The BCCLA has been following reports of searches of laptops, smartphones, and other electronic devices by the Canada Border Services Agency (CBSA) for some time now. We’ve come across a lot of stories (see here, or here, or here for just a few examples) detailing the experiences of travellers who have had their devices searched or detained, and recommendations from business associations and lawyers concerned with securing confidential or privileged information.

What we haven’t come across are official policy statements from the CBSA describing how they deal with electronic devices. The CBSA has no public policy on the search and detention of electronic devices or the copying and retention of data from these devices.

Waiting to cross the border into Canada. Photo: Aaron Gustafson

On October 21, 2009, the BCCLA filed an Access to Information request with the CBSA, hoping to clarify CBSA policy on the search of electronic devices. The BCCLA request asked for CBSA records on:

• Policies pertaining to the search and inspection of Electronic Information;
• Statistics on the number and kinds of electronic devices inspected;
• Methods of search and inspection of the contents of electronic devices;
• Training materials on performing inspections of the contents of electronic devices;
• Criteria used to select individuals for device inspection;
• Demographic information on individuals whose devices have been inspected;
• Policies for requesting or demanding passwords to access Electronic Information from individuals at the border;
• Policies for handling a refusal to provide a password to access or decrypt Electronic Information;
• Policies for the copying and retention of Electronic Information;
• Policies for the inspection and retention of confidential or privileged Electronic Information;
• Policies for the distribution of Electronic Information copied from electronic devices to other Government agencies;
• Policies for the destruction of Electronic Information copied from electronic devices; and
• Documents considering the Charter and other legal implications of the search and inspection of the contents of electronic devices.

The CBSA acknowledged that request on November 4, 2009. The Access to Information Act requires a response within 30 days of receiving the request. That response was received on November 30, 2009, when the CBSA notified the BCCLA that an additional 60 days would be required to process the request, as allowed by ss. 9(1)(a) and 9(1)(b) of the Access to Information Act:

9. (1) The head of a government institution may extend the time limit set out in section 7 or subsection 8(1) in respect of a request under this Act for a reasonable period of time, having regard to the circumstances, if

(a) the request is for a large number of records or necessitates a search through a large number of records and meeting the original time limit would unreasonably interfere with the operations of the government institution,

(b) consultations are necessary to comply with the request that cannot reasonably be completed within the original time limit, or  …

That time extension made the new deadline for response February 1, 2010, 60 days after the initial deadline. We filed a time extension complaint with the Information Commissioner, then waited patiently to see what would come.

February 1 came and went with no response. We waited another week to see if Canada Post was the problem. Still no response. Three months after the original request was filed, the CBSA remains unwilling or unable to provide a single document in response to our request.

What now? To start with, we will amend our complaint with the Information Commissioner to reflect the continued failure of the CBSA to meet its obligations under the Access to Information Act.

In the coming weeks, we’ll post more about the work we’ve done on border searches of personal electronics, including why searches of electronic devices should matter to Canadians, and what we do know about CBSA policy. Once we get some documents from the CBSA, we’ll post those too.

Laptop search documents:

• October 21, 2009 – BCCLA’s Access to Information request
• November 4, 2009 – CBSA acknowledgement of BCCLA’s request
• November 30, 2009 – CBSA notification to BCCLA of 60-day time extension