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Join us for a comprehensive conference on the impact of GDPR on global privacy laws and the implications of marijuana legalization on U.S./Canada border immigration under INA.
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Northern Border U.S./Canada Immigration Law Conference – Emerging Issues
GDPR General Data Protection Regulation
General Data Protection Regulation On May 25, 2018, the European Union General Data Protection Regulation (“GDPR” or “Regulation”) came into effect. This groundbreaking legislation has a significant impact on global privacy laws as it requires any individual, company or an organization subject to the GDPR to comply with strict data protection legislation and accept greater liability. It is important to note that the Regulation is also applicable to companies located elsewhere yet still carry operations within the EU or have any EU customers. The GDPR is applicable to both data controllers (who own the customer relationship) and data processers (who handle data on the controller’s behalf) for all data relating to all European Union (“EU”) member states. Data controllers are responsible for collecting data directly from data subjects, determining the purpose and the means of the data processing. Data processers process personal data on behalf of the data controller with limited flexibility regarding the purpose or means of data processing. Therefore, controllers and processers must now consider adopting stricter security measures. Fines of non-compliance are up to €20,000,000 or 4% of global revenue.
The GDPR requires organizations processing personal data, either as a Controller or a Processor, to have an agreement in place with any third party with whom they share personal data. A Controller, must have an arrangement in place with the client that outlines each other’s respective responsibilities to safeguard personal data. Processors are required to enter into a much more prescriptive agreement, committing to high standards for, among other things, information security, sub-processing, cooperation with data protection authorities, and data subject rights. Therefore, controllers and processers must now consider adopting stricter security measures. The concept of “pseudonymization” has been introduced in order to process customer data such that the considered individual cannot be identified without more information revealed.
Personal Information Protection and Electronic Documents Act (“PIPEDA”) Firms complying with Canada’s data privacy laws in which are regulated by PIPEDA are already partially complying with the GDPR. PIPEDA applies to the collection, use or disclosure of personal information in a commercial setting. Organizations must follow the following 10 information principles: • accountability; • identifying purposes; • consent; • limiting collection, limiting use; • disclosure and retention; • accuracy; • safeguards; • openness; • individual access; and • challenging compliance. PIPEDA has allowed Canada to be recognized by the EU as one of the 12 countries that uphold and maintain adequate privacy laws
Three Part Test • The GDPR applies if over the course of an engagement, any activities meet any of the criteria set out in the three-part test below. • The first criterion is if a member firm servicing the client or the client themselves, has operations in the EU. • The second criterion is if the member firm servicing the client or the client themselves, processes personal data of data subjects residing in the EU, whilst offering goods or services to those data subjects. • The final principle is if the member firm servicing the client or the client themselves process personal data of data subjects located in the EU, in connection with monitoring their behavior. • The Regulation is designed to harmonize the same set of data protection laws across the EU, protect EU citizens’ data privacy, and regulate organizations’ data privacy methods. • The GDPR could potentially mark the beginning of a privacy moment which could completely alter the way individuals, companies, and organizations handle private information.
Background • The Canadian Government introduced Bill C-45 (“The Cannabis Act”) on April 13, 2017. • Since the Cannabis Act received Royal Assent on June 21, 2018, the use, sale, and possession of marijuana will no longer be considered a criminal offence. • The legalization of cannabis will have a great impact on Canadians or Canadian permanent residents travelling to the U.S. • The legalization of marijuana goes into effect on October 17, 2018, however, there are still implications relating to immigration and travel to the U.S.
U.S. Immigration and Nationality Act (“INA”) • Under the INA, individuals who have been convicted of a controlled substance offense are inadmissible to the U.S. • Another way of becoming inadmissible to enter the U.S. would be by making an admission to a United States Customs and Border Protection officer. • Even the legal use and possession of marijuana as set out in the Cannabis Act could potentially result in a bar in admission to the U.S. • Furthermore, individuals who are employed by or have investments in cannabis companies, even publicly traded cannabis based companies could also be barred from entering the U.S. provided the consular or immigration officer reasonably believes they are or have been a trafficker of a controlled substance.
Cannabis Act • The new offence provisions under Bill C-45 Cannabis Act change the regulatory regime surrounding cannabis and cannabis products. • According to Section 8 of Bill C-45 Cannabis Act(1) Unless authorized under this Act, it is prohibited (a) for an individual who is 18 years of age or older to possess, in a public place, more than 30 grams of dried cannabis; (b) for an individual who is 18 years of age or older to possess any cannabis that they know is illicit cannabis; (2) A person that contravenes subsection (1); (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than five years less a day. • “Illicit cannabis” means cannabis that is or was sold, produced, or distributed by a person prohibited from doing so under this Act or any provincial Act or that was imported by a person prohibited from doing so under this Act. • The implications of Bill C-45 on immigration are that a single conviction for simple possession of “illicit cannabis” under Bill C-45 of the Cannabis Act will render a foreign national inadmissible into the U.S.
Cannabis Act • Under the Cannabis Act, the legalization of cannabis will not alter Canada’s border rules. • Transporting marijuana (including medical marijuana) into Canada will remain prohibited and can result in serious criminal penalties in both Canada or the foreign national’s home country or even destination country. • Each province in Canada will control the use and distribution of cannabis; therefore, foreign nationals must ensure they follow the regulations in place such as age restrictions and possession limits. • Moreover, foreign nationals with criminal pasts regarding illicit cannabis use or possession will remain inadmissible to Canada unless pre-authorization has been granted.
Significance • In the past 50 years public opinion on the use of cannabis has changed drastically and governments such as Canada are beginning to adapt their laws to fit these developments. • Legalization of marijuana (both in Canada and in some U.S. states) has created considerable uncertainty for Canadian citizens. • The U.S. and Canadian governments will undoubtedly have to engage in negotiation efforts in order to fully accommodate the Cannabis Act and the substantial impact it will have on cross border travel. • In the meantime, foreign nationals travelling to the U.S. must truthfully respond to all questions posed by U.S. Customs and Border Patrol officers. Failure to do so could potentially result in fines and even imprisonment.
Preface • The new provisions introduced by Bill C-46 received Royal Assent on June 21, 2018. • The implications of these have been generally understood to be in relation to the offence of impaired driving and DUIs respectively. • The changes introduced by the Bill are as follows: • The Bill itself deems all DUIs to be under the category of serious criminality offences under the Canadian Criminal Code. • All convictions for such an offence may result in up to 10 years imprisonment, a five-year increase from previous sentencing. • Despite the Senate’s attempt to amend the sentencing to be a maximum of 6 months imprisonment by arguing that it would inevitably result in different treatment between permanent residents was rejected by Members of Parliament. • This leads to the notion as to how Bill C-46 will impact immigration law, notably permanent residents.
Implications of Bill C-46 • If a permanent resident is convicted outside of Canada they will now loose their status with no possibility to appeal. • If an individual was convicted in the past and subsequently deemed rehabilitated will no longer be so; and becomeinadmissible again. • Sponsored relatives with an impaired conviction will loose their right to repeal an immigration officer’s decision of inadmissibility for an impaired offence. • Any applicant convicted of impaired offences may be inadmissible for “serious criminality.”
Significance • Immigration Officers now have the right and power to refuse a foreign national entry to Canada if this individual is found to be guilty of a single impaired driving offence. • The individual will no longer be able to resort to the rehabilitation option. • The only option to become admissible to Canada if convicted of a DUI ever, it is worth noting that despite an individual being labelled as inadmissible to Canada, they may be eligible for a Temporary Resident Permit (“TRP”). • The aforementioned is defined by a justified entry to Canada for a limited time despite their conviction. The validity of a TRP varies from one day to up to three years depending on the specific set of facts and circumstances attached to the individual’s case.
Introduction • When entering Canada, Canadian Border Service Agency (“CBSA”) officers have the authority to search personal possessions such as mobile phones, laptops, and electronic tablets. • The purpose of these searches range from a number of factors: • confirming the identity of an international traveler; • discovering receipts and invoices of imported goods; • detecting contraband smuggling, or uncovering the importation of obscenity, hate propaganda, or child pornography.
Introduction • CBSA officers authority to conduct these searches stems from both the Customs Act and the Immigration and Refugee Protection Act (“IRPA”). • Subsection 99(1) of the Customs Act: CBSA officers have the authority to search any goods that are being imported into Canada. • The term “goods”, as defined in Subsection 2(1) of the Customs Act, means “any documents in any form,” and extends to “electronic devices.”
CBSA Officers Powers in Conducting Searches of Electronic Devices • Subsection 139(1) of the IRPA:CBSA officers are allowed to search electronic devices where there are ‘reasonable grounds’ to believe that the person has: • (i) not revealed their identity; • (ii) has hidden documents relevant to their admissibility; and • (iii) or has committed, or possesses documents that may be used in the commission of an offence.
CBSA Officers Powers in Conducting Searches of Electronic Devices • CBSA’s Operational Bulletin PRG-2015-31 (“OB PRG-2015-31”): CBSA officers searches should only be conducted if ‘multiple indicators’ are present, that evidence of contraventions may be found in the electronic device, indicating that searches of electronic devices conducted by CBSA officers should not be conducted as a matter of ‘routine’. • However, under Clause 99(1)(a) of the Customs Act, CBSA officers may examine and open any package or container of imported goods, without any ‘reasonable suspicion.’
CBSA Officers Powers in Conducting Searches of Electronic Devices • According to the CBSA’s OB PRG-2015-31, CBSA officers must only: • Search what is physically stored on the electronic device. • Prior to searching an international travelers electronic device, the CBSA officer shall set the electronic device on airplane mode to disable all wireless and Internet activity. • This prohibits CBSA officers from accessing emails or downloads that have not already been downloaded on the electronic device. • CBSA officers may request passwords from international travelers for electronic devices that are passcode locked, in order to proceed with the search of the electronic device.
Ambiguity OF CBSA’s Officers Powers • Courts have not directly addressed the limits on the authority of CBSA officers powers of conducting searches, therefore, leaving ambiguity in the limits and the scope of CBSA officers powers. • For instance: • Subsection 139(1) of the IRPAstates that CBSA officers are allowed to search electronic devices where there are ‘reasonable grounds.’ • OB PRG-2015-31 states that CBSA officers should only conduct searches where ‘multiple indicators’ of evidence of contravention exist, and searches should not be conducted as a matter of ‘routine.’ • However: • Clause 99(1)(a) of the Customs ActallowsCBSA officers to conduct ‘suspicionless’ searches, therefore, allowing electronic devices to be searched ‘routinely.’
Ambiguity OF CBSA’s Officers Powers • In R. v. Simmons (1988), the Supreme Court of Canada recognized that international travelers have a reduced ‘expectation of privacy’ when entering Canada, where there are ‘grounds’ of suspecting that a person has made a false declaration or is transporting prohibited goods. • Despite the limited authority of lower courts, the Ontario Court of Justice in R. v. Leask (2008) has further strengthened the ambiguity of the limits and scope of CBSA officers powers, by concluding that border searches of electronic devices do not require ‘reasonable grounds,’ and are considered to be ‘routine searches.’
Ambiguity OF CBSA’s Officers Powers • This ambiguity raises questions on the constitutionality of these searches, and whether individuals have a ‘reasonable expectation of privacy’ in regards to their personal electronics, and whether or not CBSA officers should have the power to conduct suspicionless searches of electronic devices in the same manner as other possessions frequently searched at the border, such as luggage or briefcases.
Should CBSA Officers Conduct Suspicionless Searches of Electronic devices? • Although the Supreme Court of Canada does not directly address the constitutionality of suspicionless searches of electronic devices at the Canadian border, the recent Supreme Court of Canada case of R. v. Marakah (2017) may provide insight on whether individuals have a reasonable expectation of privacy in regards to their personal electronic devices, whether individuals have a guarantee against unreasonable search and seizure under Section 8 of the Charter, and whether electronic devices should be searched without reasonable suspicion as other possessions frequently searched at the border.
Section 8 of the Charter • Section 8 of the Charter of Rights and Freedoms (“Charter”) expresses, “everyone has the right to be secure against unreasonable search and seizure.” • In order to claim a Section 8 Charter protection, an individual must first establish a ‘reasonable expectation of privacy’ in the subject matter of the search; therefore, it must be established that the individual subjectively expected the subject matter would be private, and that their expectation was objectively reasonable. • R. v. Marakah (2017) provides a number of factors that assist in determining whether it is objectively reasonable to expect privacy in different circumstances. These factors include: • (1) the place where the search occurred; • (2) the private nature of the subject matter; and • (3) control over the subject matter.
(1) The Place of Search • There are two ways of interpreting the place of search in regards to electronic devices. • The first argument is that electronic information does occupy a particular place within the electronic device, since the place of search is the electronic device, which the information is accessed and stored. • The second argument is that electronic information does not occupy a particular place, since all or part of the electronic information is sent through radio waves, a service providers database, or on a remote server. • Whatever the rationale may be, it is clear that information stored in electronic devices provides international travelers with a reasonable expectation of privacy, since Section 8 of the Charter protects people and not places.
(2) The Private Nature of the Information • The purpose of Section 8 of the Charter is to protect the biographical core of personal information which individuals in a free and democratic society wish to maintain and control from dissemination to the state. • In considering this factor, the focus is on the potential of given electronic information to reveal personal or biographical information. • What matters is whether, in the circumstances, a search of electronic information which tends to reveal intimate details of the lifestyle and personal choices of an individual, such that the individual of the electronic device has reasonable expectation of privacy on its contents, whatever it may be.
(3) Control • Control, ownership, and possession are considered to be relevant in determining whether a subjective expectation is objectively reasonable. • It should be noted that like the other factors, control is not an absolute indicator of a reasonable expectation of privacy, nor is a lack of control fatal to a privacy interest. • Control must be analyzed in relation to the subject matter of the search. Individuals exercise meaningful control over the information about them if communicated to others. • By choosing when, how, and to what extent information stored in personal electronic devices is to be disclosed to others, individuals exercise control over the information stored in their electronic devices.
Conclusion • Considering all of the factors provided by R. v. Marakah (2017), it is highly probable that international travelers have a reasonable expectation of privacy in their personal electronic devices, and that such suspicionless searches conducted by the CBSA officers, may be a breach of international travelers right against unreasonable search and seizure under Section 8 of the Charter. • Despite the fact that the Supreme Court of Canada decision of R. v. Marakah (2017) does not directly address the constitutionality of suspicionless searches of electronic devices at the Canadian border, it does address that information stored on electronic devices can, in some circumstances attract a reasonable expectation of privacy and attract a guarantee against unreasonable search and seizure under Section 8 of the Charter.
Conclusion • Due to the fact that vast amounts of personal information stored, the private nature of the information, and the extent of control that international travelers exercise over the information stored in their electronic devices, the privacy interest in electronic devices should be viewed as being vastly different than the privacy interest in other possessions that are frequently searched at borders, such as luggage or briefcases, since electronic devices reveal vast amounts of information that international travelers may want to keep safe from state intrusion.
