The Stanstead, Que., border crossing is seen from Derby Line, Vt., on Aug. 9, 2021. The Trudeau government’s proposed threshold for allowing a border guard to access the contents of your digital devices is ‘reasonable general concern.’Wilson Ring/The Associated Press
Are you a person who sometimes experiences “general concerns”? Do those general concerns feel “reasonable” to you? If so, you might have a future in the Canadian Border Services Agency.
“Reasonable general concern” is the Trudeau government’s proposed threshold for allowing a border guard to access the contents of your cellphone, laptop or other digital device, any time you enter the country.
It’s in a bill, S-7, that the government has weirdly introduced in the Senate rather than the Commons, provoking the first of many questions about this legislation. The proposal has also raised eyebrows for the fact that the legal standard it applies appears to have been created out of thin air.
Unlike “reasonable suspicion” or “reasonable grounds to believe,” which are well established legal standards that police must meet in order to arrest someone or conduct a search, “reasonable general concern” is making its international debut. And it’s already not earning rave reviews.
The Canadian Civil Liberties Association says “reasonable general concern” is more of a “sniff test” than a standard, and as such won’t protect the digital privacy of the millions of people who cross a Canadian border each year.
A lawyer quoted in the Canadian Bar Association’s magazine said that “reasonable general concern” reads like “some sort of gut feeling.”
We think the proposed legal standard sounds a lot like asking CBSA officer Peter Parker if his Spidey senses are tingling.
Even more troubling, “reasonable general concern” ignores a 2017 recommendation from the House of Commons’ standing committee on access to information, privacy and ethics that the threshold be “reasonable grounds to suspect.”
The Trudeau government contends that Bill S-7 will “safeguard traveller privacy and rights in the examination of personal digital devices” – a duty that was imposed on it by a landmark 2020 Alberta Court of Appeal ruling.
The court said border agents can’t search a person’s cellphone or laptop in the same routine fashion they do a suitcase or a purse, as was the practice up till then.
Digital devices can hold every e-mail a person has ever sent or received, as well as text messages, medical and financial information, intimate photographs and sensitive browser histories. The court ruled that inspecting this “biographical core of personal information” in a “suspicion-less and unlimited” way was a violation of the constitutional right to be secure against unreasonable search or seizure.
It said Ottawa needed to establish a higher threshold for digital-device searches, but suspended its judgment to give Parliament time to update the Customs Act.
The proposed reform is finally here. It says a border officer “can examine documents, including emails, text messages, receipts, photographs or videos, that are stored on a personal digital device,” if the officer has a “reasonable general concern” that the device’s owner is importing prohibited goods on it, including child pornography, or isn’t being honest about the value of the goods they are declaring.
(It’s worth noting that officers have always only been able to examine things stored directly on a device, and are supposed to disable its wireless and cellular connections before searching it.)
When crossing an international border, one’s expectation of privacy should be lower. Bags will be searched and questions will be asked. At the same time, however, a smartphone isn’t a suitcase. The former can contain far more that the latter, and the expectation of privacy surrounding it should be higher. That means the threshold to search it must be higher.
So it is important that the government find a balance between letting border officials do their job effectively, and protecting the constitutional rights of travellers.
The judges of the Alberta Court of Appeal were themselves uncertain as to exactly where the line should be drawn. “Whether the appropriate threshold is reasonable suspicion, or something less than that having regard to the unique nature of the border, will have to be decided by Parliament and fleshed out in other cases,” it wrote.
Fair enough. The government has put a proposal on the table, as required. But “reasonable general concern” seems worded in a way to allow border guards to continue doing “suspicion-less” searches on digital devices. Ottawa appears to be trying to meet the requirement to name a threshold, without actually applying one.
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