I just finished giving a talk to a selection of the members of the International Association of Prosecutors. The members attended from all over the world, by way of a nifty online conferencing platform. The topic was the search of cell phones (and other electronic devices) at the border, a topic on which I have blogged here before.
I recently produced a paper on this topic, which was published in the Canadian Journal of Law & Technology. The article is not yet up on the journal’s open-source website, but a copy can be found on my SSRN page, here. Below is the abstract for the article. It is focused on Canadian law and procedure, though some references to US law can be found in it as well.
Electronic Devices at the Border: The Next Frontier of Canadian Search & Seizure Law?
(2016) 14(2) Canadian Journal of Law & Technology 289
Abstract: Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying s.8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada’s borders, however, do not reflect this case law. This is a situation made all the more complex by the more generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case as a leaping-off point, this paper explores how s.8 should be applied to searches of electronic devices in the possession of people entering Canada, concluding that an appropriate analysis would impose more robust privacy protection than has been seen to date. It also examines the issue of whether individuals can be compelled to unlock devices or surrender passwords during border searches.