Digital device privacy at the Canadian border

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Image: EFF Photos/Flickr

Our digital devices -- like cell phones, laptops, and hard drives -- contain some of our most personal, private information.

Photos, emails, browser history, call records, social media posts, text messages, as well as apps for banking, personal health, and so much more -- they can all reveal extraordinarily private information about a person. It's no wonder that most people would think twice before handing their phones over to anyone.

But that's not how Canada's border laws see it. In fact, the law currently classifies digital devices as "mere goods" -- the same classification given to ordinary luggage like a bag of T-shirts. The courts interpret our legislation to mean that customs agents can search your devices without even any suspicion. And worryingly, many of the guidelines that agents use come from operational bulletins, instead of laws from the Customs Act.

This means that in much the same way as a border guard can go through the clothes in your luggage, they can thumb through the personal contents of your phone. It's an offence to refuse to co-operate, including the possibility of arrest for refusing to disclose passwords.

To you and I, it may seem clear that there's a huge difference between the things we put in our suitcases, and the contents of our phones and laptops. But simply put, the laws that govern these kinds of searches were created long before it was common to carry tiny devices that are capable of storing thousands of images, messages and files, and they have not been updated to reflect the rapid evolution of our modern electronic devices.

That's not to say that our government hasn't been pressured to change these laws.

Canada's own ethics committee, the Standing Committee on Access to Information, Privacy and Ethics, produced a report with a series of recommendations on privacy at the border in December 2017. Chief among them were:

That the guidelines to searching devices which customs agents work from be made transparent and written into the Customs Act; to replace the threshold for searching devices to reasonable grounds to suspect, and that the Government of Canada begin tracking how many devices are searched and provide this information to the Privacy Commissioner.

And yet even of these modest recommendations, only one has been accepted: the recommendation to track and report on device searches at borders and airports.

Our government's inaction on this serious issue needs to change, and it needs to change fast.

Most people in Canada don't know much about these laws, which is why the government hasn't felt much pressure to update them to include protections for our private data. That's the reason we're spreading the word about your rights at the border far and wide, and asking everyone to take action to tell decision makers that now is the time to act.

Here's what we're telling them needs to change:

  • Searches of electronic devices should have a dedicated legal basis that is distinct from searches of other types of goods. It is clear that a cell phone or laptop has specific privacy interests implicated when these devices are searched, and should not be treated as "mere goods."
  • Additionally, there should be no searches of digital devices without reasonable grounds to believe that there is a customs and immigration contravention. Where searches are related to potential criminal infractions, they should follow criminal law standards, as well as trigger the appropriate protections of rights.
  • Finally, the constitutional rights of Canadians shouldn't be a matter of undisclosed or discretionary Canada Border Services Agency policy -- we need clear, transparent policies, and mechanisms for recourse.

People in Canada need a legislated regime with built-in rights of challenge, as well as public transparency and reporting obligations. And they deserve privacy protected by up-to-date, modern laws that reflect the current realities of our digital age.

Take action here: http://borderprivacy.ca

Learn more about your rights at the border: https://bccla.org/our_work/electronic-devices-privacy-handbook-a-guide-to-your-rights-at-the-border/

Victoria Henry is a Campaigner at OpenMedia, a community-based organization that works to keep the Internet open, affordable, and surveillance-free.

Image: EFF Photos/Flickr

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