Sunday, June 17, 2012

Canada Border Services Agency to bug airports to eavesdrop on travelers?

I have seen a few reports this weekend saying that the Canada Border Services Agency has been installing audio recording equipment at Canadian airports to eavesdrop on travelers. (See: Listening equipment 'will record conversations' at Canadian airports: CBSA or Canadian airport to bug travelers' conversations.

While details are sketchy, I can't help but wonder whether or how this is lawful at all.

In Canada, it is unlawful to intercept any private communications without a warrant. The Criminal Code of Canada makes that pretty clear:


184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Saving provision

(2) Subsection (1) does not apply to

(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it;

(b) a person who intercepts a private communication in accordance with an authorization or pursuant to section 184.4 or any person who in good faith aids in any way another person who the aiding person believes on reasonable grounds is acting with an authorization or pursuant to section 184.4;

(c) a person engaged in providing a telephone, telegraph or other communication service to the public who intercepts a private communication,

(i) if the interception is necessary for the purpose of providing the service,

(ii) in the course of service observing or random monitoring necessary for the purpose of mechanical or service quality control checks, or

(iii) if the interception is necessary to protect the person’s rights or property directly related to providing the service;

(d) an officer or servant of Her Majesty in right of Canada who engages in radio frequency spectrum management, in respect of a private communication intercepted by that officer or servant for the purpose of identifying, isolating or preventing an unauthorized or interfering use of a frequency or of a transmission; or

(e) a person, or any person acting on their behalf, in possession or control of a computer system, as defined in subsection 342.1(2), who intercepts a private communication originating from, directed to or transmitting through that computer system, if the interception is reasonably necessary for

(i) managing the quality of service of the computer system as it relates to performance factors such as the responsiveness and capacity of the system as well as the integrity and availability of the system and data, or

(ii) protecting the computer system against any act that would be an offence under subsection 342.1(1) or 430(1.1).

Use or retention

(3) A private communication intercepted by a person referred to in paragraph (2)(e) can be used or retained only if

(a) it is essential to identify, isolate or prevent harm to the computer system; or

(b) it is to be disclosed in circumstances referred to in subsection 193(2).

The Office of the Privacy Commissioner of Canada has said they've seen no mandatory privacy impact assessment about this initiative and the CBSA has essentially said nothing about this. Hopefully the Canadian media will pursue this and we'll get more details shortly.

1 comment:

Anonymous said...

The articles don't say exactly where the recordings are taking place, but it's strongly implied that they take place only in the areas subject to CBSA jurisdiction, namely customs halls and pre-customs baggage claims. In these areas, unless you're protected by diplomatic immunity, you lack the rights against search you'd normally possess, and I don't know how that'd translate to eavesdropping.