US Border: passport and passwords, please!

US customs officials may soon require travelers to access their social networking accounts.

While Canada emphasizes the moderate nature of its approach, the United States is considering expanding the authority of customs officers to allow them to explore in detail the online activities of foreign travelers.

Homeland Security Secretary John Kelly said last week that it was possible that some of them would be asked in the near future to disclose passwords to access their accounts on Social networks like Facebook, Twitter or Instagram.

The US government has already begun in December to collect information on the use of social networks by introducing a question in a form used by nationals of some forty countries to claim an electronic visa waiver.


The request is officially “optional,” but it worries human rights organizations, who are also leaping at the idea that individuals may be asked to disclose their passwords for social networks.

“The idea that a government agency has the power to claim them seems absurdly dangerous,” says Emma Llanso, who deals with freedom of expression issues at the US-based Center for Democracy and Technology (CDT).


The controversy arises as conflicting cases between travelers and customs officers multiply at the US border, following the adoption of a controversial decree of President Donald Trump on immigration.

M me Llanso noted that customs officers have repeatedly demanded access codes of mobile phones to be able to explore their content. Social networking demands have also been raised, she said.

In principle, access to the contents of a telephone is closely marked in the United States, and a warrant is required for the police to access it.

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The customs officers, Ms Llanso notes, have , however, “great latitude in the conduct of excavations”.

“The question is to see how far they can go in their exploration,” says Emma Llanso.

The analyst emphasizes the existence of a legal gray area applying to both phones and social networks.

In the past few weeks, two Quebec nationals, including an athlete from the Université de Sherbrooke, have indicated that they were turned back at the US border after being ordered to give their phone access code.

Rob Currie, who heads the Law and Technology Institute at Dalhousie University in Nova Scotia, notes that Canadians who come to the border are in a position of great vulnerability to customs officials.

Normally, people prefer to give in when an access code is requested rather than protesting, because they fear the situation will get worse, their device will be seized and they will be denied entry in the USA.

The same reflex explains, Mr. Currie notes, that there is no clear case law in Canada as to the ability of Customs officers to require a telephone access code.


According to Scott Bardsley, spokesperson for Public Safety Minister Ralph Goodale, Canadian customs officials can not explore electronic passenger devices and require codes to do so unless there are “multiple indications” that an offense Thus be confirmed.

A directive in force since the summer of 2015 specifies that the study of the contents of the aircraft must be carried out “with as much respect as possible for the privacy of the traveler”.

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Customs officials are advised that they must cut off all connectivity to the Internet in such a way that they can not access data stored outside the device and can not request passwords to access online accounts. Which includes social networks, says Bardsley.

Micheal Vonn of the British Columbia Civil Rights Association believes it is possible for a traveler to refuse to hand in his phone access code “since it is his right not to incriminate himself “.

Giving such a code is by no means the equivalent of opening a suitcase, since access to the “digital universe” of an individual makes it possible to obtain “much more elaborate” information about him, She said.

The same logic, says M me Vonn, should apply to passwords for social networks.

Emma Llasso of the Center for Democracy and Technology believes that the best way for travelers to protect themselves from abusive customs inquiries is to leave their devices at home or make sure they do not Sensitive information.

“The risk of an individual being blocked at the border and being asked for information that he should not have to provide is higher than ever,” she said.


A precedent that runs short

In 2015, a resident of Sainte-Anne-des-Plaines, Alain Philippon, was apprehended at Halifax airport and accused of obstruction after refusing to reveal the code of access of his telephone to the customs officers. Lawyers hoped that the case would finally allow Canadian courts to clarify whether a traveler could legally refuse to provide such information, but it turned short after the accused pleaded guilty last summer. A temporary directive adopted in the summer of 2015 by the Canada Border Services Agency (CBSA) in the wake of his arrest indicated that customs officers should not arrest an individual “solely” because he refused to provide such a code “Until new instructions are issued”. The Ministry of Public Security said yesterday that the directive is still in force.

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