Crossing the Line Should Border Guards Really Have the Right to Search Our Laptops, by Philip Slayton, Maclean's, November 5, 2009

Crossing the Line
Should Border Guards Really Have the Right to Search Our Laptops?

By Philip Slayton
Maclean's
November 5, 2009

http://www2.macleans.ca/2009/11/05/crossing-the-line/

Every day, thousands of Canadians who have been outside the country return, crossing the border back into Canada. Many carry laptop computers. Just about anything might be stored on them—emails, financial information, tax returns, health records, trade secrets, a history of Web searches, pornography. A look inside by a border official—and publicity about what is found—could ruin careers, marriages, lives.

But the contents of our personal laptops aren't safe at the border. Agents of the Canada Border Services Agency have almost untrammelled authority to search your computer. They have more power than ordinary police officers. They don't need a search warrant. They don't need reasonable belief that you are committing a crime. A vague suspicion that you may be up to no good is enough, and maybe even that is not required. Constitutional protection against unreasonable search and seizure (found in Section 8 of the Charter of Rights and Freedoms) won't help you. You're pretty much defenceless.

This state of affairs was recently brought home in a dramatic way. According to a police search warrant, on Sept. 15, Raymond Lahey, the Catholic bishop of Antigonish, arrived at Ottawa airport on a flight from Britain, travelling alone. He went to a Canada Border Service counter for the usual screening. The agent, Venessa Fairey, looked at his passport. He'd been in Indonesia, Malaysia, and Thailand, known sources of child pornography. Fairey asked Lahey if he had a laptop. Lahey hesitated for a moment, avoiding eye contact. Then he said yes, his voice cracking. Fairey flagged him for secondary inspection.

Lahey was met by Border Services agent Caroline Barnett. Barnett searched his laptop. She found three images that she thought could be considered child pornography. She called Ottawa police. Two detectives arrived, questioned Lahey, and reviewed the images. They seized his computer, then let him go. After a review of the hard drive, the police decided Lahey had imported child pornography. Only then, on Sept. 23, did they apply for a search warrant "to further search the computer and hard drive." It is alleged more child pornography was found, and Lahey was charged under the Criminal Code.

In Lahey's case there were grounds for suspicion, however tenuous—a male travelling alone, evasive manner (so it was said). None of this applied in the case of William Leask, a long-distance truck driver. In September 2006, Leask crossed into Canada at Buffalo, N.Y. His load of glass jars was targeted for a routine secondary inspection. The agent stumbled across child pornography on Leask's laptop. Leask was arrested.

At his trial, Leask's lawyer argued a person has the very highest expectations of privacy when it comes to his computer. He argued that a search of a computer's contents is illegal unless based on reasonable suspicion, and that Leask's Charter right not to be subjected to unreasonable search and seizure had been violated. But the judge disagreed. He said, "the suggestion that searching a computer being imported into the country would cause fear and apprehension in a reasonable person is, to my mind, incredible and untenable?.?.?.?I see no intrinsic difference between the effects of the computer search at issue here and the intrusiveness or the embarrassment attendant upon a search of a wallet or purse."

Both cases involved child pornography, deeply abhorrent to most of us. But the same law applies to everyone who crosses the border. In another recent Ontario case, R. v. Petr Bares, the judge said, "in the circumstances of a border search?.?.?.?there is a significantly reduced expectation of privacy in the content of a computer disc." Earlier cases dealing with drug smuggling, including cases in the Supreme Court, have held that border searches, because of the demands of national self-protection, do not have to meet usual reasonableness tests for search and seizure, although they do require reasonable suspicion.

Those who have something significant to conceal often have the benefit of savvy advice. A blue-chip law firm advises executives with sensitive corporate information to travel with a "clean laptop," to "connect remotely to the company's server in order to access any required electronic documents," and not save new documents to local drives on the clean laptops. A gay-and-lesbian website says "most tech-savvy gay men will at least encrypt their porn" (border agents are able in most case to decrypt). But most ordinary Canadians don't have the benefit of such advice. We don't realize how vulnerable we are in a legal system that permits random searches.

Just about everybody supports vigorous "national self-protection" against child pornography and other evils. But how far should we go? Is it okay, at the border, to abandon full constitutional protection against unreasonable search and seizure? I don't think so. Freedom has its costs.