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Border Officers with ‘reasonable general concern’ can search your phone and laptop according to Bill S-7

What in blue blazes is a general concern?

BILL S-7 Opens your phones and laptops to border searches based on ‘reasonable general concern’

BILL S-7, a bill to amend the Customs Act and the Preclearance Act, 2016, was introduced to create a new threshold for Canadian and American border security officers to examine a personal electronic devices.

Sen. Simons argues this bill sets too low and vague a threshold to invade our privacy. She explains that our personal electronics are more than just devices — they’re a part of our biographical cores of personal information and should be treated as such. Bill Sponsor Sen. Gwen Boniface then asks questions.

Almost everything we do now involves technology in some way and people are becoming more aware of their privacy as we carry small powerful smartphones in our pockets

Senator Paula Simons opened up her statement talking about how “phones, laptops, tablets even our apple watches know more about us than ever before” said Senator Simons adding “what we watch. What we eat. What we read What we buy. Where we’ve been. Who our friends are whom we date. Our devices hold our most intimate embarrassing secrets”

Even when it comes to work our device will hold a lot of confidential information about our work no matter what it is. Where we work or who our clients, patients, colleagues or constituents might be.

This is being added to the Customs Act and Preclearance Act, 2016

Customs Act

1 The Customs Act is amended by adding the following after section 99:

Documents on personal digital device

99.‍01 (1) At any time up to the time of release or at any time up to the time of exportation, an officer designated under subsection (2) may, in accordance with the regulations, examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that has been imported or is about to be exported and is in the custody or possession of a person if the officer has a reasonable general concern that

Preclearance Act, 2016

9 The Act is amended by adding the following after section 20:

Documents on personal digital device

20.‍1 (1) A preclearance officer may, for the purposes of conducting preclearance, examine, search and detain documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device that is in the possession or control of a traveller bound for the United States if the preclearance officer has a reasonable general concern that

Bill S-7 an already outdated amendment to the Customs Act to meet the constitutional requirements set out by the court two and a half years.

Senator Simons said the government has created “a holy novel test for a search of an international traveler’s cell phone or computer. A threshold without precedent in Canadian law”

Bill S-7 will allow both Canadian and American border officers to doing pre-clearance of travelers leaving Canada for the United States to examine documents, including emails, text messages, receipts, photographs and videos which are stored on a personal digital device if and when the officers feel a ‘reasonable general concern’ that something on that device might contravene the Customs Act.

According to Senator Simons there is no Canadian jurisprudence related to this newborn phrase ‘a reasonable concern’. A concern in common parlance is less grave less, specific than a suspicion. Senator Simons also mentions the word general was thrown in there and questions “What in blue blazes is a general concern?”

She said it sounded more vague and more subjective than “a good old-fashioned hunch” or “an inkling”. This is an ill-define threshold and opens the doors to possible misapplication or abuse.

In fact all throughout the Customs Act the well-established legal threshold standard test is suspicion on reasonable grounds.

“Why on earth should it be easier for border agents to search the contents of our personal electronic devices than it is for them to search our mail or our coat pockets or our card trunks or our suitcases?” asked Senator Simons adding. “yet that is precisely what bill S7 allows”

She acknowledges we have few privacy rights crossing a border than the street. Entering or exiting a country is a privilege and we subject ourselves to searches of our luggage and our persons that otherwise would not be legal in ordinary daily life but “a border is still not a charter free zone”

Bill S-7 will allow border agents acting on a “reasonable general concern” to take your device and search threw it. Looking at all your private documents, photos, videos, text messages, emails, online shopping respites, your bank statements and dating history as well as your health and fitness data.

Senator cited the Canadian border services agency had its own internal rules that are supposed to prevent such phishing expeditions “according to the cbsa handbook. Searches were only supposed to be conducted if there were quote ‘a multiplicity of indicators that evidence of contraventions may be found on the digital device or media’. The court in canfield explicitly said that was not good enough and yet”

Instead of enhancing our privacy rights as the court explicitly directed, Bill S-7 actually lowers the bar. She says it may in fact diminish our privacy rights granting the border officers more freedom to pry in to our personal devices

“it’s a fair bet that this novel legal threshold is going to create confusion not clarity for many border officers and it will undoubtedly become the subject of aggressive litigation almost soon as it’s applied [..] and it certainly doesn’t align with previous recommendations of Canada’s privacy commissioner”

The border rules were created for agents to look for “stuff”, illicit goods. Stuff such as “smuggled drugs or smuggled cigarettes things like smuggled exotic animals”

She raised concern when treating the private secrets carried on our digital devices as though they were goods. We weaponized the customs act in fresh and unintended ways.

Some people quickly try to defend this type of overreaching powers to search our private devices as a way to “fight child pornography”. While no one wants to be smeared as a defender of child porn or pedophilia but the fact is a majority of the child pornography is being bought and sold online anonymously with fast internet connections not being carried over the border on peoples devices.

Opening up our devices to be searched at the border will not be doing very much to fight child abuse. Putting the populations privacy at risk for a dragnet invasive search that might possibly garnish just a couple arrests is not worth giving up our privacy.

A defence commonly used to justify taking away more rights is saying bill S-7 won’t matter to you because you don’t carry child pornography on you phone or computer. You would be forgiven to think that if you didn’t already know child porn is cover in the Customs Act. Prohibited items under the customs act include hate propaganda, obscene material, treasonous or seditious material and even something as benign as reprints of Canadian copyrighted works.

Bill S-7 will allow border agents to search your phone for a “reasonable general concern”, because they have a general concern about what your political views might be on your phone or laptop. Or maybe a generally concerned officer is looking for receipts or banking information stored on your devices that might show you bought a few more things than you declared.

In addition to what Senator Boniface said in her speech a week before this reading

“if officers discover what may be evidence of a criminal offense offense that has nothing whatsoever to do with the customs act. That evidence may be provided to local police who may then conduct their own criminal investigation and consider possible criminal charges”

History of privacy charter challenges

A history lesson in November of 2020. A decision known as R V Canfield the Alberta court of appeal found that section 99.1a of the customs act offended against section 8 of the charter of rights and freedoms because they did not impose any limits on when and how searches of personal electronic devices including smartphones tablets and laptops could be conducted at the border.

Madam Justice Frederica Schutz Madam Justice Joanne Streckaff and Madame Justice Richard Kular held unanimously that the act violated the protection to be free of unreasonable search and seizure because it allowed for what the court called suspicionless and unlimited searches of private information. That violation held the court could not be saved by section one of the charter because it allowed unfettered and unrestricted access to people’s most personal and intimate information.

Now Canada’s courts have long recognized the inherent privacy of what they have termed somewhat poetically our biographical core of personal information. In its 1993 decision R V Plant the supreme court put it this way “in fostering the underlying values of dignity integrity and autonomy it is fitting that section 8 of the charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”

That would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual almost two decades later in the 2012 case R. V. Coal the supreme court was even more explicit quote the closer the subject matter of the alleged search lies to the biographical core of personal information the more this factor will favor a reasonable expectation of privacy put another way the more personal and confidential the information is the more willing reasonable and informed Canadians will be to recognize the existence of a constitutionally protected privacy interest today when we carry so much more of ourselves and our lives on our phones our tablets and our laptops a search of these devices said the court in canfield strikes right to the heart of our biographical core

Senator Simons quotes the Canfield judgement.

“while the search of a computer or cell phone is not akin to the seizure of bodily samples or a strip search it may nevertheless be a significant intrusion on personal privacy to be reasonable such a search must have a threshold requirement and the greater the intrusion said the court of appeal the greater must be the justification and the greater the degree the greater the degree of constitutional protection now the court did not specify what it thought a proper constitutional threshold would be but it suggested it might be something akin to reasonable suspicion as opposed to the more stringent standard of reasonable and probable grounds.”

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