Evidence of meeting #66 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.
5:05 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It's mostly a matter of bilateral relations between the two states.
5:05 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Thank you.
With regard to Mr. Cullen's point, I would note that if I saved documents on my Google Drive and I don't have the Google Drive application on my phone, I can certainly cross the border. No one is going to search my Google Drive, and I can access it in the U.S. You'd have to delete it from your phone.
I just have a few questions. First, I take it that you are referring to CBSA bulletin PRG-2015-31. It refers to the Customs Act and to IRPA, and it sets out policy prescription for the CBSA officials with respect to the searches of electronic devices.
5:05 p.m.
Patricia Kosseim Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch, Office of the Privacy Commissioner of Canada
Which number?
5:05 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
It's PRG-2015-31. This is the policy guidance that says that, under the Customs Act, paragraph 99(1)(a) is for customs purposes only, and mentions the multiplicity of indicators. With respect to IRPA, subsection 139(1) refers to reasonable grounds, that the purpose of the search should be confined to these issues, and that they must explain their reasoning. Certain protections are outlined.
Not for today, but if you could review that policy guidance from the CBSA, and if you have additional privacy protections that you would like to see the CBSA include in that policy guidance, it would be good to have that for our purposes at this committee.
I take your principal point here that the policy is generally wise, but it ought to be reflected in legislation. The first point is that we receive any additional guidance you have, and the second recommendation would be that it be reflected overall in legislation. That's on the Canadian side, as I understand it. We provide protections to Canadians and foreign nationals through the CBSA rules. None of those same protections apply if we're travelling to the United States.
We had the ACLU before us, and they said, as you've said, that the rules allow the government to search any travellers, regardless of citizenship status, and devices without a warrant, probable cause, or suspicion. You've mentioned the U.S. Judicial Redress Act. Are there any other measures or mechanisms that we should be asking our American counterparts to implement to protect Canadians' privacy, other than simply adding Canada to the designated list of countries under the JRA?
5:05 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I've asked three ministers of our government to essentially confirm that protection through administrative agreements—and there are a number of them—and whether they still protect Canadians despite the signal given by President Trump through his executive order. One part of the picture is to obtain confirmation by the U.S. government that these agreements continue to be in effect. That's certainly one way.
5:05 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Have you received a reply in the affirmative from these ministers?
5:05 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
I'm told that the Canadian government has obtained information from the U.S. government, and that I will be given a version of that information shortly.
5:10 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Will that same information be provided to this committee as well?
5:10 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Yes.
5:10 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
If you could undertake to provide it to us, so that as soon as it's in your hands, it's in our hands, it would be appreciated.
5:10 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Yes.
There is also judicial recourse in the United States. Some American citizens are challenging the new U.S. policy, so that will find its way through the U.S. courts.
5:10 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Do you have a counterpart in the United States that you work with on privacy issues? I ask because the ACLU said that in a 2015 privacy assessment from Homeland Security, there was the implication that downloading and mirroring of electronic devices was already happening at the border. I hate to tell you, Mr. Long, but all that information they looked at they might still be looking at, it seems, if they mirrored it.
Do you have an American counterpart you work with who looks into these issues on the American side?
5:10 p.m.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
In the U.S., the system is somewhat different. There is no one counterpart. There are privacy experts in individual departments including Homeland Security who advise departments of privacy matters. They are not independent of the executive branch, as I am.
5:10 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Thanks very much.
You've given us a lot to think about in formulating questions for our American visit.
Does anyone have any other questions? If not, we'll adjourn until the next meeting.