadians at Airports and Borders (2017), at p 11)

Until the dust settles – take a burner when crossing the border.