Marni Soupcoff: Get the state out of my smartphone
Marni Soupcoff | March 9, 2015 | Last Updated: Mar 10 11:51 AM ET
More from Marni Soupcoff | @soupcoff
While I was shuffling along in an airport security line last week, I had my phone out and was reading about the case of a Quebec man who refused to give his Blackberry password to border agents in Halifax. The traveler, 38-year-old Alain Philippon, was coming home from a trip to the Dominican Republic at the time. He has since been charged with hindering a customs official. And if he is found guilty of the offence, he could spend a year in jail and be fined $25,000.
My sense of outrage over the story was starting to peak just as I reached my turn at the scanner. I quickly shoved my phone into my purse and dumped it into a bin, then clumsily attempted to remove my boots and extricate my laptop from its bag at the same time; I eventually landed my remaining belongings on the conveyor belt with only two losses of balance and pushed the whole lot down the line towards the X-ray machine.
I had passed through the body scanner and was still mentally chewing on Mr. Philippon’s predicament when my laptop apparently alarmed and one of the security agents asked if he could swab it.
I didn’t think twice before nodding and barely noticed when he gave it back. I was too busy zipping up my boots with one hand.
Montreal man crosses U.S. border showing just iPad scan of passport
Security screening and border control have different ends and are governed by different law, but my being completely unfazed by the spectre of all my things and even my body being scanned, swabbed and scrutinized is still a helpful contrast in the exercise of trying to understand why Mr. Philippon’s case is so troubling.
It’s one thing for authorities to open our bags and look for physical stuff, whether that stuff be illegal drugs, dangerous weapons, or undeclared Coach handbags on which taxes are due.
It’s quite another thing for authorities to demand entry into our thoughts and relationships.
Obviously smartphones do not equal our minds and consciousness, but in a lot of ways, they are the closest physical manifestations of those things in existence. They carry evidence of our friends, our habits, our doubts, our diets, our weaknesses, our triumphs and our curiosities. I’m (reluctantly) willing to concede to border agents the ability to rifle through my underwear to make sure I haven’t smuggled in an illegal substance, but I’m not willing to allow them the ability to check whether the last thing I Googled before approaching them was a strident libertarian manifesto or cute Tom Hiddleston photos. Or both.
It’s hard to imagine many places housing more such intimate details than a smartphone
Nor do I think Section 8 of the Canadian Charter of Rights and Freedoms is ready to grant border agents that ability either. Section 8 states: “Everyone has the right to be secure against unreasonable search or seizure.” When parsing what that means, courts have explained that Canadians have a reasonable expectation of privacy in information that tends to reveal intimate details of their lifestyles and personal choices.
When you consider the sort of records an individual’s BlackBerry might hold on his dating history and sexual preferences, his political leanings and voting choices, his family ties and feuds, it’s hard to imagine many places housing more such intimate details than a smartphone. There’s an extremely strong privacy interest in the email trails and search histories that lie therein.
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So while there’s no question a border agent has the legal authority to search a phone or computer in the sense of examining and probing its physical properties — the equivalent of the scanning and swabbing of my laptop that left me indifferent at the airport — it’s absurd to pretend that this authority naturally extends to the ideas and records contained on that phone or computer.
Given that the Supreme Court has already demonstrated — in the context of criminal investigations — that it understands and appreciates this distinction, Mr. Philippon has a strong Charter challenge to make when he appears in court in the spring. It will be a service to all Canadians if he chooses to make it.
Marni Soupcoff is executive director of the Canadian Constitutional Foundation (theccf.ca).