The possibility of arbitrary searches of the electronic devices of persons crossing into the US continues to raise concerns among Canadians and, in particular, privacy regulators. Recent statements (and subsequent legislative amendments) are attempting to address some of the legal issues.
On June 8, 2017, Daniel Therrien, the Privacy Commissioner of Canada, sent a follow up letter to the Standing Committee on Public Safety and National Security to provide additional input for the Committee’s review of Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States (“Bill C-23”).
Mr. Therrien’s first letter of May 24, 2017 expressed his concerns about the US intention to conduct indiscriminate searches of electronic devices at the border:
My immediate concern stems from recent announcements by the US administration that they intend to search at their discretion and without legal grounds other than a desire to protect homeland security the electronic devices of any and all aliens who seek to enter the United States. This would include intent to require persons seeking admission to the US to provide the password of their cellphone or social media accounts. It would appear that this policy would equally apply at preclearance locations in Canada
By contrast, according to Mr. Therrien, the Government of Canada’s policy is to perform border searches of persons seeking admission to Canada only if there are grounds or indications that evidence of contraventions may be found on the digital device or media.)
Searches of Electronic Devices are “Extremely Privacy Intrusive”
Mr. Therrien stated that groundless searches of electronic devices are “extremely privacy intrusive.” Bill C-23 recognizes the sensitivity of searches of persons, from frisk or pat-down searches to strip and body cavity searches. These searches legally cannot be performed unless an officer has reasonable grounds to suspect some legal contravention, notably the concealment of goods. In Mr. Therrien’s view, it is “extremely clear” that searches of electronic devices can generally be much more intrusive than frisk searches, for “electronic devices can contain the most personal and intimate information we hold”.
Mr. Therrien recommends that Bill C-23 be amended to place border searches of electronic devices on the same footing as searches of persons and therefore their performance should require “reasonable grounds to suspect”. A consequential amendment to the Customs Act would elevate to a rule of law the Canadian policy which provides that 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.
Protections in Bill C-23 Hollow?
In his original letter, Mr. Therrien had expressed the view that the protections offered under Canadian law by section 11 of the Bill appeared to be hollow, due to the application of the principle of state immunity, meaning it could not be enforced in a court of law. However, in his more recent letter, he offered his additional views and proposed a partial solution.
Mr. Therrien’s states that it is his understands that, according to the government, the protections of s.11 would not be completely hollow because in the event of a violation of Canadian law, the violation could be brought to the attention of the Preclearance Consultative Group, a bilateral working group created pursuant to Article XII of the 2015 Agreement on Land, Rail, Marine and Air Transport Preclearance, for discussions from state to state.
Mr. Therrien, while admitting the solution is a “very partial” one, proposed that this would at least recognize the principle that border searches on Canadian soil should be conducted in accordance with Canadian law and values.
Amendment to Bill C-23
On June 16, 2017, the Standing Committee on Public Safety and National Security presented their report to the House of Commons and recommended an amendment to Clause 11, inter alia, by adding the following:
(2) The Minister must, in accordance with paragraph 2 of Article IX of the Agreement, provide every preclearance officer with training on the Canadian law that applies to the exercise of the preclearance officer’s powers and the performance of their duties and functions under this Act.
It is worth noting that preclearance officer is a defined term in Bill C-23 to mean a person authorized by the Government of the United States to conduct preclearance in Canada. The amended version of Bill C-23 was read the third time and passed in the House of Commons on June 20, 2017 , and further it was read the first time and passed in the Senate on June 22, 2017 and a date for the second reading has been set.