In the future I will have to have a VERY good reason to go to Canada before subjecting myself to their bullshit.
Whether border officials can force you to provide password hasn't been tested in Canadian courts
A Quebec man charged with obstructing border officials by refusing to give up his smartphone password says he will fight the charge.
The case has raised a new legal question in Canada, a law professor says.
... refused to divulge his cellphone password to Canada Border Services Agency during a customs search Monday night at Halifax Stanfield International Airport.
According to their website, they have authority to inspect your “electronics (including laptops and cell phones)” but doesn’t mention the contents of those devices.
http://www.cbsa-asfc.gc.ca/travel-voyage/ifcrc-rpcrc-eng.html
The Canada Border Services Agency has a memo describing their role in fighting obscenity:
http://www.cbsa-asfc.gc.ca/publications/dm-md/d9/d9-1-1-eng.html
Putting those two previous sections together, they'll likely claim their demand to see his electronic data is legal as he could be travelling with obscene material. Otherwise, he may not be permitted to cross the border with the device. It won't matter that whatever is on the device could have been downloaded whilst in Canada to begin with, or could be downloaded there today - it's only the physical act of crossing the border with the data that is under consideration.
The second link above takes you to their definition of obscene, but it could include simply wearing a ball gag during sex, or a femdom humiliation where a lady laughs at the guy - and all of this could be images of the guy with the device!
My guess is they'll side with requiring he surrender the password or forfeit the device or leave the country with it. All the more reason to encrypt your files and upload to an encrypted online storage location, erasing the device and using a disposable password prior to travel. If he'd done that, he could have readily surrendered the password and they'd have nothing. While he could also keep encrypted files on the device, they'd just as readily demand the encryption key for those as well. Using a hidden volume that's encrypted is a potential workaround yet is fairly complex compared to networked storage.
When travelling for business we have blanked laptops specifically used for border crossings where encryption technology is illegal, such as China. Instead, upon arrival you have to download the data from a VPN within country. Even then that data can be intercepted by a determined agency, so it significantly hampers what resources you can deploy during business meetings.
n U.S. vs Kirschner (2010), a Federal court ruled that a password is in essence a 'mental process' which is protected by the 5th Amendment. Note in the article below (see link), it's important to *remember* your password:
"For instance, if you have a notebook at home where you write down who you dislike and why, the government only needs a subpoena in order to compel you to turn over the notebook. But if you keep your ramblings in your head and the government puts you on the stand, the government cannot compel you to disclose who you dislike and why. The Fifth Amendment prohibits the government from compelling you to reveal your thoughts."
Unfortunately, the decision in this case protected a child pornographer in Michigan. But legal protections are for everyone--we can't pick & choose who's protected & who's not. This legal precedent could also be used to defend a journalist with a password protected device that contains the identity of his source(s). --
"Massachusetts’ top court ruled, in a 5-2 decision on Wednesday, that a criminal suspect can be ordered to decrypt his seized computer.
The Massachusetts Supreme Judicial Court (MSJC) ruling only applies to the state. Various other courts at the state and federal level have disagreed as to whether being forced to type in a decryption password is a violation of the Fifth Amendment right to protect against self-incrimination and its state equivalents (such as Article Twelve of the Massachusetts Declaration of Rights). For example, more than two years ago, the 11th Circuit Court of Appeals ruled that a defendant was not obliged to decrypt his hard drive, as doing so would violate his Fifth Amendment rights. However, that ruling only took effect in the 11th Circuit, which covers parts of the southeastern United States. Just last year, a federal judge refused to force a Wisconsin child pornography suspect to decrypt his laptop. Overall, cases involving decryption are still relatively new and rare. The first known one only dates back to 2007."
A lot of these issues depend on whether they can prove that it's a forgone conclusion that you are the owner of the computer/harddrive and if they will be able to produce incriminating evidence from it.
Lots of good reading on this out there on the web.
I think SCOTUS will have to rule on this issue. We're getting conflicting decisions in different jurisdictions. This is a crucial Fifth Amendment issue that needs to be resolved. By forcing an individual to give up his password, it seems the govt is trying to police your thoughts--it's like a 'thought crime'. This is quite Orwellian and I doubt even a Conservative SCOTUS (which is typically Pro Law Enforcement) will go along with the Massachusetts ruling. We'll see. --z
"On the day of Gelfgatt’s arrest, after being informed of his right to remain silent, he told the authorities that he was able to decrypt his computers but would not do so."
This person pretty much admitted the incriminating evidence was on the computer but he wasn't going to decrypt it. I get the feeling reading the decision that if he'd kept his mouth shut, things may have turned out differently.
"Yes, I remember, but I am not going to tell you" which is most definitely protected by the fifth amendment.
I don't see anything in his words stating that the info on the computers was damning, only that he refused to grant access to the authorities. The "damning evidence" could be that he and his wife liked to dress up as chickens while having sex. Embarrassing perhaps, but certainly not illegal. I am not laying odds, but I certainly hope SCOTUS supports his fifth amendment rights.
"Because Gelfgatt already admitted to police that he owned and controlled the seized computers and had the ability to decrypt them, the court found that the act of decryption would not reveal anything new to the police. Therefore, the act of compelled decryption was not “testimonial.” Normally, the Fifth Amendment privilege prevents the government from forcing a witness to disclose incriminating information in his mind (like a password not written down anywhere else)—but only if that is information the police do not already know."
If he had simply STFU, he wouldn't have had a problem. I - like you - hope the SCOTUS lands on the right side of this.
This thread started with an issue at the border. People that travel internationally might review this link
I know that US travelers have been subjected to this & even deleting something is pretty meaningless if they decde to use a recovery program on your devise. People have been excluded for life on this basis. But then Canadians as Subjects, not Citizens.
Whether the person mounting the challenge is doing something illegal or not, the clarification could be important going forward. I know some laws were later overturned because someone brought a test case.
If I were to cross such borders, I would scrub my devises & use a high quality overwrite program. But does one kow how effective these programs really are? Any research I wanted to access would be stored online.
I read the linked article, but the Customs office won't reveal (1) why they singled out this guy or (2) why they demanded his cell password. What-the-fuck? What are they looking for on his cell. Let's say he had porn on there--is the govt really going to waste time & money policing that? If I'm waiting in line because they're doing this bullshit, then I'm furious. They're worried about the wrong things.
But let's say he's a possible match on a terrorist profile. They pull him out of the line & swipe his hands for bomb-making residue. Ok, fine. TSA has done that to me, no problem. It's a security measure. But taking his cell & asking for a password? Like he's really going to have al-Qaeda's 1-800 number on there. Or maybe they think he's a drug mule. Wouldn't he buy a burner cell & dump it before he gets to the airport. It's really ridiculous. --
and NOTHING would surprise me coming from their Customs Office. They are fucking nuts up there. I have cleared customs in Bogota Colombia dead ass drunk and never encountered a tenth of the problems I have had trying to get into and out of Canada.
I don't blame the guy for making a federal case over this, and I wish him well, but I am not holding my breath over anything changing up there.
but the only problem was coming back into the US.
Held the missus and me up (We were driving.) at the border for about 3 hours and totally went through every nook and cranny of the car and luggage.
Got me pretty damn paranoid.
I'm not sure I'll ever do it again.
In the future I will have to have a VERY good reason to go to Canada before subjecting myself to their bullshit.
I was put against a wall & throughly frisked at London / Heathrow and I had no problem with it... the only way I was going to make my connecting flight. I was just making like a tourist & didn't even have a dumb phone on me.
I have to agree, terrorists are more of a threat than some guy who wants to be a hobby tourist!