The Standard (St. Catharines)

Privacy commission­er investigat­ing CBSA over searches of electronic devices

- MARIE-DANIELLE SMITH POSTMEDIA NETWORK mdsmith@postmedia.com

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.”

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