I want to thank the committee for inviting the Canadian Civil Liberties Association.
The association has been in existence since 1964 and has been in the service of civil liberties in Canada since that time. It has acquired broad experience with privacy issues.
I'm going to address four points in this presentation: the bill's constitutional vulnerability; its vulnerability from the standpoint of international law, the dangers it entails with regard to precedents in the field of privacy in Canada and, lastly, an invitation to go back to the drawing board to explore certain measures that we will be proposing.
I will give the rest of my presentation in English, and would be happy to answer questions in English or French. My colleague, Sukanya Pillay, will complete the question period.
First of all, in terms of the constitutional vulnerability of the bill, as you know, privacy is protected by the charter. Passengers may have diminished expectations of privacy when they go to an airport, but they don't have “no” expectations of privacy. Indeed, the question of the expectations of privacy of passengers with respect to their personal information is being considered by the Supreme Court, as we speak. In the Chehil case, CCLA is one of the intervenors.
So the question of the privacy of information of passengers is directly under the court right now, and in our view, it would be premature to move under the current bill without knowing the full extent to which it complies with the charter.
Certainly to the extent that there is an expectation of privacy protected by the charter, this bill would not meet a section 1 challenge, because it has no limitations. It does not adequately protect the problems that may arise with the disclosure of information, and so on. So the first point is that there is a constitutional vulnerability that should be looked at before we go too much further.
The second point is that it does not meet the international law standards that do allow exceptions. I have to remind you here that this is a bill that provides for general exemptions from PIPEDA. And in international law, again, in light of wanting to protect privacy, there is a possibility of exemptions, but—and in the brief that we submitted, we refer to the UN committee on this—it must not give unfettered discretion to the operator. It must be subject to some monitoring and it must be absolutely necessary. So in our view, not only is it vulnerable to constitutional law but also it does not have sufficient guarantees in international law to reassure Canadians.
And finally, our third point is that it's a very dangerous bill, not only because of the way in which it's drafted but also because it's a precedent for how it could be used in the future. Let me talk about what are the difficulties and the dangerous nature of this bill.
There is no requirement in Bill C-42 or in the regulations of the U.S. TSA for safeguards to protect the information. There's no safeguard that the TSA will not pass information to other government agencies, such as law enforcement or immigration. There is no safeguard that the TSA will not pass this information to third countries. And we know this has been a particularly difficult issue for some Canadians, Maher Arar being a case in point. There's no guarantee that the TSA will not use the information for profiling Canadians, to put them on their watchlist or the no-fly list.
I would mention to the committee that in the United States, the no-fly list is under constitutional review as we speak. It has been challenged because there are too many false positives arising. The process has been described as Kafkaesque, in the way it does not allow people to know whether they're on it, how to get off it, and what evidence is on it. So that's the danger. The danger is that Canadian passengers, Canadians, will be put at risk of being stuck somewhere with no possibility of flying back. There's no guarantee that an innocent Canadian could not be mistakenly placed on the list. There's no guarantee that innocent Canadians mistakenly placed on the list will not be prevented from flying or from being detained in the U.S. or elsewhere without due process.
It's a dangerous bill, because it gives the possibility of exemptions forever. There is no time-limited aspect to it and there are no restrictions to the number of countries to which it could be applied. I understand that the idea was that it would be applicable to the U.S. now, and that by regulations it could eventually be applied to other countries. That's very dangerous, because there's no process by which we can assess whether the privacy guarantees apply to this information. So in our view, it's dangerous as a model for moving forward on privacy.
Now, I'm sure the position will be that it's needed, that it's absolutely needed, otherwise Canadian airlines may be prevented from accessing U.S. airspace. In our view, if we're going to move to a regime of exemptions from PIPEDA, it should never be unlimited in a time fashion. It's possible to have a process of monitoring these exemptions so they are time limited and so that you keep the pressure on ensuring that the people using the information are under review.
What if, in two years, the TSA decides they want more personal information? What if, in two years, they have lesser guarantees about sharing the information with law enforcement, or they're not complying well with their own privacy legislation? What if the way in which the act has proceeded is found to be unconstitutional in the U.S.?
So our view is that a time limit on the process of exemption would go a long way toward reassuring us that we're not giving up our sovereignty and not giving up people's ability to have their privacy protected. We need a limitation to ensure there's some sort of monitoring about the way in which the situation is done. Also, we need some compensation for the people who will be caught in the Kafkaesque context of mistaken identity, who will suffer great damage if they are left without the possibility of return. So there must be some possibility of compensation for these people.
Finally, in our view, the way that the bill does not sufficiently capture the essence of the protection of privacy invites us to go back to do better homework on this. It's not necessary to proceed too quickly, since the matter is before the Supreme Court of Canada.
I will conclude by reading our last memo.
We recommend that Bill C-42 in its current form not be passed. It represents a violation of the right to privacy. It's not rationally connected and proportional to the objective of aviation security. It's just too dangerous.
We further recommend that any sharing of passenger information for overflights be subject to existing legal safeguards in the charter, including safeguards relating to the use, sharing, retention, redress, and access to information, and the correction of the provenance of any information used to match names to the watchlist in existence.