Canadians have little recourse in the event U.S. border agents seize electronic devices for searches when seeking to enter the country, immigration lawyers say.
That doesn’t mean there’s nothing you can do to prepare, though.
The federal government said in an updated travel advisory Friday that Canadians should “expect scrutiny” when crossing ports of entry and to expect questioning and potential search of their electronic devices.
The updated advisory warns Canadians denied entry to the U.S. may face detention while they wait to be deported.
Lawyers say the update reflects the more strict approach U.S. authorities are taking to immigration law under the Trump administration, rather than any changes to the law itself.
Most importantly, they say Canadians should expect longer wait times, questioning and a higher chance of denial of entry — but that there are ways to protect yourself.
“The government is definitely looking closer,” said Rosanna Berardi, managing partner of Berardi Immigration Law in Buffalo, N.Y.
“The government can search, seize, look at anything that they want. So we’ve been advising our clients for 20 years, make sure your story matches your stuff.”
The office of Canada’s privacy commissioner says U.S. border officials “have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone.”
Such searches do not require evidence of wrongdoing, it warns.
“You don’t have any rights at a U.S. border crossing or pre-flight inspection, which is an extension of that,” Berardi said.
U.S. Customs and Border Protection says its authority to conduct searches of anyone “regardless of citizenship” entering or leaving the U.S. — enshrined by U.S. Supreme Court precedent — “extends to electronic devices crossing our nation’s borders.”
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“This is not a new power that the Americans have,” said Warren Creates, who heads the Immigration Law Group at Perley-Robertson, Hill & McDougall in Ottawa.
Travellers are “obligated to present their electronic devices” and the information stored on it “in a condition that allows for the examination of the device and its contents,” the agency says.
That includes providing passwords necessary to view that content.
If someone attempting to cross the border refuses to hand over or unlock their phone, that could play a factor into whether they’re allowed to enter the U.S., a decision that is up to border agents’ discretion.
Travellers can be denied entry or even detained pending deportation.
Border agents are only permitted by law to view content stored directly on a device during a search, and cannot use the device to access data stored remotely or in “the cloud” per a 2018 order.
CBP officials will ask travellers to turn off connectivity to Wi-Fi and Bluetooth or turn their device onto airplane mode, or do so themselves, the agency says.
However, Creates said border officials can also search people’s email, text and WhatsApp messages, and other content that’s accessible on a device. They may also look at a traveller’s online presence, including social media and platforms like LinkedIn, he said.
“What they might say on social media might not be to the liking of the officer conducting the examination” and play a factor in a person’s admissibility into the U.S., Creates said.
Berardi and Creates said said in the last two months, immigration lawyers like themselves have seen an uptick in calls from clients asking for reassurance and advice on how to avoid being barred from the U.S. or detained.
“It’s a tsunami of inquiries that we’re trying to struggle to keep up with,” Creates said.
Berardi said her advice to clients is that “it’s really business as usual, except it’s taking a bit longer and they’re (U.S. border agents) asking a bit more questions.”
“So we’re telling people, if you normally go (to the airport) an hour before the flight, go an hour and a half. … And make sure you know where you’re going. Don’t say, ‘I’m going to Atlanta.’ Say, ‘I’m going to Atlanta for a business meeting that is at the Hilton Hotel on Peachtree Street.’ You want to make it easier for the border officers to facilitate your entry to the U.S.”
Creates said Canadians should be “very clear about the purpose of your trip” and ensure they have all necessary documents to prove their citizenship, residence and details of their travel to the U.S.
That transparency also applies to phones and other electronic devices, Berardi said: “Don’t say you’re going to Vegas for the weekend but have your cellphone that has business meetings in New York City (in the calendar).”
The Canadian privacy commissioner says Canadians should consider removing photos and other evidence of cannabis use or receipts of cannabis purchases from their devices, to reflect the drug’s illegality on the federal level in the U.S.
The American Civil Liberties Union recommends foreign nationals store and upload any sensitive materials remotely — either an external hard drive or an online “cloud” — before arriving at the U.S. border.
Travellers should even consider using a “travel-only” phone or laptop that doesn’t contain any private or sensitive data during their trip, the ACLU says.
Canadian rights groups like the British Columbia Civil Liberties Association have shared similar guidance.
If a device is seized for a forensic examination, travellers can request a receipt that includes information about how to get that device back.
Ultimately, lawyers say if travellers have nothing to hide and are patient while encountering officials at the border, they shouldn’t face any issues beyond a potentially longer wait time.
“I always advise clients to be cooperative, to be friendly, be balanced,” Creates said. “None of us are perfect. So if there’s an issue, anticipate it, deal with it if it comes up in questioning, including a possible criminal record deep into your past.”
Berardi said a border inspection should be “like a job interview: if you show up and you’re prepared and you’re professional and you’re early … you’re going to make it so much easier for them to do their job and move on to the next traveller.”
—with files from Global’s Touria Izri
