Here’s What To Do If A Border Guard Wants To Search Your Phone

[brihard]

Hmmm.... searches conducted by CBSA will be examined on the basis on the underlying authority that gives them the power to search. They will not be held to a law enforcement standard under the Criminal Code, they will be held to a Customs Act standard for the purposes of conducting the search itself.  The Federal Court (the Chief Justice) has made this clear in in decisions involving other agencies with search powers that are not derived from the Criminal Code, X (Re), 2017 FC 1047 (CanLII) being a recent example of a search authorized by a law other than the Criminal Code.

This is what I believe to be the case too. Fearon is interesting and has some persuasive value, but is of limited value because it deals with police conduct in criminal investigations. The powers afforded to BSOs for customs purposes are quite different and more extensive, and are court-tested. However this eventually shakes out, I'm confident that BSOs will not be restricted to the criteria set out in Fearon for examination of the contents of digital devices. They aren't seeking evidence for a suspected or alleged offense; they are screening entry into the country.

 

[Colin Parkinson]

So if CBSA find evidence on your that suggests you committed a crime in Canada before leaving and returning, is that evidence admissible? I ask because the search is done under the Customs Act, but the alleged offense would be done in Canada, prior to leaving and would not in anyway trigger the Customs Act. 

 

[brihard]

So if CBSA find evidence on your that suggests you committed a crime in Canada before leaving and returning, is that evidence admissible? I ask because the search is done under the Customs Act, but the alleged offense would be done in Canada, prior to leaving and would not in anyway trigger the Customs Act.

Yes, though as soon as you incidentally find evidence of a criminal offense (say for instance child porn), you should be stopping the search and getting a warrant. No different from if I were inventorying a vehicle being towed for a suspended driver, and I found a bag of drugs or a gun.

 

[Cloud Cover]

Their procedure is to stop the search, preserve evidence, contact RCMP who will take over investigation if the matter is criminal or strays into threat to national security threat.
For some other agencies, what is in the phone or laptop/tablet may already be a known quantity anyway.

 

[Inspir]

I wonder how that works with two factor authentication. I can't even log into my work laptop or cellphone unless I have a physical security key on my person.

 

[Cloud Cover]

The only non-trivial security is quantum safe encryption. That doesn’t mean quantum computers need to be employed to defeat it.  The biggest security loophole is end users themselves, no matter how security conscious they may be. In many cases a user of a service is forced to commit unwittingly to something that executes black code or is otherwise revealing. Two factor authentication is a 1980’s technique that is exactly what it means: it is authentication>>  not confidentiality, integrity and non-repudiation. 

Edit: https://cryptologic.ca/articles

The author makes the case....

 

[Haggis]

https://www.cbsa-asfc.gc.ca/alert-avis/piu-uip-eng.html

It's almost like driving past a car accident....

And for the BSO is the Postal Mode, for example, who have to view and make a determination on this stuff, it's like parking next to that accident and watching the body parts being slowly and messily pulled out of the wreckage.  It wears on you.

 

[Infanteer]

And for the BSO is the Postal Mode, for example, who have to view and make a determination on this stuff, it's like parking next to that accident and watching the body parts being slowly and messily pulled out of the wreckage.  It wears on you.

I say next to a BSO on a flight once, and her job was to screen that stuff.  She said nothing in the world shocked her anymore.

 

[Xylric]

An interesting thought experiment comes to mind.

Suppose I were a well-known Canadian criminologist and academic, invited to give a presentation in the United States about some new method of disguising child porn, and in the process of travelling across the border, Customs Officials find the subject matter of my presentation (with actual examples - which I suspect would not happen in reality), and as a result detain me for it. What would be the process of resolving the situation? I imagine the law enforcement agency that invited me into the US would be one of the first contacted.

 

[JesseWZ]

Academics are not allowed to possess child porn - even for "educational purposes".

Even as police officers, we have to be very stringent with how we find, catalogue and handle found collections of child pornography. There is a lot of layers of security and oversight with that material when its recovered.

 

[PuckChaser]

I have no idea why someone would need actual child pornography to teach a seminar on the ways people try to hide it. You could demonstrate the processes with cat videos and it would accomplish the same thing.

 

[JesseWZ]

The only time I've seen child pornography in an "academic environment" is on Integrated Child Exploitation (ICE) courses or similar. Each time, it was closely secured and provided by a police officer who worked in an ICE unit.

Typically they would form part of the instruction on cataloguing and classifying the material. It's an unpleasant process, but each image has to be evaluated to determine whether it is or isn't child porn. There are other investigative techniques conducted as well, but I won't be explaining them on an open forum.

 

[Xylric]

As I said, there's absolutely no reason to think anything like the thought experiment would happen in reality. What worries me is the possibility that it *could* because someone was careless - or worse yet, unaware. An IT nightmare scenario my network administrator and I have been trying to develop a defense against involves hackers planting such material on hard-drives at point of manufacture and wiping it so that only mere traces remain. I won't touch Bitcoin or any other cryptocurrency because of the way they work - the block-chain is more than likely replete with things best not touched by human hands.

I brought it up because the instructor of the forensics course I took in college (Jan 2010 semester) was simultaneously an academic and an RCMP officer (who had spent a significant portion of time in some of the more major sex crimes Canada had to deal with, as he worked the Bernardo case). He mentioned that due to the extreme nature of the material that those working the case had to examine, a few of the people involved later went on to help train US police units to enhance their ability to deal with similar cases.

It was a poor attempt at a "worst case" example and thought experiment that stuck my mind as I came across one of the papers I wrote on child pornography and cyber security for that course. I do apologize for not articulating the question and scenario better. Basically what I wanted to know was what's likely to happen if one is *mistakenly* thought to be carrying such material. I don't know why I used the parentheses.

 

[JesseWZ]

As I said, there's absolutely no reason to think anything like the thought experiment would happen in reality. What worries me is the possibility that it *could* because someone was careless - or worse yet, unaware. An IT nightmare scenario my network administrator and I have been trying to develop a defense against involves hackers planting such material on hard-drives at point of manufacture and wiping it so that only mere traces remain. I won't touch Bitcoin or any other cryptocurrency because of the way they work - the block-chain is more than likely replete with things best not touched by human hands.

I brought it up because the instructor of the forensics course I took in college (Jan 2010 semester) was simultaneously an academic and an RCMP officer (who had spent a significant portion of time in some of the more major sex crimes Canada had to deal with, as he worked the Bernardo case). He mentioned that due to the extreme nature of the material that those working the case had to examine, a few of the people involved later went on to help train US police units to enhance their ability to deal with similar cases.

It was a poor attempt at a "worst case" example and thought experiment that stuck my mind as I came across one of the papers I wrote on child pornography and cyber security for that course. I do apologize for not articulating the question and scenario better. Basically what I wanted to know was what's likely to happen if one is *mistakenly* thought to be carrying such material. I don't know why I used the parentheses.

Okay, I'll take the thought experiment at it's face. While I'm not CBSA, I've worked a few files with them, so I'll have a crack at it.

First - anytime I've ever handled CP administratively (ie to bring to the Crown or Court), it was on a stand-alone non re-writable finalized disc or drive (depending on the size of the collection) clearly labeled as containing child pornography. Attached to said disc is a chain of custody which lists everyone who had it in their possession and why.

There shouldn't be a need for anyone engaging in academic exercise to have the material on their phone or computer for so many reasons. Now, let's say our academic exercised extremely poor judgement and had the material on a digital device like a laptop or phone. If they say nothing about it, and it is found - you can bet that won't be solved at the local border level. An investigation will start, the devices will be seized, the "professor" will likely be arrested and off will his devices go for forensic analysis (with the appropriate warrant once obtained).

If the professor was up front, had clearly labeled what he had, he still may not be allowed into the country and may be arrested. The law is pretty clear that ordinary folks (even academics) are not to possess, access, distribute or create child pornography. When you throw a border into the mix, you can run into import/export offences as well. What the American law is - I don't know, but you can bet it will be a legal mess. As an investigator, I certainly wouldn't be satisfied with a phone call to the constabulary this guy was supposed to lecture at.

Thought experiments of this type are hard to muddle through due to the enormous amount of detail needed in order to properly contextualize what is going on. You would be better served by accessing a case law resource (such as canlii.org) and just start reading decisions.

 

[Xylric]

Much as I thought - when I posed the thought experiment to the instructor of that course last night, his simple response was: Anyone who did that deserves what will happen.

 

[Pieman]

If one doesn't want to have their info looked at when crossing then most phones/devices will backup onto the cloud. The user restores the device to factory settings and wipes everything from phone/device. You simply update your phone with your cloud data when done. This is one method high tech companies use to keep their sensitive tech data secure. For social media you can simply turn off the visibility to facebook/instagram etc. in the security settings if you don't want people digging around in there.

 

[Haggis]

So if CBSA find evidence on your that suggests you committed a crime in Canada before leaving and returning, is that evidence admissible? I ask because the search is done under the Customs Act, but the alleged offense would be done in Canada, prior to leaving and would not in anyway trigger the Customs Act.

Border Service Officers are peace officers and have the power to arrest for Criminal Code offences.  For example, if you drive up to a land border while impaired expect to be arrested. If you arrive by any mode (air, marine, rail or highway) while the subject of an active criminal warrant in Canada, expect to be arrested. For more detail, Brihards reply to your post lays out what the process will be once your cell phone with incriminating photos of your barn-sized unlicensed grow op in Medicine Hat is searched and seized by the CBSA.

 

[Cloud Cover]

CBSA searching phones; More at link:
No surprises here except the casual reference to the search of the phone. It was a just a minor  oopsie that the IRB judge characterized him as follows:

"At the detention hearing, the CBSA strongly recommended Farah be detained a few more days until it received his full criminal record from the U.S. But Immigration and Refugee Board (IRB) member Trent Cook clearly placed more weight on Farah's admission about his background than on the agency's suspicion about the degree of his criminality.

"One of the biggest factors that play in your particular situation is your character," Cook said.

"In my estimation, you are probably one of the most honest detainees that I have ever come across," he said, noting Farah had acted "contrary" to his own interests by offering up his criminal history and gang ties.

"What this indicates to me is that you are, based on your character and behaviour, very likely to pursue all of your immigration matters in Canada with the same diligence and honesty as you have demonstrated in your interview."  :waiting:

..................


https://www.cbc.ca/news/canada/edmonton/gangster-refugee-canada-immigration-screening-1.4943292
Botched handling of gangster refugee claimant exposes Canada's screening weaknesses
...
Evidence of criminal activity on cellphone

During a two-month investigation of Farah's case, CBC reviewed hundreds of pages of police, court, parole, and immigration records, and conducted interviews with U.S. police and immigration officials. The investigation revealed that:

Just six days after Farah was first released, he breached his conditions and was subsequently rearrested.
That same day, Nov. 8, 2017, the CBSA gained access to Farah's cellphone. It contained recent photos and videos of Farah playing with a loaded handgun, doing cocaine, concealing cocaine and flashing wads of cash. There were also front-and-back photos of a credit card that wasn't his.

Farah was on parole when the photos were taken, and was prohibited from possessing a firearm.

The phone also contained Tinder chats, photos of Farah having sex with women, and photos of women in various stages of nudity.

There was no evidence of homosexual activity. Farah's asylum claim was based on his contention that as a gay Muslim, he would be killed if he was deported to Somalia.

The IRB again released Farah on March 14, 2018. The hearing transcript doesn't mention the damning phone report.

The CBSA declined an interview request, so it is not known why the phone report was not immediately entered into the IRB hearing process. In an emailed statement, the CBSA said only that all relevant documentation and evidence had been entered into Farah's admissibility hearing.

American court, police, and FBI records show Farah's criminal record, and his gang membership, was far more extensive and serious than he had disclosed.

Farah had wilfully refused to abide by release conditions for years. CBC found at least 30 instances in which Farah breached immigration release and parole conditions in the U.S. He failed to abide by his release conditions in Canada several more times.

Farah was to have been a key witness against his own gang in a major sex-trafficking case in Nashville, Tenn., that involved girls as young as 12. But he reneged and was imprisoned for contempt of court and obstruction of justice.

Farah told CBSA and IRB officials he refused to testify because he had been assaulted and his family had been threatened. The judge in his contempt case found no evidence to support those claims and court records show Farah lied repeatedly.

 

[Haggis]

Just because evidence is entered at an IRB hearing doesn't mean that it has to be considered.

 

[Colin Parkinson]

A California court has just ruled that biometric devices are the equivalent of passwords and you cannot bee coerced into using them by a law enforcement agency.