Evidence of meeting #65 for Access to Information, Privacy and Ethics in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was devices.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Brenda McPhail  Director, Privacy, Technology and Surveillance Project, Canadian Civil Liberties Association
Micheal Vonn  Policy Director, British Columbia Civil Liberties Association
Meghan McDermott  Policy Officer, British Columbia Civil Liberties Association
Esha Bhandari  Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union

5:20 p.m.

Policy Director, British Columbia Civil Liberties Association

Micheal Vonn

In terms of the wording, they talk about “indicia”. We would like to see that translated into what we consider to be standardized legal language, so that would be “reason to suspect”, probably, on that one.

5:20 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

I have a question on that.

I have the guidelines here. In fact, they reference statutes. IRPA, as an example, in subsection 139(1), talks about “reasonable” grounds, so there is a threshold under the Immigration and Refugee Protection Act. Under the Customs Act, the guidance suggests that it be “conducted if there is a multiplicity of indicators that evidence of contraventions may be found on the digital device or media”. Is the area of concern that this is vague language?

5:20 p.m.

Policy Director, British Columbia Civil Liberties Association

Micheal Vonn

Yes. What that translates into in terms of legal standard should be clarified.

5:20 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

It strikes me that this is probably a misinterpretation by the CBSA in the first place, because if you look at paragraph 99(1)(a), you see that it doesn't really make sense that it would apply to cellphones at all, but you can look at paragraph 99(1)(f), which would probably be better grounds for searching any goods, and that actually does set out a “reasonable grounds” criteria.

You don't have it in front of you, but if both the CCLA and the BCCLA could look at this and assess if paragraph 99(1)(f) actually makes more sense, would you be comfortable with that? It does set out reasonable grounds in the act. Maybe we could, rather than rewriting things, just specify that this would be the source of search. Paragraph 99(1)(a) doesn't make sense to me at all. For example, it says to “take samples of imported goods in reasonable amounts”. How would that ever apply to a cellphone that has not been properly imported?

My second question is related to the password issue. In the guidance, it says that officers may “request the password” and that it's “not to be sought to gain access to any type of account...stored on-line”. In fact, the indication is that is should go on airplane mode or something like that. It also says that if the “traveller refuses to provide a password...the device...may be detained”. I understand that there is at least one case where there was an obstruction charge and an individual pleaded guilty and paid $500, although I do note that this does say something rather bizarre, which is that “[u]ntil further instructions”, they suggest not arresting a traveller for obstruction and maybe charging him after the fact.

What in the BCCLA's view would be appropriate language with respect to password protection at the border, if not this?

5:25 p.m.

Policy Director, British Columbia Civil Liberties Association

Micheal Vonn

I would have to consider that and be able to get back to the committee. I don't have it off the top of my head—

5:25 p.m.

Liberal

Nathaniel Erskine-Smith Liberal Beaches—East York, ON

That's okay. That's a better use of my five minutes, actually. If both the BCCLA and the CCLA could provide a submission in writing as to what the preference would be on dealing with passwords at the border, that would be great.

The other thing to clarify in the guidelines as you cut them apart is perhaps this. The CBSA guidelines also make clear that with respect to a search under paragraph 99(1)(a) of the Customs Act, it's for customs purposes only, so the idea that it's searching very broadly for other reasons wouldn't necessarily hold water. I guess what I really want to get at is that I understand we have to codify this in law in a better way. It does strike me as codified significantly already in the Customs Act and IRPA, and to the extent that we can do that better, that's great, but I would like to know what's wrong with the guidance and delineate that as much as possible.

I think I'm pretty well out of time. Those are my questions. Thanks very much.

5:25 p.m.

Conservative

The Chair Conservative Blaine Calkins

Thank you, Mr. Erskine-Smith.

I have a couple of quick questions, if I may, for Ms. Bhandari.

When a traveller comes across the border, can U.S. Customs agents discern the difference between data that is pulled to a phone, which is information that is willfully brought to the phone by the user of the phone, and information that is pushed to the phone, which is not done willfully or is maybe even unwanted information that is pushed to the phone? Are there any guidelines insofar as that?

5:25 p.m.

Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union

Esha Bhandari

Certainly not in the policy that's been publicly released, and I haven't seen anything making that distinction in either recommendations or a policy.

5:25 p.m.

Conservative

The Chair Conservative Blaine Calkins

Is there any policy or guideline surrounding the data that might be found in a cloud, given the fact that many data plans and sharing plans have numerous devices on there from multiple users in the same family, business, or group unit that share the information on that same cloud? Are there any guidelines outlined there that Canadians should be wary of?

5:25 p.m.

Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union

Esha Bhandari

There are no guidelines or even any reference to that in the 2009 policy. We have heard—again, anecdotally—of individuals having their social media accounts searched, presumably with no regard to whether it is shared with other individuals.

5:25 p.m.

Conservative

The Chair Conservative Blaine Calkins

Who was overseeing any of the tests in which cause could be found, and who was overseeing any of the tests to destroy or delete the information where no cause could be found?

5:25 p.m.

Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union

Esha Bhandari

Concerns have sometimes been raised to the Office of the Inspector General in the Department of Homeland Security.

There was a civil liberties impact assessment conducted several years ago examining the practices and whether the policy guidelines were being complied with. Those are some of the avenues that advocates are taking, and then of course individuals may sometimes bring administrative complaints, with varying levels of success.

5:25 p.m.

Conservative

The Chair Conservative Blaine Calkins

Has there ever been an incident, that you're aware of, in which a foreigner's phone, or in particular a Canadian's phone, was held by United States customs agents and not returned when no charges were laid?

5:25 p.m.

Staff Attorney, Speech, Privacy, and Technology Project, American Civil Liberties Union

Esha Bhandari

I'm not aware of any incidents that I can describe.

5:30 p.m.

Conservative

The Chair Conservative Blaine Calkins

Thank you very much.

I'd like to thank all of our witnesses for their patience in this.

Colleagues, I want to have a quick two-minute in camera meeting to discuss committee business for next week.

I would like to thank the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, and the American Civil Liberties Union for their patience today.

Please submit to us any thoughts that you might have or any written responses that you have to some of the questions that were asked.

Colleagues, we're going to suspend. We'll go in camera for about two minutes.

[Proceedings continue in camera]