June 13, 2018
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:
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:
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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