House committee backs stricter border device search rules

A parliamentary ethics committee is recommending the government enact into law policies that limit the ability of Canadian and United States border officials to intrusively search electronic devices without reasonable grounds. “The Committee argues that the Customs Act should be updated to recognize that electronic devices contain sensitive personal information and that electronic devices are not ‘goods’ within the meaning of the Customs Act,” said the report, titled Protecting Canadians’ Privacy at the U.S. Border, and released Wednesday by the House of Commons' standing committee on access to information, privacy and ethics. The recommendations include elevating Canada Border Services Agency (CBSA) guidelines into law by writing them in the Customs Act, as well as changing the wording on the requirement for a search of devices from a “multiplicity of indicators” to a “reasonable grounds to suspect.” A large part of the argument rests on how the extensive information on devices can be used to create a view into the personal lives of its users. Brenda McPhail, director of the privacy, technology and surveillance project at the Canadian Civil Liberties Association (CCLA), said in an email the reasonable grounds to suspect threshold is a good start, “and we would argue for judicial authorization for these searches as well.” Witnesses appearing before the committee suggested that the stricter CBSA policies on device searches were in contrast to what was actually happening on the ground. This is, in part, due to a conflation of those devices with regular goods passing the border, they argued. The CCLA said in a June presentation before the committee that "CBSA agents conduct warrantless searches of electronic devices, with no defined threshold for grounds, based on largely unexplained interpretations of legislation originally meant to apply to carriages and cars, boxes and bags," according to a transcript. The CBSA’s current policy on goods, which include digital devices and media, “is that such examinations should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media,” a CBSA operational bulletin from 2015 said. The bulletin added that there is "no defined threshold for grounds to examine such devices." Over the past several months, the committee studied Bill C-23, which deals with preclearance areas at the border, and heard from witnesses about device searches without reasonable cause. Representatives of the British Columbia Civil Liberties Association (BCCLA), which retrieved the bulletin after an access to information request, appeared before the committee earlier this year to argue for those CBSA policies to become law. Despite a push for those privacy measures at committee hearings studying C-23, McPhail said the committee’s recommendations “go well beyond the scope” of that bill, which became law this week and did not include said recommendations. The legislation is intended to streamline entry into the United States by expanding preclearance zones and giving search powers to U.S. border officials inside Canada. McPhail said that will give those American border agents the power to “detain people, perform strip searches under certain circumstances, and do so largely without the ability to hold agents accountable under Canadian law if they violate Charter rights.” “It’s deeply disappointing that better privacy protections, and other changes to protect travellers on Canadians soil, were not included in that bill,” McPhail said. The issue of device privacy at the border has been bubbling to the surface, so much so that University of Ottawa law professor Michael Geist told the ethics committee in September that the government should raise the issue at the North American Free Trade Agreement (NAFTA) renegotiation table. Privacy commissioner Daniel Therrien, who previously argued for device searches to be considered the same as body searches, testified before the senate committee on national security earlier this month to push the issue and recommend the CBSA policy be codified. That policy, he said, “requires specific grounds for search of electronic devices in particular, namely that ‘evidence of contraventions may be found on the digital device or media,’” he said in his opening statement, according to a transcript. The ethics committee agreed in Wednesday’s report. "The Committee recognizes that the policy does not carry the same weight as if it were a law and supports witnesses' recommendations that CBSA's policy be given the force of law," the report said. In September, Therrien urged Canadians to be cognizant of what information they travel with on their devices, in the face of American laws giving U.S. customs agents access to those devices and the information in them. The committee made other recommendations, including having privacy protections be included in the preclearance act, having internal privacy and civil liberties officers inside the CBSA, push for the addition of Canada on a U.S. list of countries afforded personal information protections, and that Canada work with the U.S. government to protect Canadian personal data when it comes to information sharing. It recommended the government track the examination of electronic devices at borders and airports, put together statistics and update the privacy commissioner regularly. McPhail said that while her organization prefers these statistics be made public, the recommendation is still valuable for the sake of transparency and accountability. The committee is asking the government to respond to the report. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

House committee backs stricter border device search rules

News | December 15, 2017

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House committee backs stricter border device search rules

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