LexSage

Canada’s Privacy Commissioner
Raises Concerns About USCBP
Searches Of Electronic Devices

June 15, 2017
Authored by Cyndee Todgham Cherniak

On June 8, 2017, Canada’s Privacy Commissioner sent a letter to the Parliamentary Committee reviewing Bill C-23 “Preclearance Act, 2016” to ask for amendments to cover searches of electronic devices by US Customs and Border Protection in Canada’s Pre-Clearance Areas.  Bill C-23 has passed second reading in Canada’s House of Commons and is currently being considered by the Standing Committee on Public Safety and National Security.  The Standing Committee on Public Safety and National Security has been holding meetings and receiving written and oral testimony concerning Bill C-23.

Canada’s Privacy Commissioner has raised important concerns about searches of electronic devices at the border.  On June 8, 2017, the Privacy Commissioner wrote a second follow-up letter to the Parliamentary Committee and stated, in part:

“The fundamental problem with groundless searches of electronic devices is that these searches do not recognize that they are extremely privacy intrusive. Yet Bill C-23 recognizes the sensitivity of other searches, namely searches of persons, from the relatively un-intrusive frisk or pat-down searches to the more intrusive strip and body cavity searches. These searches legally cannot be performed unless an officer has reasonable grounds to suspect some legal contravention, notably the concealment of goods. In my view, it is extremely clear that searches of electronic devices can generally be much more intrusive than frisk searches, for electronic devices can contain the most personal and intimate information we hold.

The idea that electronic devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. Border controls are important and legitimate for reasons of sovereignty and public safety, but they should not be exercised arbitrarily. I recommend that Bill C-23 be amended to place border searches of electronic devices on the same footing as searches of persons and therefore their performance should require reasonable grounds to suspect. A consequential amendment to the Customs Act would elevate to a rule of law the Canadian policy which provides that such searches may be conducted only if there are grounds or indications that evidence of contraventions may be found on the digital device or media.

The enforcement of such a rule would still be constrained by the state immunity principle, meaning it could not be enforced in a court of law. But my understanding is that, according to the government, the protections of s.11 would not be completely hollow because in the event of a violation of Canadian law, here a potential requirement for grounds to suspect before the search of an electronic device can be performed, the violation could be brought to the attention of the Preclearance Consultative Group, a bilateral working group created pursuant to Article XII of the 2015 Agreement on Land, Rail, Marine and Air Transport Preclearance, for discussions from state to state.”

On May 24, 2017, the Privacy Commissioner sent the Parliamentary Committee submissions on Bill C-23 and first raised concerns about searches of electronic devices.  At that time, the Privacy Commissioner wrote, in part:

“My immediate concern stems from recent announcements by the US administration that they intend to search at their discretion and without legal grounds other than a desire to protect homeland security the electronic devices of any and all aliens who seek to enter the United States. This would include intent to require persons seeking admission to the US to provide the password of their cellphone or social media accounts. It would appear that this policy would equally apply at preclearance locations in Canada. By contrast, the Government of Canada’s policy is to perform border searches of persons seeking admission to Canada only if there are grounds or indications that evidence of contraventions may be found on the digital device or media.

The search of an electronic device is an extremely privacy intrusive procedure. This has been recognized by the Supreme Court of Canada on a number of occasionsFootnote1. While I understand that state agents have broader search powers at the border, it is unlikely Canadian courts would uphold as constitutional searches without grounds of electronic devices or of the content of social media accounts. That may be why Canada’s policy is more nuanced.

As is the case under the existing Preclearance Agreement, preclearance officers would be required to comply with the laws of the host country while in that country. This would apply for both Canada Border Services Agency (CBSA) officers working in the US and Customs and Border Protection (CBP) officers working in Canada. Under the Agreement, any US preclearance activities in Canada would have to be carried out in a manner consistent with Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act. This is reflected in section 11 of Bill C-23.

Although in principle, it appears that by operation of section 11 of Bill C-23, fundamental Canadian rights will be protected, section 39 of the Bill provides that civil proceedings against the US remain subject to the State Immunity Act, 1985. This significantly limits access to civil remedies against the US for the actions of CBP officers in the performance of their preclearance duties.

To be clear, the principle of state immunity as enacted by the State Immunity Act, 1985 would appear to make the protections of section 11 of Bill C-23 hollow, as these protections could not be enforced in a court of law, except in circumstances largely irrelevant to the present discussion.

There are no obvious solutions to this difficult question. Subsection 20(2) of Bill C-23 provides that a preclearance officer “is not permitted to collect biometric information unless notification that travelers may withdraw from preclearance is provided in the preclearance area, through signage or other means of communciation.” The content of electronic devices can be as privacy sensitive as biometric information, depending on context. Subsection 20(2) of Bill C-23 could perhaps be extended to searches without grounds of electronic devices.

In many situations, however, it would appear that Canadians who wish to enter the US will, at pre-clearance locations in Canada as well as at border points in the US, have to face the difficult choice of either accepting a search without grounds or foregoing their wish to travel to the US.”

The Privacy Commissioner is an important government representative in Canada.  His word carries significant weight in Canada. Whether or not Canada can amend Bill C-23 to limit the powers of US CBP officers to search laptops and other electronic devices on Canadian soil, at Canadian airports and other pre-clearance airports is an interesting one.  It is hoped that amendment is possible so that Canadians have legal due process.

It is important to note that Canada cannot force US CBP to not search electronic devices.  Also, If the amendments are made to Bill C-23, those amendments would only apply to pre-clearance areas (such as the U.S. pre-clearance area at Toronto Pearson airport). Bill C-23 does not affect what happens at U.S. airports located in the United States or at U.S. land border crossings.

If you have any questions, please contact Cyndee Todgham Cherniak at 416-307-4168 or at Cyndee@LexSage.com.

This article was first published on www.canada-usblog.com.  Reprinted with permission.