Canada's border agency to start tracking the number of cellphone searches

The Canada Border Services Agency will begin tracking the number of cellphones its officers search at the border, and will provide Canadians their first glimpse into the frequency of those searches after six months.

“Right now we’re not tracking separately how many cellphone searches we have done,” said Martin Bolduc, vice-president of the agency’s programs branch, in a meeting before the House of Commons standing committee on access to information, privacy and ethics on Wednesday.

But a few weeks ago, he told his team to start.

CBSA has long maintained that it has the right to search electronic devices at the border for evidence of customs-related infractions — without a warrant — as it does suitcases and bags. A 2015 interim policy, still in effect today, says that device searches “should not be conducted as a matter of routine.”

In the U.S., the frequency of border searches of cellphones has risen sharply in recent years, according to data collected by the U.S. government. And while there are only anecdotal accounts of searches in Canada, lawyers across the country have called the practice unconstitutional and argued that the law be changed.

To Bolduc’s knowledge, the CBSA has not conducted a constitutional analysis of warrantless searches of devices at the border, but he promised to make such an analysis available to the committee if it did exist.

“If the CBSA felt this kind of search wasn’t worthwhile, we would stop doing it,” Bolduc said. Only “a very low percentage” of electronic devices are actually searched, he said.

Privacy complaints

The Office of the Privacy Commissioner of Canada has received three complaints about border searches of cellphones in the past year, the acting vice-president of the border agency’s corporate affairs branch, Robert Mundie, told the committee. The complaints are being investigated.

According to Bolduc, one reason why the CBSA has been unable to release more information on the frequency of electronic device searches is that the agency didn’t previously distinguish between a secondary screening, where a traveller may have only been questioned, versus screenings where luggage or electronic devices are also searched.

Bolduc also couldn’t say when the practice of electronic search devices first began, nor how long information is retained when a search is conducted, but told the committee he could check.

CBSA officers at points of entry do not download or store any information from electronic devices, Bolduc said. But if officers find an infraction while manually searching a phone, “the personal device could be seized and sent to our criminal investigator who will decide what to do with it,” he said.

Advice for Canadians

CBSA’s current policy is that it will not arrest Canadians solely for refusing to provide a password, though the agency believes it has the legal authority to do so  — a stance contested by lawyers and civil liberties advocates in Canada.

Bolduc said that Canadians “should not fear carrying their electronic devices across the border.” But he also cautioned that if travellers have information they want to keep private, they shouldn’t store it on their devices.

When asked if CBSA would go as far as the U.S. Department of Homeland Security, which plans to include “social media handles, aliases, associated identifiable information, and search results” in immigration files, Bolduc said that the CBSA is “not contemplating something similar.”

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