Expert Advice

The complainant, Sheldon Goldberg, objected to a conversation with a British Columbia Civil Liberties lawyer on the question of electronic device searches at the U.S. border. He thought she was unqualified to speak about American law and that CBC violated standards by allowing her to speak to the issue. The discussion was a broad look at options available to protect privacy on both sides of the border and did not violate policy.

COMPLAINT

You objected to an interview broadcast on On the Coast, the Vancouver afternoon news and current affairs programme. On February 17, guest host Belle Puri talked with Micheal Vonn, Policy Director for the B.C. Civil Liberties Union. The conversation centred around the increased scrutiny of electronic devices at the Canada-U.S. border. You considered this one more example of an ongoing anti-American slant to the programme. You were critical of the fact that Ms. Vonn commented on American law. You said she was Canadian and not qualified to speak about the complex security laws in the United States. The programme should have interviewed an American instead. You said:

The problem is that MV is a lawyer in Canada and BCCLA is a Society with a specific mandate. Their licence stops at the border. Your interviewer never asked her/their limits.

You added that the United States government had every right to protect itself in ways it saw fit, and it was not appropriate to be critical. You were also concerned that discussing this matter would benefit criminals:

Was she assisting terrorists or their fellow travellers how to avoid arrest and prosecution all under the fog of righteousness?

You were also critical because you thought Ms. Vonn stated she had lawyer-client privilege, and therefore the right to protect her own phone or other electronic device from scrutiny by a border official:

She now projects herself as an American lawyer or legal expert which she is not. America law is very complex whether at the border or Homeland Security or other security laws. I doubt whether she even knows any American law that would protect her data or other Canadian professionals seeking 'privilege' south of the border. And how would privilege apply to mixed data?

MANAGEMENT RESPONSE

The Senior Director of Journalism and Programming, Lorna Haeber, replied to your complaint. She told you that this was a general discussion about the consequences of bringing phones, tablets and computers both ways across the Canada-United States border. She characterized it as “news you could use” and pointed out it was quite a general discussion of both Canadian and American law and procedure:

They were discussing laws in both Canada and the U.S. which allow custom agents to search electronic devices like mobile phones and laptops when they are being brought into the country. The issue was in the news because of a proposal being floated in the U.S. to make those searches routine.

She addressed your question about Ms. Vonn’s qualifications by telling you there are a lot of grey areas in the law, and pointed out specific American law was not part of the conversation. She also explained Ms. Vonn mentioned, but did not invoke, solicitor-client privilege as a consideration:

In terms of her expertise, she made it clear there are a lot of grey areas in terms of the law when it comes to this issue. She did point to the possibility that a lawyer might be able to use client privilege should they find themselves in that situation but didn't comment on whether she thought it would be a successful defence noting at different points in the interview that there isn't a lot of case law, that there are a lot of grey areas, that the situation in the U.S. is changing, and that she herself, as a lawyer, would not take an electronic device across the border.

REVIEW

From the outset, this interview was framed to look at what individuals can and cannot do in light of the possibility of their electronic devices being searched when crossing the Canada-U.S. border. Most of the discussion centred around it so generally that it would apply in either direction of a border crossing. The introduction highlighted the increased attention at the U.S. border, but included mention of Canada as well. This is how host Belle Puri set it up:

Well if you plan to travel to the United States over the weekend or maybe for Spring Break, you will want to hear what our next guest has to say. Border guards on both the United States and Canadian sides can search your Smartphones, laptops and other electronic devices. It’s a policy that’s been in place for a long time in the United States, but it’s attracting more scrutiny now because of Donald Trump’s controversial immigration ban. For more on how to secure your devices and what your rights are, we’ve reached Micheal Vonn, she’s the Policy Director at the B.C. Liberties Association.

The line of questioning then explored what one’s rights are at the border. One does not have to be an American legal expert to know the answer, and what Ms. Vonn said applies both in Canada and the United States. In fact, the second question addressed what the differences might be between the two countries, and the next several minutes were taken up discussing the situation in Canada and why it is different here. Again, the answers do not address specific American laws or regulations but that the situation is ill-defined and in flux:

MICHEAL VONN

I think, you know, part of the added gray zone is we know not very much about Canada, we know very little about the States but we also know that the situation in the States is changing. You know, people have been shocked to find out that border agents can ask you questions so off base to what we think constitutes the genuine mandate of border services as to your political views, right? So if people are being queried about their political views, you might want to think about that electronic device that you so unthinkingly take across the border, because you say “I”, as many people do “I have nothing to hide” or “I’m not worried” or, you know, that kind of thing, you think oh no, wait a minute, my whole life is on here. Now that I get a sense of what the latitude is, of the kinds of questions and queries that they’re asking, and people have been turned away from the border on the basis of their political beliefs, I might want to think twice about inviting scrutiny into things that I would be, you know, needlessly bringing up by simply insisting that I walk across the border or come across the border with all this data on me.

The observations apply equally in the context of the questions put to her. Even if she had referenced specific statutes, there is no violation of policy to solicit an opinion from someone with expertise. The distinction you draw does not have a relevant impact on the journalism. The programmers created the content to provide citizens with information so that they might form a view or decide on a course of action. It is your opinion that it is not useful advice, and that is a valid conclusion for you, but it does not mean there is something inherently wrong with it.

As for your concern about invoking solicitor-client privilege, I have the luxury of reading the transcript and listening to the programme segment again. The question of privilege came up in this way:

BELLE PURI

Okay, so how should one respond when asked questions from a border agent about looking at a device that has a password. What do we say?

MICHEAL VONN

Well, again, you want to do your homework ahead of time. Don’t take anything you don’t need and that means don’t take the device or don’t take data on that device that you don’t need, so, you know, you could wipe your electronic devices clean, if you want to take a clean device over, but then again, you would not be imperiling yourself with a device with the potential of obstruction by refusing to provide a password, etc. But there are some people, you have to be careful how context-specific this is, there are some people who have specific obligations to protect data. So, if you were a journalist walking through with sources on there, if you were a lawyer with client information, you might have to claim privilege. Exactly what you do will depend on what your legal obligations are to the data that you are holding.

Ms. Vonn made reference to journalists and lawyers - two groups of people who have a special responsibility to protect privileged information. She said “you might have to claim privilege”; she did not assert that it would work. In a later answer, she said she leaves her devices at home because of her responsibility to protect her client’s data.

This interview was straightforward commentary and analysis of a fluid situation with an expert who had some knowledge and expertise in the area. There is no underlying critique or bias expressed. There is no violation of policy.

Sincerely,

Esther Enkin
CBC Ombudsman