Canadian Government Eliminates Problematic Language in Bill S-7 (Digital Frisking)

The problematic digital frisking legislation, known as Bill S-7, has finally been fixed to remove the problem clause.

One of the lesser known ways the Canadian government was attacking digital rights is through the controversial legislation known as Bill S-7. In it, it appeared that the government is attempting to reverse an Alberta Court of Appeal ruling that border security must have reasonable grounds to search someone’s digital storage device. The court said that the activity violates the Canadian Constitution. The ruling effectively outlawed the indiscriminate nature of digital frisking.

In response to the court ruling, the Canadian government tabled Bill S-7. In it, they basically thumbed their noses at the court ruling by trying to re-implement digital frisking at the border. They did so by adding a brand new legal term known as “reasonable general concern”. It’s a novel new legal threshold that is regarded as a threshold lower than ‘reasonable suspicion’ and ‘reasonable cause to believe’. What is also troubling is the fact that the government didn’t consult with the Office of the Privacy Commissioner when they drafted this bill.

Digital rights organizations and advocates have been up in arms over the legislation, though it is one of a mess of bills that are all problematic. Still, senators have been questioning the language for this brand new legal threshold. Now we are learning that the Canadian senate has eliminated the controversial language, the source of the backlash. From the National Post:

On Monday, senators on the national security and defence committee passed an amendment proposed by Sen. Mobina Jaffer to replace that proposed new standard with “reasonable grounds to suspect,” the most permissible standard that currently exists in law, which is still more restrictive than the government’s proposed new threshold.

Now that the committee has finished its study, the bill heads back to the Senate, which will decide whether to accept or reject the committee’s recommendations. The bill will then make its way to the House of Commons.

“We did not have one witness except the minister and the officials say” that the new standard “was a good idea,” Jaffer said.

Sen. Marc Gold, the representative of the government in the Senate, opposed the amendment. Gold argued that the bill doesn’t lower the standard, but is actually “creating a legal standard where one never existed before.”

Digital rights advocates were quite happy with the development. From Open Media:

The Senate just voted to stop the government from legalizing the unconstitutional search of our electronic devices at the border!
@SenJaffer’s amendment to Bill S-7 creates a known legal threshold for these searches.

Michael Geist:

Senate committee takes a stand for Canadian privacy by replacing the dangerous language proposed by the government on border searches. There is hope for the Senate to conduct a real review of the government’s lobbyist driven Bills C-11 and C-18.

With so many stories about bad things, this is certainly a nice change reprieve from it. People’s digital storage devices are now not going to be the subject of indiscriminate searches at the border which is a win for privacy. One bad bill down, 4 to go.

Drew Wilson on Twitter: @icecube85 and Facebook.

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