Information & Ethics Committee on Sept. 27th, 2017

[Karine Trudel, NDP, Jonquière, QC]

Thank you very much.

[The Chair, Conservative, Bob Zimmer]

Thank you.

Now we'll go to Mr. Fragiskatos.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I'm not a member of this committee. I'm sitting in for a colleague today but I'm extremely interested in the topic, not just as an individual MP, but certainly I know constituents have raised matters of privacy.

I am looking at a report here. I'll read from it. It says on the CBSA and their powers with respect to devices:

The agency's policy states that personal devices should only be searched when officials have reason to believe a device will contain “evidence of contraventions” or proof you have violated a law through files or information “known or suspected to exist” on your phone.

I have two questions with respect to evidence of contraventions.

I'm going to assume that relates to evidence of contraventions of the Customs Act. Mr. Fraser, you talked about an example from Cuba. Could you go into that because I wonder, is there a clear list of contraventions that are being followed here or examples of contraventions or is it simply up to a guess on the part of the CBSA officer? Also, when it comes to information, files for example that are known or suspected to exist, what does “suspected” mean according to what you've been able to gather?

[David Fraser]

I think suspected is just simply that: they believe it might exist.

The issue is at its core. CBSA has a policy and says these are the circumstances under which they will inspect devices and open them up and demand passwords. It sets the bar here according to their policy. I've heard from front-line CBSA folks who say that's more of a suggestion or a guidance than an actual policy. But the law that they rely on they say is down here at the bottom. Everything that's in the middle, everything that protects the privacy of Canadians and makes an intrusion of privacy proportionate, is based entirely on a policy that is followed maybe most of the time; we'll assume everybody's good faith.

The reality is that you cannot make something constitutional by a policy. They could put it in a regulation, which would then have the force of law, but they have not. It is a piece of paper that could be disregarded at any time with very little recourse. I think that's a significant problem with the entire thing as it's set out.

[Peter Fragiskatos, Liberal, London North Centre, ON]

You commented just now on what's suspected to exist and you put out an explanation, but when it comes to proof that one has violated a law through files or information that might be on one's phone, does the word “suspected” relate to the fact that they think it might be on the phone but they can't find it? Is that what that means?

[David Fraser]

I think having suspicion would come into play in a number of different directions. They suspect it exists. They suspect it relates to wrongdoing. They suspect they might be able to find it. The example they gave is you crossed the border or you came into an airport and you had a very expensive purse and they think it's new and they think they might find the receipt for it on your phone.

I would assume what would inform their suspicion is whether you appear to be a savvy enough person to organize your receipts electronically. Would that exist? Is it a Nokia from 20 years ago or is it an iPhone from now? There are probably a whole bunch of variables that you could never necessarily put into a great flow chart, but these questions are dealt with by law enforcement across the country on a daily basis not just at the border.

I think there are ways these can be arrived at. One thing that's also worth noting just in a general context, is the courts have also said the border is not in a no-charter zone. They have said you have a reduced expectation of privacy, but the charter still applies at the border.

[Peter Fragiskatos, Liberal, London North Centre, ON]

I think my dad owns a 20-year-old Nokia. He's savvy but not in a negative sense.

Mr. Geist, maybe this is an unfair question because you've written so much on a range of topics. When it comes to the privacy of Canadians at airports and borders, is there one specific major concern you have right now? Once you highlight it, I wonder if you could point to a country that has dealt with this issue from a privacy perspective through legislation.

[Dr. Michael Geist]

That's a good question. I'm not sure if it's unfair, but it's a good one.

I think—and it has been highlighted by a lot of your witnesses—that the move to the electronic and digital world has meant that the scope of a search is not the scope of a search from a decade ago. If we are looking at it purely from where the law is at, and the reality of the implications from searches today, quite clearly the concern arises that, once you shift from the physical belongings in my bag, whether that's a new handbag or some other sort of thing that is there, into, in a sense, the cloud—although we did hear the notion that they are not looking in the cloud but strictly for what's on the device, so much gets stored on these devices—that's where I think there has to be a bit of catch-up.

For me, a close second—I guess it's a theme because I've raised it now a couple of times—is the lack of clarity and the uncertainty associated with what takes place. This is, for me, a really serious concern. I didn't mention it, but I think in some ways it's one of the reasons this issue resonates with people. Literally, I think every person will have a story. I can recall, for myself, immediately after the Trump executive order, I was crossing a land border with my son to go to some basketball games in March. As we were going there, there was a lot of uncertainty. What exactly are they going to ask? Are they going to just let us through, or are they going to want to see phones or devices, or question whether I am permitted to go with my son across the border and whether there is a letter from my wife? What other information are they going to look for? There is no place where you can get that. I crossed, and they waved us through immediately. I'm a lucky white guy, as it turns out.

The reality is that, for me, it's usually not that big a deal, but for an awful lot of people, depending on where they were born, the colour of their skin, or the background they have, this is an issue that keeps them up many nights and raises enormous fears. Finding ways to address that, and, I would argue, address it on both sides of the border.... I don't think we can solely say, let's fix the Canadian side of the issue, while recognizing that for millions of Canadians, the issue will still remain. Especially when we are in the midst of active negotiations with the United States about NAFTA, that surely is one of the places where there is an opportunity to try to craft some of these solutions.

As for the question of who's getting it right, I think everybody is struggling with these issues, and everybody's circumstances are different, in terms of the security imperative and the like, which makes it difficult to identify precisely the right place to land.

[Peter Fragiskatos, Liberal, London North Centre, ON]

Thank you very much.

[The Chair, Conservative, Bob Zimmer]

Thank you, Mr. Fragiskatos.

Mr. Gourde, you have the last five minutes. It might be down to four minutes.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

Thank you, Mr. Chair.

You emphasized that, in the NAFTA negotiations, it is not always easy to find common solutions with all the countries.

In terms of the security of electronic devices and the information that may be extracted from them, do the countries tend to favour a common approach or does each one prefer its own formula?

[Dr. Michael Geist]

This is obviously a commonality among many countries, especially attempts to facilitate border crossing and make it easier. One of the problems with those attempts to facilitate and make life easier is that it comes with the provision of a massive amount of information, which then gets widely shared. The vision is, let's make it easier for people to travel across borders, but the price of doing so becomes passenger lists, other sorts of information, or biometric data, as you provide in a NEXUS context.

There has been a large price, it seems to me, in terms of some of the things that people have to surrender as part of that. Perhaps other colleagues on the panel have their own experience or knowledge, but I think we are seeing many countries grapple with some of the same kinds of questions.

One thing, though, that distinguishes our country from pretty much all others, save, I suppose, Mexico, is that our border is with the United States, or at least our most commonly traversed border is with the United States. Given what we are seeing take place in the United States, it really is unavoidable to begin to look at those issues, especially in the way that we have tried to facilitate some of those border crossings by saying, let's do pre-clearance, and, in fact, let's facilitate as much pre-clearance as possible.

[Jacques Gourde, Conservative, Lévis—Lotbinière, QC]

My impression is that giving the password to an electronic device to a customs officer is basically giving the officer permission to search that device.

In terms of security, I feel that the technology that countries have today allows them to search our personal information anyway. In reality, they are just asking for permission pro forma. If they actually have any real doubt, they are going to find a way to search the information about us, whether it is in the cloud or elsewhere.

[Dr. Michael Geist]

Countries do search. Whether or not they ought to be searching is a completely different question. Whether or not there are the appropriate oversight mechanisms, safeguards, and protections when they do conduct those searches is also a different question.

Can the NSA engage in widespread surveillance, and can some of our own agencies assist in that? Technically speaking, we know the answer to that. They can, and we know that they do.

I don't think that answers the legal question, and I don't think it answers the moral question either as to whether or not they ought to be doing that. Even if you conclude that they ought to be doing it in appropriate circumstances, whether or not we have the appropriate safeguards and oversight as part of those searches....

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Mr. Fraser, I have a question on your second recommendation.

With respect to the preclearance act, why can someone who comes to the border then withdraw? If a person doesn't want to cross the border when the person is at the border, why do you feel there is a reason the person can turn around?

[The Chair, Conservative, Bob Zimmer]

Make it a short answer, please.

[David Fraser]

The situation is that people can currently withdraw. The change in the legislation is going to allow the detention of that person and an interrogation in order to determine why they did that, which actually defeats the purpose of the withdrawal in the first place.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Are you saying that we should maintain the same right of withdrawal we have now?

[David Fraser]

Yes.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Before and after the preclearance act?

[David Fraser]

Yes.

[Steven Blaney, Conservative, Bellechasse—Les Etchemins—Lévis, QC]

Thank you.

[The Chair, Conservative, Bob Zimmer]

Thanks to everybody who came today to our committee. We appreciate your testimonies.

The meeting is adjourned.