Appearance before the Standing Committee on Access to Information, Privacy and Ethics on Privacy of Canadians at Airports, Borders and Travelling in the United States

September 18, 2017
Ottawa, Ontario

Opening Statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)


Introduction

Thank you for the invitation to appear before you today on your study.

Privacy rights and the border must be considered in context, and an important element of context is that trade is important to Canada.

This means that smart controls for people, goods and data as they move across borders are required.

Goods and CBSA border controls: questioning and searches

One topic of discussion flagged for your current study relates to screening and searches by Canadian border service officers.

As you know, the powers of border officers are broad — they may question travellers, collect biometric information for identification purposes, as well as examine, search or detain any goods.

As for searches of the person, they may also conduct pat downs and frisks, take x-rays or body scans. They may even demand strip searches or body cavity examinations.  

All searches of persons require reasonable grounds to suspect some legal contravention, particularly the concealment of  goods or anything that would present a danger to human life or safety.

For their part, electronic devices have historically been considered as goods by the CBSA.   

Paragraphs 99(1)(a) and (c)‎ of the Customs Act allow for examination, opening and taking samples  of goods without grounds; these provisions apply to materials both entering and leaving Canada.

In addition, under existing Charter jurisprudence, greater latitude is given to state authorities at the border to enforce sovereignty, territorial integrity and regulate immigration.

At the same time, the Supreme Court has found in many other contexts that search of electronic devices is extremely intrusive.

Therefore, while the law is not settled, I think it is clear that Canadian courts would  find groundless searches to be unconstitutional, even at the border.

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devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology.

This may be why Canada’s policy is more nuanced than what the Customs Act may allow: under CBSA policy, specific grounds need to be satisfied, namely that “evidence of contraventions may be found on the digital device or media”.

I think that policy is wise, but it should be elevated to a rule of law in the near future.

Searches by US authorities

Another border issue of note concerns Bill C-23, which is now before the Senate.

Bill C-23, the Preclearance Act, 2016, would implement the 2015 Agreement on Land, Rail, Marine, and Air transport Preclearance between the Government of Canada and the Government of the US.

This would provide for preclearance activities on the part of the Canadian and US customs officials to take place at various points of entry on both sides of the border. 

I have raised concerns about US announcements to search the electronic devices of any and all aliens who seek to enter the US. 

These searches will be at their discretion and without specific legal grounds, other than generally to protect homeland security.

Bill C-23 establishes that US preclearance officers in Canada are subject to Canadian law as they perform their duties or exercise any powers.

The government reminds us that this would include the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, and the Canadian Human Rights Act.

However, these protections are somewhat hollow as they would be severely limited by the principle of state immunity, meaning that they could not be enforced in a court of law.

It should be noted that under Bill C-23, searches of persons, including relatively non-intrusive pat-down ‎searches, require reasonable grounds to suspect in order to be carried out by US officers in Canada.

In my view, searches of electronic devices can be much more intrusive than these frisk searches.

As I recommended in the context of the study into C-23, border searches of electronic devices should require reasonable grounds to suspect, the same threshold that applies to searches of persons.

Letters to Ministers on US Executive Order

This past spring, I informed you of my correspondence with the three appropriate Ministers regarding the Executive Orders of the new US Administration, issued earlier this year.

Measures like these clearly have a material effect on the privacy of many of our citizens, given the scale of tourism and business travel to the US.

One order would specifically exclude non-U.S. citizens and lawful permanent residents from certain privacy protections.

While Canadians have some privacy protection in the United States, that protection is fragile because it relies primarily on commitments or administrative agreements that do not have the force of law, for instance the 5-Eyes Agreement and the Beyond the Border Agreement with the United States.

I have called upon our government to ask their U.S. counterparts to strengthen privacy protections for Canadians.

This could be done, for example, by adding Canada to the list of designated countries under the US Judicial Redress Act, which would extend some of the protections conferred by the US Privacy Act.

We have also asked the government for assurances that administrative protections will continue despite the order, as in place for citizens of several European countries, and to be advised of any changes that may adversely impact the privacy of Canadians; we understand findings have now been compiled and a response is forthcoming.

Information-sharing with the US

Generally speaking, we have spent considerable time on border issues and information-sharing in the past several years, in particular, the Beyond the Border initiatives with the US. 

To date, we’ve provided feedback on close to fifty separate Privacy Impact Assessments (PIAs) on just these programs alone.

Through these exchanges, we have made a series of recommendations to the Canada Border Services Agency (CBSA) and other various federal departments implicated in expanding information exchange and other border-related processes.

Overall, we have been pleased with the level of consultation and the improved quality of privacy analysis undertaken by agencies involved with border security.

That said, we still have concerns over issues such as retention periods applicable to data collected from travelers and the risk that data collected for border purposes is then used for secondary purposes.

Both of these issues were found to be problematic from the point of view of European law, in a recent judgment of the European Court of Justice on the Canada-EU API/PNR Agreement.

Conclusion

As people, goods and data move across borders more frequently, it is important that Parliament ensures that we have the appropriate rules in place to respect individuals’ privacy. 

The importance of the rules has been recognized historically in relation to the search of persons. It is time to extend these safeguards to electronic devices.

Thank you for inviting me to provide this committee with comment — and I look forward to your questions.

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