Privacy commissioner investigating CBSA over searches of electronic devices
OTTAWA — Canada’s federal privacy commissioner has launched an investigation into the Canada Border Services Agency’s practice of searching the electronic devices of travellers at the Canadian border.
The investigation comes amid mounting concerns over whether CBSA’s U.S. counterparts are not just searching travellers’ devices, but also downloading their contents for later examination and even cloning and mirroring the devices.
Border agents from both countries operate in a legal grey zone. Canadian courts recognize “reduced expectations of privacy at border points” for people dealing with Canada’s border authorities, who are able to search and examine possessions, including devices, without warrants, said Valerie Lawton, a spokeswoman for the Office of the Privacy Commissioner of Canada. People must provide their passwords if asked, or risk having the device “held for further inspection.”
“It is possible that issues related to retention may be examined during our investigation,” Lawton said, adding she couldn’t reveal further details about the investigation or the complaint that prompted it. Little is known about when, and how often, CBSA retains data collected from devices, where it’s held and for how long.
The CBSA does not collect statistics on electronic device searches, spokeswoman Line GuibertWolff said, and data may only be collected for “customs purposes.” Information can only be disclosed to other agencies if it meets guidelines in the Customs Act, which states information must relate to criminal proceedings, immigration or national security, among a few other categories.
She did not directly answer a question as to whether CBSA retains data from the electronic devices it searches.
Examinations of devices “do not require reasonable grounds to suspect or believe that a contravention has occurred,” she said, but CBSA policy states such examinations “should only occur where there is a multiplicity of indicators” or if undeclared, prohibited or falsely reported goods are discovered.
“Initial examinations of digital devices and media should be cursory in nature and increase in intensity based on emerging indicators,” Guibert-Wolff said. “The CBSA is committed to maintaining the balance between an individual’s right to privacy and the safety and security of Canadians.”
“There’s an enormous amount of uncertainty in what feels like a no-privacy zone,” said University of Ottawa law professor Michael Geist. “There’s a sense that customs officials are empowered to do whatever they see fit. But the lack of transparency associated with these processes is enormously disturbing.”
“We can’t hold them to account as a society if it’s not clear what the rules are, or how they’ve been told to interpret them,” said Brenda McPhail, director of the privacy, technology and surveillance project at the Canadian Civil Liberties Association. “We’re treating devices that provide a portal into our lives the same way that we treat a suitcase, and they’re not equatable.”