Read before crossing

If you’re like us at the BCCLA National Security Blog, you store a lot of personal and private information on your laptops, smart phones, and other portable electronic devices. Today, we published a handbook (and a pocket guide!) to help you keep your information private when crossing the border into Canada. Why a handbook about border searches? Because the threshold for constitutionally-permissible search and seizure is lowered at the border, and because electronic devices — which can contain vast amounts of sensitive and personal information — are increasingly becoming the target of border searches.

So check out our handbook (which will get updated as the law and technology changes, in this rapidly evolving area), and our pocket guide (available for you to download and print out and fold into something wallet-sized). (And because we can’t help but brag a little: we made it onto Boingboing!)


What’s bogus?

The government is keeping us busy this week. Two days after tabling the “lawful access” bill, government tabled Bill C-31, the so-called “Protecting Canada’s Immigration System Act”, a draconian overhaul of the immigration laws aimed at “getting tough” on “bogus” refugees.

The Canadian Association of Refugee Lawyers (CARL) has put out a very helpful overview of the major problems with Bill C-31. We’re excerpting it in its entirety (primarily because we really couldn’t put any of this better ourselves, but also because it’s not up on their website):

1)      The omnibus nature of the bill hides key initiatives and detracts from proper scrutiny

  • This huge omnibus bill rolls together proposed anti-smuggling Bill C-4, the current refugee system, and the future refugee system, as well as additional new elements, including the use of biometrics.
  • Like Bill C-10 (the omnibus crime bill), this is a complicated omnibus bill whose bulk is designed to inhibit careful scrutiny and precise analysis of several controversial issues.

2)      The draconian measures of C-4 are rolled into this new bill

  • C-4’s proposed mandatory, unreviewable, warrantless, year-long detention is patently unconstitutional. The Supreme Court of Canada decided this issue in the clearest of terms.
  • Family separation for at least 5, and up to 8 or more years, will have disastrous consequences for refugees.

3)      Hasty timelines deny refugees a fair chance to prove their claims

  • Bill C-31 significantly changes our current refugee system, making it hasty and unfair. It imposes unrealistic deadlines on refugee claimants, and uses a failure to meet deadlines as a means to disqualifying refugee claimants without ever having a fair and reasonable opportunity to tell their story.
  • Refugees will only have 15 days to deliver a written version of their history, and 15 days to present an appeal.  This is not enough time to seek legal advice and respond to complicated legal requirements.

 4)      The designated “safe” country list, and the Minister’s unilateral power to list countries, dangerously politicizes the refugee system

  • Refugee claimants who are put on a designated safe country list are subjected to even shorter deadlines to submit a written claim, and will not have access to an appeal.
  • The Minister need not justify why he deems a country safe, nor does he have to take account of the differential risk faced by certain minorities in a country that is ‘safe’ for others. Refugees will be vulnerable to the political whims of the Minister and the government.

 5)      The Minister’s constant reference to “bogus” claims is an egregious misrepresentation

  • The refugee definition is very technical.  Many claimants come with a genuine fear of harm but may not meet the definition of a refugee.  That does not make them ‘frauds’ or ‘bogus’, or abusers of the system.  Their search for protection is genuine.

6)      Canada’s humanitarian safety net is gravely weakened

  • Bill C-31 forces people, upon arrival, to make an impossible choice between making a refugee claim or an application for humanitarian consideration.  Each of these processes is complicated and making an informed decision is simply not possible for persons who have just arrived.
  • Canada has long recognized that a broad humanitarian consideration process is necessary to preserve the flexibility of our protection system. Barring access to this is contrary to our humanitarian tradition.

Readers of these pages will know that we have long quarrelled with the proposed measures of C-4 (and its predecessor Bill C-49). We have also been concerned about the government’s rhetoric surrounding discussions of refugees, asylum seekers, and immigrants.

Bill C-31 reiterates, encompasses, and compounds these various mischiefs — and that’s what’s bogus.


Meaning what you say, saying what you mean

Last Thursday, the Conservative government reintroduced its so-called anti-smuggling bill. The bill seeks to penalize asylum seekers who attempt to enter Canada through purportedly “irregular” means by creating two classes of refugee seekers based purely on their mode of arrival into Canada. Bill C-4 is more or less substantively identical to its predecessor bill, and suffers from the same serious deficiencies. (For all the talk about how this is an “anti-smuggler” bill, there is no mention of smugglers until at least ten pages into it.)

As the BCCLA discusses in its recent position paper, this legislation on its face violates key provisions of the UN Refugee Conventions and would likely be unable to withstand constitutional scrutiny, as well. Our concerns about this legislation are detailed at length in the position paper, so we won’t repeat them here. What we do want to talk about is the continuing use of misleading rhetoric in the public discourse around this bill, because, as Erika Feller, Assistant High Commissioner for Protection at the UNHCR, recently put it:

It is an increasing fight to prevent refugees being mischaracterised as illegal immigrants, common criminals or, worse, potential terrorists in the minds of peoples and governments.

In what appears to be an attempt to drum up support for this deeply problematic and discriminatory piece of legislation, Immigration Minister Jason Kenney and Public Safety Minister Vic Toews have been making the rounds with the press. Their remarks, as reported by the CBC and The Globe and Mail, are troubling.

For example, according to the CBC, Minister Toews claims that the bill does not target “legitimate refugees.” But what is a “legitimate refugee”? The UN Refugee Conventions — to which Canada and virtually every other nation in the world are signatories — make plain that the legitimacy of a refugee claim is based on whether an individual has a “well-founded fear” of persecution should she be returned to her country of origin. Whether a refugee is “legitimate” has nothing to do with whether she arrived via boat or plane, singly or in a group. It has nothing to do with whether she was able to obtain a visa before entering the country of refuge, or if she illegally entered that country, or had to rely on a smuggler to get her to safety. And all this is enshrined in Article 31 of the Refugee Conventions. To characterize a refugee claimant as “illegitimate” simply based on the manner of arrival into the country of refuge violates one of the core principles of international protection.

Likewise, the concept of “queue-jumping” — which made a reappearance in the G&M‘s coverage — is misleading, because when it comes to fleeing persecution, there is no such thing as a “queue”. Seeking asylum is a very different thing from ordinary immigration. Again, per Erika Feller:

A refugee is someone who is unable to continue to live in safety where he or she is, due to the dangers of war, generalized violence or serious civil disturbance, whether this is targeted or indiscriminate. Fleeing and seeking asylum is the only realistic option for these people and their families.

In such circumstances, there is no such thing as waiting in line. Asylees must remove themselves from life-threatening situations to places of safety, and from there, await adjudication on the legitimacy of their claims for asylum.

The accuracy of terminology is important, because despite Minister Kenney’s assertion in the G&M that “We have this phenomenal situation where Canada is the only Western liberal democracy with virtually no xenophobic or anti-immigrant voices in our public discourse,” one need only look at the reader comments on that same article to see the inaccuracy of his claim. Characterizing individuals seeking refuge and protection as illegal immigrants or lawbreakers is misleading and counter-factual, and does nothing to advance reasoned discourse on matters relating to immigration, national security, or humanitarian protection. Something to think about on this World Refugee Day.


A lifetime of suspicion

Yet another story has emerged in the wake of the recent WikiLeaks disclosures illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. In today’s Globe and Mail, Colin Freeze reports on the story of one man who, by mere association with a terrorism suspect, was reported as a potential terrorist to American authorities, and found himself on foreign watch lists.

According to the G&M, “Ali” was designated as an associate of the “number one” terrorism suspect in Canada based on nothing more than friendship. It does not appear that there was any evidence that Ali himself was engaged in any criminal conduct, or even suspected of planning to engage in criminal conduct. Ali claims that he had no knowledge of his friend’s links to terror. If that is true, then Canada’s only justification for informing the Americans that Ali was a terrorist threat is that he happened to be friends with an individual he didn’t even know was involved in terrorist activities.

Indeed, as the G&M reports:

In recent months, [Ali] and his wife have arranged repeated meetings with CSIS and RCMP officials in hopes of clearing his name. The counterterrorism agents, they say, admit they broadcast suspicions based on association, and even expressed regret they wasted valuable “legwork” on Ali. Still, they insist they had valid reasons for investigating at the time and that there’s not much they can do to clear his name abroad.

The consequences of this — as it turned out, faulty — designation are set out in Colin Freeze’s article, which is worth reading in its entirety. As yet, they don’t rise to the horror of what was faced by Maher Arar, but it shouldn’t come to that for Canadians to be concerned about how citizens and residents are being branded as terrorist threats. As the example of Ali shows, mere association is enough to cast a lifetime of suspicion over you and your family.

An aside. An important thing to note about the publicly-available version of these WikiLeaks cables: many of the names are redacted, and for good reason. (Only select news organizations have full, unredacted copies of the communications.) Many of the individuals on these cables have yet to be publicly charged, prosecuted, or convicted of any crime in Canada or anywhere else. It appears that the only names left unredacted in the publicly-released cables are ones already known to the public — perhaps an effort on WikiLeaks’ part to protect individuals like “Ali” from further prejudice. You can view the public version of these cables via the following links:

http://wikileaks.ch/cable/2009/10/09OTTAWA768.html

http://wikileaks.ch/cable/2010/02/10OTTAWA57.html

http://wikileaks.ch/cable/2010/02/10OTTAWA79.html


“Once you give the name to the Americans, that’s the end of the game.”

This week, Neil Macdonald at the CBC has been reporting on WikiLeaks cables illustrating how Canada shares intelligence on Canadian citizens and residents with the United States. That CSIS routinely shares intelligence with the U.S. should come as a surprise to no one, of course. That CSIS provides details to the U.S. with names and personal details of Canadians “suspected” of what CSIS refers to as “terrorist-related activity” should perhaps also not be too surprising, either, given what we learned during the Arar Inquiry and other similar proceedings. What is surprising — and alarming — is how little evidence of wrongdoing, or even suspected wrongdoing, is required before a Canadian is named a terrorist threat. As the CBC reports:

The criteria used to turn over the names are secret, as is the process itself.

But a new cache of WikiLeaks documents pertaining to Canada lays bare the practice. It contains not only frank assessments by U.S. officials of Canadian co-operation, but the names of 27 Canadian citizens turned over by their own government as possible threats, along with 14 other names of foreign nationals living in Canada.

In at least some cases, the people in the cables appear to have been named as potential terrorists solely based on their associations with other suspects, rather than any actions or hard evidence.

Of the 41 people named, 21 do not appear to have ever been charged, and some had never come to the attention of the Americans before being named by their own government. Most of the remaining 20 names comprise the group known as the Toronto 18. Some of that group were charged and convicted; others had charges against them stayed.

The cables are a snapshot of periods in 2009 and 2010. Over the years, the number of names handed over is certainly much higher.

The experience of Maher Arar has taught us of the terrible consequences that can flow from cavalier designations of individuals as terrorist threats. Acting on faulty intelligence supplied by the RCMP, the United States arrested, interrogated, and renditioned Arar to Syria, where he was tortured. The Arar Commission ultimately found that the actions of Canadian authorities led to his mistreatment at the hands of the Americans, and recommended that strict limitations be placed on how information about Canadians is shared with foreign governments. This recommendation has yet to be implemented, and indeed, as the Council of Canadians points out, the Canadian government is actually working to increase the flow of personal information from Canada to U.S. government databases.

But as Paul Cavalluzzo, lead counsel for the Arar Commission, told the CBC, “Once you give the name to the Americans, that’s the end of the game.”

And the process for naming, as reported by the CBC, is distressingly faulty:

… as Cavalluzzo points out, the process is secret, with no judicial oversight, and takes place without the knowledge of the individual being “targeted.”

“It certainly doesn’t meet any criteria of due process in the sense that the individual has no representation whatever. Don’t tell me there’s a devil’s advocate. That and a dollar will get you a cup of coffee.”

And nor, does it seem, there be any requirement of evidence that the named individual has actually engaged in criminal conduct or is even suspected of engaging in criminal conduct. As we’ve said before in these pages, the anti-terrorism laws in Canada’s criminal code are breathtakingly broad in scope, and offences run the gamut from “facilitation” and “harbouring” to conspiracy, threats to commit a terrorist act, and to the actual terrorist act itself. Without even a requirement of reasonable suspicion to commit any sort of criminal offence, individuals can be deemed terrorist threats and their names provided to the U.S. government.

As if all this wasn’t troubling enough, the CBC reports today that one of the individuals named in the cables as a potential terrorist is Mubin Shaikh,  a Canadian citizen and CSIS operative whose testimony was critical in securing convictions in the Toronto 18 terrorism trials. As Neil Macdonald points out, Shaikh’s inclusion on this list can only really mean two things.

The first is that the listing process employed by CSIS is seriously flawed, and resulted in the incorrect designation of a Crown agent as a terrorism suspect, exposing him to all of the attendant consequences flowing from being named a potential terrorist.

The second is that Shaikh’s inclusion on the list is not a mistake, and that the Canadian government did legitimately suspect him to be involved in terrorist activities. In which case, the question becomes why this information was not provided to the defendants in the Toronto 18 trials, where Shaikh’s evidence was crucial to the Crown’s case. Indeed, this is the question that counsel for the defendants are asking now, and demanding that the government answer. As reported in the CBC:

“It was his evidence that took them all down,” Alberta lawyer Dennis Edney told CBC Wednesday night. Edney represented Fahim Ahman, a ringleader who eventually pleaded guilty and remains in prison.

“Most of the warrants for wiretaps that were obtained were obtained as a result of conversations he had with the suspects.”

“It takes your breath away,” said Mitchell Chernovsky, a lawyer who represented another of the Toronto 18. “It rings alarm bells all over the place.”

Both Chernovsky and Edney said they would probably make formal demands to the Crown, asking why they were not told of whatever information led CSIS to denounce Shaikh to the Americans. Defence counsel are legally entitled to disclosure of all such information, in order to prepare their cases.

And these cables likely represent just a small sampling of the names provided to the Americans in recent years. The number of names provided is likely to be much higher than the 41 reported in the WikiLeaks cables, so it’s unclear how many more cases like Shaikh’s there are. Given the extreme secrecy of intelligence sharing, it’s also impossible to know whether adequate safeguards are in place to ensure that there are controls over the use of personal information by foreign governments.  What is clear is that some true accountability mechanism must be available to ensure that individuals are not branded as terrorists and their personal information disclosed to foreign governments without any limitations. So far, however, CSIS isn’t responding to CBC’s request for comment on its stories, and it isn’t providing the public with any real answers either, so it remains unclear whether — and how — the rights and security of Canadians are being protected.

ETA: National security expert Wesley Wark provides his views on the implications of Shaikh’s listing in the Ottawa Citizen.


CBSA laptop search documents

In late February, shortly after the story we posted about the Canada Border Services Agency delaying our request for documents on their policies on searching laptops and other personal electronics, a slim brown envelope arrived in our office. The response came just over two weeks after the extended deadline the CBSA set for itself had expired. The delay was frustrating, but not nearly as long as we’d feared given the abysmal state of access to information responses from other governmental agencies.

Image: jasonunbound on Flickr

Now that we’ve had a chance to go through the documents, there were few surprises. The documents provided by the CBSA were disorganized and still fail to provide a clear and complete picture of CBSA policies and practices on data search and retention. In the end, the documents raised more questions than they answered, but are fairly interesting in their own right, if only for the glimpse into the institutional culture of the CBSA they can provide.

Many categories of important information were completely redacted or exempted from disclosure. Some of the redactions were legitimate—legal opinions, for instance, would generally be covered by solicitor-client privilege. Other omissions were less convincing, and the practice of redacting in white rather than in black left it unclear whether information was missing or not. Some areas of the request were completely ignored or omitted. For instance, we asked for statistics on how many searches of personal electronics had been conducted. These statistics were not even referred to in the documents provided.

The BCCLA has filed another complaint with the Office of the Information Commissioner, this time regarding the exemptions and redactions from the documents provided by the CBSA in response to our request. For now, here’s a review of some of the highlights of the documents we have received:

The consistent:

  • CBSA policy states that “the difference between a paper document and information stored electronically is only the medium it is stored on” (A-2009-01850-Vol2 on p. 5). We can think of lots of other differences—the kind and quantity of information that is regularly brought across the border by travellers bringing their laptops and smart phones, for instance—but this fits with what we had learned about CBSA search practices.
  • The CBSA spends a lot of time thinking about child pornography. We’d always assumed this was the case, but the documents show that an entire chapter of the Customs Enforcement Manual is dedicated to the subject (A-2009-01850-Vol4).
  • The CBSA can and does perform laptop searches at random, but “will only scan or peruse a document to the extent necessary to either confirm or negate its association to an offence or intelligence concern” (A-2009-01850-Vol2 on p. 2).
  • Most screening is not at random, relying instead on various “indicators” including “known importers, exporters, known export locations (specific locations or geographical areas), the nature of the goods being imported (commodities known to be suspect) and/or information disseminated through regional or headquarters intelligence channels. … Officers should also be aware of high-risk geographical locations for child sex tourism” (A-2009-01850-Vol4 at p. 6). Specific indicators and suspect nations were redacted from the documents CBSA provided us. However, from court documents filed in the case of former Bishop Raymond Lahey, we know that “border officials flagged Lahey because he was a man travelling alone and his passport showed several trips to Southeast Asia, Germany, Spain and other areas known for child pornography”.
  • Screening also relies on various databases, including the Integrated Primary Inspection Line system (IPIL) and Integrated Customs Enforcement System (ICES) for primary screening, and Field Operations Support System (FOSS), the Canadian Police Information Centre (CPIC), National Crime Information Center (NCIC), the sex offender database, Treasury Enforcement Communications System (TECS), and Police Information Records System for secondary screening (PIRS) (A-2009-01850-Vol6 on p. 14).
  • The “Electronic Media Search Form” sets out a lot of what CBSA officers are looking for when they decide to search a computer. Officers will look for user accounts visible on the login screen, note the operating system, any encryption, and provides space for passwords provided, but also a box for “password not located”. There are also suggested image and keyword searches to guide officers (A-2009-01850-Vol6 on p. 6-8).

  • The CBSA has software to assist border agents with laptop searches. If, after an initial search, the border agent feels further scrutiny is required, he or she uses software called ICWhatUC to scan images stored on the traveller’s hard drive. ICWhatUC only works on Windows machines. It scans for image files on a computer, including images in the web browser’s cache, image files with strange file extensions (like .doc instead of .jpg) and files in the recycle bin. Deleted files and files in archives do not show up. We’ve purchased a copy of the law enforcement version of ICWhatUC and will be doing an analysis of its capabilities and limitations in another post this month.

The weird:

  • A Powerpoint presentation illustrates the physical size of media that it is possible to store on media of various capacities. For instance, “one meter (or close to a yard) of shelved books” is about 100 megabytes, while a “pickup truck filled with books” is about 500 megabytes of data (A-2009-01850-Vol7 on p. 4). A USB key could “contain a stack of paper (8.5×11), 35 feet higher than the CN tower” that “would take two years to print @ 24/7” (A-2009-01850-Vol7 on p. 1).
  • Another bizarre Powerpoint charts porn vs. time, showing that every second $3075 is spent on pornography, 28258 internet users are viewing pornography, and 372 people are typing adult search terms into search engines (A-2009-01850-Vol7 on p. 3). It follows this information up with statistics on youth viewing pornography, and then directly to statistics on seizures of child pornography (p. 4). This disingenuous attempt to link legal, adult pornography with the production and distribution of child pornography in its training materials may be part of the reason for CBSA’s continued targeting of legal materials it finds objectionable, like artsy queer films.
  • A chart breaks down the difference between “child pornography” and “not child pornography”, in case there was any confusion (A-2009-01850-Vol4 on p. 16). This chart seems to be common sense, but given some of the ridiculous accusations that have been made in the past, it’s probably a good thing that CBSA agents are provided with this handy cheat sheet:

A later document notes another example: “Japanese Anime – most not child porn” (A-2009-01850-Vol6 on p. 13).

The missing:

Five key areas were not addressed adequately (or at all) in the CBSA’s response to our request:

  1. Criteria for selection of individuals for device inspection. Information was referred to, and some information provided, but the contents of these sections were heavily redacted.
  2. Policies for copying and retention of electronic information. Some information was provided, but it only referred to cases where potentially criminal conduct was detected during the CBSA’s initial search. Further information is required here.
  3. Statistics on the number and kinds of devices inspected.
  4. Demographic information on individuals whose devices have been inspected.
  5. Policies for the distribution of electronic information copied from electronic devices to other government agencies.

These areas make up the substance of our second complaint to the Information Commissioner.

Overall, the CBSA’s lack of transparency on this important issue is discouraging. While their policies on searches appear to be quite similar, the CBSA has not been as forthcoming with information as even the secretive U.S. Department of Homeland Security, which has made its policy publicly available.

The documents:

As promised, we’ve made all the documents we received available online. Download them and have a look through them yourself. If you see anything of special note, have your own story of having your electronics searched at the Canadian border, or have something to add, please let us know in the comments or by email: [greg]@[bccla].[org]


Databases: We’ll show you ours if you show us yours

The Afghan detainee file has been taking up a lot of our time lately, but the BCCLA national security team hasn’t dropped the ball on other issues.

One area we’ve been watching is transnational data sharing, especially between Canada and the United States. Canada and the U.S. have been sharing police records since the Reagan era, and the relationship has only become cozier since 2001. An article in the USA Today illustrates just how close that relationship has become:

Thousands of times each day, Canadian authorities tap into sensitive U.S. government databases to check the criminal histories of U.S. citizens who are crossing the border or have been entangled in the Canadian criminal justice system, FBI records show.

During the Winter Olympics, Canadian authorities ran nearly 10,000 criminal history checks per day, more inquiries than some U.S. states perform each day, FBI records show.

Even more Canadian citizens receive similar scrutiny by U.S. officials with access to Canadian records, according to RCMP records. Since January, Canada has conducted 400,000 queries and the U.S., 1.4 million.

Systems used that widely have a gross potential for abuse. We wouldn’t just trust another nation to troll through our most sensitive records, would we? There must be some oversight built into the system, right? Wrong:

The U.S. has no independent authority to audit Canada’s use, Weise says, and Canada has no authority to police U.S. queries of its system. Weise and RCMP Sgt. Greg Cox say the two countries conduct regular internal audits of their own use.

Well, if it’s widely used and there’s absolutely no accountability, we shouldn’t be worried if we’ve nothing to hide, right? Wrong again:

Canada’s access to such detailed — and possibly outdated — personal histories of U.S. citizens, including decades-old misdemeanors, can result in wrongful detention, interrogation and foreign travel bans.

About half of the arrest records in the system have not been updated to reflect convictions, dismissals or acquittals, Weise said, adding that local law enforcement agencies are responsible for giving the FBI updated information.

So to sum up: Border agents in Canada and the United States have unlimited access to the other country’s criminal databases. There are no checks and balances to ensure that U.S. use of the Canadian system is appropriate, and vice versa. Even if our border guards are using their database access appropriately, the information in the database is wildly inaccurate and out of date, often resulting in wrongful detention, embarrassing interrogations and searches, or even travel bans.

Despite these enormous problems, we’re still rushing to share even more information between our nations. This week, BCCLA Policy Director Micheal Vonn is off to Ottawa to appear at a parliamentary committee meeting discussing the Passenger Protect Program and plans to bring the U.S. No-Fly List to Canada. We’ll have more on that when she reports back.