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.

On the agenda

MPs speaking

Also speaking

Daniel Therrien  Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Patricia Kosseim  Senior General Counsel and Director General, Legal Services, Policy, Research and Technology Analysis Branch, Office of the Privacy Commissioner of Canada

4:15 p.m.

Conservative

Peter Kent Conservative Thornhill, ON

I see.

Finally, I have one very short question. You said the government has assured you that a response is forthcoming to your request for assurances. What would you understand is coming?

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

They tell me that the U.S. has provided them with some information and that they will send it to our office shortly.

4:20 p.m.

Conservative

Peter Kent Conservative Thornhill, ON

Thank you.

4:20 p.m.

Liberal

The Vice-Chair Liberal Nathaniel Erskine-Smith

With that, we move to Mr. Cullen.

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Thank you, Chair.

It's nice to see you again, as well, Mr. Therrien.

I am coming at this conversation from a layperson's point of view, which I think is actually an advantage in this one. For the broader Canadian public, the travelling public looking to get to the U.S., it's about setting expectations. What you've told us here today is that the expectation Canadians should have is that it is entirely foreseeable and quite legal for a U.S. customs officer to insist to receive all the information on any electronic device they have coming through the border.

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

As a matter of law, yes.

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Right, so no Canadian should cross the border with a phone, a laptop, or an iPad without having great comfort with a U.S. customs official looking through every bit of it.

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

I say yes, as a matter of law. Of course, the border could not be managed if everyone were to be searched, but as a matter of law, yes.

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Okay. As a matter of law.... Just for the political fallout, I could never imagine this happening, but imagine our capable trade minister, or a deputy or an official, crossing the U.S. border ready to negotiate NAFTA, with a laptop in hand, and on that laptop is our playbook, or an assistant deputy minister going down to negotiate an important trade agreement. Under current law, with the broad range of powers sitting at the border agencies, that laptop and the plan, the information, could be exposed.

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

It's subject to diplomatic relations.

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

But not subject to the law.... Diplomatic relations, sure. There might be an outcry, but in terms of legal ground, it's totally solid.

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Okay.

I was looking at the designated countries list, the list where Americans have said, “We have designated you as secure enough to allow you in and to allow you the same protections under the U.S. privacy law.” Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Italy, Latvia, Lithuania, Luxembourg—all these countries have been able to establish protection for their citizens under U.S. privacy law, whereas Canada either has not sought that protection or has not been able to earn that protection yet. Is that right?

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

The basis on which the U.S. has designated countries on that list has less to do with the security of information for Americans. Actually, it's the other way around. Europeans, of course, have strong privacy laws, and they have put pressure on the U.S. government, saying, “You should protect the information of our citizens—Poland, etc.—in an adequate way; otherwise, we will not share information with you.”

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Again, back to my question. Has Canada either not asked for similar protections for Canadian citizens, or asked and not received that protection?

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

I do not know whether the Canadian government has asked, but certainly Canada could ask.

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Certainly if Estonia was able to ask for and be granted that protection for Estonians travelling to America, I don't think a trade war with Estonia was what brought Americans over to the side. Clearly as their largest trading partner, one would assume we'd have more influence in these types of conversations.

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

The fact that we are an important trade partner for the U.S. is obviously a relevant consideration.

4:20 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Beyond our travelling public, our business travellers, folks that have many enterprises in the United States.... Okay. That's interesting.

You said earlier, in response to my colleague's question, that Canadians should limit the number of devices they bring in. That is your office's official recommendation for the travelling public: don't bring everything you have, and what you bring.... Maybe we have to resort to such cloak and dagger items as burner phones, but normally Canadians may acquire a phone like that simply for cheaper cell rates if they're travelling and working in the U.S.

On a privacy level, is it your recommendation that I should not bring my work phone when I travel in the U.S.?

4:20 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

It starts with what kind of risk tolerance you have about your information being looked at by U.S. customs officers. There's a personal assessment to be made. For instance, if there's privileged information on your device, then obviously you have a higher responsibility to protect that information. My point is to think about what you're exposing your information to and limit the amount of information that you bring to the U.S., because it may be acquired by customs officers.

4:25 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Because it gets shared. It doesn't stop with the customs officer. With the way the American security regime works, high sharing is the.... I'm just remembering a constituent—

4:25 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

It could be shared.

4:25 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

A constituent of mine got denied at the border because personal information was taken from their phone that showed they had a prescription for heart medication, and the border official said, “We don't want you coming here and having a heart attack. You can't come in.” I thought this was a strange invasion of one's privacy while seeking to simply be on vacation in another country. That information was then shared with a U.S. health agency.

Another constituent one riding over was denied because they were showing that one of their prescriptions that the officers were able to pull up was a prescription for treating AIDS, and the American border official said they couldn't come in because of that.

4:25 p.m.

Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada

Daniel Therrien

It's certainly possible.

We have received a complaint some time ago from an individual. This had nothing to do with electronic devices, but somebody was refused admission to the U.S. based on the fact that they had called 911 in Canada during an event of trauma. The person was considering suicide, and that was the reason she was refused admission to the United States. It's a bit similar to your example about a health condition that can lead to the refusal of admission to the United States based on such information.

4:25 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

I have one last question. Does the investigation always have to be physical? I'm not a technologist. Is the border agency able to retrieve data off phones at a distance, once I cross over? We had the spy issue with the Toronto Pearson Airport where phone calls and receptions back and forth were being monitored.

Does it always have to be a physical intervention, or can it be otherwise? Do we know?