Question Period Note: Office of the Privacy Commissioner (OPC) Report of Findings on CBSA Digital Device Examinations

The OPC will be tabling a Report of Findings on December 10, 2019 based on complaints about the CBSA’s examination of digital devices in Parliament and publishing on the OPC website. On November 25, 2019, Radio Canada sent a media request about the report prior to its tabling in Parliament.

• Our Government acknowledges the report of the Privacy Commissioner regarding the Examination of Travellers’ Digital Devices at the Border.

• We recognize that travellers’ digital devices are a type of good that frequently contains sensitive personal information, and the CBSA has measures in place to ensure that the privacy of travellers is protected.

• CBSA officers are trained to conduct all border examinations in a professional manner with as much respect for privacy as possible.

• The CBSA has already addressed a number of the OPC’s recommendations through the release of a more comprehensive policy that includes a more detailed training program. It will be mandatory for all new and existing officers.

• While we are confident that our border officers have the legal authority to examine digital devices in the manner outlined in the policy, the CBSA is reviewing the proposed legislative amendments provided by the OPC.

If pressed on examinations:
• The Customs Act provides the CBSA the authority to examine all goods at the border for customs-related purposes.

• Examinations of digital devices are not routine. Between November 2017 to October 2019, less than 1% of the over 96 million travellers to Canada had their digital devices examined (approximately 13 out of every 100,000 travellers).

• Of those examined, the CBSA uncovered non-compliance with border laws in 38% of their examinations.

If pressed on policy changes:
• Over the next few weeks, the CBSA will be implementing a new comprehensive policy on the examination of digital devices with associated mandatory training for all officers.

• To increase transparency and awareness for the travelling public, the CBSA will also publish information regarding its policy on the examination of digital devices and annual statistics.

If pressed on CBSA authorities:

• The Customs Act gives Border Services Officers the authority to examine all goods, including electronic goods, at the border for customs-related purposes.

• The Agency recognizes the personal nature of information contained within digital devices and the heightened sensitivity that travellers may have in regard to these examinations.

• All CBSA officers are trained to conduct themselves in professional and polite manner and to respect the privacy of all travellers.

To date, the Office of the Privacy Commissioner (OPC) has received seven complaints and one discontinued complaint against the Canada Border Services Agency’s (CBSA) examination of digital devices. The CBSA responded to each of these complaints when they were initially submitted and considered the issues raised when drafting the new policy on the Port of Entry Examinations of Travellers’ Digital Devices.

Of these eight complaints, the OPC selected six from Canadian citizens to investigate collectively which formed the basis of the OPC’s Report of Findings. In the Report, the OPC found that these all six complaints were “well founded” and that the Agency contravened sections 4 and 6(1) of the Privacy Act in all the complaints examined. The CBSA disagreed with the OPC’s findings in five of the complaints, however, the Agency acknowledged that in one complaint, the information collected was gathered without proper authority. Steps have been taken to correct this, including expunging the information in question from CBSA systems.

In the Report, the OPC makes nine recommendations; six policy-related and three proposing legislative changes. The CBSA agreed to implement all six of the policy-related recommendations and therefore the OPC considers the issues identified in their report conditionally resolved. In addition, though the CBSA did not accept the legislative recommendations, the OPC recognizes “that legislative reform is a Parliamentary matter and is outside the CBSA’s authority.”

The recommendations CBSA will be implementing are:
• introducing mandatory training for recruits and existing officers on the examination of digital devices;
• implementing oversight and compliance monitoring mechanisms;
• conducting an audit into the new comprehensive policy on the examination of digital devices;
• updating the CBSA Enforcement Manual to include the new policy;
• providing greater transparency about its digital device examinations procedures to the public; and
• tracking and reporting on the number of digital device examinations.

The recommendations CBSA will not be implementing are:
• changing the definition of goods in the Customs Act to exclude digital devices;
• writing CBSA policy into the Customs Act, imposing a threshold on the examination of digital devices; and
• raising the threshold for digital device examinations to “reasonable grounds to suspect.”

The OPC acknowledges that courts have held that digital devices are goods as per the definition contained within paragraph 99(1)(a) the Customs Act. Excluding digital devices from the definition of goods would create an untenable situation where officers could examine a printed receipt but could not examine a digital receipt. This distinction would impede the CBSA in meeting its legislated mandate and serve to exempt more and more goods from examination, allowing prohibited goods such as child pornography to enter the country. Between 2014-2018, 77% of child pornography seizures came in the form of digital goods.

Because both technology and the operating environment at the border are evolving at a rapid pace, it is important that CBSA have the ability to adapt and update its policies in response. Writing policy into law takes away this adaptability and process needed to make legislative changes could leave gaps in border enforcement should changes need to be made in the future.

One of the most fundamental methods of meeting the mandate of the CBSA is through the examination of goods crossing the border. This is key to classifying goods, assessing the value for duty, collecting duty and taxes, determining the admissibility of goods, ensuring compliance with the law of Canada, detecting non-compliance, and providing a deterrent against non-compliance.

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