OPC calls for higher threshold on border cell phone search bill

When it comes to the government's plan to lower the threshold governing the search of personal digital devices at Canadian border crossings, lawyers from the federal privacy watchdog are reiterating a call they made some three years ago. The standard for the search of the devices should be the higher "reasonable grounds to suspect," rather than the government's proposed lower "reasonable general concern," according to Monday testimony from the Office of the Privacy Commissioner senior legal counsel Regan Morris before the Senate's National Security and Defence committee during its study of Bill S-7. The OPC wrote exactly that in 2019 following the results of an investigation following a series of complaints about searches of personal digital devices by Canada Border Service Agency (CBSA) officers at borders. The OPC found that the CBSA had violated the Privacy Act and recommended that the Customs Act be updated to include the higher "reasonable grounds to suspect" threshold. "It's not clear what the evidentiary basis is for this novel threshold, and its novelty creates a high potential for ambiguity in its interpretation and implementation," Morris said. "There's also a risk that reasonable general concern could be interpreted as not requiring concerns specific to an individual, but rather permit examinations based on general concerns, such as what country an individual is arriving from." Morris also echoed concerns raised by civil liberties advocates in testimony last week: that the threshold is lower than the one currently needed to open and search mail at the border. "Inspecting a physical piece of mail is generally less extensive and less intrusive than examining a digital device that can contain or provide access to tests, photos, personal documents, and electronic messages potentially spanning years," he said Before the tabling of the bill, Morris said, the OPC also reached out to the Minister for Public Safety at the time to offer its help with updating the act, though Morris told Senators Monday that the OPC was only notified of the bill and its lower threshold when the bill was tabled in the Senate in April. "We offered our services and said we could consult with the CBSA on amendments, but we did not have those conversations," Morris said in French, according to simultaneous translation. "In our opinion, the appropriate standard is the one found in other aspects of the Customs Act. It would be to have 'reasonable grounds to suspect,'" Morris said. During an appearance at the same committee's study last week, Public Safety Minister Marco Mendicino said that a separate bill, C-20, would afford travellers a level of accountability through the creation of a new civilian review complaints commission, alongside new training for border officers. Morris said that while the OPC is still studying the contents of Bill C-20, the training of officers when it comes to the lower search threshold is not enough. "Training is important, it's something that we recommended in our investigation in 2019 - that border services increase training. But in our opinion, it's not sufficient if the legal standard to examine digital devices is too low," Morris said. — Reporting by Michael Lee-Murphy at mleemurphy@thewirereport.ca and editing by Jenna Cocullo a jcocullo@thewirereport.ca.

OPC calls for higher threshold on border cell phone search bill

News | June 6, 2022

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us

OPC calls for higher threshold on border cell phone search bill

News | June 6, 2022

Unlock all the Canadian telecom, broadcasting and digital media news you need.

FREE TRIAL

SUBSCRIBE

Related Stories

Key Liberal ministers and parliamentary secretaries re-elected, NDP counterparts shut out in election

Privacy commissioner seeks court order against Pornhub parent company

Privacy Commissioner investigating Elon Musk’s X platform

Meta’s content moderation changes highlight challenges for Canadian digital regulation

Reuse & Permissions

Inside The Wire Report

Information

Hill Times Publishing

Get in Touch With Us