Digital privacy at the Canadian border


by Victoria Henry

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 the contents of your luggage. The courts interpret this to mean that customs agents do not need grounds of reasonable suspicion to search your devices. And worryingly, many of the guidelines that agents use come from operational bulletins instead of the Customs Act.

This means that in much the same way that a border guard can go through the clothes in your luggage when you enter Canada, they can thumb through the personal contents of your phone. Refusing to cooperate is an offence that includes the possibility of arrest for refusing to disclose passwords.

It may seem obvious 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 became commonplace to carry tiny devices capable of storing thousands of images, messages and files. Those laws have not been updated to reflect the rapid evolution of our modern electronic devices.

This is not to say that our government hasn’t been pressured to change these laws. In December 2017, Canada’s ethics committee, the Standing Committee on Access to Information, Privacy and Ethics, produced a report on privacy at the border. It included three key recommendations. Firstly, guidelines that customs agents use for searching devices should be transparent and written into the Customs Act. Secondly, the threshold for searching devices should be raised to “reasonable grounds to suspect”. Thirdly, the Government of Canada should begin tracking how many devices are searched and provide this information to the Privacy Commissioner.

Yet among these modest recommendations, only the recommendation to track and report on device searches at borders and airports has been accepted. 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 border laws – which is why there hasn’t been much pressure on the federal government to update them to include private data protection. That’s the reason we’re spreading the word about your border rights, and asking everyone to tell decision makers to act.

Here’s what needs to change:

  • Searches of electronic devices should have a special legal basis distinct from searches of other types of goods. Because privacy can be violated when they are searched, cell phones or laptops should not be treated as “mere goods”.
  • Additionally, digital devices should not be searched without reasonable suspicion of a customs and immigration contravention. Where searches are related to potential criminal infractions, they should follow criminal law standards and 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.

Canadians need border legislation with built-in rights of challenge, 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:

Learn more about 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.

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