Setting the right precedent (while you still can)

The ubiquity of progressively handheld technology has yet to stop presenting new questions for us to answer. Whether it’s piracy and its effect on the media it deals with, and how that has changed the consumption of TV, movies and music; or the way that tech changed the nature of kid’s social settings, with cyber bullying now a recognized (and ideally, prevented) factor of younger social scenes. Given how quickly the technology advances in capability and the way it is used, on occasion it presents an entirely unanticipated predicament to consider.

On March 2, Alain Philippon, 38, resident of Ste-Anne-des-Plaines, Quebec did not submit his phone’s password to Canada Border Services Agency (CSBA) workers when they compelled him to do so. Subsequently, Philippon was charged with obstructing border officials, which he has chosen to fight. The claim is that his refusal to give digital access to his phone fell under section 153.1 (b) of the Customs Act for hindering or preventing border officers from performing their role under the act, which could result in a minimum fine of $1,000, with a maximum fine of $25,000 and the possibility of a year in jail. Despite this point, the case is anything but cut and dry. There is no strict point of reference for the CSBA to ask a citizen to provide unlocked access to their phones.

However, there is a legally adjacent case that offers insight into Philippon’s dilemma. The case “R. v. Boudreau-Fontaine” dealt with a man being compelled by police to give them his computer password so that they could access digital evidence. This was considered to be conscription into providing evidence against himself, and in the end, was deemed unlawful.

Compare this with the Customs Act, given that it was at the border and not within the country that Philippon was compelled to provide his password. As noted by Rob Currie, director of the Law and Technology Institute at the Schulich School of Law at Dalhousie University to the CBC, “Under the Customs Act, customs officers are allowed to inspect things that you have, that you’re bringing into the country. The term used in the act is ‘goods,’ but that certainly extends to your cellphone, to your tablet, to your computer, pretty much anything you have.”

The real point of contention comes down to whether inspection of the goods means simply inspecting the device itself as a physical good, or being given total access to its inner workings.

Above all else, what is interesting about the case is that there is, as of yet, no set precedent, so history will be made by the time it’s sorted out. Does it seem right that a Canadian citizen entering the country would be compelled to act against his own interests, especially in a situation where his rights are unclear? There’s a difference between unlocking your car’s trunk and unlocking your phone. There are countless types of sensitive data taken for granted on your phone, and in the wrong hands it could help to undercut your privacy. Digital privacy is only becoming more important, so it is equally imperative that while precedents are still being set, they are done so with the citizen and the user in mind.

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