After it was declared unconstitutional, the Canadian government is trying to revive digital frisking via Bill S-7.
When you travel across the border into the US, or back across the border into Canada, there’s plenty of screening procedures. Your baggage is run through X-ray scanners. You also are scanned for metal on your person. What’s more, any suspicious powders are invariably flagged for closer inspection. The obvious reason is that these are measures to ensure no one steps aboard a plane with weapons or bombs. This, of course, has been the reality since 9/11 where security has been greatly ramped up to prevent another hijacking or bombing.
While this has been a somewhat reasonable approach, in the years since, airport security has been famously dubbed “security theatre”. 3D scanners have been called “porno scanners” because it leaves nothing to the imagination. Preventing guns from boarding planes have also been quite hit and miss. As a result, it has served as a dissuading factor for international flights.
Rather than focus in on striking a balance between security and making screening processes as painless as possible, the security establishment has been going shoulder to the wheel to try and make the process as high surveillance, zero privacy, as possible. In recent years, there has been quite the rise in what has been called “digital frisking”.
Digital frisking at the border is where border security seize a device and search the contents of that device. Often, a full copy of the contents of that device is copied for further inspection. Cell phones and laptops would be examples of such devices that get seized at the border. Obviously, you’re not going to have a file that would get you to blow up or hijack a plane, so the question about security is pretty far out the window at that point. The searches do not require a warrant and are often based on little or no suspicion.
This issue has been fought with in the US since at least 2017. The Electronic Frontier Foundation (EFF) has posted a guide on what to do with such searches. What’s more is the issue was fought in court via the Merchant v. Mayorkas case. The case questioned whether or not such searches violated the US constitution. Sadly, the case ended in 2021 when the US Supreme Court declined to hear the case, though border security needs to have suspicion that the device contains digital contraband.
Meanwhile, back across the border, it looks like the issue is still being fought over. A year and a half ago, the Alberta Court of Appeal ruled that such activity does, in fact, violate the Canadian constitution. So, from the Canadian perspective, the act of seizing and searching a device is not necessarily legal as things stand now. So, the case may or may not continue. Still, it looks like the Canadian government is trying to circumvent the courts by creating new legal terms to get around this. What’s more is that the OPC (Office of the Privacy Commissioner) was not consulted:
In launching the bill in late March, the Government said in a release that Bill S-7 would “strengthen the framework governing the examination of personal digital devices by Canada Border Services Agency (CBSA) officers and United States Customs and Border Patrol preclearance officers operating in Canada” and would ultimately safeguard travellers’ rights.
Rather than simply codifying the authority under which border officials can search phones and laptops, the new bill establishes a new standard for the searching of devices that is “so novel, so untested, and so low,” according to Brenda McPhail, the director of the privacy, technology and surveillance program at the Canadian Civil Liberties Association. McPhail said that even before it becomes law the bill is “inviting people to think about how they would challenge that threshold.”
In developing the legislation, the Government also did not correspond with the Office of the Privacy Commissioner despite the OPC’s offer of its own expertise and request to be kept informed, according to a spokesperson from the commissioner’s office.
Section 1 of Bill S-7 amends the Customs Act to allow border guards to search documents, emails, text messages, receipts, photographs or videos stores on a personal device if an officer has a “reasonable general concern” that a Canadian law “has been or might be contravened in respect of one or more of the documents.”
That new standard, of “reasonable general concern”, is a “shockingly low and completely legally novel threshold,” McPhail said in an interview with the Wire Report, adding that the words ‘reasonable general concern’ do not appear in established jurisprudence, and are lower than the more common ‘reasonable suspicion’ or ‘reasonable cause to believe’ thresholds.
The legislation was recently introduced. It was tabled on March 31st. The text of the legislation is available for anyone to read for themselves. Section 1, mentioned above, reads as follows:
1 The Customs Act is amended by adding the following after section 99:
Documents on personal digital device99.01 (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
(a) this Act or a regulation made under it has been or might be contravened in respect of one or more of the documents;
(b) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act has been or might be contravened in respect of one or more of the documents; or
(c) one or more of the documents may afford evidence in respect of a contravention under
(i) this Act or a regulation made under it, or
(ii) any other Act of Parliament that prohibits, controls or regulates the importation or exportation of goods and is administered or enforced by the officer or any regulation made under that Act.
That provision is broader than the sky in the prairies for crying out loud. Little wonder why civil rights groups are up in arms over that one.
One thing is for sure, this is only going to make this already messy question of digital frisking at the border even more messy than it already is. If this becomes law, and it doesn’t get challenged in court, I would be completely shocked. It’s ridiculous enough to dissuade me from taking electronic devices of any kind across the border. Inconvenient? Yes, but if that becomes part of the law books, it’s not an unreasonable step to take at that point.
Drew Wilson on Twitter: @icecube85 and Facebook.
