In previous posts, I examined the privacy implications of the Security of Canada Information Sharing Act, which is Part 1 of Canada’s Conservative Government’s Bill C-51, known as the Anti-terrorism Act, 2015, as well as the recent history of legislative changes and terrorist incidents in Canada that led directly to the government introducing the Anti-terrorism Act 2015.
The Security of Canada Information Sharing Act is only one aspect of the national security proposals in Bill C-51 that have important privacy implications. In this post, I evaluate Part 2 of Bill C-51, which contains the Secure Air Travel Act. The Secure Air Travel Act amends Canada’s Passenger Protect Program and is a direct response to concerns about individuals departing Canada to engage in activities that promote terrorism abroad. The act will lower the threshold for placing a person on Canada’s “do-not-fly” list and will also expand the grounds on which a person may be placed on that list. In addition, the act provides a specific mechanism for redress by individuals who are denied air transportation as a result of being placed on the do-not-fly list.
The goal of the revisions to Canada’s Passenger Protect Program is to provide law enforcement with greater tools not only to prevent terrorism on or using aircraft but also to prevent commercial airlines from being used as a tool to transport individuals for the purposes of engaging in terrorist activities abroad. These are serious purposes involving grave national and international security objectives. The question for critics will not be (or should not be) the need for safety but whether there are sufficient safeguards.
Current Passenger Protect Program
Canada’s current do-not-fly list is administered as part of the Passenger Protect Program created under the authority of the Aeronautics Act. The minister of public safety and emergency preparedness has the authority to place a person on a “Specified Persons List” (essentially a do-not-fly list), which the minister of Transport then uses to direct airlines not to permit boarding of those individuals. Originally, the minister of transport made the determination to place someone on the Specified Persons List but this responsibility was transferred to the minister of public safety and emergency preparedness in 2011 by Order in Council. Under s. 4.76 of the Aeronautics Act, the minister of transport may make emergency directions to airlines if “there is an immediate threat to aviation security … the safety of the public, passengers or crew members,” among other things. Section 4.81 of the Aeronautics Act requires air carriers and operators of aviation reservation systems to provide certain information to the Department of Transport. In addition, under the Canadian Aviation Security Regulations 2012, airlines are required to screen passengers against the Specified Persons List.
Under the current program, decisions regarding whether an individual should remain on the “do-not-fly” list are re-examined every 30 days. Individuals who have been denied transportation receive a copy of an emergency direction and may apply for reconsideration.
The Office of the Privacy Commissioner of Canada (OPC) audited the Passenger Protect Program in 2009. The OPC concluded that Transport Canada collected and used personal information for the Passenger Protect Program in accordance with the Privacy Act and the Aeronautics Act. However, the OPC identified a number of potential issues:
- At that time, the minister of transport was making the decision as to whether to add the person to the Specified Persons List and it was not clear that the minister of transport always had complete information in making a determination.
- The information technology systems used to communicate the Specified Persons List to airlines was not certified and accredited to meet government security standards.
- There were no requirements for air carriers to report security breaches to Transport Canada.
In general, the minister of transport accepted the recommendations of the OPC and took steps to implement changes to address those recommendations.
Lowering the Test for Placement on the Do-Not-Fly List
Other changes to the Passenger Protect Program lower of the test for placing a person on the Specified Persons List and expand the grounds on which a person may be placed on the Specified Persons List.
Under s. 8(1), the minister of public safety and emergency preparedness (or a delegate) would only require “reasonable grounds to suspect” that the person will engage or attempt to engage in an act that would threaten transportation security (s. 8(1)(a)). This means that an imminent threat is no longer required. It is sufficient if there are reasonable grounds to suspect that the person will engage or attempt to engage in an act to threaten transportation security.
More controversially, the minister could place a person on a list if there is “reasonable grounds to suspect” that the person will travel by air for the purpose of conducting one of the following activities whether inside or outside of Canada (s. 8(1)(b)):
- Knowingly participating in or contributing (directly or indirectly) to any activity for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity;
- Facilitating a terrorist activity, or
- Committing a terrorist activity.
These expanded grounds are meant to assist the government in restricting the mobility of individuals who may be travelling to participate in activities that are connected with terrorism. However, s. 6 of Canada’s Charter of Rights and Freedoms affords every citizen the right to enter, remain in and leave Canada. It is true that these rights are not unlimited. They may be circumscribed by reasonable limits prescribed by law that can be demonstrably justified in a free and democratic society. However, when this section comes under judicial scrutiny, the critical question may be whether the test for placing an individual on the Specified Persons List is overbroad given the low threshold of “reasonable grounds to suspect.”
Collection of Information
The government has not sought to make any radical changes to the type and manner of information collected in connection with the Passenger Protect Program. As is currently the case, the Secure Air Travel Act requires that any person or entity that operates a commercial air service or a system that provides the capability to make reservations or issue tickets for air services must provide information that is in their control concerning persons who are on board or expected to be on board an aircraft for any flight. There does not appear to be any change to the types of information collected. The list of data points includes 34 types of information relating to the passenger and the passenger’s reservation. Not surprisingly, the airline must provide the individual’s name, gender, citizenship, passport number, and contact information. However, the airline must also provide the level of service on the airline, luggage tag information, and seat preferences and selected seat assignments. This information must be provided in accordance with the act and regulations made under the act. The regulation-making powers are broad enough that the minister could have direct access to the airline and air reservation systems.
Although the information collected from airlines and airline reservation systems is broad, it will only be retained by the Minister of Transport for seven days. The mandatory destruction only requires that the minister of transport destroy the information. The Secure Air Travel Act permits other departments and agencies to collect and share information relating to the administration and enforcement of the act. The RCMP, CSIS, the minister of transport, the minister of citizenship and immigration, and the Canada Border Services Agency are all expressly permitted to collect and disclose information to the minister of public safety and emergency preparedness and each other. If information has been shared with other departments or agencies, there is no requirement for destruction by those departments or agencies. It is not clear, therefore, that the seven-day retention period relating to information received from air carriers or operators of reservation systems (s. 18(2)) will be effective. This may not be a significant issue depending on how the information sharing is operationalized.
Sharing Information with Foreign States
Another potentially controversial provision of the Secure Air Travel Act involves authorizing greater sharing of information with international counterparts. The minister of public safety and emergency preparedness is granted the express power to share information with foreign states, foreign governmental institutions or international organizations (s. 12). The information may be shared for the purposes of transportation security or for the prevention of travel referred to in s. 8(1)(b) of the act. This means that information may be shared for the purposes of preventing individuals travelling (i) to knowingly participate in or to contribute (directly or indirectly) to any activity for the purpose of enhancing the ability of a terrorist group to facilitate or carry out a terrorist activity, (ii) facilitate a terrorist activity or (iii) commit a terrorist activity.
The government proposes that the Specified Persons List would only be disclosed to a foreign state, foreign governmental institution or international organizations if the disclosure is in accordance with a written information sharing agreement (s. 12).” That may not be enough to appease critics. Civil liberties groups may be alarmed by this provision given the well-documented experience of Maher Arar. Based in part on information provided by Canada, Arar was detained while travelling through the United States and deported to Syria (even though Arar was Canadian). Arar was subject to torture in Syria and only after extraordinary political and public pressure was he eventually returned to Canada. The aftermath included a Commission of Inquiry which concluded with a call for greater oversight of Canada’s intelligence agencies. In addition, Arar obtained a multimillion-dollar settlement payment from the Canadian government.
Accountability – Redress for Denied Travellers
One of the safeguards under the existing Passenger Protect Program is that entries on the list are supposed to be reviewed every 30 days. However, under the Secure Air Travel Act, the Minister would review the list every 90 days to determine whether the grounds for which each person’s name was added continue to exist (s. 8(2)). More problematically, there does not appear to be any immediate consequence for the government’s failure to conduct this review in a timely manner, since the review “does not affect the validity of the list.”
Although the automatic review period may lack teeth, the government has enhanced accountability of the Passenger Protect Program by outlining a clear redress process. A person who is denied travel has a statutory right to apply to the minister within 60 days of when they are denied air travel to have their name removed from the do-not-fly list (s. 15(1)). The 60-day period can be extended by the minister if “there are exceptional circumstances that warrant” an extension. Individuals have the right to make representations with respect to an application to be removed from the do-not-fly list (s. 15(3)). If the minister does not make a decision within 90 days, the minister is deemed to have denied the application (s. 15(6)).
Once the minster gives notice of a decision with respect to the application or the 90-day period has expired, the individual has 60 days to appeal to a federal court judge (s. 16(2)). The court can extend the 60-day appeal period. The court must review whether the “decision is reasonable on the basis of the information available to the judge” (s. 16(5)). Although the judge must withhold from the appellant information that could be injurious to national security or endanger the safety of any person, the court has broad powers to ensure that the appellant has enough information to understand the case against him or her (s. 16(6)).
The issue for critics will be whether this redress process is strong enough to ensure accountability of the government for wrongful determinations. There are at least two issues that may cause significant concern. First, there is no provision that would require the government to inform foreign governments with whom it has shared information about redeterminations or successful appeals by individuals appearing on the Specified Persons List. In addition, the court may make decisions with respect to appeals of being placed on the do-not-fly list on information and evidence not provided to the appellant.
The safety of airline passengers, crew members and others involved in air transportation is a serious matter. The prevention of terrorist acts on aircraft is matter of grave national and international importance. Furthermore, preventing individuals from using commercial airline services to travel to participate in or promote terrorism is arguably at least as important as attempting to prevent the use of the financial system to fund terrorist activities. Evaluating the impact on privacy in light of these countervailing concerns is also serious business but hampered in part by the understandable desire of governments to be secretive about the operation of these surveillance systems. One area that may be ripe for debate, however, is whether the appeal provisions are sufficiently robust and accessible to provide meaningful redress to individuals and to prevent information on individuals who are ultimately innocent from being shared with other governments potentially to the serious detriment of those individuals.
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