Information & Ethics Committee on June 15th, 2017

[Brenda McPhail]

I'm going to be harmonious and agree with both of the previous speakers.

I think it's really important to speak to the difference between a phone, which is like a window to your life, and a suitcase, which contains socks and underwear and maybe a couple of pairs of jeans. They are qualitatively different things, and we're dealing with them in the same way. We argue that it simply doesn't make sense.

Even if we think it's very important that we have strong security at our borders because we don't want bad things to come in—that was one of the rationales behind the Customs Act, that we don't want bad things crossing our border—electronic documents on a device are not a “thing” in any sense. They're not being imported into Canada in any real way, because they exist whether or not they're coming across the border. They could cross the border with the human or without—online. There's no real physical importation of a document that makes that document any particular risk to national security or to the sovereignty of Canada. Those are the principles on which we say there should be expanded powers of search at the border, because those two things, national security and sovereignty, are so important. That's why we really think it's time to update the legislation and think about the fundamental differences between electronic devices and suitcases.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Perhaps I can provide some comment in the hope that you guys can weigh in on the other side of this. Knowing that there would be a hesitation to send material, whether it be illegal documents, electronically.... You're then worried about a secure server and so on, as opposed to bringing an electronic device, putting it in front of somebody, and saying “Here”, that being the illegal document.

There still appears to be a threat there. Somebody could bring something across on their phone that they wouldn't necessarily feel comfortable sending over some sort of server.

[Brenda McPhail]

I think issues of threat probably deserve some examination in relation to documents that relate to solicitor-client privilege, which was sort of the framing of the question. Where documents are private because they're in connection to a case, and we recognize that privilege in every other setting, there's no reason why they shouldn't have the same privilege elsewhere. They're no more dangerous at the border than they are sitting here in this room.

[Matt Jeneroux, Conservative, Edmonton Riverbend, AB]

Okay.

Is my time up?

[The Chair, Conservative, Blaine Calkins]

I think so.

Monsieur Dubé, you have seven minutes. Go ahead, please.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you, Mr. Chair.

I have a question for the representative of the American Civil Liberties Union, or ACLU, but first I want to speak to the two Canadian associations.

Thank you for being here with us. Like my colleague before me, I want to thank you for your patience during the votes and all of the interesting moments we experience at the end of a parliamentary session.

There have been many references to a ministerial guideline from the Minister of Public Safety concerning the search of electronic devices. We must remember that this guideline is not a law; that distinction is important. We believe that the guideline, contrary to what has been claimed, is much too permissive and gives far too much power to borders services agencies.

Would the representatives of the Canadian Civil Liberties Association and the British Columbia Civil Liberties Association have any comments on that?

[Brenda McPhail]

I have to apologize profoundly. I don't have a device for translation, and I don't understand.

[The Chair, Conservative, Blaine Calkins]

Oh, boy.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Would our friends from the British Columbia Civil Liberties Association like to make any comments?

[Micheal Vonn]

Certainly.

I take it by “executive order”, you mean the recent U.S. executive order and how—

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

No, I mean on the Canadian side, the ministerial directive concerning cellular phones, which the government references in response to any questions we ask.

[Micheal Vonn]

So this is the internal directive of the CBSA?

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

That's correct.

[Micheal Vonn]

Okay. Thank you.

Our point about that is that it's two-fold. One, there seems to be a recognition within that directive that something other than a suspicionless search is appropriate in the context of electronic devices. But, as you say, this is not codified in law anywhere. This is merely guidance.

We would like to see and the OPC would like to see that guidance given teeth, the actual strength and ability to be enforceable through the enacting of a consequential amendment to the Customs Act that would essentially make that practice, if it is indeed a practice, and we have no means of actually knowing that at this juncture, codified in law so that we can count on it and say this is the way it is.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Let's talk about a specific example related to Bill C-23 and to the fact that this is not stated in the law.

Based on the protection afforded by the Canadian legislation, it is possible to conclude that if there were an American presidential decree, and if the Canadian law remains silent on this point, travellers would not be protected from searches of their cell phones, for instance. Is that correct?

[Micheal Vonn]

Yes, that's our understanding, absolutely.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Ms. McPhail, I will ask you again about the guideline with regard to the agency. Do you have any comments to make on this?

[Brenda McPhail]

I think it's a very good example of the way that you can't rely on laws to stay the same. You can't say it's okay that we have a bad law, because the person in charge is not going to do anything wrong with it. We need to be cautious, to make sure that what we have here says what we mean it to say and to make sure that it provides the protection that we want to provide.

The examples we have in the States, where laws are essentially being made by executive order, are very good examples of the way that the rule of law is at risk if we don't have strong, effective, and not vague laws in the first place, which are harder to challenge.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

Thank you.

To Ms. Bhandari, on the American side of things, how are the risks of profiling increased through the information that you can find on someone's cellphone? I'll just give a specific example to contextualize the question.

There was a case a few months ago of a gentleman from Vancouver, who was crossing into Washington State and was turned away at the border because when they discovered, through his cellphone, his sexual orientation, they wrongly assumed that this person would be going to the U.S. to be a sex worker, which was obviously a gross situation of profiling.

Is there a concern as well on that end of things not only because of the invasiveness of going into the cellphones but also since you're basically creating a longer list of stereotypes and prejudice that can be used against a traveller in an inappropriate way like that?

[Esha Bhandari]

We're very concerned about that. We have commented publicly in the context of new so-called extreme vetting procedures that have been applied to certain visa applicants. The U.S. government has now begun seeking social media information on these applicants from particular countries. I think the same concerns hold true when you're talking about information that's gleaned from a cellphone, which, as I mentioned, could include social media. Without policies explaining the guidelines for use of that information, without rules constraining the discretion of an individual officer, and without really specifying what use is to be made of these, an avenue is essentially opened up for individual visa officers or border agents to profile individuals, to take information out of context, and to deny people entry or rights without giving those individuals any opportunity to even respond. We think that the search of electronic devices greatly raises that risk of having information gathered without context and with no explanation of how it can be used to determine admissibility.

[Matthew Dubé, NDP, Beloeil—Chambly, QC]

There's always talk of these executive orders, and you mentioned one bill that's before Congress, if I'm not mistaken. What's the sense of the direction this is going to go in on your side of things?

[Esha Bhandari]

It's hard to predict. Litigation may deal with some of these issues. Court decisions may deal with the sort of baseline search requirements. I think there's going to have to be advocacy to change policies when we're talking about gathering social media information. I think that goes even for information that's available publicly. We're very concerned about the impact on freedom of expression and human rights worldwide if it becomes a condition of travel that people even have to turn over their social media handles. That can have a big impact on people who have anonymous accounts, for example—many activists have anonymous accounts—and many individuals who may not be out about their identity. So I think this kind of gathering of information in multiple contexts has broader freedom-of-expression concerns for us.

[The Chair, Conservative, Blaine Calkins]

Thank you very much, Mr. Dubé.

We now go to our last seven-minute question from Mr. Saini. Then I think we'll have time for a couple of five-minute rounds and then just a couple of minutes at the end for some committee business.

Mr. Saini, go ahead, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

Good afternoon, everybody.

Ms. Bhandari, my first question is for you since you're in the United States.

I have a very hard time understanding this, because you're talking about something in the United States right now such that there is this very heightened sense of national security. On the one hand, you have an executive order, which is not going to protect the privacy of non-U.S. citizens. You have one major privacy shield between the European Union, which is 28 countries, and the United States; and you have a similar understanding with Canada and probably other countries in the world. Is it not sort of ironic that the United States is demanding that the privacy of U.S. citizens should be equal to or as important as that of non-U.S. citizens to make sure there is reciprocity with the rest of the world? What is the feeling there? I do not understand. Can you provide some commentary as to why they are doing this? To me, it seems as though they're lessening their national security, because they're exposing to risk their own citizens, because in some cases, other countries may not be as prudent about protecting their privacy rights. Could you just kind of highlight why this is happening?

[Esha Bhandari]

With respect to the Privacy Act, I think that the executive order was passed, quite frankly and unfortunately, to enable this office to be created for victims of crimes committed by immigrants. There is unfortunate rhetoric going on about publicizing crimes committed by immigrants and therefore needing to strip Privacy Act protections in order to share that information with the public. We've already seen one unfortunate effect of this, which is that a recently published database that purported to be providing information about immigrants who had allegedly committed crimes contained information about victims of domestic violence and abuse, individuals whose information should be protected. It certainly puts them at risk if this this information is publicly shared. I think the goal of creating that office is connected to the Privacy Act executive order.

Certainly in our letter to the European Parliament and the European Commission, we highlighted how this undermines that agreement and, again, in our advocacy in the United States, we also point out that the reciprocity concern is real. Americans travelling to other countries may be asked for similar information—social media passwords, email addresses, and for access to their phones—which should be a huge concern to the U.S. government as well.