Transport Committee on Nov. 18th, 2010

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

In this case, of course, it's the United States' sovereign airspace.

I had an opportunity to meet with Air Transat last night, and they're quite concerned about this particular bill. They advised me in no uncertain terms that if this bill was not passed, and they had to either take a big detour or not fly, they'd be out of business. In fact, the word that I think was used was “bankrupt”. They'd be bankrupt if they had to fly around and this bill was not passed by January 1.

Obviously, I don't think anybody in this room, including you, wants to see a situation where the Canadian airline industry is bankrupt. Is that fair to say?

[Jennifer Stoddart]

Yes, I think nobody wants to bankrupt Canadian airlines.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Great.

I understand the issue of protecting the privacy rights of Canadians. I am kind of interested, though, to note that, really, to fly into American airspace is not a right. To fly over it is not a right. It's a privilege, just like it's a privilege to get a driver's licence, for instance. The Supreme Court has made that decision very clear: it's a privilege to get a driver's licence, not a right to get a driver's licence. And I think it's very good of the United States to actually grant the request of this government, which is an exemption for some of those flights.

What I'd like to talk about a bit is my understanding of this system in the United States, because of course it is a system that is their sovereign right to decide upon. My understanding is that the information they will receive will be, by requirement, name, birthdate, and gender, as has been mentioned, but also other information that we're prepared to actually give an airline, any airline, a low-cost airline or whatever the airline is. They get a VISA number and what other information there is and provide that to the United States, if available. The administration will keep that information for seven days, but in fact nobody sees that except for a computer. My understanding is that for the first seven days, that analysis to see whether the name is linked with any other name is done by computer. I understand why, because of course there are tens of thousands of names that are going to go on that list every single day. But that's actually vetted by a computer system.

If the computer marks it as a positive or a possible positive, they will keep that information for seven years, if indeed it has a possible link to a terrorist or something like that. And if it is a terrorist, they'll keep it for 99 years, and I hope they keep it forever, bluntly, in my mind, because I don't want terrorists, obviously, to keep Canadians unsafe and cause the immense expense they have. As far as I'm concerned, those people who are going to be on the list for seven years or 99 years, they can keep that forever, because I want to be safe when I fly, because I fly a lot.

I just don't understand what the issue is. I understand that you're balancing privacy against the right of the United States to have us fly over, but I don't understand what you're suggesting as far as an option that is realistic.

[Jennifer Stoddart]

I don't think, honourable member, that I am trying to say to you to vote or not vote for this particular piece of legislation. If you look at my remarks, I'm commenting on the privacy impact of it and suggesting at the end that if it were passed, there are additional measures or positions the Canadian government would take.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Again, we're subject to the United States and we have a choice: provide your name and fly or else fly north, fly east, or fly west, but you're not going to fly over their space. Really, our option is at the behest and the complete discretion of the United States. Really, what we are doing with this bill is enacting something that we have to do if people want to fly.

[Jennifer Stoddart]

That's right: if they want to fly over the United States, these are the conditions.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Okay.

So really, we have no choice as far as putting forward this legislation is concerned. In your analysis, the reality is—

[Jennifer Stoddart]

Again, you're the members of Parliament. I'm only advising you on the privacy implications of this.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Okay. But if we are prepared to give our information to a store, as Ms. Brown said, to an employee who works at that shop—who can use that information as well, obviously.... In fact, anybody who works for that airline or anybody who works for a travel agency who has that information could share it with whoever they want. Here, we're suggesting that we're going to provide that information to the United States' administration, which is obviously doing this for one purpose and one purpose only, in my mind. I don't really think they care about me and they're not going to sell my information to a marketing company from whom I'm going to get all those telemarketing calls. They're doing it simply to keep everybody secure and safe.

You may not understand why this is keeping people safe, but I understand why they want to keep it for seven days. I'd want to keep it for seven days too, because when I fly, sometimes I go to Australia, and it takes two or three days to get there, and you don't even know what the person is doing.

They want to keep track of it so that they can do an analysis afterward, in case something happens.

You're nodding your head affirmatively.

[Jennifer Stoddart]

Well, I think that's a plausible explanation. The problem is, we don't know exactly why they're keeping it seven days. There could be, for example, a sliding scale.

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Doesn't it really make sense that they keep that information for seven days? First of all, there are going to be tens of thousands of pieces of information. It's going to be a lot of information. But if something happens in two days and they have erased it after 24 hours, they don't have it, so they don't know what's going on, or if something happens in three or four days, which is definitely plausible, as with what we've seen with the underwear bomber and the people who were involved in 9/11. We needed that information, and if we had that information, we could have gone back in time and made sure other people wouldn't be able to do exactly what they did, because we'd know where they were flying from. We would know where they're coming from and what they were doing.

I for one am very hopeful that this legislation passes, because I think it's very important to keep North America—our perimeter—and the citizens within that perimeter safe from these types of people.

[The Chair, Conservative, Merv Tweed]

I have to interrupt there.

Mr. Byrne.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you, Mr. Chair.

We seem to be having a ground-level discussion in a tug of war between privacy and the public good. I think we can all come to an agreement that there is a value to privacy and a value to being able to protect voluntary decisions versus involuntary decisions.

I'd like to ask the Privacy Commissioner, are there any specific amendments that you would suggest for Bill C-42 that are within the Canadian purview? We've noted that there are things that are in our control and there are things that are not in our control. The sovereign right of the U.S. to maintain integrity of its own airspace is not in our control.

One, for example, would be on the issue of passenger notification. I think we currently use the U.S. law. It's U.S. rules that would enable or require Canadian passengers to be notified that their information is being shared with the U.S. government. Should there be an amendment, or should there be consideration of having Bill C-42 amended to include a requirement that the Canadian airlines share this information with their passengers, or is that already available in some other context?

[Jennifer Stoddart]

I hadn't considered suggesting an amendment to this rather simple bill in which in fact only a few words are being changed to clarify the overflight issue. But I recommend, in one of the recommendations that I make, that the Canadian government specifically inform travellers so that there won't be shock and confusion at the airport in January, if this is passed. This is when the United States is going to implement secure flight rules for overflights: January 2011.

We suggest that there be an information campaign so that people are aware of their rights, aware of what's happening to their personal information and of such rights of redress as they may have—which are limited, we agree. I don't think this needs to be in an amendment to the law; it could possibly be in regulations, which I mentioned. That might be a way. The honourable member, Mr. Bevington, brought up a regulatory framework that I haven't had a chance to look at. But I would not think that the law itself is the ideal place to put this.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

There's nothing in Canadian law requiring the airlines, once they receive the information from their Canadian passengers and before they transmit it to the U.S., to notify the Canadian passengers that this information is indeed being transmitted. Is that correct?

[Jennifer Stoddart]

That would be the effect of this bill. It doesn't need consent and it does not need, as I understand it, notification per se to the passengers.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Well, to require consent would be to nullify the legislation in some respects, I think. But the notification aspect seems pretty consistent with the norms and values that Canadians hold dear on privacy issues, or at least when exceptions to privacy issues occur, and this seems to be fairly traced as an exception, which would require notification as to a voluntary..... Right now the circumstances are for voluntary notification, aren't they?

[Jennifer Stoddart]

Yes. But again I think it's recommended that the government inform passengers generally. I think airlines probably could in specific cases.

Are you asking whether it should be written into the law?

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

That's basically my question.

[Jennifer Stoddart]

Honestly, we haven't considered that question in detail. I would tend to say that this is the kind of thing that is usually left either to regulations or to government policy.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

That's understood. Would you endeavour—I ask you this through the chair—to provide some further analysis, after the committee stops today, as to what may be considered as potential amendments to Bill C-42 and do so with some haste, because there is a time sensitivity to this issue?

And for the issues that you don't necessarily propose to be amendments to the legislation itself, what are specific regulatory issues that must be addressed by the Department of Transport in drafting its regulations and requirements under this bill?

Could you convey that through the chair for the benefit of the committee? Again, haste is an issue here, because of course there is the deadline.

[Jennifer Stoddart]

Yes, we understand.

[Gerry Byrne, Liberal, Humber—St. Barbe—Baie Verte, NL]

Thank you. That would be very much appreciated.

[The Chair, Conservative, Merv Tweed]

Time is up.

Before I go to Mr. Mayes, I have one question. I think it's very general, and maybe you can't answer it.

Do you know or do you believe that Canadians even understand how much information they give up, no matter what transaction they partake in, particularly with an airline or when travelling to another country?

[Jennifer Stoddart]

No. I think one of the challenges of my office is to make Canadians aware of how much of their personal information is now going around the globe. It's given up every time they make a purchase, particularly in the online world. We have done consulting on various aspects of this. It's an ongoing educational and policy challenge for us to deal with the explosion in personal information and the fact that people are unaware of the implications of what they do now.