Searches of cell phones should meet same threshold as mail: civil liberties advocates

Given that the data contained on personal digital devices has functionally replaced the old-fashioned mail for most people, the required threshold for border officers to search the former should not be lower than the threshold to search the latter, according to civil liberties advocates testifying before a Senate committee studying a bill aimed at lowering the threshold. On Monday, Public Safety Minister Marco Mendicino told Senators that Bill S-7's new threshold of "reasonable general concern" for device searches was meant to be lower than the threshold required for strip searches: reasonable suspicion. However, "reasonable suspicion is not restricted to strip searches," national coordinator at the International Civil Liberties Monitoring Group Tim McSorley told Senators. "It is also the threshold for searching mail. Like many others, I suspect, I receive very little letter mail these days. Most of what would have been sent by post, including across the border, is now stored locally on my phone and my laptop." Policy director at the British Columbia Civil Liberties Association Meghan McDermott echoed McSorley's criticism, arguing that the bill puts travellers at risk and calling for the higher "reasonable grounds to suspect." "Crossing the border with a personal digital device is analogous to crossing the border with almost every piece of mail a person has ever received or sent. It's extremely unreasonable for a single written letter to attract even greater protection in law than the information stored in a personal digital device," McDermott said. The BCCLA policy director also said that the recourse afforded to travellers in the proposed creation of a civilian complaints commission for Canadian Border Services Agency conduct under a separate piece of legislation, Bill C-20, is inadequate. Director of the privacy, technology and surveillance program at the Canadian Civil Liberties Association Brenda McPhail called for the higher threshold of "reasonable grounds to suspect", as called for by both the House of Commons Ethics Committee in 2017, and the Office of the Privacy Commissioner in 2019 following the results of an investigation following a series of complaints about searches of personal digital devices at the border. What's more, officers are not prevented from meeting the higher standard, she said. "Remember, too: it is an offense to lie to a border officer. So she or he has the tools at hand to establish those facts to meet the higher standard," McPhail said. "We always in Canadian society, balance the power we give to law enforcement with the values we hold as a society. It is reasonable to do so at the border, which is not a Charter-free zone." — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo at jcocullo@thewirereport.ca .

Searches of cell phones should meet same threshold as mail: civil liberties advocates

News | June 1, 2022

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Searches of cell phones should meet same threshold as mail: civil liberties advocates

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