Civil liberties groups back privacy commish on device searches

OTTAWA — Grouping electronic devices with other goods when it comes to searches at the border is an affront to Canadians’ right to privacy and border laws must be clearer to protect citizens from unreasonable searches of their devices, civil liberties groups argued in front of a Parliamentary committee Thursday. “Currently, electronic devices are considered goods in the context of the Canadian border and in preclearance areas in Canadian airports and there are no statutory safeguards to protect them from arbitrary search by border agents,” Meghan McDermott, policy officer at the British Columbia Civil Liberties Association, told the House of Commons’ standing committee on access to information, privacy and ethics via videoconference. The committee began a study of Canadians’ privacy at airports, borders and travelling in the United States Thursday. It also heard testimony on Bill C-23, focusing on preclearance for travellers between Canada and the United States, and intended to streamline crossings, which had been adopted by the committee on Wednesday. An amended version was scheduled to be presented to the House for a third reading Friday. Preclearance areas are designated zones in some Canadian airports where U.S. agents can process U.S.-bound travellers, McDermott said. The bill was introduced last June, and while it doesn’t allow a Canadian traveler to arbitrarily be strip searched, that same rule doesn’t apply for electronic devices, which McDermott said should be the case. Esha Bhandari, a staff attorney at the American Civil Liberties Union (ACLU), said via videoconference that device searches of travellers by U.S. Customs and Border Protection agents at all crossings can include a forensic scan of the device, amounting to “essentially a computer strip search.” In that case the device, be it a smartphone or laptop, is transported to another location where it is connected to a device that scans and gives the government access to not only what’s on the device, but deleted files as well. The device is supposed to be held for only up to five days initially but can be extended in seven-day increments, she said, adding the ACLU is trying to track the technology used by agents. In addition, U.S. border agents can ask for Canadian visitors’ device passwords, which Bhandari said would give authorities “access to an unlimited trove of information through Internet-connected, cloud-based apps,” such as social media and email accounts. U.S. citizens can refuse to give passwords, but visitors can be turned away if they refuse, she said. In May, Canada’s privacy commissioner Daniel Therrien expressed concern about those kinds of searches in a letter to Robert Oliphant, the House of Commons' public safety and national security committee chair, and recommending in a June follow-up letter that Bill C-23 equate body searches, which require reasonable grounds to be carried out, with device searches. He expressed concerns about the U.S. government’s intent to search electronic devices without legal grounds for “any and all aliens” seeking to enter the U.S. Therrien this week issued added notes about how to enforce those Canadian laws in in light of a state immunity principle that would otherwise make them not enforceable in court. The current position of the United States government is that suspicionless and warrantless searches of electronic devices at the border are permissible under the customs and border protection policy, which dates back to 2009, Bhandari said. She added the U.S. Supreme Court has not yet ruled on that claimed authority. Brenda McPhail, director of the privacy, technology and surveillance at the Canadian Civil Liberties Association told the committee that the privacy of Canadians with respect to devices is also not adequately protected by the Canada Border Services Agency. “Information collected from devices searched or detained by is taken without public knowledge about what it will be used for, whether how or for how long it will be retained and whether with whom it could be shared,” McPhail said. “Many individuals from members of the business community to journalists, researchers, doctors and lawyers also have professional obligations to maintain confidentiality and the integrity of their data and the present laws are entirely unequipped to deal with that reality,” she added. McPhail said electronic device searches require a “clear framework” under domestic law to ensure a reasonable search that is Charter compliant by requiring a warrant and adequate grounds to perform the search. “There’s no compelling reason why we can’t develop clearer laws that allow us to do the same at the border,” she added. “It’s long past time we update the Customs Act and other legislation, which…recognize the distinction between a bag full of underwear and a device that contains or provides access to our most intimate personal conversations,” McPhail said, adding the current practice of the CBSA isn’t sufficient because the agency can conduct warrantless searches of the electronic devices “based on largely unexplained interpretations of legislation.” The amendment to the Customs Act would “similarly protect the privacy of Canadians returning home through Canadian borders,” McDermott added. The BCCLA pointed to a CBSA bulletin from 2015, retrieved via a freedom of information request, which states that the CBSA’s current policy on goods, including digital devices and media, “is that such examinations should not be conducted as a matter of routine; they may only be conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media,” according to the document on the BCCLA website. “We support the call to codify this policy through legislative amendments,” the BCCLA said. “It would also support the recognition by the Supreme Court of Canada that the search of electronic devices is an extremely privacy intrusive procedure.” Earlier this year, the privacy commissioner asked the government to get the U.S. to include Canada in a list of countries whose citizens are given protection of their personal information. The preclearance bill in the U.S. already passed unanimously, David MacNaughton, Canada’s ambassador to the United States told the Senate committee on foreign affairs and international trade Wednesday. “They’re waiting for us…I was talking to some of the members of parliament in the House yesterday ‘please, hurry it up because I’m a bit embarrassed.' I leaned on the Americans so heavily and now they’re coming back and saying, ‘where’s yours?’” CORRECTION: This story has been amended to reflect that it was the ethics committee, not public safety and national security, that heard arguments on privacy Thursday. — With reporting by Ahmad Hathout at ahathout@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Civil liberties groups back privacy commish on device searches

News | 06/16/2017 4:10 pm EDT

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