The CBSA is committed to respecting privacy rights while protecting the safety and security of the Canadian border. Examination of digital devices are performed occasionally with the clear goal of administering or enforcing the CBSA’s mandate and program legislation that governs the cross-border movement of people and goods.
The Office of the Privacy Commissioner’s (OPC) investigation into examinations of digital devices conducted during this timeframe, found that in two instances, there was a breach of the Privacy Act.
The CBSA recognizes that digital devices can contain sensitive personal information and that protecting privacy is of great importance. At the same time, its resultant rate demonstrates that information on digital devices can be key for the Agency to fulfill its mission to ensure the security and prosperity of Canada by managing the access of people and goods into Canada.
Border services officers deal with sensitive information on a daily basis. As a result, officers receive training on the individual’s right to privacy and their responsibilities regarding the collection, use, disclosure and confidentiality of sensitive information.
While the CBSA has always had a policy on examination of goods, to provide greater certainty, the Agency launched, in December 2019, a dedicated policy on digital device examinations, including a more developed, detailed, mandatory training program for all new and existing officers. The Agency also developed and published new information to provide guidance to travellers.
The CBSA recognises the importance of transparency and maximizing the release of open data and, in line with its commitment to the OPC, the Agency will be publishing statistics on the number of examinations of digital devices on its external website on a regular basis.
In December 2019, the Privacy Commissioner released a report regarding their investigation on the Examination of Travellers’ Digital Devices at the Border. The CBSA has already addressed six of the policy recommendations and is enacting a number of actions to ensure strong border protection and respect for travellers’ privacy. The CBSA is also looking closely at the OPC’s recommendations on legislative amendments, to determine how best to proceed.
The CBSA acknowledges the OPC’s findings that there were two breaches of the Privacy Act; in light of initial privacy complaints, prior to the OPC investigation, the CBSA completed a review of its policy with the goal of further strengthening it. The CBSA consulted the OPC as part of the review process.
The CBSA has successfully defended its authority to examine digital devices in more than 15 court cases. Courts have consistently determined that digital devices are goods and therefore CBSA’s authority to examine goods extends to digital devices. Several courts have ruled that reasonable examinations of digital devices do not breach a traveller’s section 8 Charter rights.