On June 8, 2022, Citizen Lab fellow Lex Gill appeared before the Standing Senate Committee on National Security and Defence to discuss S-7: An Act to Amend the Customs Act and the Preclearance Act, 2016. The following is an edited version of her opening comments.
In law schools, we talk to students about “dialogue theory.” This is the idea that the courts and the legislature are in a constant and self-conscious conversation about the scope of government power and its limits in a free and democratic society. The idea is that sometimes the courts need to draw a constitutional line—and when they do, Parliament listens, adjusts, and reworks the law to better tailor its objectives and better respect Charter-protected rights.
The government now finds itself faced with over a decade of Supreme Court jurisprudence—Morelli, Vu, Fearon, and others—to the effect that our digital devices contain more information than could have ever been amassed about a person previously in human history. These devices know more about us than our lovers, than our best friends. In Pike, Justice Harris wrote that “A search of the data in a personal digital device…digs deep into the heart of who we are.” (par. 53)
It is hard to imagine information more worthy of constitutional protection.
The government also now finds itself faced with multiple carefully reasoned court decisions—including the decisions in both Pike and Canfield—to the effect that those digital devices and the individuals who carry them deserve protection, privacy, and constitutional respect, even at the border, and that the border cannot serve as a choke point for civil liberties on the basis of mere investigative expedience.
I would invite this Committee to take those decisions seriously, and in so doing, and in that spirit of dialogue, I would suggest that it must consider significant amendments to this bill.
My colleagues [see Committee minutes] have already spoken to you at length about why the “reasonable general concern” standard is constitutionally insufficient, unknown to Canadian law, and an invitation to another half decade or more of litigation.
While the courts have chosen to defer to Parliament to determine an appropriate framework, the entire corpus of decisions on this issue cast serious doubt on the view that anything less than reasonable suspicion could be enough to justify even a cursory device search in 2022. The fact is that privacy—and freedom—require a certain degree of friction.
My colleagues’ concerns about racial and religious profiling also bear repeating. The border—a high-stress, low-information, low-visibility environment —is a perfect storm for the combination of implicit bias and abuse of discretion that gives rise to discriminatory effects.
These kinds of abuses are notoriously hard to challenge or review— but more importantly, there is no form of after-the-fact process that can fully remedy an inadequate law. People crossing the border have the right not to suffer invasive and unconstitutional treatment in the first place.
A legal fiction
Finally, there’s an arbitrariness to all of this that feels impossible to ignore, which is that the parameters of this debate are still happening under the fiction that data is a “good” that we import like any other. And it is not.
A reasonably capable computer user understands that they can back up the contents of a device to the Internet, wipe the device, cross the border with a blank phone or laptop, and download everything on the other side. The person crosses the border, but their data never does, which means their data is never exposed to this kind of search in the first place. To state the obvious, this means that it is of a fundamentally different nature than other kinds of contraband, like drugs or weapons.
So there’s a few conclusions we can draw here:
- First, this kind of search is only going to capture the least sophisticated kind of actor, people who have taken no steps whatsoever to hide evidence of a customs violation or other wrongdoing.
- Second, it’s going to be a massive nuisance to any innocent traveller who feels obliged to take technical or legal precautions to limit unjustified government scrutiny into their private lives, their clients’ files, their journalistic sources, and more.
- Third, it forces us to seriously examine the belief, or superstition, that the border is a place where the public interest rationale for digital device search powers is actually that strong or compelling. The fact is that there is no convincing evidence that there is more unlawful content locally stored on a phone that happens to be crossing the border than a phone anywhere else. And the Supreme Court has been pretty clear that just about anywhere else—absent search incident to a lawful arrest—the state isn’t getting into your phone without a warrant.
But the standard is just one part of it. Ultimately, the government’s burden is to adopt a scheme that is minimally impairing and truly proportionate in light of the rights at stake. So I invite the Committee’s questions on what that might look like—in particular on how to create adequate safeguards for ensuring that searches are conducted in a reasonable manner, and what to do about the constitutional right against self-incrimination and password disclosure.