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    7 Mar 2015

    Man arrested for refusing to give phone passcode to border agents

    Alain Philippon arrived at Halifax Stanfield International Airport in Canada and was stopped by border agents.
    He had flown in from the Dominican Republic.
    As the Canadian Broadcasting Corporation reports, the agents wanted access to his cell phone. Philippon refused to give them the passcode and was arrested.
    A spokeswoman for the Canadian Border Services Agency confirmed me to that he has been "arrested under section 153.1 of the Customs Act for hindering."
    Was he hindering? Or was he, as he told CBC, merely protecting something he deemed personal?
    The border agency spokeswoman told me: "The Customs Act (s99) authorizes officers to examine all goods and conveyances including electronic devices, such as cell phones and laptops." She explained that the potential punishment for Philippon is a minimum fine of $1000 and a maximum fine of $25,000 and could include possible jail time.
    While refusing to reveal the precise precepts the agents used in this case to detain Philippon, the spokeswoman added: "Officers are trained to look for indicators of deception and use a risk management approach in determining which goods may warrant a closer look."
    One person's risk management is another person's you're risking my wrath.
    But when it comes to alleged national security, the concept of personal seems rarely to exist. Everything, many governments believe, should be and is being spied upon.
    CBC reports that the issue of giving your passcode to authorities has never been litigated in Canada. (Philippon's court hearing is scheduled for May 12) It's one thing to hand over your phone. But could handing over your passcode be deemed self-incrimination?
    In the US, the Fifth Amendment exists to protect you from incriminating yourself. As the Electronic Frontier Foundation says, courts have generally accepted that passcodes are "testimony."
    The EFF's senior staff attorney Hanni Fakhoury pointed me to the fact that at the US borders "the standards for search and seizure are relaxed." Agents need neither a warrant nor individualized suspicion to search your devices. 
    He did say, however, that the Ninth Court of Appeals had held that border agents must have a "reasonable suspicion" in order to insist on a "forensic examination." Fakhoury told me: "It's unclear what 'forensic examination' means."

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