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.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
If it's not physical, you're now into interception of communication territory, which has different rules.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Thanks very much, Mr. Cullen.
With that, our final seven minutes goes to Mr. Long.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Thank you, Mr. Chair, and welcome to all of the new members on our committee. It's great to have some new faces.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Well, I didn't say that.
Again, Mr. Commissioner, thank you so much for coming. You are a regular and we appreciate your input.
I thought I would start by sharing a story of what I went through not too long ago while crossing the border. My riding is Saint John-Rothesay, and I'm an hour from the Calais border. We went across, and we were asked to pull in. We went inside to talk with the customs agents, and I was to accompany the agents back to the car. We were told to put all of our phones in the car and open the phones up. Then I left. We sat inside for a better part of 30 to 45 minutes. It was me, a friend, my son, and one other person, and we waited. Eventually, they came back and said we were all good. We went back to the car, and the phones were clearly not in the same places as they had been.
Like Mr. Cullen said, obviously it's cause for concern when you cross that border. Respecting that, as you say, they don't have to give you entry into the United States. But I guess, from a Canadian's viewpoint—and, again, I apologize, it's the same line of questioning as Mr. Cullen.
How concerned should Canadians be? As Mr. Cullen said, we cross now with our iPads, laptops, and phones, and in my phone is my banking information and my emails. It's not just text and pictures anymore. It's basically your life history and all your records. On a scale of one to 10, as Canadians, how concerned should we be?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
As you say, these devices contain a lot of sensitive information. We should be very concerned. The law allows U.S. officers to collect anything they essentially want because there are no legal grounds for their actions. To be realistic, I made a distinction with Mr. Cullen about the law and the practice. Customs officers do not have the resources and cannot review the content of the devices of every traveller who comes across the border. That in a sense is an element of context, but as a matter of principle, I think it is right to say these devices contain a lot of very personal information, very sensitive information. When the law, including Canadian law, continues to treat the content of cellular devices as goods, as a cardboard box, as a piece of clothing, it is just not realistic.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
Fair enough.
On the OPC website, it talks about “Your privacy at airports” and how you say we should have reduced expectations. I read in the same document that information such as name, date of birth, gender, citizenship, travel document data, itinerary, address, ticket payment information, frequent flyer information, baggage, and contact numbers are collected for—obviously—assessing security risks.
Can you comment just on your thoughts? Is it being disposed of in an appropriate way? How long is it stored? Is it stored properly? Is there any expectation there that information that they do take is held? Is there an agreement with us? Is there something where we can come back and say, “Look, you're holding it for a month”, or can they hold it forever?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
You're talking about information collected about travellers by Canadian border officials?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Retention is obviously an important issue, but I'll start by saying that it is legitimate for Canadian border officers and, for that matter, U.S. border officers to collect some personal information to determine whether the person who wants to be admitted should be admitted. Therefore, I'm not saying that no information should be collected. Some information is absolutely reasonable to make a decision about admission. But if we're within that area of certain pieces of information reasonably linked to the decision to admit, then our concern moves to how long this is retained—you're right to raise that question—and for what purpose it can then be disclosed to other departments.
Liberal
Wayne Long Liberal Saint John—Rothesay, NB
What's acceptable? What is it? Is it six months? Is it a week?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It depends on what the purpose is for which you're collecting the information. If, for instance, the information is collected to determine the legality of your status in Canada, I think it's fair to keep it until your legal or illegal status is finally determined. It all depends on what purpose the information is being collected for. It's primarily collected for border management reasons, so there's no one answer as to how long. It depends on what the reason is that it's being collected, and if it's a reasonable purpose, how long does the government need it to achieve that purpose?
September 18th, 2017 / 4:30 p.m.
Liberal
The Vice-Chair Liberal Nathaniel Erskine-Smith
Great.
With that, we will go to Mr. Gourde for five minutes.
Conservative
Jacques Gourde Conservative Lévis—Lotbinière, QC
Thank you, Mr. Chair. I am pleased to join your committee.
Thank you to the witnesses for being here.
Mr. Therrien, do you think the frequency of checks of electronic devices at customs is increasing? Are those checks conducted on a random basis only?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Are you referring to Canada or the United States?
Conservative
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
An increase has been noted in the United States. According to the data collected, 5,000 cell phone searches were conducted in 2015 as compared to 25,000 searches in 2016. That is an increase of over 500% from 2015 to 2016. Moreover, according to reliable figures for 2017, there were 5,000 searches in just one month, in February 2017. So there has been an increase.
Conservative
Jacques Gourde Conservative Lévis—Lotbinière, QC
Do your statistics indicate whether certain groups are being targeted more than others? Are there more random searches or is it mostly younger people or older people who are targeted?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
The figures are not collected by us so we have not been able to see them. To my knowledge, there is no targeting of specific groups. That would of course be a valid question to ask.
Conservative
Jacques Gourde Conservative Lévis—Lotbinière, QC
I think that is a concern for many Canadians.
Do Canadian customs officials do the same thing? Do they check the electronic devices of Americans entering Canada?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
As I said in my introductory remarks, customs officials can do many things under Canadian law. Under Canadian law, cell phones are treated like property. As such they can be searched without cause at this time. That is the statute law.
The policy of the Canadian government and of CBSA is to restrict this legal authority such that the devices in question can be searched only if the Canadian customs official has cause to suspect something related to an offence.
So the policy is not as permissive as the law, in my opinion, because the government and CBSA sense that the courts would not uphold the use of powers without cause as the statute law allows.
Conservative
Jacques Gourde Conservative Lévis—Lotbinière, QC
If a Canadian complains because their cell phone was searched, resulting in the loss of trade, patent or other information, does that person have any recourse or is that information lost forever?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Even though the information is gathered and collected by the government pursuant to its powers, that does not give it the right to use the information for unwarranted reasons.
If the government takes possession of certain information, there is clearly a risk, but Canada may not disclose or use that information as it wishes. It would certainly be wrong to disclose trade secrets without the judicial or legal authorization to do so.
