OTTAWA — A month after the federal privacy watchdog criticized Canada’s border agency for breaking the law with invasive examinations of six travellers’ laptops and cellphones, the agency revealed it has conducted 27,405 such searches in a two-year period.
New statistics released by the Canada Border Services Agency (CBSA) reveal more information about the frequency of a practice that Privacy Commissioner Daniel Therrien warned is one that could potentially violate individuals’ privacy rights.
Canada’s border agency started tracking device examinations in November 2017.
“The CBSA recognizes that digital devices can contain sensitive personal information and that protecting privacy is of great importance,” the agency said in a Tuesday release.
“At the same time, its resultant rate demonstrates that information on digital devices can be key for the Agency to fulfill its mission to ensure the security and prosperity of Canada by managing the access of people and goods into Canada.”
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The 27,405 examinations are within the context of 207.8 million travellers processed at border entries from Nov. 20, 2017, and Dec. 31, 2019. “Approximately 40% of device examinations resulted in a customs-related offence,” the agency said.
A “number of complaints” were filed against the CBSA in 2017-18, according to the privacy commissioner’s report, published in December. The report details the investigation by Therrien’s office into complaints from six individuals, all of whom were returning home from abroad when their digital devices were seized and examined by border officers.
Border agents do not regularly conduct examinations of travellers’ devices. The CBSA states its policy is to examine someone’s phone, tablet or laptop “only if we think we will find evidence on it that border laws have been broken.”
They are limited in their authority to search only information stored on the device. When examinations do happen, the CBSA’s policy states airplane mode must be turned on.
The report from the federal privacy watchdog states that airplane mode was not switched on in four of the six complainants’ cases. Border agents did not keep notes on the other two cases indicating whether airplane mode was on or not.
In one case, a traveller was asked to unlock her phone so an agent could comb through her Facebook and WhatsApp messages and mobile banking app “to confirm or negate concerns relating to illegal cross-border activity.”
There is no clear list of indicators border agents look for to merit searching someone’s phone. The CBSA states that concerns about a traveller’s identity, their admissibility or the admissibility of their goods, or compliance with laws and regulations could compel an officer to ask to search a device.
Therrien’s report found the CBSA’s policy doesn’t demonstrate “effective means of ensuring that examinations and searches of digital devices respect individuals’ privacy rights.”
The report made nine recommendations to the CBSA, including introducing mandatory training and updating its manuals to clarify its policy on examining digital devices.
“We are pleased that the CBSA has largely agreed with our operational recommendations and has drafted a new comprehensive policy,” reads Therrien’s report.
The CBSA rejected a recommendation to make legislative changes to the Customs Act to modernize the border agency’s inspection regime — a response that left the privacy commissioner’s office “surprised and disappointed.”
CBSA spokesperson Rebecca Purdy told HuffPost Canada the agency has since updated its existing manual to provide more instructions for border officials to address privacy concerns.
The policy update includes guidance on activating airplane mode, respecting solicitor-client privileged information, and conducting searches only directly related to a border agent’s concerns.
“The CBSA recognizes that travellers’ digital devices are a type of good that frequently contain sensitive personal information and that measures to protect the privacy of travellers should be adopted when it comes to the examination of travellers’ digital devices at the border,” Purdy wrote in an email Wednesday.