Why Comics Get Confiscated at the Canadian Border (And How to Protect Yours)

As reported last week, comics owned by cartoonist Tom Neely and Sparkplug publisher Dylan Williams were confiscated by authorities at the Canadian border as potentially obscene material while they traveled together to the Toronto Comics Art Festival (TCAF). We spoke with Neely and CBLDF Executive Director Charles Brownstein and combed through Canadian customs documentation to get the details on how this happened, the measures you can take to protect yourself and your comics when you're crossing the border, the concerns this raises for comics fans, and a list of things that may get your comics flagged as obscene and confiscated (or worse).What to expect at the border:

There have been enough incidents at customs involving comics art that CBLDF has issued an advisory regarding the legal hazards of border searches that is essential reading. One important note is that the border agents aren't necessarily going to limit their search to your books; they can also search anything you may have on electronic devices like computers, cameras, DVDs, flash drives, cell phones, or any digital storage devices. The CBLDF notes that "such searches may be conducted at random, with or without reasonable suspicion, and are becoming increasingly common."

Other "routine" searches that may occur at random without suspicion or cause include "limited searches such as a pat-down, the removal of outer garments, such as jackets, hats, or shoes, the emptying of pockets, wallets, or purses, the use of drug-sniffing dogs, the examination of both outbound and incoming materials, and the inspection of luggage."

Neely described his experience at the border crossing in an interview with the CBLDF:

They asked us to stand by the wall of the building and asked for the keys to our car. They opened up our suitcases and pulled out a random sampling of about 5 comic books we had in our bags. Those included Blaise Larmee's Young Lions and the Black Eye anthology published by Rotland Press, of which I'm a contributor. The security guy asked us what the books were. We described them as "art comics" and he said he was going to take them inside for review. While we waited, two other security guards came out, opened the car and proceeded to pull out everything in the entire vehicle, pulled out a copy every book, and then went back inside.

Both Young Lions and Black Eye were singled out after the review of the books. The guard expressed concerns about Young Lions because the young-looking protagonists are shown kissing, "and [he] said that he thought would be inappropriate if they were "children," said Neely. Black Eye was singled out for its dark, satirical content:

He flipped it open to a page of Onsmith Jeremy gag panels (many of which depict some rather extreme examples of dark humor – like men having sex with dead women) and asked me about them. I said "It's an anthology of dark humor, and all of the work is an extreme form of satire." He said something about a strip of someone "peeing on another person" and that that is not allowed in Canada.

While Neely and Williams had a relatively friendly experience, not everyone is so lucky. In a 2006 blog post pointed out by Brigid Alverson, a Canadian woman named Elizabeth McClung describes her experience trying to bring manga across the Canadian border:

Saturday, I was surrounded by six officers, two watching me as the four others went page by page through my books looking for pornographic images and other evidence I was a sexual predator. How did this happen? I said a word which Canada Customs considers dirty: Manga. As soon as I declared that I had some of the japanese inspired comic books called manga, a Custom's officer said, "That's the stuff from Japan; there is some really obscene and filthy stuff." No, I pointed out, these was printed in America and very mainstream. As more and more officers were called in, the six manga books I had were examined in detail. They were looking, they told me, for pornographic, obscene and adult material. "The age rating is on the back of each book." (each manga book has ratings like 13+ or 15+ - mine were 13+). I was informed that I could have put different covers on or done anything else I could to get the pornography in and that if I spoke anymore, the books would be seized. So I stood there and watched my previously new books get examined page by page, thumbed through and pressed open because it was assumed if I read manga, that I was a sex offender.

What these searches mean for people who own comics:

As Neely noted, he had crossed the border with comics before and had no previous problems, and CBLDF Executive Director Charles Brownstein told ComicsAlliance that what sparks both searches and seizures is unpredictable:

A frustration folks have had with Canada Customs for many, many years now is that they have tended to be very mercurial about what they seize. It was the substance of the Little Sisters battle several years ago, where a Gay & Lesbian bookstore took on Canada Customs as a result of their seizures of LGBTQ material, including a wide variety of comics and graphic novels.

In her reporting, Brigid Alverson pointed out Gomorrahy.com [Editor's Note: Not safe for work] as a pretty good resource for what gets seized in Canada with an eye to what's prohibited and what's clear. When you drill into those lists you see a lot of standard issue porn comics, but you also see horror, manga, and other genres. It's all material that is protected by the First Amendment in the United States, but Canada has different laws governing expressive material.

So, there doesn't appear to be an easy answer to what Canada, or any other customs authority is going after.

But, what is absolutely clear is that more and more incidents are happening where comics or devices with comics on them are being seized, and it's something that travelers need to know about as they move through international borders. The CBLDF has issued an advisory to help travelers be aware of their risks, and offered some info about how to mitigate those risks. And we continue to track incidents as they occur, and to spread the information we can about them so fewer people are harassed for the comics they carry.

While the recent incident fortunately involved a guard that Neely described as "helpful and reassuring," he also recognized that "if we had had a less understanding guard, this whole thing could have gone a different direction." Indeed, the CBLDF notes in its advisory that during a recent incident someone in possession of comics was "handcuffed and held briefly on charges of child pornography, and his materials seized."

This is a key point for comics fans, because while illustrated characters are fictional and have no age, how old they appear in mature content -- a very subjective consideration -- may determine whether or not you are in possession of what is considered child pornography at the Canadian border. As the CBLDF notes:

Customs agents frequently use overly broad and inaccurate definition of "child pornography" in order to justify intrusive searches of materials that are fully protected by the United States Constitution. Under U.S. law "child pornography" is the record and product of child sexual abuse... The depiction of such child abuse in the form of "child pornography" can only involve real children – cartoons of fictionalized characters cannot be subjected to "child abuse." In such cases, the [Supreme] Court noted [in a 2002 case], "there is no underlying crime at all."

I probably don't have to spell out for you that being detained, arrested, or charged with possessing child pornography is some pretty serious life-ruining business even and especially under such poorly-defined guidelines. The guard's concerns about the age of the kissing characters in Young Lions may have been related to this issue, and Williams noted in the CBLDF interview that the guards "seemed more interested in sex [in the material] than anything else."

What may be considered obscene:

As Brownstein says, it's hard to know for sure what will or won't be seized, although the CBLDF advisory notes that "any photographic or artistic rendering that depicts nudity may heighten the risk of a search, even if the depiction has nothing to do with child pornography."

While its application may not always be consistent, we found a PDF of the Canada Border Services Agency's Policy on the Classification of Obscene Material, which lists a set of indicators that may get material flagged or classified as obscene:

Depictions and/or descriptions of:

(a) Sex with degradation or dehumanisation, if the risk of harm is substantial, e.g.

(i) actual or implied urination, defecation or vomit onto or into another person, and/or the ingestion of someone else's

urine, feces or vomit, with a sexual purpose, excluding consensual urine onto another person;

(ii) ridicule and/or humiliation

(b) Sex with pain

(c) Sexual assault

(d) Sex with violence

(e) The taking of a human life for the purpose of sexual arousal

(f) Incest

(g) Bestiality

(h) Necrophilia

Note: Depictions and descriptions of sexual activities involving children and/or juveniles (persons under the age of 18) will generally constitute child pornography.

That final note is worth reading twice, for reasons we've already outlined above. On a tangential note, this policy could potentially classify William Shakespeare's Romeo and Juliet as child pornography.

The policy also provides their definition of "obscene," which they define as material that has "as a dominant characteristic, the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty, and violence." Canada, like the United States, provides for an "artistic merit defense" if the sexual content is "essential to a wider artistic, literary or other similar purpose." Of course, even if your content is ultimately ruled to have artistic merit, that doesn't mean it still won't be initially confiscated for review, as it was for Williams and Neely.

How to protect your comics and yourself:

If you are planning to cross the border and want to take precautions, here are a number of steps you can take, many of them lifted from the very helpful CBLDF advisory and Gamma Squad:

-Ship your comics via U.S. Mail. Don't want to deal with the border search at all? Sending them via official U.S. Mail will protect them from being opened unless customs has reasonable suspicion to do so and a warrant. Note: This does not apply to private shippers like UPS or Federal Express. Carrying your own packages that have been stamped or previously shipped through U.S. Mail also does not protect them from search.

-Have all of your documents in order. Have your passport, any flight, hotel or destination information, and any invoices for commercial materials like books on hand and ready to go.

-Carry minimal content on your computer. Bring as little with you necessary, store the rest on a third-party server, and download it once you arrive. Also, remember to back up your data before leaving in case of a seizure.

-Encrypt your data. For the content you must have on your computer, use passwords or encryption to protect it. Customs agents may attempt to decrypt it, but as the CBLDF notes, "Border agents are not empowered to force you to decrypt data, divulge passwords, or answer questions. Only a judge could order such a thing, and even then only if the Fifth Amendment privilege against self-incrimination does not apply."

-Stay calm and be polite to the agents you interact with. Acting strange or defensive can set off (metaphorical) alarm bells, and as Neely told ComicsAlliance, "if we had been scared or reactionary and tried to fight them on the issue, it might have escalated to something worse... I tried to have empathy for the guards during the whole thing. It's got to be a tough job to be a border guard and have to make aesthetic judgments on such a thing as this. I doubt these guys have art history degrees or a deep knowledge of underground comics."