Canada's Privacy Watchdog Lacks the Teeth to Curb Phone Searches at the Border
It's a nice thought, though.
Canada's federal privacy watchdog has officially opened an investigation into the practices of border guards searching people's devices as they attempt to cross into the US.
Vagueness around what powers border guards have when it comes to your electronics, and what citizens' rights are in these situations, has caused Canadians much anxiety in the months since Donald Trump's election in the US. So, the investigation is a welcome bit of news for many. The problem is that it will do exactly nothing to stop any activity that violates the privacy laws meant to protect Canadians at the border.
The Office of the Privacy Commissioner is remaining tight-lipped about the complaint that kicked off the investigation, or even what it will cover, but the OPC told The National Post that the audit may cover the retention of data from scanned devices. Canadian law acknowledges a lowered expectation of privacy at the border, and that Canadians may be asked for their device passwords or risk detention.
There are two key points that cripple the investigation before it's even begun: First, the details and conclusions of the report may never be shared with the public, and second, the OPC has no legal authority to do anything but make recommendations that the government is then free to follow or ignore completely.
"Whether information about this particular investigation is included in a future annual report will be determined by the Commissioner once the investigation is complete," OPC spokesperson Tobi Cohen wrote me in an email. "At the end of any investigation, we would provide the report of findings to the complainant and the institution that was the subject of the complaint."
Though the OPC has the power to investigate privacy complaints and can force government organizations to share information with them via a court order, that's where their authority to compel action stops. "The Privacy Commissioner does not currently have order-making powers," Cohen continued.
The limits of the OPC's powers are a long-standing thorn in the side of privacy advocates in Canada. On the one hand, it's great to have a government agency dedicated to ensuring the privacy of citizens is upheld, and they even have a fire in their bellies for that sort of thing. On the other, it sucks that they can't do anything other than investigate, create (mostly) internal reports, and make non-binding recommendations.
Ironically, it's the Privacy Act itself that so severely limits the privacy watchdog. The OPC knows this, and in a wide-ranging set of recommendations for reforming the Act, OPC notes that giving them some actual teeth would be just dandy.
"We have recommended replacing the ombudsman model for the investigation of complaints with OPC powers to issue binding orders as part of our submissions on Privacy Act reform," Cohen wrote.
But until that happens, if it ever does, an OPC investigation—while a welcome symbolic development—will never be more than essentially for show.
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