Traveler facing $25K fine, jail for refusing to unlock phone for customs. Did he actually commit a crime?

A Canadian man is facing up to $25,000 in fines and a year in prison, all because he wouldn't unlock his smartphone for a border control agent. Alain Philippon was the lucky winner of a customs search when he was passing through Halifax Stanfield International Airport on his way back from the Dominican Republic. When asked to enter the passcode on his phone, Philippon reportedly told the agent that his device was "personal" and refused to do it. He was promptly charged with "hindering or preventing border officers from performing their role under the [Customs Act]," and was released on bail with a pending court date and a lot of questions.

So is that legal?  The short answer is that no one is really sure. According to the CBC, the issue of whether citizens are required to unlock their phones at the border has never been considered by a Canadian court of law – and won't be until Philippon appears in court on May 12.

The border agency declined to specify what the Quebec man did to earn himself a search, but explained that the Customs Act allows their agents to examine all electronic devices because they're essentially considered "goods" that travelers are bringing into the country. But, as legal experts have pointed out, the Customs Act was written before smartphones even existed, which could be an increasing (and invasive) problem for travelers. Josh Paterson of the British Columbia Civil Liberties Association explained to the CBC

There should be some strict standards set up around the kind of searches of smartphones and computers that CBSA officials are allowed to do at the border [...] Having the ability to [search] through your personal records, through your financial records, through your emails, is problematic if they don’t have any reason to suspect that you're transporting contraband, that you're somehow otherwise involved in illegal activity.

Could this sort of thing happen to citizens returning to the United States? Um, maybe. An attorney for the Electronic Frontier Foundation told CNET that the Ninth Court of Appeals has previously ruled that border agents need "reasonable suspicion" before they can perform a "forensic examination" on electronic devices, but their definition of "reasonable" or "examination" has yet to be fully explained.

CNET also notes that last year, the U.S. Supreme Court ruled that police officers needed a warrant to search electronic devices and smartphones. Border control agents, though, aren't police officers and aren't required to have warrants to rifle through your belongings and – unless a court decides otherwise – it's probably safe (or terrifying) to assume that they can scroll through your selfies too. But no one seems to know whether you're required to unlock your phone if they instruct you to. So just go ahead and add me to the list of people who are more than a little afraid to find out.