Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Another CBSA Border Laptop Search Finds More Child Porn

The May 2, 2009 National Post newspaper reports that the Canada Border Services Agency (CBSA) stopped a man (Pichon) crossing the border at Coutts, Alberta this week and searched his laptop. They found a "significant" amount of child pornography on his laptop in the form of pictures and video.

He is just starting through the Canadian legal system and appeared in a Lethbridge, Alberta court. This is one to watch.

While we do not have much sympathy for persons who are caught with child pornography, the problem with laptop searches case law is that the bad cases make bad law. We seem to be willing to look the other way when the privacy rights of people who exploit innocent children are involved.

But, such people are not identifiable in a crowd. The CBSA searches a lot of laptops of good people. The border officials search the laptops of persons with privacy and property rights.

As I have recently said at the American Bar Association, Section of International Law Spring Meeting in Washington, the CBSA does not have a written and transparent policy concerning laptop searches. There is no stated process for travellers to protect their privacy and property rights. There is no process for persons such as lawyers who must have a duty of confidentiality and loyalty to their clients.

There are legitimate questions as to whether a laptop or other forms of technology are similar to containers, such as a suitcase or a crate. However, a computer/PDA/BlackBerry can receive emails after the time a person is send to the secondary screening and while the device is in the possession of the CBSA. These emails and documents attached would not be search able if they were in the old-fashioned paper form as they would not have been in the possession of the person crossing the border.  In additon, it is possible to load spyware on a laptop to continue to monitor activity after the laptop is released - cannot do that with a suitcase.

There are legitimate questions concerning property rights (however, Canada does not establish a right to property in the Charter of Rights and Freedoms). There is a question as to whether the documents provided by others to a person by email transfers property rights to the recipient of the email (hence, there is an issue whether the privacy rights of other are infringed when a person's laptop is searched).

There is a balance that needs to be debated and policies established. The policies need to balance the interests o the good people against the bad people.

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