Crossing the line? The CBSA’s examination of digital devices at the border
The Office of the Privacy Commissioner of Canada (OPC) investigated six complaints against the Canada Border Services Agency (CBSA) regarding the examination of personal digital devices at ports of entry. Complainants, all Canadian citizens, questioned the CBSA's authority to conduct these searches. The OPC found that the CBSA contravened section 4 of the Privacy Act by exceeding its legal authority in one case (accessing online banking/social media) and section 6(1) by destroying records in two cases. Systemic issues were identified, including BSOs failing to follow CBSA's own policy on disabling internet connectivity, note-taking, and search thresholds. The OPC concluded all six complaints were well-founded and made several recommendations for operational changes and legislative reform. The CBSA accepted the operational recommendations, committing to new policies, mandatory training, oversight, and transparency, but disagreed with the legislative reform recommendations. Consequently, the operational issues are considered conditionally resolved.
- 1Whether CBSA's collection of personal information via digital device searches contravened section 4 of the Privacy Act.
- 2Whether the definition of "goods" under the Customs Act extends to electronic documents on digital devices.
- 3Whether CBSA's authority to search digital devices is limited to information stored on the device.
- 4Whether Border Services Officers (BSOs) complied with CBSA's internal policy (Operational Bulletin PRG-2015-31) regarding digital device examinations (e.g., airplane mode, note-taking, search threshold).
- 5Whether the copying of content from a digital device by a BSO was consistent with CBSA's legal authority and policy.
- 6Whether the CBSA complied with its obligations under subsection 6(1) of the Privacy Act to retain personal information used for administrative purposes.
- 7Whether the CBSA's practices regarding training, awareness, and accountability mechanisms for digital device searches were adequate.
- 8Whether the Customs Act requires amendment to include a clear legal framework and a higher threshold for digital device examinations.
- 9Whether the threshold for digital device examinations should be "reasonable grounds to suspect".
- Authority to search devices: CBSA exceeded authority in one case
- Destruction of records: CBSA contravened Privacy Act in two cases
- Systemic policy non-compliance: CBSA officers failed to follow policy
- Complaint outcome: All six complaints well-founded
- Operational recommendations: CBSA accepted and committed to changes
- Legislative reform recommendations: CBSA disagreed with recommendations
- Resolution status: Operational issues conditionally resolved
Complaints well-founded; operational issues conditionally resolved, legislative reform recommended.
The CBSA contravened sections 4 and 6(1) of the Privacy Act due to BSOs exceeding their authority, failing to follow internal policies, and destroying records. The CBSA committed to implementing operational recommendations to address these issues, leading to a conditional resolution for those aspects.
The Commissioner recommended mandatory training for BSOs, enhanced oversight and monitoring of digital device examinations, an internal audit of the policy framework, updates to CBSA manuals, increased transparency regarding policies, and systematic tracking and public reporting of digital device examination statistics. The Commissioner also recommended legislative changes to the Customs Act to recognize digital devices as more than 'goods' and to establish a clear legal framework with a higher threshold for examination, which the CBSA did not accept.
- s.4 Privacy Act
- s.6(1) Privacy Act
- s.99(1)(a) Customs Act
- s.107(5)(a) Customs Act
- s.489(2) Criminal Code
- s.8 Canadian Charter of Rights and Freedoms
This summary is informational only and not legal advice.
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