![OPERATIONAL BULLETIN: PRG-2015-31
TITLE : Examination of Digital Devices and Media at the Port of Entry – Guidelines](/content/Committee/421/ETHI/Reports/RP9264624/ethirp10/05-appA-e_files/image002.gif)
Date of Issue:
2015-06-30 |
Mode(s) :
All |
Target
Audience:
National |
Area
of Interest:
Port
of Entry |
- The purpose of this operational bulletin is to provide guidance on a CBSA officer’s
authority to examine digital devices or media at ports of entry. Clarification
will be provided on when such examinations should and can be performed, and
will explain limitations to these authorities.
- Digital devices and media, along
with digital documents and software, continue to be classified as ‘goods’ in
the context of the border. A CBSA officer’s authority to examine goods is
specified under the Customs Act and the Immigration and Refugee
Protection Act (IRPA).
- Paragraph 99(1)(a) of the Customs Act
provides CBSA officers with the legislative authority to examine goods,
including digital services and media, for customs purposes only. Although there
is no defined threshold for grounds to examine such devices, CBSA’s current
policy is that such examinations should not be conducted as a matter of
routine; they may only be conducted if there is a multiplicity of indicators
that evidence of contraventions may be found on the digital device or media.
- Subsection 139(1) of the IRPA allows for the search of digital
devices and media at the ports of entry where there are reasonable grounds to
believe that the person has not revealed their identity or has hidden, on or
about their person, documents that are relevant to their admissibility; or has
committed, or possesses documents that may be used in the commission of people
smuggling, human trafficking, or document fraud. The purpose of this search
must be confined to identifying the person, finding documents relevant to
admissibility or that may be used in the specified offences, or finding
evidence of the specified offences.
- Examination of digital devices and
media must always be performed with a clear nexus to administering or enforcing
CBSA-mandated program legislation that governs the cross-border movement of
people and goods, plants and animals. CBSA officers shall not examine digital
devices and media with the sole or primary purpose of looking for evidence of a
criminal offence under any Act of Parliament. Officers must be able to explain
their reasoning for examining the device, and how each type of information,
computer/device program and/or application they examine may reasonably be
expected to confirm or refute those concerns. The officer’s notes shall clearly
articulate the types of data they examined, and their reason for doing so.
- Where there is a multiplicity
of indicators, or further to the discovery of undeclared, prohibited, or
falsely reported goods, officers are authorized to conduct progressive
examinations of digital devices and media for evidence of contraventions or to
support allegations.
- Evidence may include, for example, electronic receipts for goods;
information that refers to the acquisition or origin of the goods; or
information that may afford evidence of a contravention to CBSA-mandated
legislation that governs the admissibility of people and goods, plants and
animals into and out of Canada. Such evidence may, for example, uncover the
following: a confirmation of identity; receipts and invoices for imported
goods; contraband smuggling; or, the importation of obscenity, hate propaganda
or child pornography.
- Where the identity or
admissibility of a traveller is in question, officers are justified in performing
examinations of digital devices and media to discover the traveller’s true
identity, evidence of false identities, or other documentary evidence
pertaining to admissibility.
- Where evidence of a criminal
offence is discovered during the examination process, officers must be
cognisant of where the regulatory examination crosses over to the realm of a
criminal investigation. Officers must determine on a case-by-case basis,
through consultation with their supervisor, whether or not to continue the
regulatory examination and identify any possible impacts on potential criminal
investigations.
- Officers must follow the CBSA Enforcement Manual, Part 9.
Instructions on securing evidence and on referrals to Criminal Investigations,
as well as following regional requirements for referrals to Inland Enforcement
or Intelligence.
- CBSA officers shall conduct
examination of digital devices and media with as much respect for the
traveller’s privacy as possible, considering that these examinations are
usually more personal in nature than baggage examinations.
Examination Progression
- Prior to examination of
digital devices and media, and where possible, CBSA officers shall disable
wireless and Internet connectivity (i.e. set to airplane mode) to limit the
ability of the device to connect to remote hosts or services. This will reduce
the possibility of triggering remote wiping software; inadvertently accessing
the Internet or other data stored externally; or changing version numbers or
dates.
- Initial examinations of digital devices and media
should be cursory in nature and increase in intensity based on emerging
indicators.
- CBSA officers shall only examine what is stored
within the device. Officers not to read emails on digital devices and media
unless the information is already downloaded and has been opened (usually
marked as read).
- CBSA officers shall notate in their notebooks the
indicators that led to the progressive search of the digital device or media;
what areas of the device or media were accessed during the search; and why.
This is to protect both the integrity of the information within the digital
device and the officer.
Passwords and Enforcement
- With the exception of devices that are biometrically (i.e.
fingerprint) protected, CBSA officers shall not allow a traveller to input a
password into digital device or media themselves. This practice reduces the
risk of any contents being altered and allows for the continuity of evidence.
- In instances where access to
digital devices and media are password protected, officers are to request the
password to access the device and record it, as well as any alternate passwords
provided, in their officer notebook.
- In cases where the device is
biometrically protected, CBSA officers may allow the traveller to input the
biometric information while the officer monitors and controls the device (for
example, the officer may hold the device while the traveller allows the device
to read their fingerprint). Should the CBSA officer find information that
provides evidence of a contravention, they should then deactivate the password
protection on the device or media.
- Passwords are not to be sought to gain access to any type of account
(including any social, professional, corporate, or user accounts), files or
information that might potentially be stored remotely or on-line. CBSA officers
may only request and make note of passwords required to gain access to
information or files if the information or file is known or suspected to exist
within the digital device or media being examined.
Contact
Information:
Program
Compliance and Outreach Division, Traveller Programs Directorate
If you have any further questions, please forward them through
the regional Corporate and Program Services Divisions, which (if required)
will then send an email to the Port of Entry Operations’ generic inbox: CBSA-ASFC_Ops_Travellers-Voyageurs.
Approved by :
Barry Kong, Director
Programs Compliance and Outreach Division
Traveller Programs Directorate
Programs Branch |
Effective
Date : 2015-06-30 |
Updated: 2017-02-28 |
Autres bulletins : http://atlas/ob-dgo/bso-asf/bulletin/index_eng.asp
|