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Bordering on danger

Bordering on danger

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Tighter security measures at the border have many Canadian academic researchers concerned. Is the confidentiality of your data at risk?

Amid further tightening of security measures at the border in the wake of Donald Trump’s election, a growing number of Canadian academic researchers are concerned about the confidentiality of their data when heading to the United States — and with good reason, according to legal experts.

In February, the Associated Press reported that the US government increased by five-fold the number of media searches at the border between 2015 and 2016, from 4,764 to 23,877 cases of people being asked to reveal what’s on their devices such as smart phones or laptops.

“Right now, the critical issue for Canadian journalists and academics crossing the border into the United States is to make sure any confidential data in their possession doesn’t fall in­-to the hands of the US authorities,” explains Peter Jacobsen, who has been practising administrative and constitutional law for the last 35 years. “We’ve explored the questions with our clients, and no matter how you look at it, you don’t have a leg to stand on if a border official decides to seize your phone or laptop.”

Jacobsen’s advice to anyone planning to cross the border with confidential or sensitive information is to encrypt their data, send it securely to their destination, or leave it behind in Canada. “I tell my clients to travel with a burner phone and a laptop with an empty hard drive. I don’t mean to sound alarmist, but currently there’s nothing to stop a border agent from taking your phone and your laptop into his office and making a copy of the data on your devices.”

What if you need to access research data during a trip to the United States? Jacobsen suggests either sending information ahead or saving files to the cloud. “If you have any highly confidential information or you need to protect your sources, I suggest using encryption software like Signal to protect your data before you send it,” he says.

A controversial executive order prohibiting entry to the United States for visitors from six predominantly Muslim countries is complicating matters further and stirring up a storm of fear and confusion at the border. CAUT has urged its members who would be affected by the order to postpone any plans to travel to the United States, and encouraged nationals of the six countries on the list who are also Cana­dian citizens or permanent residents to seek legal counsel before travelling.

“The situation is having serious repercussions for our members not just in terms of academic freedom and the protection of research confidentiality, but also by creating barriers for travel between Canada and the US,” says CAUT president James Compton.

Since February, over 6,000 academics from Canada and around the world have signed a petition and pledged not to attend conferences in the United States to protest the travel ban. CAUT is working on an updated travel advisory for academics planning to visit the United States to help the asso­ciation’s 70,000 members avoid running into roadblocks at the border.

It was President Trump’s latest executive order that prompted professor Minelle Mahtani and a colleague to pull out of attending academic conferences on American soil. In an open letter published in The Globe and Mail in March, the two University of Toronto professors stress their decision was not intended to be a political protest; it stemmed from fear they might run into trouble at the border with consequences for future research trips and opportunities for professional collaboration.

“As the hysteria over the immigration ban and border-lock continues, it is apparent that US border officials are not clear on how to implement these contested new rules, which continue to be fought in the courts. Under these conditions, it is impossible for any of us to properly calculate the risks of travelling,” say the two Canadian academics.

Meanwhile, Bill C-23 — currently before Parliament — is fuelling concerns. The new law would expand the powers of US and Canadian border officials at preclearance areas in airports. According to the Canadian authorities, the purpose of the law is to combat smuggling and restrict imports of hazardous products, but experts are not convinced.

“We are concerned about the new powers the bill would give American border agents operating in Canada. Border officials would be given the right to detain people who have entered the preclearance area and then changed their minds. They’d also be exempt from parts of the Criminal Code and Firearms Act,” says CAUT executive director David Robinson.

Currently, Canadians entering a border preclearance area can turn around and walk away if they wish. And despite Prime Minister Justin Trudeau’s promises that the Canadian Charter of Rights and Freedoms would apply, the new law would allow officials to hold and question travellers for as long as they deem necessary, and there would be no judicial mechanism for contesting the decision.

“Bill C-23 focuses more on searches to counter the importation of hazardous products and contraband. But even though the Charter does apply in theory to US preclearance officers, the Charter protections are significantly weakened at the border,” explains Kent Roach, a professor of law at the University of Toronto.

He adds that Section 40 of the bill is particularly worrying, since it states that a preclearance officer’s decision cannot be contested by judicial review. “In the United States and in Ca-nada, this lack of a mechanism allowing citizens to file a complaint will make it difficult to detect and combat profiling at the border,” says Roach.

For Peter Jacobsen, the new law is disheartening and it does nothing to change his current view of things. “Even though you can theoretically leave the preclearance area, I think that doing so would make the US authorities extremely suspicious of you on any future trips. And this is all the more true since Trump came to power. All his talk about wanting to make the borders even more secure has essentially given border officials even more reasons to flex their muscles. And in my view, they already have a lot of power and not a lot of discretion.”

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