Your privacy at airports and borders

Revised July 2018

Travellers at Canadian airports and U.S. border crossings are subject to close scrutiny and several layers of security measures. Airports, sea ports, international waterways and land border crossings are significantly different from other public places in Canada because the expectation of privacy is reduced. Does that mean people lose all right to privacy? No.

Here is some information about what to expect and where you can turn if you feel your privacy rights have been violated.

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Canadian Customs Searches

At border controls, Canada Border Services Agency (CBSA) officers have widespread powers to stop and search people, and examine their baggage and other possessions including devices such as laptops and smartphones. These activities are carried out under the authority of Canada’s Customs Act; a warrant is not required.

Individuals are also subject to these measures even if they are not planning to cross a border, but are in so-called “customs controlled areas.” These are designated zones in a border crossing area or airport where domestic employees or travellers leaving Canada might mingle with arriving international travellers and goods that have not yet been cleared by the CBSA. Signs and notices are posted in these areas. Travellers and/or employees in or leaving these areas must identify themselves, answer questions and present their goods for examination if asked to do so by a CBSA officer. They may also be subject to physical searches.

Cell phone, tablet, and laptop searches at the Canadian border

Canadian courts have generally recognized that people have reduced expectations of privacy at border points. In this context, privacy and other Charter rights continue to apply but are limited by state imperatives of national sovereignty, immigration control, taxation and public safety and security. The Canadian courts have not yet ruled on whether a border officer can compel a person to turn over their password and on what grounds, so that their electronic device may be searched at a border crossing.

While the law is unsettled, CBSA policyFootnote 1 states that examinations of personal devices should not be conducted as a matter of routine; 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.”

If your laptop or mobile device is searched, it should be searched in line with this policy and, in that context, you will likely be asked to provide your password. If you then refuse to provide your password, your device may be held for further inspection. According to the policy, officers may only examine what is stored within a device, which includes, for example, photos, files, downloaded e-mails and other media. Officers are advised to disable wireless and internet connectivity, limiting access to any data stored external to the device, for instance, on social media or in a cloud.

Individuals entering Canada who are concerned about how this policy might be applied may wish to exercise caution by either limiting the devices they travel with or removing sensitive personal information from devices that could be searched. Another potential measure is to store it on a secure device in Canada or in a secure cloud which would allow you to retrieve it securely once you arrive at your destination.

If you have concerns or questions

The Canada Border Services Agency’s Recourse Directorate can review issues related to any decision or search undertaken by the agency’s officials. As well, the Agency has an online feedback and complaint form.

Individuals who are concerned about searches at the border may also file a complaint with the Office of the Privacy Commissioner of Canada (OPC). Note that the OPC is currently investigating the issue of electronic device searches at the border.

Travelling to the U.S. or other countries

Cell phone, tablet, and laptop searches at a foreign border

Canadians need to know that U.S. border officials have broad inspection powers which can include seeking passwords to your laptop, tablet or mobile phone. Although infrequent,Footnote 2 basic searches of electronic devices by U.S. officers do not require evidence of contraventions. They are performed without grounds as a routine border inspection. However, according to a new U.S. Customs and Border Protection directive, advanced searches by U.S. officials, which involve connecting to external equipment to review, copy or analyze the contents of a device, require reasonable suspicion of illegal activity or if there is a national security concern. It is important to note that the powers of border officials in many foreign countries will vary from those that exist in Canada.

According to the directive, in both basic and advanced searches, U.S. border officers may only inspect data that resides on a device and is accessible through its operating system or through other software, tools or mobile applications. They may not intentionally access information stored remotely, for instance in a cloud. To avoid doing so, they are required to ask travellers to disable internet connectivity, or where authorized, they should disable it themselves.

Travellers who are concerned about groundless searches or other aspects of the U.S. directive may wish to exercise caution and either limit the devices they bring when travelling to foreign countries, including the U.S., or remove sensitive information from devices that could be searched. Another potential measure – particularly if travelling for work and carrying protected information, for instance information subject to solicitor-client privilege – is to store it in a secure cloud which would allow you to retrieve it once you arrive at your destination.

U.S. border officials on Canadian soil (preclearance)

It is also important to note that travellers to the U.S. could encounter U.S. border officials while still on Canadian soil. At a growing number of preclearance points across Canada, U.S. border officials have the authority to examine passengers and their goods, including electronic devices, ahead of travel.

The rules in the above section on searches of electronic devices for travellers to the U.S. apply equally to searches performed at preclearance facilities. We therefore give the same advice to those concerned about these searches.

While preclearance legislation states U.S. officers must, while in Canada, also comply with Canadian law, including the Charter, a Canadian who believes a U.S. customs official has broken Canadian law has little recourse in the courts due to the principle of state immunity.

Methods of recourses are set out below. Individuals may also withdraw from the preclearance facility and thereby forego their wish to enter the U.S., a decision that may be recorded and that could impact future travel.

If you have concerns or questions

If you have concerns about enforcement action taken by U.S. Customs and Border Protection, you may submit a complaint or concern. More information about preclearance, including a list of preclearance sites and contact information can be found. For general Customs and Border Protection inquiries, callers outside the U.S. may contact (202) 325-8000. (Or toll free within the U.S. at 1-877-CBP-5511). If you are concerned that a U.S. border official operating in a preclearance facility has violated Canadian law, you may wish to contact Public Safety Canada’s Preclearance Unit, part of the International Affairs Division:

Public Safety Canada
International Affairs Division - Preclearance
269 Laurier Avenue West
Ottawa, Ontario K1A 0P8
Canada

Airport Security Screening

The Canadian Air Transport Security Authority (CATSA) is responsible for screening baggage, passengers, flight crews and airport workers. Every air passenger must pass through security screening, which includes presenting your boarding pass and identification, having personal items, including electronic devices (but not their content), and carry-on bags screened by X-ray machines, and walking through a metal detector. Other screening mechanisms may also be used by CATSA.

Physical Searches

A physical search can be required to resolve screening equipment alarms, or if a passenger is selected for additional screening. It may also be needed if an individual has a medical condition (e.g., pacemaker) that makes using a scanner dangerous.

Millimetre-wave Full Body Scanners

Full body scanners can detect items such as ceramic weapons, liquids, plastic explosives or other concealed objects that do not show up with standard metal detectors.

When first introduced in Canada, full body scanners raised privacy concerns due to the detailed images produced of passengers’ bodies. In an effort to address concerns, software is now used to generate “stick figures” rather than a detailed body outline.

  • Passengers selected for additional screening can choose either inspection by the scanner (where available) or a physical “pat down.”
  • Your name, boarding pass number and passport information are not associated with the generic stick figure generated by the full body scanner.
  • Images are examined and then immediately deleted.

If you have concerns

CATSA has a toll-free, 24-hour number (1-888-294-2202) to answer questions or take complaints stemming from screening procedures or dealings with screening officers.

Travellers may also report concerns on the CATSA website. Travellers with complaints about a search of personal items or devices may contact CATSA’s Claims Management Unit.

Collection of Traveller Data

Advance Passenger Information/Passenger Name Record Program

Under the Advance Passenger Information/Passenger Name Record Program (API/PNR), the CBSA seeks to identify travellers who may pose a security risk – before they arrive in Canada.

Information on all individuals travelling to Canada, regardless of carrier or citizenship, is reviewed. Data collected and reviewed includes: name, date of birth, gender, citizenship, travel document data, itinerary, address, ticket payment information, frequent flyer information, baggage details and contact telephone numbers. Travellers are checked against alerts, watch lists and other screening programs, and some may be referred for further examination at port of entry.

Scenario Based Targeting (SBT) is a technique used by the CBSA to assess the risk posed by air travellers arriving into Canada. It is done by analyzing the API/PNR data sent to the CBSA by commercial air carriers against pre-determined risk scenarios. A data analytics program matches all travellers’ characteristics – such as age, gender, nationality, time spent abroad, travel patterns and other elements – against these scenarios to identify individuals for further risk assessment. Additional risk assessments and database checks are conducted manually by CBSA officers for those who match one or more scenarios. Travellers identified as potentially high risk after this process may be subject to secondary examination at port of entry.

According to the CBSA, the Agency does not keep an active record of travellers who match risk scenarios and who, after further assessment, are found to pose no actual threat. Records of individuals referred for secondary examination at port of entry are retained. Individuals who wish to access the personal information held about them by the CBSA may make a request under the Privacy Act.Footnote 3

If you have concerns

Travellers have a right to request a copy of their personal Advance Passenger Information/Passenger Name Record data, and may ask that a notation be included if any of the information is incorrect. Individuals who disagree with a Canada Border Services Agency enforcement action have a right to have it reviewed. You can find more information on appeals and reviews on the CBSA’s website.

Entry/Exit System

Authorities have not only a record of when you entered Canada but they also know when you leave Canada.

The CBSA and U.S. Department of Homeland Security exchange data on people travelling between the two countries at major land crossings. Under the Entry/Exit Initiative, the CBSA collects information from the United States about individuals who have left Canada at land border crossings. This presently applies to all U.S. persons, permanent residents living in Canada and third country nationals. A bill currently before Parliament would extend these provisions to all travellers, including Canadian citizens, but it has not yet passed.

Biometrics and facial recognition

Biometric and facial recognition technologies are increasingly being used in travel documents and by customs and border officials to detect fraud, improve security and ease travel. For instance, iris images are used in the voluntary CANPASS and NEXUS border clearance programs. Passport Canada uses facial recognition technology to prevent fraud, by checking photos submitted in passport applications against a database of existing passport holders.

The CBSA began introducing Primary Inspection Kiosks at major Canadian airports in March 2017. The self-service kiosks are intended to simplify the process for verifying identity and completing customs declarations. Use of these kiosks is optional.

The OPC is in the process of updating guidance for public and private sector organizations on privacy and the use of biometric and facial recognition technology.

Canada’s No-fly List

The goal of Canada’s no-fly initiative, known as the Passenger Protect Program, is to prevent people from boarding airplanes to, from, or within Canada if there are reasonable grounds to suspect they pose a threat to transportation security or are attempting to travel abroad to commit certain terrorism offences.

If you have concerns

Public Safety Canada administers the Passenger Protect Program. If you or a family member has experienced a travel disruption due to an aviation security list, you should contact the Passenger Protect Inquiries Office.

More information and help

Concerns related to government security programs

If you think your personal information has been collected, used or disclosed improperly by a government security program, you can turn to one of the redress mechanisms described in this fact sheet.

There are also dedicated review bodies for complaints against the RCMP (the Civilian Review and Complaints Commission for the RCMP) and the Canadian Security Intelligence Service (Security Intelligence Review Committee).

Concerns related to airlines

If you are concerned about the potentially inappropriate collection or handling of your personal information by an airline or other business, you should start by contacting the organization directly and trying to have your issue resolved. Privacy concerns can be raised with the person responsible for privacy issues within the organization, often called the Chief Privacy Officer.

Complaints to the Office of the Privacy Commissioner of Canada

If you are not satisfied with the response of a federal government department or agency or a private sector organization regarding a privacy concern, you can file a complaint with the Office of the Privacy Commissioner of Canada.

The Commissioner has the power to investigate complaints, search for resolutions satisfactory to both parties, and make findings and recommendations. In the case of commercial organizations, he may take an unresolved complaint to Federal Court to obtain an order to respect your privacy rights which may have been violated.

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