A pedestrian is seen as she uses her mobile handset in this arranged photo taken outside an O2 mobile phone store, operated by Telefonica SA, in Horsham, U.K., on Wednesday, March 25, 2015. Li Ka-shing's Hutchison Whampoa Ltd. agreed to acquire Telefonica's O2 unit, creating Britain's biggest wireless provider by customers and marking a milestone in the billionaire's efforts to remake the Hong Kong conglomerate. Photographer: Jason Alden/BloombergJason Alden/Bloomberg
Border inspections were never intended to be the definitive customer-service experience, but our collective – and mounting – security obsession has made an unpleasant process worse. Take the case of a Quebec man who will shortly return to a Nova Scotia courtroom to face charges for refusing to provide the security code for his smartphone to a customs officer, earlier this month.
The details of the case are contested, and will be resolved in court. And it's clear that there should be a reduced expectation of privacy at the border, given the broad latitude required to effectively interdict smuggling, or for reasons of security. But the international arrivals area of a Canadian airport is not a special rights-free zone.
In December, a majority on the Supreme Court ruled that a police officers don't always require a warrant to search a phone belonging to someone they've had probable cause to arrest. But conditions apply: The search must be incidental, there should be an element of urgency, detailed notes must be taken, and the search must serve an important law-enforcement objective (i.e., preserving evidence, mitigating threats). The justices recognized that searching phones "has the potential to be a very significant invasion of a person's informational privacy interests."
In the U.S., those interests were deemed important enough that the country's top court forbid warrantless searches of phones.
Poking around a device that contains photos, contacts and other intimate details of one's life is consideraly more invasive than searching a suitcase for drugs, undeclared goods or prohibited foods. Border personnel should have to clear some procedural hurdle before arresting someone for refusing to unlock their phone.
Sometimes there are good reasons to search phones. Canadian Border Services Agency officials can and often do have reasonable motives to believe something is amiss. But the law shouldn't allow them to go on fishing expeditions into Canadians' devices.