Defining the Boundaries: Protecting Privacy & Privilege of Digital Content @ the Canadian Border
June 13, 2018
By David Fraser, at McInnes Cooper
Businesspeople (and their legal counsel) are on the road more than ever before: according to Statistics Canada, while Canada-U.S. traffic is down, the number of Canadian residents travelling overseas has increased every year since 2003 – and is up 153.3% between 2003 and 2017. Most travel with digital devices in hand (or briefcase). And more business travellers run into digital device searches at the Canadian border. The Canada Border Services Agency (CBSA) takes the view it can search the contents of any digital device at the border, and can require a traveller to unlock and unencrypt a digital device to do so – even if it doesn’t have reason to be suspicious. We disagree.
Here’s the basis for the CBSA’s view, why we disagree with it, and practical tips to protect your privacy (and for lawyers, clients’ privilege) when travelling internationally.
Privacy @ the Border
The CBSA View: Digital devices are “goods” like any other. The CBSA’s view is based on the proposition that both a digital device and the data it contains are “goods”, just like any other “goods” – and thus, sections 99(1)(a) and 99.3(a) of the Canadian Customs Act give CBSA officials a limitless power to comb through that data without grounds or a warrant:
Examination of goods
99 (1)(a) An officer may at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts;
Non-intrusive examination of goods
99.3 (1) An officer may, in accordance with the regulations and without individualized suspicion, conduct a non-intrusive examination of goods in the custody or possession of a person who is in or is leaving a customs controlled area.
When a traveller carries a smartphone or laptop across the Canadian border, that physical device is arguably a “good” that is “imported” into Canada. However, the legal question, is whether the digital data that is in or that is accessible through that device – like the traveller’s call records, texts, emails, financial records, medical records, geo-location data, shopping histories, Internet browsing history, … – is collectively a “good” that’s “imported” into Canada within the meaning of the Customs Act.
The Privacy Law View: Digital devices are not “goods” like any other. The CBSA’s view is out of step with the current state of Canadian law respecting privacy rights generally. The CBSA’s position is rooted in legislation written and enacted in the “briefcase era”, and that doesn’t even contemplate digital information. It imagines a smartphone or a laptop to be just like a briefcase containing documents; since they can search a briefcase and look at the documents, so can they do the same with a digital device. But this reasoning ignores the development of the law on privacy rights generally, privacy rights at the border, and privacy rights in digital devices – and their contents:
- Privacy Rights Generally. It’s clear that the law, both in Canada and internationally, is rapidly evolving to recognize the value of – and to protect – individuals’ privacy in digital information. This evolution is evident in the abundance of privacy-related legislation promulgated. For example, in Canada, the Digital Privacy Act, most of which took effect in June 2015, amended the federal Personal Information and Protection of Electronic Documents Act (PIPEDA) to mandate a data breach response that includes reporting, notification and record-keeping requirements. On March 26, 2018, Canada’s federal government proclaimed the Digital Privacy Act’s mandatory data breach notification requirements will take effect on November 1, 2018 – with no advance warning to key industry stakeholders it would do so, and despite the fact the draft notification regulations detailing who an organization must notify of a data breach and when aren’t yet finalized. Though it’s impossible to know for certain, many in the privacy space speculate the government was prodded into action by recent high profile data breach incidents. Failure to follow the new Canadian data breach rules under the Digital Privacy Act, once they take effect, can lead to quasi-criminal liability (it’s not a criminal offence but it’s subject to a penalty that’s similar to a criminal offence, although the court procedures are less complicated) for both organizations and for directors personally. Internationally, on May 25, 2018, the new EU General Data Protection Regulation (GDPR) took effect across the European Union, replacing the UK Data Protection Act 1998 and introducing a number of new obligations on organisations. The GDPR expands the definitions of “personal data” and “sensitive personal data”, raises the standard for consent, requiring disclosure of more information about information processing, strengthens existing data subject rights, introduces a new right to erasure and a right to be forgotten, introduces new concepts of privacy by design and privacy by default, mandates security breach reporting, and requires Data Protection Impact Assessments (DPIA) prior to any high risk data processing.
- Privacy Rights @ Border Crossings. In its 2012 decision in R. v. Nagle, the B.C. Court of Appeal dealt with ascertaining when a person is detained, and must thus be advised of their Charter rights. In it, however, the Court confirmed that while international travellers’ expectation of privacy is diminished at border crossings, it’s not extinguished altogether: our borders are not “Charter-free zones” and “[b]order officials must be alive to the rights of travellers under Canadian law.”
- Privacy Rights in Digital “Receptacles”. Courts, and in particular the Supreme Court of Canada, have recognized individuals’ increased expectation of privacy in digital devices and that computers and smartphones are unique vis-à-vis other sorts of information “receptacles” – and so are privacy interests in them. These courts have reinforced that the extent of private information now stored in digital devices requires state searches to be reasonable, regulated and contained to comply with the Charter right to be free from unreasonable search and seizure:
- As early as its 2010 decision in R.v. Morelli, the Supreme Court of Canada acknowledged that, “… [i]t is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer.”
- In its 2012 decision in R. v. Cole,the Supreme Court of Canada recognized that employees may have a reasonable, though limited, expectation of privacy – even in their work computer because computers used for personal purposes contain information that is meaningful, intimate and touching on the user’s biographical core.
- In its 2013 decision in R. v. Vu, the Supreme Court of Canada continued to develop the law around privacy rights in the contents of computers, including “smart phones”, when it decided police require specific authorization in a search warrant to search the data in a computer because of the privacy interests at stake. In that decision, the Court emphasized that the privacy interests at stake in searches of computers and cellular phones are “markedly different” compared to searches of other types of receptacles (like filing cabinets). The Court built on its strong statement in R. v. Morelli and noted that in a device search police could potentially access “vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard …”. The Court expressly stated that, “… privacy interests in computers are different — markedly so — from privacy interests in other receptacles that are typically found in a place for which a search may be authorized.” (at paragraph 49).
- In its 2014 decision in R.v. Spencer, the Supreme Court of Canada decided that Canadians have a reasonable expectation of privacy in their online activities, and confirmed that a police investigation isn’t enough to give police the “lawful authority” to get personal information from organizations without a warrant.
- In its 2014 decision in R.v. Fearon, the Supreme Court of Canada continued its trend of recognizing – and protecting – privacy rights. Building on its decision in in R. v. Vu, the Court decided it must modify the police power to conduct prompt cell phone searches incident to arrest because of its increased potential to invade privacy and breach the Charter. Equating smartphones with computers, the Court reiterated that, “[i]t is well settled that the search of cell phones, like the search of computers, implicates important privacy interests which are different in both nature and extent from the search of other ‘places’… It is unrealistic to equate a cell phone with a briefcase or document found in someone’s possession at the time of arrest. As outlined in [R.v.]Vu, computers — and I would add cell phones — may have immense storage capacity, may generate information about intimate details of the user’s interests, habits and identity without the knowledge or intent of the user, may retain information even after the user thinks that it has been destroyed, and may provide access to information that is in no meaningful sense “at” the location of the search.” (at paragraph 51) [emphasis added].
Though not determinative, it is notable that the Privacy Commissioner of Canada also disagrees with the CBSA’s view. In his Follow-up letter to the Standing Committee on Public Safety and National Security regarding Bill C-23, An Act respecting the preclearance of persons and goods in Canada and the United States (8 June 2017), he stated,“The idea that electronic devices should be considered as mere goods and therefore subject to border searches without legal grounds is clearly outdated and does not reflect the realities of modern technology. Border controls are important and legitimate for reasons of sovereignty and public safety, but they should not be exercised arbitrarily…” [emphasis added]
Unfortunately, there’s no court decision yet determining this question – or whether such a search violates a person’s right under section 8 of the Canadian Charter of Rights and Freedoms to be free from unreasonable search and seizure – despite opportunities for cases to proceed to a court for such decision. For example in March 2015, a Canadian resident flew from the Dominican Republic to Halifax, N.S. When passing through Canadian customs, CBSA officials asked him to unlock his smartphone. The traveller refused. The CBSA charged him with the criminal offence of obstructing border officials, which carries a maximum sentence of a $25,000 fine and one year in jail. But in August 2016, he accepted a plea agreement, and pleaded guilty to the charge – in exchange for a (mere) $500 fine. As a result, international travellers – and their lawyers are left waiting for court guidance on the parameters of the CBSA’s right to search travellers’ digital content at the border.
Privilege @ the Border
The stakes are even higher when the content the CBSA is endeavouring to access is subject to solicitor-client privilege – especially if the traveller is a lawyer. Solicitor-client privilege is about more than mere privacy: it’s a constitutional right. And it’s a right that belongs to the client, not the lawyer, so it’s the client’s to waive. Furthermore, lawyers have a professional obligation to assert privilege … even at their personal peril. The CBSA does have a 2014 Operational Policy on “Examination of Solicitor/Client Privileged Materials” (PRG-2014-07) but it developed the policy with no input from the Canadian Bar Association and it’s bare: it doesn’t even touch on electronic or digital devices.
5 Tips To Protect Privacy & Privilege @ the Border
Until there is a court decision or the federal government updates the Customs Act to clarify the scope of the CBSA’s right to inspect digital content, travelling without a device, while perhaps appealing, isn’t a practical option for most travellers. But travelling without the data might be. If you don’t need the data with you, don’t bring it across the border. Instead, wipe your device and access your private work materials via the cloud once you’re across the border. However, if this isn’t an option, here are five tips to protect the privacy (and privilege) of digital content when crossing the Canadian border:
- Encrypt it. Use the latest version of iOS or Android that employs entire device or entire drive encryption.
- No prints. Disable fingerprint-enabled login.
- Shut down. Turn off the device when crossing the border.
- Lawyers. If you’re a lawyer and CBSA asks you to power the device on, identify yourself as a lawyer and indicate the device contains information that is subject to legal privilege. If CBSA persists, ask to speak with the supervisor, and repeat. If they still persist, demand to call your bar society and seek their instructions. And if they don’t give up: indicate that you will provide the device – if they seal it in an evidence bag and seek a court order authorizing them to access its contents.
- Testing 1-2-3. Be prepared to be a test case; privacy lawyers country-wide will be rooting for you.
Please contact your McInnes Cooper lawyer or any member of the Privacy Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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