On November 20, 2016, Muhammad Rabbani arrived at London’s Heathrow Airport. Mr Rabbani is the international director of CAGE, a British non-governmental organization working to empower communities impacted by the war on terror. He was well known to the authorities.

Mr Rabbani was carrying a MacBook Air and an iPhone. Officers asked him to provide his passwords so they could access the devices for examination under Schedule 7 of The Terrorism Act 2000, c. 11. He refused because they contained confidential information provided by a client of CAGE about the plight of prisoners at Guantanamo Bay that would be used in a pending lawsuit against the US government. He was detained for about nine hours, released on bail and charged with obstructing an examination or search. “How can a person’s privacy be invaded in this way when they are not accused or suspected of a crime?” he asked. “It is like a digital strip search.”

On September 25, 2017, Mr Rabbani went to trial before Judge Emma Arbuthnot at Westminster Magistrates Court, was convicted of obstruction and sentenced to a twelve month conditional discharge. Supporters greeted him outside court with flowers and chocolates. He said he will appeal. (See: Ryan Gallagher. Airport Police Demanded An Activist’s Passwords. He Refused. Now He Faces Prison In The U.K. The Intercept. September 23, 2017); and, Owen Bowcott. Campaign group chief found guilty of refusing to divulge passwords. The Guardian. September 25, 2017)

The high profile of the Rabbani case is a timely backdrop for an update on analogous cases pending before the courts in the United States and Canada as well as presentations to a recent meeting of Canada’s House of Commons Standing Committee on Access to Information, Privacy and Ethics (ETHI).

1. United States

On September 13, 2017, the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU) filed a lawsuit in the United States District Court for the District of Massachusetts, styled as Alasaad v Duke, Case 1:17-cv-11730, on behalf of eleven travellers who were subjected to warrantless searches of their smartphones and other electronic devices at the US border. The defendants are the heads of the US Department of Homeland Security (DHS) and two of its units, the Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). The complaint asserts that warrantless border searches of electronic devices violate the First and Fourth Amendments. In a post to its web site announcing the filing, EFF drew attention to the growing number of digital border searches:

“The number of border searches of electronic devices has been steadily growing. According to CPB, border officers are on track to conduct approximately 30,000 electronic device searches during fiscal year 2017, which is over three times the number of searches than in fiscal year 2015 (8,503) and about 50 percent more than in fiscal year 2016 (19,033).”

Although cases involving searches of devices such as smartphones invariably draw attention to the privacy interest at stake, as does the Alasaad complaint, there is merit in repeating it. The complaint states this, at para. 5: “The effect of searches of mobile electronic devices on individual privacy and expression can hardly be overstated. Travelers’ electronic devices contain massive amounts of personal information, including messages to loved ones, private photographs of family members, opinions and expressive material, and sensitive medical, legal, and financial information. The volume and detail of personal data contained on these devices provides a comprehensive picture of travellers’ private lives, making mobile electronic devices unlike luggage or other items that travellers bring across the border.”

The complaint goes on to emphasize, at paras. 30-3 and 41-3, that electronic devices can act as portals to cloud content and contain other data that owners may not be aware of such as: historical location information, deleted items that may remain in digital storage and metadata about digital files or the device itself such as time stamps or GPS coordinates. The data may span years as it is transferred from an old device to a new one. A great volume of personal information is available to a border agent on visual inspection by manually navigating stored files, contact lists, emails, other programs and apps. Searches using sophisticated forensic tools can capture all active files, deleted files, files in allocated and unallocated storage space, metadata related to activities or transactions, password protected or encrypted data, and log-in credentials.

The plaintiffs seek a declaration that the defendants’ policies and practices violate the Fourth Amendment by “authorizing searches of travellers’ electronic devices, absent a warrant supported by probable cause that the devices contain contraband or evidence of a violation of immigration or customs laws, and without particularly describing the information to be searched”. The complaint also asserts, at para. 46, that searches of electronic devices “impinge on constitutionally protected speech and associational rights, including the rights to speak anonymously, the right to private association, the right to gather and receive information, and the right to engage in news gathering” and thus violate the First Amendment.

2. Canada

I will comment on two important Canadian cases pending in the Supreme Court of Canada and the Saskatchewan Court of Appeal and then conclude with the submission of the Canadian Bar Association to the House of Commons ETHI committee on September 27, 2017.

• R v Saikaley, 2017 ONCA 374

Troy Saikaley was flagged by the Canada Border Services Agency (CBSA) because information had been received from the Royal Canadian Mounted Police (RCMP) that he was involved in an import business with a link to narcotics. When he returned to Canada from a trip abroad, CBSA officers searched his iPhone without a warrant and found a debt list and the names of two people who were on an RCMP list of drug suspects. The RCMP then obtained two wiretap authorizations and search warrants for Saikaley’s residence and a rental apartment. He was eventually convicted of forty drug related charges including conspiracy and a criminal organization count. On May 21, 2013, he was sentenced to nineteen years imprisonment.

Saikaley challenged the constitutionality of ss. 2 and 99(1) of the Customs Act, RSC 1985, c. 1 (2nd Supp) for the first time on appeal. Sub-sec. (a) of s. 99(1) provides that a customs officer may “at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts”. The per curiam opinion of the Ontario Court of Appeal heard argument on the following question set out at para. 59: “Assuming that the evidence obtained through the Customs Act search was inadmissible, whether the inadmissibility of that evidence could have made any difference in the proceedings, either in terms of the admissibility of the judicially authorized wiretaps or searches, or in terms of the admissibility of the evidence actually obtained from the wiretap and subsequent searches, and its effect on the ultimate result at trial.”

The panel concluded, at para. 60, that it was unnecessary to determine the question of the constitutionality of s. 99(1)(a) of the Act and the issue of unreasonable search under s. 8 of the Charter of Rights was dismissed. It was held at paras. 61-2 that (a) appellate courts are reluctant to consider constitutional arguments in the absence of a trial record specifically directed at the factual issues relevant to the constitutional question and (b) in any case the evidence from Saikaley’s iPhone seized during the CBSA search could have had no impact on the evidence adduced at trial. Even if the warrantless search of the iPhone violated Saikaley’s reasonable expectation of privacy, and the evidence excised from the wiretap affidavits and the Informations to Obtain the search warrants, the validity of the wiretap authorizations and warrants was unaffected.

On August 9, 2017, Saikaley filed an application for leave to appeal in the Supreme Court of Canada.

• R v Bialski and Szefer, Sask CA File No.: CACR2912

On April 18, 2014, a motorhome driven by Alexandre Bialski arrived at the Canada/US border at North Portal, Saskatchewan. Christine Szefer was a passenger. They were Canadian citizens. A CBSA officer became suspicious and a decision was made to have a secondary examination conducted to verify their customs declaration. A warrantless examination of their cell phones and a computer revealed incriminating texts and emails about ownership of the motorhome. It was then decided that Bialski and Czefer were attempting to evade duties and taxes.

On June 2, 2016, they were both convicted of making a false or deceptive statement to a CBSA officer. Bialski was also convicted of wilfully attempting to evade compliance with a provision of the Customs Act. On January 17, 2017, their summary conviction appeals were dismissed. Their joint factum has now been filed in the Saskatchewan Court of Appeal by Calgary lawyer Pawel Milczarek where the issue is framed this way, at para. 37: “The core question on this appeal concerns the powers of the CBSA officers at the border and whether and on what basis they are authorized to search through a person’s cell phone and personal computer. The appellants submit the Customs Act, read properly, does not authorize the actions of the CBSA officers in searching the personal data of the appellants on their phones and computer without a warrant.”

The Act and regulations are silent on the search of electronic devices. The crux of the privacy interest, therefore, is whether the word “goods” contained in sub-sec. 99(1)(a) of the Act includes electronically stored data. It is argued in the factum, at paras. 51-3, that the Act must be construed in a way consistent with Charter jurisprudence: “As indicated by Justice Cromwell in [R v Fearon, [2014] 3 SCR 621] it is unrealistic to equate a cell phone with a briefcase or document…If goods includes electronic data, then s. 99(1)(a) of the Customs Act allows the warrantless, random, and groundless search of our most intimate correspondence dealing with our financial, medical, and personal situations and even our specific interests, likes, and propensities.”

• Canadian Lawmakers

Unlike the United States, information about searches of electronic devices by Canadian border officers is not available. On September 27, 2017, CBSA’s Vice President of Operations, Martin Bolduc, told the meeting before the Standing Committee on Access to Information, Privacy and Ethics (ETHI) that the agency had not been tracking the frequency of cell phone searches but that it has now started and information will be provided in six months. (See: Matthew Braga. Canada’s border agency to start tracking the number of cellphone searches. CBC News. September 28, 2017)

In a written presentation to the same ETHI meeting, the Canadian Bar Association (CBA) submitted that the border agency’s operational bulletin and enforcement manual lack guidance for officers and contain misleading and conflicting information. “Moreover,” the CBA said, “they don’t make clear that: CBSA officers must respect all claims of solicitor-client privilege, whether made by a lawyer or a client; such privileged information may only be disclosed with the client’s consent or by court order; CBSA officers must follow an expedited procedure to address solicitor-client privilege claims; and determinations of solicitor-client privilege claims can only be made by courts, and not by CBSA officials.”  The CBA also told MPs that Canada should require the US Department of Homeland Security, and US Customs and Border Protection, to have a similar policy governing solicitor-client privilege that applies to agents engaged in preclearance examinations on Canadian territory. (See: Cristin Schmitz. CBA asks Ottawa for ‘robust’ protections for solicitor-client privilege at U.S. Border. The Lawyer’s Daily. September 28, 2017)

3. Conclusion

The leading case on border searches in Canada is still R v Simmons, [1988] 2 SCR 495 where Chief Justice Brian Dickson held, at para. 49, that there is a reduced expectation of privacy at border crossings. The heart of the Simmons ruling, however, is rooted in considerations of territorial privacy and bodily integrity, at paras. 49-50, where Chief Justice Dickson discussed the screening process that may involve searches of luggage and of the person including “frisk or pat searches, and the requirement to remove in private such articles of clothing as will permit investigation of suspicious bodily bulges”. The twenty-nine year old rule in Simmons is ill suited as a basis on which to determine the constitutionality of warrantless searches of electronic devices which engage both informational privacy and territorial privacy. The Charter protected interest here has become two dimensional in the digital era.

When a border officer demands the password for a smartphone, what is the officer looking for? Diamonds? Guns? Drugs? Of course not. The officer is looking for information on the device to support a generalized suspicion that the person has made a false declaration and is transporting prohibited goods. The suspicion, at the time of the demand, has not given way to credibly based probability. But when the password is given, the officer can rifle the device in a highly intrusive search of a vast trove of private information without particularized grounds and without post facto accountability. It’s a field trip often conducted in the secrecy of a CBSA office after the device is seized. The demand for a password where the person is suspected of transporting goods is no more reasonable than a demand for a key to the person’s house where the suspicion is that the goods may follow at a later time. Warrantless border searches of smartphones are unconstitutional because they lack transparency and accountability which are hallmarks of a constitutionally valid search.

In the case of protecting privileged electronic and other confidential data that is passed between lawyers and their clients, it is important to emphasize that solicitor-client privilege in Canada is both a rule of evidence and a principle of fundamental justice under s. 7 of the Charter. Digital documents stored on lawyers’ smartphones merit the same protection as the hard copy documents stored in the filing cabinets of their offices. Unregulated access by the state to digitally stored privileged and confidential information diminishes the public’s faith in the administration of justice and creates a potential for abuse. (See: Lavalle, Rackel & Heintz v Canada, [2002] 3 SCR 209 per Arbour J., at para. 44)