OPC Report of Findings on CBSA Digital Device Examinations
Classification: Unclassified
Branch/Agency: Organization Name
Proposed Response:
- We support the report of the Privacy Commissioner regarding the Examination of Travellers’ Digital Devices at the Border.
- We recognize that travellers’ digital devices are a type of good that may contain personal information, and therefore, the CBSA has measures in place to ensure that the privacy of travellers is protected.
- The Customs Act provides the CBSA with the authority to examine all goods at the border for customs-related purposes.
- It should be noted that examinations 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.
- Between November 2017 to December 2019, only 0.013% of the over 207 million travellers to Canada underwent an examination of their digital devices (approximately 13 out of every 100,000 travellers).
- Of the devices examined, the CBSA uncovered non-compliance with border laws in approximately 40% of their examinations.
- In addition, the CBSA has already addressed a number of the Commissioner’s recommendations through the release of a more comprehensive policy, which includes:
- introducing mandatory training for recruits and existing officers on the examination of digital devices;
- implementing oversight and compliance monitoring mechanisms; and
- tracking and reporting on the number of digital device examinations.
- The CBSA is also reviewing the proposal for legislative amendments provided by the Commissioner.
Background:
To date, the Office of the Privacy Commissioner (OPC) has received seven complaints and one discontinued complaint against the Canada Border Services Agency’s (CBSA) examination of digital devices. The CBSA responded to each of these complaints when they were initially submitted and considered the issues raised when drafting the new policy on the Port of Entry Examinations of Travellers’ Digital Devices.
Of these eight complaints, the OPC selected six from Canadian citizens to investigate collectively which formed the basis of the OPC’s Report of Findings. In the Report, the OPC found that these all six complaints were “well founded” and that the Agency contravened sections 4 and 6(1) of the Privacy Act in two of the complaints examined. The CBSA disagreed with the OPC’s findings in five of the complaints, however, the Agency acknowledged that in one complaint, the information collected was improperly gathered. Steps have been taken to correct this, including expunging the information in question from CBSA systems.
In the Report, the OPC makes nine recommendations; six policy-related and three proposing legislative changes. The CBSA agreed to implement all six of the policy-related recommendations and, therefore, the OPC considers the issues identified in their report resolved. In addition, though the CBSA did not accept the legislative recommendations, the OPC recognizes “that legislative reform is a Parliamentary matter and is outside the CBSA’s authority.”
The recommendations the CBSA will be implementing are:
- introducing mandatory training for recruits and existing officers on the examination of digital devices;
- implementing oversight and compliance monitoring mechanisms;
- conducting an audit into the new comprehensive policy on the examination of digital devices;
- updating the CBSA Enforcement Manual to include the new policy;
- providing greater transparency about its digital device examinations procedures to the public; and
- tracking and reporting on the number of digital device examinations.
The CBSA is looking closely at the OPC’s recommendations on legislative amendments, to determine how best to proceed. The recommendations under review are:
- changing the definition of goods in the Customs Act to exclude digital devices;
- writing CBSA policy into the Customs Act, imposing a threshold on the examination of digital devices; and
- raising the threshold for digital device examinations to “reasonable grounds to suspect.”
One of the most fundamental methods of meeting the mandate of the CBSA is through the examination of goods crossing the border. This is key to classifying goods, assessing the value for duty, collecting duty and taxes, determining the admissibility of goods, ensuring compliance with the law of Canada, detecting non-compliance, and providing a deterrent against non-compliance.
Contacts:
Prepared by: Emily Singer, A/Senior Program Advisor, Travellers Branch, 613-948-4602
Approved by: Denis R. Vinette, Vice President, Travellers Branch, 613-952-5269 / 613-290-0656
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