Bill C-42 (Historical)

Strengthening Aviation Security Act

An Act to amend the Aeronautics Act

This enactment amends the Aeronautics Act so that the operator of an aircraft that is due to fly over the United States in the course of an international flight may provide information to a competent authority of that country.

Strengthening Aviation Security Act

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, my colleague has taken an active interest in airline passengers since he arrived in the House of Commons. All airline passengers in Canada want to thank him for that.

He was getting to an important point at the end of his speech when he talked about the accumulation of data about airline passengers by foreign security agencies, particularly by American security agencies. Some critics of this legislation have said that it would aid and abet data mining by American security agencies at the expense of the privacy of Canadians. He talked about the building of profiles that these security agencies would do with the information they would collect from airlines.

Could he expand on that point and let us know what he really thinks of the criticism that the bill would aid and abet data mining by American security agencies?

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, the member is correct. That is exactly what it is. The interesting thing about it is if both the American and Canadian no-fly lists are accurate and up-to-date, then any people on those lists would not and should not be on planes in the first place. The people we are concerned about will not be on the plane so their PNR information will not be transferred to any foreign government or, in this case, the American government. We will be giving all of the data on people who are not on the no-fly list and are on the plane in the first place.

When I asked about reciprocity, the government indicated to me that the Americans were prepared for us to keep our own data. We have negotiated one exemption already for point to point flights over U.S. territory between two cities in Canada. Therefore, why would we not negotiate reciprocity? One hundred flights a day fly over the United States and two thousand American flights fly over Canada. Why did the government not say to the Americans that if it gave them our information, then they would have to give Canada their information? The government says that it will cost too much to develop a computer system to deal with all that information. The government just rolled over and signed on to the deal the way the Americans wanted it.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, could the member comment on the kind of data that would be required? Would this be useless data or would this be data that could be used by any one of the 16 American agencies that might have access to the information?

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, the information is not something that one would want to have sent to security agencies unless it is done on the basis that it would be rendered anonymous.

That is how we deal with PNR information under an agreement, for example, between Canada and the EU. When our negotiators negotiated with the Americans, why did they not say that Canada had already signed on with the EU and supported the practice of proper PNR information handling? Why did the government not suggest that the clause in the agreement with the EU be used?

The PNR information under the Canada-EU data protection system allows for time periods for the data to be kept. The data has to be disposed after a certain number of days. There are limits on the individualization of the data so the data is rendered anonymous. The security services build up the profiles they are looking for, but the information is not attached to any one individual.

This is the global standard for international treaties on PNR agreements. Canada signed on to this agreement with the EU. Countries right around the world have signed on to this. Why would we give up a gold standard that we have supported for many years on the use of PNRs? When it came to the Americans and security, the government disregarded all of that.

Canada is going to send whatever information is in the PNR, and that information can vary. There is different information on each PNR. The member for St. John's East asked what was in the PNR. It depends on what the travel agent typed in when the booking was made. Each person is different. People have different medical problems that might be indicated in there, or they might have different meal preferences. All sorts of different information could be in the PNR that would be dealt with here.

This is not the way to deal with the issue. The government should take the legislation back to the drawing board.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, I am pleased to rise to speak to the important matter of Bill C-42, concerning the personal information of Canadians on flights over the U.S.

Although we will support the legislation, I will speak to the history of the bill, how we got to that point and why we can now support the bill.

First, it should be noted the way in which the government went about introducing the bill. As is the practice of the government, which we have become all too familiar with, it either tables legislation that it has no plans on following through with or it introduces legislation that it is not serious in following through with in such a way that it limits serious debate.

The government waited until the last sitting day before the summer recess to introduce this bill, a move to avoid parliamentary scrutiny over these measures by leaving little time for debate.

As it stands right now, the Aeronautics Act already allows for the disclosure of personal information by airlines to foreign states if the flight lands within the foreign state. The act also provides a legislative authority to create the no-fly list intended to identify potential terrorists in airline passenger lists and block them from boarding domestic or international flights.

The no-fly list, however, has proven seriously problematic. Further, the Privacy Commissioner of Canada has expressed concerns with the measures enabled under the Aeronautics Act.

The Privacy Commissioner has testified before committee that the Canadian government should ask the United States to quickly destroy the information it will be collecting on airline passengers flying over the U.S. because there is nothing to prevent that information from being shared on a wide scale basis both in the U.S. and abroad.

The Privacy Commissioner has also noted that there is nothing in the new secure flight policy that precludes the Department of Homeland Security from sharing passenger names, birthdates and genders, passport information and travel itineraries with immigration and law enforcement authorities at home and abroad.

This assessment of the policy contradicts the assertions of the public safety minister, who told the transport committee that the information collected on Canadian passengers was intended to be used solely to protect aviation security.

No wonder there are some serious concerns when we have conflicting views from the minister and the Privacy Commissioner.

By further changing the act to force Canadian airlines to disclose personal information of Canadian passengers who are simply flying over the United States, Bill C-42 would further endanger the privacy rights of Canadians.

Maintaining public security, however, is important and a balance must be achieved. Liberal Party members expressed this concern when the bill was referred to the Standing Committee on Transport, Infrastructure and Communities.

Liberal members have amended the bill in three specific ways: first, the House of Commons will be required to conduct a review of these measures two years from the date they come into force and every five years thereafter; second, this data transfer will be limited to the U.S. in legislation, as the original version of the bill allowed the Canadian government to add other countries by order-in-council; and, third, airlines and travel agents will be required by Canadian law to inform passengers of this impending data transfer before their ticket is purchased.

This may only be a one paragraph bill that would make a minor change to the wording of one section of the Aeronautics Act, however, these changes would be significant in practice. The bill could effectively be used as legal justification for airlines and travel agents to supply foreign governments with personal information about passengers when a plane they are on flies through a country's airspace. Currently, the act allows for this transmission of information only when a Canadian plane lands in that country.

Let me take a moment to go over the history of these provisions in the Aeronautics Act.

At question is subsection 4.83 (1). This allows for the cabinet to make regulations regarding the transmission of certain information to foreign governments. Subsection 4.83 essentially creates legislative exemption to the Privacy Act and the Personal Information Protection and Electronic Documents Act.

The supporting regulations remain the critical component of this piece of the framework.

Schedule 1 of the regulations lists the category of information that may be automatically provided to an authorized foreign government. This includes basic information such as name, gender and passport number.

Schedule 2 of the regulations provides what detailed information may be provided to a foreign government. These details include the passenger's address, phone number, class of ticket, for example, business or economy, method of payment for the ticket and whether the passenger in question actually paid for the ticket.

The final schedule in these regulations, Schedule 3, lists the governments and agencies that are authorized to request or receive any of the information listed in either of the first two schedules. There is only one country and agency on the list: the United States and its commissioner of customs.

The regulations in question were introduced in 2001 during the 37th Parliament. Bill C-44 amended the Aeronautics Act to allow the transmission of this information to foreign governments. This was in response to new U.S. requirements for any plane landing inside that country.

Subsequent U.S. legislation requires other countries to provide the U.S. government with details of any passenger in a plane flying over the U.S., not landing, but actually flying over the U.S.

The Liberal Party has very strong concerns about the erosion of Canadian sovereignty expressed in the bill. We also have very real concerns about the privacy of Canadians and about the ability of the government to conduct foreign affairs in a way that benefits Canadians.

The balance between national security and personal freedom is a crucial balance for any government. I, as well as my Liberal colleagues in the official opposition, am very concerned that Bill C-42 goes too far. Hence, the need for our amendments.

For starters, the bill was not designed to protect the national security of Canadians. It was designed to transmit information to other countries for flights outside Canadian airspace. Once this information is in the hands of a foreign government, we cannot control what they do with it.

In May of last year, assistant privacy commissioner, Chantal Bernier, spoke to the transport committee. She said that the U.S. government, the only government currently authorized to receive this data, could keep the personal information of Canadians anywhere from seven days to 99 years. She also stated that the U.S. could use that information for any purpose, even those not related to air-land security, such as law enforcement.

When the United States passed the patriot act in the aftermath of September 11, it caused concern to many nations around the world. The patriot act allows the U.S. government unfettered access to and control of information about citizens from all over the world. It is no small matter to put private information of citizens into the hands of the U.S. government, where it will be subject to the wider net of the patriot act.

We must be concerned about any law that allows information about Canadians not accused of any crime to be put in the U.S. intelligence machine. We could be creating a situation where the government helps to provide a foreign government information that is used to prosecute Canadians without any formal judicial process.

It should be clarified that these are not information-gathering agreements. Rather the legislation would create a one-way flow of information out of Canada and into the hands of foreign governments.

In passing the legislation, we are creating a legal framework that will require diligent monitoring. It is important that we exercise our right to ensure that Canadians are protected. Hopefully, we can do that with the amendments that we put forward, which are now a part of this. As well, we must ensure that we stay on top of this and monitor very closely what is done over the course of the time.

We must understand that in creating this legislation we are opening the door for other countries to ask the same things. We are saying publicly that we are willing to provide personal and private information about our citizens to other countries. This is a troubling development that we must be willing to abandon if it proves to be more sinister than good.

Just because a Liberal amendment has been adopted to limit this information sharing with the U.S., it does not prevent other countries from now wanting to negotiate similar information transfers. Therefore, we need to be very vigilant in terms of what the government will do once this bill has been passed and can move forward with it.

[Judy Sgro, Liberal, York West, ON]

Mr. Speaker, my colleague and I share the same concern about how to protect the overall security of our country and recognize some of the challenges faced in bringing forward this kind of legislation.

Would the hon. member expand a bit more on the amendments that she was referring to that the Liberal Party put forward to ensure we have a better balance in this bill?

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, when we put forward these amendments, the idea was to work with the government and the other parties in the House of Commons to ensure that Parliament works.

First, we talk about the need to conduct a review of the measures two years from now and every five years thereafter so that two years from now we will be able to see if these amendments are as effective as they can be; second, with regard to the data transfer to the U.S., the original version of the bill would have allowed the Canadian government to add other countries by order in council; and, third, airline and travel agents would be instructed to ensure that passengers travelling are well aware that their information will be shared with the U.S. It is very important, first and foremost, that passengers have a good appreciation and understanding of what the result would be of Bill C-42.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, I am interested in the amendment that deals with the review. She talked about the two-year review and then the subsequent five-year review. Reviewing legislation is good. We have seen that happen in a number of cases, although sometimes when the time comes to do the review it does not get done.

How will this review happen? This is a process where information would be given to the Americans. What exactly will we be reviewing in two years? Will we be reviewing how much information we sent the Americans? We certainly will not be able to review what they did with the information.

Surely the member does not expect the Americans to send us a report card, although maybe she does. After two years, we will ask the Americans to please send us a report on how they dealt with the information we sent them. Clearly, we will want to know what happened to the information that we sent them. We will not get any information from the Americans about that no matter how many times we ask.

All a review would tell us, in my opinion, is what we already know or should know, which is how much information we are sending to the U.S. but not what the final result is of having provided the information. That is what I am having some trouble getting my head around in this case, but maybe the member could give me some further information on that amendment and the others.

[Judy Foote, Liberal, Random—Burin—St. George's, NL]

Mr. Speaker, clearly there will be an onus on the U.S. government to work with the Canadian government. Canada will acknowledge that it is prepared to share the information with it but recognizing as well that Canadians have some concerns. Yes, we expect that the government will be able to do a review of the information that has been shared, how that information has been handled and the impact of sharing that information on Canadians.

We expect to be able to do that in the first two years. If it is not working, if we find there has been an abuse of that sharing of information and if the U.S. has not lived up to its end of the bargain, then obviously that is an issue that we will have to deal with. However, at the end of the first two years we will know whether we need to make further adjustments to a bill like Bill C-42.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I am pleased to speak to Bill C-42 and to review some of the concerns that we have raised time and time again.

I am afraid I do not share the optimism of the member for Random—Burin—St. George's in terms of the expectations she has for U.S. participation in making changes to this and in reviewing its procedures. There have been no discussions about these procedures, no safeguards have been put in place and no limitations whatsoever on the kind of information that the American government, its agencies or the foreign governments to which it will be passed on, would obtain from this process.

The legislation is very simple. It is an agreement to release information. It causes us very grave concerns. We have not seen the agreement itself but we have seen are other agreements. The European Union has an agreement on this. The United States and the European Union have agreed that all this information, called PNR, the passenger name record, that the travel agencies or airlines have will be passed on to the American homeland security.

The information that is collected can be retained for up to 40 years and it may be forwarded to the security services of a third party nation without the consent or notification to the other signatory, and that includes the individual who is the subject of this. People may know what information about them is being held by the United States and may not correct that information. In the case of the EU agreement with the United States, the Americans can amend that agreement unilaterally any time they wish by themselves without the consent of the other party.

That is a pretty devastating amount of invasion of privacy of Canadians who, in this case, are not even going to the United States. They may be travelling to Cuba, Mexico or on an international flight from one part of Canada to Europe or South America which happens to over-fly U.S. airspace.

This is rather disturbing. In fact, the Canadian Privacy Commissioner, Jennifer Stoddart, told the committee that Bill C-42 raises important sovereignty issues. She said that she was not questioning the American government's authority to implement its own program. International law is clear that a state's sovereignty extends to its own airspace.

However, the Privacy Commissioner said that the Canadian government had a duty to protect the privacy and civil rights of its citizens. That is not what is happening here at all. There are, in fact, very few or no limitations on the protection of privacy here.

Nathalie Des Rosiers, general counsel for the Canadian Civil Liberties Association, spoke to the committee as well. She said that the bill did not really meet the protection of privacy in the Canadian Charter of Rights and Freedoms because it had no limitations.

This is a mystery bill. There is no requirement in either Bill C-42 or in the regulations for the United States to safeguard and protect the information from other people. There is no safeguard that the TSA will not pass information on to other government agencies. In fact, it has been suggested that the information will be available to some 16 United States government agencies.

There is no safeguard that the U.S. will not pass the information on to third countries, and, in fact, it has the right to do that. As we know, this has been a particularly difficult issue for some Canadians given what happened to some Canadian citizens, such as Maher Arar who was tortured as a result of information being passed on by the Americans which they had obtained in part from Canada.

This whole no-fly list, as has been mentioned here, is part of the issue. One of the issues around the United States homeland security no-fly list is that it is under constitutional challenge in the United States.

The concerns the Americans have are similar to the concerns we have. In the United States, for example, Americans are not allowed to know whether they are on the no-fly list, how to get off the list or what evidence their presence on the list is based. This is a concern we are having here.

We need to understand how this process works. If a passenger will be overflying the United States, the airline must advise the American homeland security as to what information it has on its passenger record. The Americans will then do data mining of their own and they will issue a result to the travel agency. The instructions will be one of the following: issue a boarding pass, deny permission to travel or issue an enhanced screening requirement. This regulation will give the United States access to a whole subset of information on air passengers who are not even entering the United States.

This information can be shared with at least 16 United States agencies and foreign governments and the government of a foreign country, in this case the United States, has a de facto right to decide who gets to travel to and from Canada since the vast majority of Canadian flights to and from Europe, the Caribbean and South America overfly American airspace. That is not true for all overseas flights, obviously, but for the majority it is.

We have a serious concern about the bill, so much so that we are voting against it. I am surprised to hear similar concerns to ours being raised by members of the Liberal Party, including the previous speaker. Again and again the Liberals raise the same issues and say that they are concerned about them and yet they seem to be quite happy to support this legislation. I do not understand that.

There are a lot of concerns. People have mentioned the success in getting the exemption on the issue of overflight when airlines fly from one Canadian city to another. If an airline is flying from Vancouver to Toronto and is overflying the U.S., there is an exemption. I wonder why the Americans were so happy to grant that exemption in this arrangement. I suspect it has something to do with the perimeter security agreement. I suspect that Canada in the perimeter security agreement has already given up the right to information on who is flying on any plane in Canada. Even the information on someone flying from Toronto to Ottawa may already be available under the perimeter security agreement. Therefore, it may be that this exemption is merely just a sop to public opinion.

The reality of this legislation is that we are now entering into a world of mystery. I am not normally into conspiracy theories but we are entering into a world of mystery that the homeland security no-fly list, for example, has been called Kafkaesque in reference to a very famous author who wrote about a mystery world where one does not know what is going on, one does not know why one is being charged with something, one does not know why one is being held, one does not know why one is being treated in a certain way by authorities. That is the essence of the Kafkaesque world.

We are getting there with this kind of agreement because, if this legislation passes, information on us will be available to the American authorities, some 16 agencies and whatever government they want to give them to. They can make decisions on our future or our situation based on whatever they think of the information that happens to be there and we may have consequences.

I do not really have time to go into the story, but I was in Russia one time, and maybe one of my colleagues will ask me to tell a bit more, but one never knows what happens to this information. One never knows whether there are consequences or not. One never knows whether one is the subject of some kind of oppression because of information that has been made available. That is the essence, the difficulty and the problem I have with this legislation.

I believe my time is nearing an end and in my 10 minutes I would be happy to respond to any questions or comments that my colleagues on both sides of the House may have.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, I was completely enthralled by the speech of the hon. member for St. John's East. Instead of asking a direct question, I would like him to elaborate a bit more on his thesis of why this bill is so bad for Canadians.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, that will give me a chance to tell the story of my visit to Russia in 1981.

I met an individual who that very day had been interviewed by the KGB because she had been seen in a place where foreigners would visit. I asked her what the consequences of being interviewed by the KGB were. Her answer was very interesting. She said, “One never knows”.

What we do know is that they wrote down the fact that there was a meeting, why there was an interview, everything that was said, and they put it in a file somewhere. That information could affect one's future when applying for a job, or trying to travel to a foreign country. This was 1981, before the wall came down.

Her answer stuck with me ever since, “One never knows”. One never knows what the consequences are of information that a secret agency might have on a person. That is why people like me and other Canadians value our privacy, freedom, and our own security. We consider it wrong that foreign government agencies have information that they have no need for without any protection, safeguard, or any ability to correct that information.

That's the essential reason why this legislation ought to be opposed. The agreements are not transparent, the information is not protected, and there are no safeguards as to what the information may be used for. These are the concerns we have and continue to have. This is why we oppose this bill.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Mr. Speaker, the government has bamboozled the Bloc and the Liberals into supporting this bill on the basis that it was needed for security and that the Americans demanded it by December 31 or the 100 flights a day from Canada would stop.

I always thought that the reason for the Canadian and the American no-fly lists was to keep the people who were a potential security risk off the planes. With all the security and screening processes we have at the airports, and the fact that we have a no-fly list, which is supposed to keep all the bad guys off, this would mean that we are giving information about the good guys. That is what we are doing here. We are providing information about the good guys.

The fact that this was so important that we were going to shut down Canadian aviation if we did not pass this bill has all proved to be nothing but an apparition. Today is March 1 and nobody is talking about shutting down flights.

It is time the Canadian government went back to the Americans to say, “If we are going to give you information on 100 flights a day, then we want reciprocity with information on your 2,000 flights a day that are flying over Canada”, and then see what they have to say about that.

[Jack Harris, NDP, St. John's East, NL]

Mr. Speaker, I had hoped that we had passed the high-water mark of paranoia. Understandably, the Americans were concerned about what happened September 11, 2001, but that was not a result of problems that this agreement is designed to solve. The people who did this nasty business in the United States in 2001 at the World Trade Centre did not fly from other countries, they were inside America. They were not coming from foreign states to do this nor over-flying the country. I think an awful lot of work has been done since then to be more vigilant, there is no question about that.

I hope that we are at the high-water mark and that the invasion of privacy envisaged by both this agreement and by the perimeter agreement are not going to be implemented. We oppose them. We think they are going too far and we will vote accordingly when the time comes.

[Peter Stoffer, NDP, Sackville—Eastern Shore, NS]

Mr. Speaker, I rise today on behalf of our party, proud to speak against Bill C-42 and what it would mean to Canadians right across this country.

I may or may not be the only member of Parliament who worked 18.5 years in the airline industry, but I can assure members that if they think for a second, with regard to flights from Canada down south, to Mexico, the Caribbean, or elsewhere, that fly over American airspace or American waters, that those flights would have been cancelled if we did not give the United States credit card numbers, health records, or what hotels we were staying at, they are delusional.

Would tit for tat mean that we are going to stop all those flights from the U.S. to Europe that fly over Canadian airspace as of December 31? That would be utter nonsense. It would hurt both economies. It is something both countries do not want to do.

It is nonsense for the Liberals and the Bloc to fall into this delusional state that if we do not give them all this information, it is going to hurt our airline industry. It is false; it is a great big lie. I would hope that the Liberals, the Bloc, and the Conservative Party of Canada would use their ten percenters or householders in their individual ridings to let Canadians, their constituents, know what they are about to do with the Bill C-42.

I was recently on vacation in a place where I met many Americans. I spoke with many Americans about this, over dinner and over a few drinks. They were surprised that the United States government is actually asking the Canadian government for this type of information. These folks were from Iowa, Kentucky, L.A., Florida, and New York.

Not one of them, whether they be admitted Republicans or Democrats, or have no interest in politics at all, wanted to know if I flew from Halifax to, say, Cuba or Jamaica. Not one of them wanted to know what hotel I was staying at. Not one of them wanted to know my health records. Not one of them wanted to know my credit card information. Not one of them wanted to know anything else. They could not care less. What they care about is people getting into their country who want to do bad things to them. That is what they care about. And we would agree with them.

Bill C-42 is the capitulation to our friends, the Americans. Friends should tell friends when they are doing something wrong. Instead of capitulating and agreeing, and fast-tracking Bill C-42, we should take a step back, go back to the negotiation table and tell the Americans they are wrong. We would be wrong in this country if we accepted the parameters of this particular negotiation.

Once Canadians find out, if this goes through the way that the Conservatives, the Liberals and the Bloc want it to go through, many Canadians may wake up the next day and find themselves on no-fly lists. They may find themselves on all kinds of lists somewhere that they know nothing about. They will show up at an airport and be told they cannot go somewhere because somebody, somewhere, in the United States, either through error or through deliberate action, may have put them on the list and made sure that they could not fly, for whatever reason, even if they have no intention of going anywhere near the United States.

I know that the United States these days, in some circles, is called the excited states. There is a reason for that. The U.S. is very nervous about a variety of things. But when a country is nervous or when it makes laws without really thinking about the clear decisions of what it is about to do, it is up to its closest friends to advise that country to sit down and tell it what it is doing is wrong.

There are ways of protecting the United States and Canada and, for that matter, the entire North American continent, without intruding into the private lives of Canadian citizens and, for that matter, American citizens as well. I worked in the airline industry for over 18.5 years and I can tell members that many of our customers came from the United States and points beyond. Without them, many of the airlines that we worked for back in those days probably could not have survived. The same applies to the United States.

Can members imagine all those winter vacationers from Ontario, Quebec and Nova Scotia, for example, who go to Florida on a regular basis? If we did not succumb to this and we just told the Americans, “We're not going to do what you want us to do”, are they telling me that the State of Florida is going to accept the fact that thousands upon thousands of Canadians would no longer be able to visit the State of Florida during snowbird season? Is that what the Government of Canada is telling us? Of course not. The reality is, it is simply wrong.