Crossing international borders can be worrying, especially for those carrying confidential or privileged information on their electronic devices. While I’ve seen a variety of documents and advisories explaining how to deal (or not deal) with American border authorities, there hasn’t been what I consider a decent guide for dealing with the Canadian Border Services Agency (CBSA). As of today, this deficit has been significantly remedied.
For the past several months, Greg McMullen has been working on a handbook to help Canadians (and non-Canadians) navigate officials’ demands for electronic devices at Canada’s national borders. The BCCLA has funded his work, and the handbook is intended for educational and discussion purposes; it isn’t intended to replace legal counsel or constitute firm legal advice. The handbook is written for a general audience and does a nice job of walking readers through what rights they enjoy at the border, CBSA policies, best practices, and what to do if you have been subject to a search.
I’d highly recommend the handbook, which is available through the BCCLA and also available for download through my website.
Last year the British Columbia Civil Liberties Association (BCCLA) approached me to prepare a report around forthcoming lawful access legislation. Specifically, I was to look outside of Canada to understand how lawful access powers had been developed and used in foreign jurisdictions. An early version of that research report was provided to the BCCLA mid-last year and was used to support their recent, formal, report on lawful access legislation. The BCCLA’s formal report, “Moving Towards a Surveillance Society: Proposals to Expand “Lawful Access” in Canada” (.pdf) provides an excellent, in-depth, analysis of lawful access that accounts for some of the technical, social, and legal problems associated with the legislation.
Today I am releasing my report for the BCCLA, titled “Lawful Access and Data Preservation/Retention: Present Practices, Ongoing Harm, and Future Canadian Policies” (.pdf link). I would hasten to note that all research and proposals in my report should be attributed to me, and do not necessarily reflect the BCCLA’s own positions. Nothing in my report has been changed at the suggestion or insistence of the BCCLA; it is presented to you as it was to the BCCLA, though with slight updates to reflect the status of the current majority government.
In the report, I look to the United Kingdom and United States to understand how they have instantiated lawful access-style powers, the regularity of the powers’ usage, and how the powers have been abused. I ultimately conclude by providing a series of proposals to rein in the worst of lawful access legislation, which includes process-based suggestions (e.g. Parliamentary hearings on the legislation) and more gritty auditing requirements (e.g. a specific series of data points that should be collected and made public on a yearly basis). It’s my hope that this document will elucidate some of the harms that are often bandied about when speaking of lawful access-powers. To this end, there are specific examples of harms throughout the document, all of which are referenced, with the conclusion being that citizens are not necessarily safer as a result of expanded security and intelligence powers that come at the cost of basic charter, constitutional, and human rights.
Download .pdf version of “Lawful Access and Data Preservation/Retention: Present Practices, Ongoing Harm, and Future Canadian Policies“