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Conservative supporters okay with warrantless electronic searches at border, while others disapprove: survey

By Taylor Blewett      

Currently, any Canadian who crosses the border with a phone or laptop could have either searched by Canada Border Services Agency officials without a warrant.

The White Rock, B.C. border crossing. A new poll suggests Canadians aren't very supportive of warrantless searches of electronic devices by border agents, though it varies by political affiliation. Flickr photo by David Herrera
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Canadians of most political persuasions are opposed to warrantless searches of electronic devices at the border when coming back home to Canada, though a recent poll found Conservative supporters bucking the trend in their support of this practice.

The Forum Research survey, shared exclusively with The Hill Times before its public release and taken Aug. 16-17, found 46 per cent of respondents disapproved of having their laptops, cellphones, and other devices searched without judicial approval at the border, while another 37 per cent voiced support. Of that number, 30 per cent strongly disapproved, and 22 per cent strongly approved of the warrantless searches.

Fourteen per cent said they neither approved or disapproved, while four per cent said they do not know what they thought about it.

According to poll results, 57 per cent of self-identified Green Party supporters disapproved of warrantless searches, along with 54 per cent of New Democrat supporters. Fifty-one per cent of Liberal supporters were in opposition, though only 34 per cent of Conservative supporters shared this view.  At 50 per cent, Conservatives voters were the only political demographic to record more support than opposition to warrantless searches. Only 33 per cent of Liberals were in favour.

“There is a clear ideological divide on the issue, but generally opinion skews toward privacy over security,” Lorne Bozinoff, president of Forum Research, said in a statement.

The poll was based on the results of a telephone survey of 1,150 randomly selected Canadian voters. The margin of  error of three percentage points, or 19 times out of 20.

Currently, any Canadian who crosses the border with a phone or laptop could have either searched by Canada Border Services Agency (CBSA) officials without a warrant.

The Customs Act, which dictates border security regulations, allows for the arbitrary search of any “goods” that arrive at the border for import into Canada. Cellphones and laptops are interpreted by officials as falling under this category in the Customs Act, despite it not making specific reference to electronic devices.

Under Canadian law, border officials boast “widespread powers” to stop and search people, and examine their baggage and other possessions, including devices such as laptops and smartphones, without requiring warrants, according to the Office of the Privacy Commissioner of Canada. And if you refuse to provide the password for your device, it may be held for further inspection by border agents, says the commissioner’s office.

David Fraser, a Halifax-based internet, technology, and privacy lawyer, said it’s problematic for wireless devices to be treated like any other “good.”

“There’s more information in my phone and in most people’s phones than is in their trunk in their closet or the footlocker at the bottom of their bed,” he explained.

While expectations of privacy are diminished at the border, Mr. Fraser sees arbitrary electronic device searches as an egregious overreach on the part of border security authorities.

In a 2014 ruling, the Supreme Court deemed that police officers conducting warrantless cellphone searches upon arresting someone ought to do so only when the investigation could not continue otherwise. According to the decision, the scope of the search should also be restricted to necessary information–call logs and text messages, but not social media accounts, for example–and officers should be required to take notes and keep a record of the search.

While this ruling and other court decisions have had implications on police activities, they have failed to address electronic-device searches by border officials. A case that deals specifically with a warrantless cellphone or computer search by the CBSA has yet to reach the Supreme Court.

In a statement, the Office of the Privacy Commissioner said CBSA policy mandates that examinations of personal devices “should not be conducted as a matter of routine,” and these searches should only be completed if there are “grounds or indications that evidence of contraventions may be found on the digital device or media.”

The commissioner’s office is currently conducting a probe into the practice, while the House Access to Information, Privacy, and Ethics Committee discussed Canadian border privacy during a mid-June meeting, before Parliament adjourned for the summer.

news@hilltimes.com

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