The British Columbia Civil Liberties Association (BCCLA) has released a handbook to help travellers between Canada and the U.S. protect their personal data from being viewed, used or stored by border agencies in either country.
At the moment, Meghan McDermott, staff counsel with BCCLA, says border guards can basically search anything they want — they don't need a court warrant or reasonable suspicion.
“What the privacy commissioner of Canada is recommending — and we do agree with him — is that the best protection is to leave your devices at home,” says McDermott. “However we do realize that is inconvenient — especially if you're traveling for work, it’s just not an option to leave your device at home for many people. So [the handbook] provides practical tips on how you can best mitigate the risk of your privacy being invaded. Everything from switching off your computer or smartphone right before you get to the border, to making secure backups of everything in advance.”
Other ways to protect yourself include ensuring your device has a strong password, enabling two-step authentication, or wiping the phone clean of data — although the group warns that some agencies have acquired sophisticated forensic tools, and may use them to access data that, on the surface, appears to have been deleted.
The tips echo what security experts have been saying for some time, after a wave of incidents in early 2017 of American border guards seizing mobile devices and demanding passwords.
Currently, McDermott says, the law states that any officer with the Canada Border Services Agency or U.S. customs and border services can search the contents of electronic devices owned by anyone crossing the border—whether flying, on layover, land-travelling or ferrying.
If the person being questioned withdraws and walks away, that is currently legal. However, McDermott says, a new Canadian law, which gives U.S. officers more power during preclearance procedures, will change that. Bill C-23 was passed in December and is expected to come into effect soon.
“With the new law, as soon as you want to withdraw form the preclearance area, it actually allows the American border officials to start a whole new line of interrogation. They're allowed to identify you, they get to question you for as long as they want until they are satisfied as to your reason for leaving that area. So we will be updating the handbook within the next month whenever that law comes into effect.”
The office of Canadian Public Safety Minister Ralph Goodale released a statement in response to the handbook, noting that the CBSA's policy is "to not routinely examine the contents of cell phone or other electronic devices."
It said officers may only conduct searches if there are "multiple indicators that evidence of contraventions may be found on a device" and that the only purpose is to enforce the Customs Act, and the Immigration and Refugee Protection Act.
"Officers are prohibited by law from conducting examinations for the sole or primary purpose of looking for evidence of a criminal offence," the government said, adding that "CBSA’s policy is for officers to disable the device’s wireless and internet connectivity to help ensure that the examination is only of material stored on the device, and to not compel a person to log into external accounts."
The BCCLA's 68-page handbook (Electronic Devices Privacy Handbook – a Guide to Your Rights at the Border) is broken down into several parts, summarizing laws as well as ways to protect yourself from having your smartphone, tablet or computer seized, and provides resources for people who have been searched or discriminated against.
“There’s a whole host of resources where you can make complaints, and there a number of civil society groups that are looking for reports from people who have faced discrimination,” she says. “And if there are enough reports, that helps lobbying efforts for law reform, and it could one day end up in a lawsuit to try and protect our rights.”
In 2011, BCCLA released the handbook’s precursor ( Electronic Devices Privacy Handbook: A Guide to Your Rights), however a lot has changed in terms of e-privacy since then.
McDermott also says travellers who have their electronic devices searched and seized at the border are often visible minorities, though she notes the CBSA doesn't have substantial data to prove that.
“The CBSA is actually pretty opaque in that they don't publish any of their policies, so it’s really hard to know what they think they can and can’t do, aside from anecdotes from friends and family crossing the border. Lots of people living here that travel through the country on layovers or are living here temporarily on Visa—they, under the law, don't have as many rights as citizens of permanent residence do, and the handbook speaks to that.”
When asked if searching someone’s electronic device at the border infringes on human rights, McDermott says it depends who you ask.
“It’s not the same world as say 20 years ago when we were crossing the border and the most intimate thing I was taking was a personal diary or a letter from a loved one, [or] maybe some intimate photos—maybe some invoices or bank receipts. But now, what people carry with them— sometimes they have health information or results of blood tests, all their financial information, who they are sending money to [and] what members are going along with the money being sent. There is just so much information and we have a right to keep this private. Really, the government should not be looking at any of this information without justification, [or] a good reason to invade our privacy.”
The handbook is free and can be downloaded at www.bccla.org/edevice.
Cover image by Peter Power/The Globe and Mail.