Since the start of the COVID-19 pandemic, increased scrutiny on travelers crossing borders and passing through airports has been par for the course. For good reason, customs officers have been tasked with protecting health and safety of the general population by conducting careful examination of who is permitted to enter a country, or board a plane. In this great turmoil, the conversation about the protection of personal privacy has naturally taken a backseat. With the end of the special measures in sight, the latest announcement on this subject is welcome news.
On March 31, the Government of Canada introduced a Bill to safeguard traveler privacy and rights. Introduced by the Minister of Public Safety, the Bill is designed to strengthen the framework governing the examination of personal digital devices by Canada Border Services Agency (CBSA) officers and United States Customs and Border Patrol preclearance officers operating in Canada. The Bill seeks to create standards that must be met before a personal digital device can be examined. In summary, the proposed legislation would amend the Customs Act and the Preclearance Act to:
- Establish a new threshold that must be met before the initiation of a personal digital device examination, which requires reasonable general concern;
- Create an authority to examine documents on personal digital devices, so that they can be distinguished from other goods, including commercially imported/exported digital devices; and
- Require a specific purpose that formally limits examinations to regulatory border-related examinations.
This effort is clearly designed to balance the rights of travelers against the overarching objective of securing borders. However, following the October 2020 ruling of the Alberta Court of Appeal in R. v Canfield and R v Townsend, which established that paragraph 99(1)(a) of the Customs Act is unconstitutional as it establishes no limits on the right of CBSA to examine contents of personal digital devices, the government is clearly pursuing the broader objective of remedying the previous legislative shortcomings.
Typically, personal digital devices have been treated as goods that travelers have on them when they cross the border, and as such, subject to examination by CBSA. In other words, cellphones, computers, tablets, laptops, digital cameras, and any other device capable of storing digital data, fall under the same category as luggage. The obvious problem of this categorization is that the information stored on a personal digital device is not analogous to contents contained in a knapsack. In fact, the main problem is that rather than dealing with “items”, here we are dealing with personal information. The latter is protected under section 4 of the Privacy Act, which states, “No personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution.” To comply with section 4 of the Privacy Act, a government institution must have lawful authority for the collection of personal information.
In October 2019, responding to a number of complaints under the Privacy Act, the Office of the Privacy Commissioner of Canada published an investigative report, which among other recommendations such as better officer training and clearer instruction manuals, recommended legislative change. The report concluded that the search of an electronic device at the border is an extremely privacy intrusive procedure and highlighted the inherent problems associated with considering digital devices to be simply “goods” in terms of the application of the Customs Act. The specific recommendations included an update to the definition of “goods” under the Customs Act, development of a clearer legal framework, and elevation of the threshold to “reasonable grounds to suspect”. The proposed threshold was to replace the existing “multiplicity of indicators” standard in the CBSA policy.
The proposed Bill S-7 imports these recommendations, a welcome step towards modernizing the Customs Act, which was enacted in 1985, long before examination of cell phones and other digital devices could have been contemplated by the legislators. It is a hopeful sign that a proper balance can be struck between safeguarding the borders and protecting the personal right to privacy.
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