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Quebecker Faces Jail For Not Giving Up Phone Password To Canadian Officials 340

wired_parrot writes Canadian customs officials have charged a 38-year old man with obstruction of justice after he refused to give up his Blackberry phone password [on arrival in Canada by plane from the Dominican Republic]. As this is a question that has not yet been litigated in Canadian courts, it may establish a legal precedent for future cases. From the article: [Law professor Rob] Currie says the issue of whether a traveller must reveal a password to an electronic device at the border hasn't been tested by a court. "This is a question that has not been litigated in Canada, whether they can actually demand you to hand over your password to allow them to unlock the device," he said. "One thing for them to inspect it, another thing for them to compel you to help them."
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Quebecker Faces Jail For Not Giving Up Phone Password To Canadian Officials

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  • What? (Score:5, Funny)

    by Anonymous Coward on Thursday March 05, 2015 @11:58AM (#49189101)

    None of this can be true, I was told no one had blackberries anymore. It's all lies lies I tell you

  • by Anonymous Coward on Thursday March 05, 2015 @11:59AM (#49189105)

    The Canadian government should just reach out the NSA. I'm sure they could provide the password. No warrant necessary.

  • What is the point? (Score:5, Insightful)

    by hawguy ( 1600213 ) on Thursday March 05, 2015 @11:59AM (#49189109)

    Terabytes (Petabytes?) of encrypted data enters the country every day from across the world via the internet, yet Border Services thinks they need to inspect the data on everyone's phones?

    I sincerely hope he wins the case.

    • by CohibaVancouver ( 864662 ) on Thursday March 05, 2015 @12:50PM (#49189593)

      yet Border Services thinks they need to inspect the data on everyone's phones?

      No, not everyone's phones, just phones of people they suspect of something.

      It's the same deal with inspecting the contents of suitcases. They don't inspect everyone's suitcases, just some of them.

      • The difference is, that if they want to inspect your luggage, and you don't give them the combination, they can very easily break the lock. This is not so easy with good cryptography. With certain levels of cryptography, they could try to brute force the password until the heat-death of the universe, and still not even come close to breaking it. Should people be forced to give up information that could be used to obtain evidence against them, or should people truly have the right to remain silent? I don't
      • by Ami Ganguli ( 921 ) on Thursday March 05, 2015 @02:18PM (#49190367) Homepage

        The violation of privacy requires some reasonable counterbalancing objective. Inspecting physical goods has the reasonable objective of preventing smuggling. And it's reasonable that if you have something you really want to keep private (say you're a transvestite and don't want to come out), you'll leave the embarrassing material at home.

        A phone or other electronic device, on the other hand, can contain all manner of private information. It's a much deeper invasion of privacy than just searching somebody's luggage. Deleting all that information just to be able to travel would constitute a considerable burden for most people.

        The counterbalancing objective (I guess preventing the smuggling of child porn or something like that?) is much weaker. There are so many other ways of smuggling data that these inspections aren't likely to lead to any positive results.

        So you have a much greater invasion of privacy vs. and a much weaker reasonable objective for needing to perform the search. I don't think the crown will win this, or at least I hope they won't.

  • The practice of Israeli border-guards of demanding access to e-mail of some people wishing to cross into the country is rather disliked by /. [slashdot.org] and others [mondoweiss.net].

    But the worst, that a non-cooperation would result in there would be an interrogation and a flight back to whence you came from. To actually be arrested and prosecuted for a crime over such a refusal is new... Should we begin divesting from Canada's corporations?

    • by MatthewCCNA ( 1405885 ) on Thursday March 05, 2015 @12:09PM (#49189193)
      The person in question is a Canadian citizen and cannot be denied reentry into Canada or sent back.
      • cannot be denied reentry into Canada

        Ummm. See summary.

      • OK, that makes sense now. I was wondering who "Quebecker" was. I thought it might have been the name of a famous person.
        • s'okay... it kind of threw me off too, as I usually expect to see "Quebeçois" or similar to describe someone from the province... but maybe that's just me.

          Stupid summary... :)

    • To actually be arrested and prosecuted for a crime over such a refusal is new... Should we begin divesting from Canada's corporations?

      Did you know that in America they can, and do, the exact same fucking thing?

      You want to fix this? Take it up with the governments and corporations who make up the New World Order. The rest of society apparently doesn't get a vote on the topic.

      Your rank and file Canadian has no more ability to do anything about this than your average American or Israeli.

      But if your governmen

    • Should we begin divesting from Canada's corporations?

      If it were up to the University of California, we'd be boycotting ourselves [thecollegefix.com]!

    • by ADRA ( 37398 )

      "Should we begin divesting from Canada's corporations"
      You should've been anyways, the Canadian economy is tanking like mad> Correction, if you weren't an idiot, you'd be buying heavy in Canada right now, since the exchange rate and relative weakness in the Canadian economy makes for some sweet low hanging fruit.

  • In the US, if the cops can convince a judge that they know the evidence is on your device (say, they saw you recording when a murder happened), then they can compel you to testify your knowledge of the crime.

    If they want to go looking on your device for information to incriminate you, then that's compelling testimony against yourself, so it's forbidden.

    The first case is, of course, subject to lying cops saying, "we saw kiddie porn on his screen when we broke in", which will happen (the way they plant drugs,

    • Your explanation isn't correct. The entire situation is unsettled law [youtube.com].

    • In the US, if the cops can convince a judge that they know the evidence is on your device (say, they saw you recording when a murder happened), then they can compel you to testify your knowledge of the crime.

      If they want to go looking on your device for information to incriminate you, then that's compelling testimony against yourself, so it's forbidden.

      The first case is, of course, subject to lying cops saying, "we saw kiddie porn on his screen when we broke in", which will happen (the way they plant drugs, shoot people and animals and lie about it, etc.). Then it's up to a non-corrupt judge to throw out such evidence based on the cops' lies. But if you're up to something illegal you have to weigh the contempt charge against the danger to yourself of disclosure, and if your password sucks or the judge and cops are corrupt, both.

      Frustratingly, the USG claims that the rules for itself don't apply at the border - ostensibly it's operating outside the Law in those scenarios. What could SCOTUS really say about this? - they only judge the Law, not lawlessness.

      The case law is different and evolving at the border, but still within the law. The general rule is that search and seizure must be conducted pursuant to a lawful search warrant based upon probable cause.

      However, the First Congress, which (more or less) drafted the constitution, also gave customs officers full authority to search ships for contraband without a warrant.

      There's a line of cases going back to that which basically means that the sovereign has a right to control what enters the country, and that

    • Just remember, the 'border' extends 100 miles inside the US.

      https://www.aclu.org/know-your... [aclu.org]

  • by cecil36 ( 104730 ) on Thursday March 05, 2015 @12:04PM (#49189151) Homepage

    To me, the owner of any electronic device that is password protected should not disclose the password to the device unless the authority has a warrant out for that person.

    • by silas_moeckel ( 234313 ) <silas@@@dsminc-corp...com> on Thursday March 05, 2015 @12:18PM (#49189265) Homepage

      They still should not be compelled to reveal the password. Even blanket immunity should not allow them to force you since it still might ruin your life or worse reasonably fear for your life and safety and ones close to you.

      • Right, the way that this should work is like the british version of the 5th - that is you have the right to keep silent, and not tell the police/court something, but if you do keep silent and don't tell the police, then you can't use that in your defense later.

        Basically, you have the right to not self incriminate yourself, but you don't have the right to be bolshy and just hide information for the sake of hiding it.

        • Right, the way that this should work is like the british version of the 5th - that is you have the right to keep silent, and not tell the police/court something, but if you do keep silent and don't tell the police, then you can't use that in your defense later.

          That's not how it works. You can, but the jury is allowed to be suspicious of your motives if you do.

    • by Kjella ( 173770 ) on Thursday March 05, 2015 @12:25PM (#49189351) Homepage

      IANAL, but my answer would be no

      And probably just as important in this case is YJMV - Your Jurisdiction May Vary. The UK is fascist country where I know it's illegal, I wouldn't bring any device I wouldn't unlock - I'd just make sure it's clean and I can download what I want once inside the country. The US is a fairly safe country thanks to the fifth amendment. The rest of the world? Dunno. Don't really care to research it either. If I was doing anything naughty I'd send it online or even in the mail. At least then they can't refuse me entry or any of that shit.

    • My answer would be to just leave the damn devices at home.

    • by samkass ( 174571 ) on Thursday March 05, 2015 @12:46PM (#49189573) Homepage Journal

      New phone feature idea: a settable password which, when entered, instantly wipes the phone. (Throws away the encryption keys and shuts down.)

      • by Bugler412 ( 2610815 ) on Thursday March 05, 2015 @01:03PM (#49189711)
        then you get charged with destruction of evidence, or obstructing justice, or some other cobbled up charge, even if there was no "evidence" on the device in the first place, you can't prove that after it's wiped. Yeah, if you lawyer up you might be able to get out of the charges, but your life is already heavily disrupted at a minimum.
        • then you get charged with destruction of evidence, or obstructing justice, or some other cobbled up charge, even if there was no "evidence" on the device in the first place, you can't prove that after it's wiped. Yeah, if you lawyer up you might be able to get out of the charges, but your life is already heavily disrupted at a minimum.

          It's bad enough when they blatantly ignore things like the Fourth Amendment, but when they take it a step further (which is often when your standing policy requires you to ignore the Constitution), that is where we as citizens should draw the fucking line.

          The problem is only rich citizens can afford to defend themselves anymore, regardless of illegality by the legal system or courts. It can cost a shitload of money to prove them wrong or clear your accusations.

          The real problem is our justice system allows

      • by AmiMoJo ( 196126 ) *

        Destroying something that the authorities have expressed an interest in is a crime in many jurisdictions.

    • To me, the owner of any electronic device that is password protected should not disclose the password to the device unless the authority has a warrant out for that person.

      What about being required to open your locked briefcase at the border? Same deal? If the border officials are required to get a warrant to open your briefcase are you OK having them store your briefcase until they get a judge's ruling?

    • I'm pretty sure that the next time I fly across int'l borders, if I even bring any electronic devices with me (I'll probably mail them, in fact) - the ones I would bring would be dummy devices. ones I could afford to lose and ones with 'happy happy, joy joy' bullshit on it.

      you want to see my login? ok. here you go. that's A login. and as far as you know, its 'my' login. can I go now? thanks. have a nice day. ossifer.

      (sheesh. freedom to travel securely with your private papers is a long-gone idea.

  • by rikkards ( 98006 ) on Thursday March 05, 2015 @12:08PM (#49189183) Journal

    These are border guards. Technically you haven't entered the country, they don't need warrants to search anything. Now as someone pointed out they should have refused him entry not have him arrested.

    • by MatthewCCNA ( 1405885 ) on Thursday March 05, 2015 @12:19PM (#49189289)
      The person in question is a Canadian citizen and cannot be denied reentry into Canada or sent back. I think it's the term 'Quebecker' (someone from Quebec) that is confusing people.
      • I think it's the term 'Quebecker' (someone from Quebec) that is confusing people.

        It confused me because I'd always heard that the name for people from Quebec was "Quebecois."

        "Quebecker" sounds like some kind of anti-French reactionary thing, kind of like how some feminists insist on non-standard spellings of gender-related words. (Before somebody flames me, I should also point out that I have no opinion of anything related to Quebec, and am only vaguely aware that there's some kind of language-related cont

    • by N1AK ( 864906 )
      I think this is an oversimplification, but one that suits some government so they act like it works. If I haven't entered the country when I'm speaking to the border guards then they have no jurisdiction under which to compel me to do anything; clearly they feel they do...
    • They can't refuse entry. He's a Canadian citizen. He can't be barred from re-entering Canada.

      So they did the right thing by allowing him entry. And imprisoning him in a Canadian prison. Problem solved. (For limited definitions of "problem" and twisted definitions of "solved".)

  • by puddingebola ( 2036796 ) on Thursday March 05, 2015 @12:09PM (#49189195) Journal
    This story points to the clear need for edible phones. Imagine that as you are landing in some country with a lack of respect for civil liberties, you receive a text message warning you that your phone is about to be confiscated. What if you could simply eat your phone? Wouldn't that be ideal. Edible phones could be the next growth market for the tech industry. Message me for details on how to invest.
  • by XB-70 ( 812342 ) on Thursday March 05, 2015 @12:16PM (#49189257)
    A friend, who is a lawyer, had confidential, lawyer-client privileged information on her laptop relating to a multi-million dollar business deal.

    Border guards demanded that she give them her password... They told her it was either not enter the country (and forfeit the deal) or give up her password. Her issue was that she was exposing privileged information to third parties who could, potentially, have illegally profited from the knowledge contained in that laptop.

    At present, borders are dangerous legal limbo. This area needs deep oversight and clear paths for travellers to have recourse to constitutional rights.

    • And then what happened? I need closure on that anecdote!

    • by Jheaden ( 169061 )

      There are ways of dealing with this scenario. The simplest being, don't keep the information on the laptop. After entering the country, use VPN or some other secure means of downloading the data.

      Admittedly there are likely scenarios where this would be problematic (classified info?), but for most business related cases I would think this would be an acceptable workaround.
       

      • There are ways of dealing with this scenario. The simplest being, don't keep the information on the laptop. After entering the country, use VPN or some other secure means of downloading the data.

        Exactly, I have an IronKey drive that is password protected and self destructs after 10 wrong attempts. It's small and easily stored away from all the other jump drives etc. I carry it to increase its chance of being overlooked if some wants to search my machine. They can search my laptop and nothing important is revealed.

    • I know at work the travel loaner laptops are to remain clean and used only to access the secure data on the corporate network, to prevent this sort of thing. They could seize the entire laptop and it wouldn't matter.
  • by MitchDev ( 2526834 ) on Thursday March 05, 2015 @12:20PM (#49189301)

    "Nawtzees, not just in Germany anymore..."

  • by danbob999 ( 2490674 ) on Thursday March 05, 2015 @12:20PM (#49189309)
    What about the "I don't remember my password" defense?
  • If prompted to do this, I'd tell the wrong number and insist they're typing it in wrong. After they show me what they are typing, I'll remember that PIN was for something else and "remember" a new one. After 10 attempts, my device will wipe.

    I keep a backup online and restoring is trivial once through customs.

    I don't have anything criminal on my phone, but it is none of their business.

  • The poison pin ... (Score:5, Interesting)

    by CaptainDork ( 3678879 ) on Thursday March 05, 2015 @12:36PM (#49189465)

    ... smart devices should have two (2) pass codes.

    One of the pass codes allows the owner in.

    The other pass code BRICKS the goddam phone. That's the one we give the authorities.

    Then, it's like, "Hey you bastards, what did you do to my phone? You owe me a phone!!!"

    Until probable cause has been established and a search warrant issued, evidence does not exist.

    Right now, I can choose to brick my phone. Ir's mine. I am not compelled by any retention laws to maintain an archive for future requests to examine the phone.

    The phone will have to be backed up on the cloud, of course, but authorities don't know that's been done; they don't know where it's been done, and they will have to slow things down in order to get a search warrant.

    During that window of opportunity, I am at liberty to delete cloud-based stuff until such time I am formally made aware, by warrant, that my junk is evidence by way of probable cause.

    • Re: (Score:3, Insightful)

      by Anonymous Coward

      >The other pass code BRICKS the goddam phone. That's the one we give the authorities.

      And then you go to jail for obstruction of justice ("Your honor, the defendant bought a model of phone known to have a self-wipe capability and deliberately gave the wipe password because examination of the phone shows evidence of a wipe instead of damage to the phone, as claimed.") and they start going over your life with a fine toothed comb and slam you with tampering with evidence charge if they do.

      Do you and your kin

    • by presidenteloco ( 659168 ) on Thursday March 05, 2015 @01:39PM (#49190035)

      The second password shouldn't brick the phone, it should take you to a second version of your phone's file system, which contains only the "happy birds" game, a collection of bad but sincere teenage poetry, and a spreadsheet listing the names of each member of Canada's federal government cabinet alongside a 6 figure dollar number.

  • by davecb ( 6526 ) <davec-b@rogers.com> on Thursday March 05, 2015 @12:36PM (#49189467) Homepage Journal

    Obstruction of justice is typically things like bribing witnesses, which is specifically mentioned in the law. Not refusing to unlock oa locked cell-phone, which the courts have held requires a warrant in other circumstances.

    From the information in the article, this sounds like an attempt to scare a citizen into doing something.

    Attempts to widen this particular law to cover less serious crimes get rejected by the courts: the very first case on the subject inCanII says (emphasis added)

    [19] Moreover, an assertion that the mere attempt by an accused to identify an informant is a crime, fails to take into account that the types of conduct which constitute obstruction of justice, even though not fully articulated in the Criminal Code, are relatively well and narrowly defined in the law, and must remain so narrowly defined in order to have certainty in the law. Offences against the administration of justice have always included such conduct as attempting to influence a jury or to threaten a witness, or publishing sensitive information when a matter is working its way through the justice system, a general category of conduct which lawyers sometimes call an infraction of the sub judice rule. I have been unable to find a single suggestion anywhere in the law that an accused cannot take steps to identify a police informant; the court should act with restraint in opening new classes of obstruction of justice. Although obstruction of justice is an evolving concept, its main tendency is to narrow the categories of conduct which may constitute a crime rather than to enlarge them: Sunday Times. Recent examples of the narrowing of the categories include the removal of scandalizing the court as a matter of contempt, Kopyto, and the striking down of the publication ban on bail hearings, White.

    • by houghi ( 78078 )

      Police use it also as a scare tactic. They treatend me once with 'obstruction of justice' because I had informed the press about a case they were working on (that I did not know).

      It basicaly means "I am annoyed by what you did" and is now a pretty hollow treat.

      (The other things they wanted to pin on me was falsification, because I did not use my real address with a free email provider and distribution of childporn, because I replied in an abuse newsgroup to a message with an URL. They ignored the fact that

  • by frog_strat ( 852055 ) on Thursday March 05, 2015 @12:38PM (#49189495)
    On my new Blackberry 10 Classic, I can hold down the power button and quickly lock the phone. Further use requires a password.
    • Further use requires a password.

      ...and you are required to give up that password at the border, if requested, in the same way you are required to open your suitcase, if requested.

      • by moeinvt ( 851793 ) on Thursday March 05, 2015 @02:50PM (#49190617)

        The article is implying that this still might be open for discussion in Canada.

        Surprisingly enough, you don't have to give up your passwords to USA customs. Upon entering or returning to the USA, they can search your device and they can even confiscate it for a period of days or weeks. However, they can't yet force you to give up a password or encryption key at the border.

        https://www.eff.org/wp/defendi... [eff.org]

        "If a border agent asks you to provide an account password or encryption passphrase ... you donâ(TM)t have to comply. Only a judge can force you to reveal information to the government"

  • From the TFA.... (Score:4, Interesting)

    by erp_consultant ( 2614861 ) on Thursday March 05, 2015 @01:35PM (#49190003)

    it doesn't appear that he was actually charged with any crime prior to be asked to divulge his phone password. It seems to me that there needs to be some sort of "probable cause" here and it doesn't appear that there is. There could be a very dangerous precedent set if police officers or boarder patrol or whomever are allowed to conduct an unlawful search for no apparent reason.Papers, comrade.

  • Someone is still using a Blackberry phone?

  • by bradley13 ( 1118935 ) on Thursday March 05, 2015 @01:57PM (#49190173) Homepage

    While it is written specifically for the US, the EFF article Defending Privacy at the U.S. Border: A Guide for Travelers Carrying Digital Devices [eff.org] nonetheless provides a good discussion of your options in cases like this. It also discusses the various ways you can prepare your devices and data for the situation.

  • by Trailer Trash ( 60756 ) on Thursday March 05, 2015 @02:12PM (#49190317) Homepage

    It's amazing to read articles like this and nobody on the government side is named, just agencies and some "spokesperson". Name them. Somebody arrested this guy, and somebody is trying to prosecute him. Everybody involved in this needs to be named and publicly shamed. They need to be in a situation where they go home at night and their wife says "hey, why is everybody we know calling and asking why you're prosecuting some guy for not turning over a password? Is that even illegal? Why is this so important?"

    Quit letting scum bags hide behind anonymity.

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