Privacy Commissioner Finds CBSA to Have Broken Law With Digital Device Searches

Canada’s border agency was found to have violated the law by performing invasive searches of personal digital devices.

According to a new report from The Star, privacy commissioner Daniel Therrien on Tuesday found the Canadian Border Services Agency violated the law when examining devices at the border, included travellers’ cellphones and laptops.

Therrien reportedly looked into six separate complaints from Canadian citizens who claimed their devices were unlawfully searched upon returning home from abroad. Officers apparently accessed content like documents, texts, photos, banking details, and Facebook information.

“Digital devices clearly contain vast amounts of personal, and sometimes sensitive, information about identifiable individuals,” the privacy commissioner’s investigation report says.

According to The Star, Therrien found:

  • Connectivity was not disabled — for instance, by switching a device to airplane mode — in at least four of the six cases;
  • In one case, an officer improperly took photos of the content on the complainant’s phone;
  • Certain information relating to the examination of the complainants’ digital devices was destroyed in two cases despite the fact the Privacy Act and regulations require that such material be kept for at least two years;
  • In all six cases, officers failed to record the indicators that led to searches of the digital devices, which areas of the devices were accessed or why those areas were searched.

Therrien concluded that the CBSA’s policies had “not proven an effective means of ensuring that examinations and searches of digital devices respect individuals’ privacy rights.” Additionally, there were “insufficient training and accountability mechanisms” to aid officers in meeting requirements.

“We, therefore, consider all six of the complaints to be well-founded,” the commissioner concluded, making several recommendations to the agency while calling for reform of the legal framework surrounding device border searches.

“The border agency agreed to take several steps, including mandatory training for officers, implementation of oversight measures, enforcement manual updates, an internal audit and publication of online guidance for travellers,” concluded the report.

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