Thank you, Mr. Chairman.
My name is Roch Tassé, and I am the national coordinator for the International Civil Liberties Monitoring Group. Thank you for having invited us to appear today.
First, I would like to mention that ICLMG shares all the concerns expressed by my colleague here from BCCLA with regard to the passenger protect program, especially that it was introduced through the back door without any adequate legislative basis, without any discussion in Parliament, and very likely in violation of section 7 of the charter.
However, I would like to focus my presentation today on the new U.S. secure flight program. While the Canadian passenger protect and the U.S. no-fly list that we've known so far have made life miserable for many airline passengers and unbearable for others, the incremental introduction of the U.S. secure flight program over the last few months raises even more dramatic concerns and could literally ground many Canadians and visitors to Canada who have no intention of ever travelling to the U.S.
The avowed aim of secure flight is to shift pre-departure watch list responsibilities from airline operators to the U.S. Transportation Security Administration and to remove the secret watch list from the hands of airline companies. Under the final rules of the international component of secure flight that were published in late October 2008, airlines are required to transmit all passenger information to the Department of Homeland Security and U.S. Customs and Border Protection 72 hours before departure for all flights to and from the U.S., as well as for all flights that overfly U.S. territory. This includes not only the basic API information such as name, gender, and date of birth, but all information contained in the reservation systems, known as PNR, passenger name records.
After running a risk assessment for each passenger using data-mining technology, the Department of Homeland Security in turn issues a boarding pass result back to the airline. The result instructs the airline to issue a boarding pass, deny permission to travel, or issue enhanced screening requirements.
These regulations give the U.S. access to a whole subset of information on air passengers who are not entering the U.S. but merely overflying its airspace. The program gives the government of a foreign country 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 and all the flights, of course, to Latin America and the Caribbean will overfly U.S. territory.
According to an internal document from public safety that was obtained by Canadian Press last December, the U.S. has provided Canada an exemption only for domestic flights that transit the airspace of continental U.S. between two Canadian airports or locations. Let me quote from page 9 of the document. This is Public Safety Canada saying this:
Canada will be subject to the Secure Flight Program by late 2009, although officials at Homeland Security have confirmed that they would consider granting an extension if there were assurances that Canada is pursuing a comparable program. There are a number of concerns that the Secure Flight Program poses for Canada. Secure flight affects both passengers and airlines. Airlines will be compelled to share personal data with the U.S. government—an act that is currently prohibited by the Personal Information Protection and Electronic Documents Act. It is possible that Canadians overflying the United States could be denied boarding based on U.S. No-Fly lists that were developed based on lower U.S. risk tolerance. There are also no guarantees how the U.S. will use the information it obtains from carriers overflying its territory.
The document goes on to recommend that, to address these concerns, Canada should develop a more robust program, known as the air passenger assessment system, that would meet the comparability test of secure flight.
This raises numerous concerns and questions with regard to the amount of information that will be collected on travellers, the standards and criteria to be applied to put a person on the list, and the number of people who will be added to the list to satisfy U.S. requirements. Also, the document makes no references whatsoever to the legislative basis required to implement such a program.
The secure flight program became active on January 27, 2009. When it is fully established, it will encompass more than 70 U.S. airlines and roughly 150 foreign airlines. As of March 31, 2009, the program had grown to include 74 U.S. airlines and 19 foreign airlines in some way. Of those, the secure flight program assumed watch list matching for five foreign airlines. Air Canada is most likely one of those five airlines already using secure flight.
In an e-mail sent to the Montreal Gazette last February, a spokesperson from Air Canada admitted for the first time that “For flights to and from the U.S. as well as flights overflying the U.S., we are obligated by law to enforce the U.S. no-fly list.”
So it would seem that Air Canada is already violating PIPEDA, Canada's privacy regime. There are grave consequences for Canada's sovereignty here. It creates a very real possibility that the charter rights of Canadians and their rights to privacy are being violated by the legislation of a foreign country without Canada being able to defend those rights and the rights of Canadians. Several cases have already been reported when Canadians have been denied boarding by the U.S. even for domestic flights in Canada. That includes the case of Abdullah Almalki, who, after having his name cleared in Canada by the Iacobucci inquiry, was denied boarding on an Air Canada flight between Toronto and Windsor last December. He was told by Air Canada that he was on the U.S. no-fly list.
In this case, not only did Air Canada violate PIPEDA, it did not even take into account that there is an exemption in the secure flight program for purely domestic flights that overfly U.S. airspace.
There are other concerns related to Canada's sovereignty. For example, half the cabinet of Evo Morales in Bolivia are persona non grata in the United States, so if Canada were to invite one of those ministers for a diplomatic meeting in Canada it is ultimately the U.S. that would decide if that minister has the right to come to Canada after being invited by the Canadian government. The same could apply to refugee claimants from Colombia, who, even if they were admitted by Canada, could be denied the possibility of leaving their country by the U.S.
Disclosure of personal information to the Department of Homeland Security on passengers travelling to certain destinations, particularly Cuba, could lead to very unpleasant consequences. For example, this information could be used to identify Canadian companies that do business with Cuba or penalize travellers who have visited Cuba by subsequently refusing them entry to the U.S. How will Canada ensure that the U.S. does not use the secure flight program to apply its Helms-Burton Act, which imposes penalties on foreign companies that do business with Cuba?
And what about the precedent created by the secure flight program? How would Canada, or the U.S. for that matter, react if the same measures were imposed by North Korea or less friendly countries? There are also serious concerns related to the huge number of passengers who are intercepted as false positive and have no redress mechanism, other than being told to change their names.
ICLMG has received testimony from several Canadians who have been intercepted as false positives on the U.S. list in Canadian airports and have been told by the Department of Homeland Security that the secure flight redress mechanism could not apply to them because the incident did not occur on U.S. territory?
Finally, the published regulations are extremely worrisome, both for what they state, as well as for what they fail to address. There is nothing outlining the applicable standards or how decisions will be made to issue these new travel credentials, nor are there any mechanisms for travellers to find out why they are denied permission to fly, and none of these decisions are subject to any due process or any judicial review.
As you can see, the secure flight program will have or already has had a very harmful impact on Canadian travellers and visitors to Canada. We call on you today to strongly and quickly oppose these measures. Canadians expect their governments to protect the sovereignty of their country and uphold their rights.
Thank you.