In the past few weeks there have been stories out of the US about travellers forced to unlock their phones and give up passwords for their social media accounts and digital devices. This is a troubling trend, and many people both inside and outside of the legal community have been surprised that this is legal.
Actually, in both Canada and the US, the right of border authorities to compel travellers to unlock their smartphones and other devices has been strongly asserted by the government, despite the enormous privacy invasion that such searches can cause, and the lack of any meaningful limitations on border guards when they decide to do so. Customs officials can even decide to conduct these searches without any evidence of wrongdoing. Just last week, a NASA employee with security clearances was nevertheless detained at the border until he agreed to unlock his phone.
Travellers are justifiably concerned about the government’s ability to trawl through their digital lives with almost no limitations. Governments have reasonable concerns about protecting securing their borders from illicit and illegal activity.
In light of this modern problem, it is timely that Professor Steven Penney of the University of Alberta has just published a new scholarly article on border searches of digital devices. His paper highlights a perhaps forgotten evidentiary rule from the 19th Century which might provide a useful analogue for modern searches of digital devices. He lays out a middle path forward that would broadly protect the privacy of individuals and their data when they cross the border, while also allowing governments to properly police their borders.
It’s a great read, and well worth your time. It can be accessed for free at the below link.