arbitrary electronic search & seizure + canadian border = ok

Following the judgement and policy confirming that US customs can conduct searches without suspicion, some of my colleagues in the trade group at McCarthy have published an e-Alert that describes Canadian authorities’ approach to searches of electronic devices at the Canadian border:

CBSA has yet to publish a report detailing its policy on border searches of electronic devices. That said, the CBSA has stated that its examination authority under the Customs Act extends to electronic storage devices. Other sources of information also suggest that they, like their American counterparts, do not accord electronic devices special status at the border. For example, the Canadian Customs Act broadly defines “goods” to include “any document in any form”, suggesting no special treatment for electronic documents. Canadian case law also supports this interpretation. In a 2008 Ontario Court of Justice decision, the Court stated that it saw no intrinsic difference between a computer search and a detailed examination of the contents of one’s suitcase.

2. Searches Without Suspicion

Given their characterization as ordinary goods, it follows that a border official can search travelers’ electronic goods even in the absence of suspicion regarding the traveler or the electronic device.

The article also provides some background on the situation with the US, confidentiality regarding information obtained from such searches, ability to detain electronic devices for further inspections, privileged information, and some thoughts on how to protect your information.

If you cross the border frequently with sensitive business information, it is well worth a read, as is my previous post on the US policy.

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