Information & Ethics Committee on June 15th, 2017

[Raj Saini, Liberal, Kitchener Centre, ON]

The second question I have is open to everybody.

I'm sure you're aware that the United States Congress recently rolled back regulations put in by the Obama administration for regulating ISPs. The online advertising market is worth $83 billion, and now there is a recusal of ISP providers from having to follow the same protocols with regard to someone's browsing history, usage of apps, and location. All of that is now exposed and it's all held in the United States, so for people travelling back and forth, is there a worry about the exposure?

I'm specifically talking about Canadians and other people visiting the United States.

Anyone can start.

Ms. McPhail.

[Brenda McPhail]

I think whenever we hear about this regressive rolling back of privacy protections that were hard fought for, of course there is concern.

It's not clear to me the degree of risk that Canadians face, but the reality is that our online lives are not constrained by borders. We deal with U.S. companies, and we browse sites owned by U.S. companies. I don't know for sure, but my speculation would be that we should be concerned, because our information is bound to be caught up in exactly the same net that American information is going to be caught up in, in that there is no regulation about not sharing this kind of information.

Where there is some level of protection in Canada, obviously when we're talking about a law referring to ISPs, is that most of us probably have subscriptions with a Canadian service provider here in Canada, but then many of these telecommunications companies have global reach and are networked together in ways, some of which we know and some of which, as ordinary citizens, many of us don't. But, again, that would put information at risk potentially through those kinds of connections.

[Raj Saini, Liberal, Kitchener Centre, ON]

Ms. Vonn.

[Micheal Vonn]

I have nothing substantial to add to that.

[Raj Saini, Liberal, Kitchener Centre, ON]

Is there anyone else?

Ms. Bhandari, I hate to pick on you, but since you're in the United States, do you know of any privacy...? If you look at what's happening with the FTC, especially with its concept of net neutrality, it can go either way. Do you see anything or foresee anything? Do you see the situation getting worse or getting better, or is there any kind of outcry in the United States, or any kind of push-back to correct that executive order, or at least try to sort out the friction between the FTC and the FCC, especially with regard to net neutrality?

[Esha Bhandari]

Yes, I think there is going to be a huge push-back and there already has been. The first battle over net neutrality was waged here. I think people are expecting round two.

This is a huge issue. The same community and the same coalition that fought for net neutrality the first time around is still engaged. I would say the same on the issue of ISPs.

I think, in fact, perhaps Congress was surprised by the extent to which this issue actually received a lot of coverage and a lot of attention, and got a lot of push-back, more than expected.

[Raj Saini, Liberal, Kitchener Centre, ON]

Thank you very much.

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. Saini.

We'll now go to Mr. Kelly, please, for a five-minute round.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Thank you.

I'd like to try to get the measure of some of the problems that have been identified by anecdote. I don't mean to criticize identifying problems by anecdote. As elected officials, we do it all the time. Constituents come to us with problems, and we know many Canadians want a predictable, smooth, and efficient process at the border. They also want to be kept safe from external threat, so there are a lot of complicated issues that go along with border security.

I was struck by one bit of data that we got with respect to devices searched at the border. If I got it down correctly, there were just over 8,500 in 2015, and 19,000 in 2016, or double the number. That's a trend, one could say, doubling in a year. I don't know what 2017's number might be.

What is known about these device searches? Do we have any idea about the identity of the devices, by nationality, searched at U.S. borders?

[Esha Bhandari]

We don't know much beyond those numbers. There is currently a pending lawsuit seeking more information, seeking specifically the records that you mentioned: nationality of individuals searched along with the reasons.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Okay, so we don't know if they're mostly Canadians, for example. We have really no idea.

[Esha Bhandari]

We don't. The ACLU got some records in about 2008 to 2010, and about half of the searches conducted in that period, I would say, were of U.S. citizens, but we don't know about the other half.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Okay. Do we even know what type of information is being sought in a device search? Do we have even anecdotal information? Mr. Dubé referred to one particular case of a Vancouver resident. What is being sought in these device searches, and what are some of the other complaints of those who have had devices searched, and what have been the outcomes of those searches?

[Esha Bhandari]

We don't know systematically. Individuals who are U.S. citizens who have been aggrieved by a device search may sometimes file an administrative complaint seeking access to the records that were retained from their phone. That might give individuals an indication of what was taken from their phone, what records or notes were kept by the government. But we don't have a systematic policy stating what's being searched, what the search terms are, what's being retained. We do know that the government is supposed to destroy copies of information from a search if it finds no probable cause of an offence having been committed. Again, we don't know how often they find probable cause, how often they destroy information as they are supposed to according to the policy. This is all information that hasn't been revealed.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Okay. I understand the point that Ms. McPhail has made, that a telephone is not in and of itself contraband, for example, in the same sense that people have long been accustomed to being searched at the border for. What kind of rationale and what types of information have law enforcement or, indeed, what complaints have Canadians made about items that have been found or behaviours that are perhaps being searched for by border authorities?

[Brenda McPhail]

We don't know a lot in the Canadian context. CBSA has not provided the numbers that ACLU can provide for electronic device searches in the U.S. We don't even know the rough number of devices searched, never mind what they're looking for. We don't know what they're looking for necessarily. We don't know what's being retained. We don't know how long they can keep it. So there's a really big information vacuum.

If you go back to the level of anecdote and away from systematic collection of data, we hear stories about phones that are ostensibly being searched to look for receipts for goods that are being brought across the border, which makes perfect sense, and then the email is closed and they go off on a hunt through photos just to see if they might have anything racy.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Very quickly, because I'm just about out of time, does anybody know in comparison to the 20,000 searches, what's the total number of crossings into the United States?

[Raj Saini, Liberal, Kitchener Centre, ON]

It's 390 million.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Okay, thank you.

[A voice]

It's hundreds of millions.

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Okay.

[The Chair, Conservative, Blaine Calkins]

Thank you, Mr. Kelly.

Mr. Erskine-Smith, bring us home, please.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

First, thanks very much.

I want to start with the Operational Bulletin PRG-2015-31, “Examination of Digital Devices...”. They're interim guidelines, and I hear the concern expressed that these were released because of an access to information request and were not properly transparent from the outset. I appreciate that they don't formally have the force of law—which may be something we want to consider. I completely appreciate the testimony by the ACLU that there are major gaps in privacy protections in the U.S. right now.

Apart from the password issue, walk me through what's wrong with the interim guidelines.

The question is for the BCCLA and the CCLA.

I'll start with Micheal.

[Micheal Vonn]

You bet. The first thing that's wrong with the interim guidelines is that we don't know whether they're being followed. They don't have the force of law. They are guidance. We would hope that they're being used, but we don't actually know, and we have no means of enforcing them if they're not.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

On that point, let's say our recommendation is that they have the force of law. Is the content a problem? I want to get to the password protection issue and the ability to force individuals to give out their passwords, but bracket that conversation for the time being. Is there anything else in the guidelines that you would take issue with?