Has Big Brother become the Big Bully?
By Jack Weatherell
When do our personal privacy rights give way to national security? When is it ok for Governments to limit our personal privacy on the grounds that in doing so they are protecting its citizens? How do we justify the “Greater Good”? These may seem like philosophical question garnered from some Ayn Rand novel but in reality, they are questions that affect us all today.
Right here, home in Canada, a Country with a long history of respecting and championing individual rights, the Federal Privacy Commission is launching an investigation into the Canada Border Services Agency’s practice of searching our electronic devices at the Canadian Border
The investigation comes amid mounting concerns over whether CBSA’s U.S. counterparts are not just searching travellers’ devices, but also downloading their contents for later examination and even cloning and mirroring the devices.
Border agents from both countries operate in a legal grey zone. Canadian courts recognize “reduced expectations of privacy at border points” for people dealing with Canada’s border authorities, who are able to search and examine possessions, including devices, without warrants, said Valerie Lawton, a spokeswoman for the Office of the Privacy Commissioner of Canada. People must provide their passwords if asked, or risk having the device “held for further inspection.” Marie-Danielle Smith of the National Post. Ms. Smith goes on to report; it is possible that issues related to retention may be examined during our investigation,” Lawton said, saying she couldn’t reveal further details about the investigation or the complaint that prompted it. Little is known about when, and how often, CBSA retains data collected from devices, where it’s held and for how long.
The CBSA does not collect statistics on electronic device searches, spokeswoman Line Guibert-Wolff said, and data may only be collected for “customs purposes.” Information can only be disclosed [when relating] to criminal proceedings, immigration or national security, among a few other categories.
She did not directly answer a question as to whether CBSA retains data from the electronic devices it searches.
Source: National Post
So, what does this mean? Do we not have the right of expectation to individual privacy due to governmental loop holes concerning border travel?
“There’s an enormous amount of uncertainty in what feels like a no-privacy zone,” said University of Ottawa law professor Michael Geist. “There’s a sense that customs officials are empowered to do whatever they see fit .… But the lack of transparency associated with these processes is enormously disturbing.”
“We can’t hold them to account as a society if it’s not clear what the rules are, or how they’ve been told to interpret them,” said Brenda McPhail, director of the privacy, technology and surveillance project at the Canadian Civil Liberties Association. “We’re treating devices that provide a portal into our lives the same way that we treat a suitcase, and they’re not equitable.” Ms. Smiths article contends.
May a person be forced to provide a combination to a wall safe as easily as he or she is compelled to turn over a key?
This classic legal conundrum is returning to the Canadian fore in the context of border searches with the recent guilty plea of Alain Philippon. The Quebec man was charged with refusing to provide the Canada Border Services Agency with the password to his cellphone at a border checkpoint.
The issue pits the right of states to control their borders with emerging digital privacy rights. If Canadian jurisprudence is any indication, however, it is an issue that will ultimately leave electronic libertarians disappointed.
Canadian courts at all levels recognize the right of states to “control both who and what enters their boundaries” through searches at the border. Accordingly, searches authorized under the Customs Act have all been repeatedly upheld as constitutional: at airports or other border crossings, travellers — both Canadian and foreign — have a greatly diminished expectation of privacy, and the state far greater powers of search. Writes Allan Richarz in another article from the National Post. He continues; Indeed, Canadian courts have held that a border search is not even a “search” in the traditional criminal context and that a routine inspection “does not give (a traveller) any enhanced constitutional protection against self-incrimination.”
This power of search, however, is not absolute. It is tempered by the requirement that any secondary screening done at border crossings be done only when Customs officials have reasonable grounds to do so. Fitting a certain profile may qualify, as was the case for disgraced Canadian bishop Raymond Lahey. In that situation, Lahey’s travel itinerary and personal characteristics gave rise to a suspicion he may have engaged in illegal sex tourism. A subsequent airport search by the CBSA of Lahey’s laptop then turned up hundreds of images of child pornography.
So, I guess the only answer one can come up with for “when do our personal rights to privacy fain to the need for societal protection” is when we as individuals become scared for or own and our family’s personal safety. Fear usually over-rides all personal social mores and individual philosophical beliefs. But are these fears truly founded or is this just another attempt by Big Brother at eroding our right to privacy?
“The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities” Ayn Rand.
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Marie-Danielle Smith of the National Post. http://news.nationalpost.com march 15 2017
Allan Richarz from the National Post http://news.nationalpost.com Sept. 9 2016
Jack Weatherell is the Director of Marketing at Kusic and Kusic Private Investigators. The opinions in this bolg are solely the opinions of Mr. Weatherell and may not reflect the opinions of Kusic and Kusic Ltd.