Transport Committee on Nov. 30th, 2010

[John McCallum, Liberal, Markham—Unionville, ON]

I suppose, Professor Salter, I'm asking you to agree or disagree with Mr. Hasbrouck, because it seems that we're almost wasting our time in trying to protect privacy if this very extensive information goes automatically to the U.S. and is accessible by the Department of Homeland Security. They seem to be getting even more than they'd be getting under this legislation already.

[Dr. Mark Salter]

But they would be getting the same information that they get under this legislation, and it would be done directly rather than indirectly. I think the argument you could make would be that this legislation automates the transfer of the data directly to the U.S., and so removes any number of legal or procedural obstacles that accessing the data through the GDS or through Sabre or Galileo would present, thus making that invasion of privacy much easier.

[The Chair, Conservative, Merv Tweed]

Thank you very much.

Go ahead, Monsieur Guimond.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Thank you, Mr. Chair.

My first question is to you, Mr. Salter.

But I first want to say, just like my colleague, Mr. McCallum, that this is a very sensitive matter because we have at play both economic interests and human rights issues. In other bills, things are not as clear-cut.

Mr. Salter, the U.S. seem to be determined to go ahead with their demands. You acknowledge that Canada is simply responding to an American requirement. What should we say to airlines such as Air Transat? Perhaps Mr. Lennox, from the Pearson airport, can also tell us what he thinks. What can we say to a carrier such as Air Transat when they tell us they will not be able to serve Central Canada or offer flights from Winnipeg, Calgary and Edmonton to Cancun and other southern destinations?

During the weekend, I thought about another aspect of the problem while talking to someone. Large carriers could say that they will bypass U.S. airspace and that they will take the Atlantic or Pacific air route to go south. However, this is not a Cessna taking off, it is an Airbus 380 or some other large chartered aircraft with passengers piled up like sardines. At takeoff and landing, they have to fly through U.S. airspace. What are we going to say to these carriers?

[Dr. Mark Salter]

Thank you for this question.

I guess we could answer that one of the responsibilities of the Government of Canada is to fight for the economic interests and the safety of Canadians.

We can answer the U.S. by saying that we have a different approach of law and risk as well as a different understanding of national security, that we can exchange information that is required for trade, flights and things like the secure flight program, but that we reject their overly rigorous and ambitious demands.

Let me state it in English to make sure I have been clear.

Canada may push back against the United States and say that we will offer them the minimal information required to meet their security demands while having a different sense of risk and a different understanding of national security.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

What exactly is the minimal information you are talking about?

[Dr. Mark Salter]

Personally, I think it is the API data.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

What do you mean by "API data"?

[Dr. Mark Salter]

It is the Advance Passenger Information, which only includes the name, the date of birth and the sex of the passenger. It also includes the record locator because the U.S. Secure Flight Program uses an automated system that compares this information to the contents of their database.

I fully agree with our American colleague, Mr. Hasbrouck, that this extensive U.S. list is causing major problems. I am also sensitive to the trade requirement. I think a balance should be sought by sending this minimal information to the United States.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Does Mr. Hasbrouck have access to our interpretation services?

[Edward Hasbrouck]

Yes, I have.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Last week, we met representatives of rights and freedoms organizations. They told us the information would be shared by 16 U.S. agencies. Can you confirm that? We were also told that the information sent to the United States would not necessarily be kept in one place and that 16 other groups would be able to use it.

[Edward Hasbrouck]

There is no legal constraint, once that data reaches the U.S., on what other agencies within the government, what other foreign governments in third countries, or what commercial entities it could be shared with.

Perhaps I might bring in a perspective. I've been following this debate, and it is not happening only in Canada. For example, I testified at similar hearings before the European Parliament earlier this year, and I think part of the answer to what can Canada do, which has been raised in discussions by the European Parliament, is that if this data is to be transferred, there should be enforceable guarantees as to what happens to it in the U.S. There should be constraints on both how the data can be used and to whom it can be transferred, and there should be enforceable rights of judicial redress.

Given that it does not exist in current U.S. law, one way for Canada to pursue this issue would be to not simply and unilaterally amend your laws to comply with non-negotiable demands by the U.S. but to enter into genuine negotiations for a binding international treaty with its own self-enforcing redress provisions. That's a possible way to pursue this issue.

[The Chair, Conservative, Merv Tweed]

Thank you very much. Merci.

Go ahead, Mr. Bevington.

[Dennis Bevington, NDP, Western Arctic, NT]

I want to take that a little bit further, because we have to deal with this law today and in this month. Perhaps there's some sense that we should look at an end date for this law so that we can accomplish the negotiation, or put this government up to carrying on a negotiation, with the United States to effect some kind of treaty in that regard. That may be one way to work around this situation.

I'll open it up to Mr. Salter to answer that.

[Dr. Mark Salter]

I think that Mr. Hasbrouck points rightly to the EU negotiations with America on PNR data, and then the EU-Canada negotiations. Canada and the EU managed to have an international treaty on the exchange of PNR data that was praised by data and privacy authorities precisely because it limited the use and anonymized the data, which meant you took the name off from the records. You could still use the information for the creation of profiling, but you couldn't use it for individuals. It was also praised because the data were disposed of.

I think that that's definitely a possibility.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Hasbrouck, would you comment?

[Edward Hasbrouck]

Yes, I would definitely concur in that.

I think one of the advantages to treaty negotiations is that a binding treaty would have to be ratified by the U.S. Senate. The unfortunate fact is that because these matters have been undertaken extrajudicially by the Department of Homeland Security, we have never, even as U.S. citizens and voters here, had the opportunity to be heard or to see a Congressional vote on these issues. I think moving this into the realm of negotiations for a binding treaty would also be moving the debate in the U.S. out of the realm of the internal, secret, standardless, decision-making of the Department of Homeland Security and back into a more appropriate realm here in the States, and that would be a very good thing.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Hasbrouck, I didn't really get an answer to this question from other witnesses: when it comes to U.S. laws and regulations on sharing information with other countries on overflight, what does the U.S. law say?

[Edward Hasbrouck]

U.S. law says nothing. They can do anything they want.

[Dennis Bevington, NDP, Western Arctic, NT]

Are you saying airlines are free to share any information that they have with Canadian authorities?

[Edward Hasbrouck]

That's correct. There is no general privacy law affecting the commercial sector, travel agencies, or airline reservations systems in the U.S. They can use the data for any purpose. They can sell it. They can share it around the world. They don't have to tell you what they're doing and they don't have to get any permission. Once you allow data to be transferred for any reason to anybody in the U.S., you've let the cat out of the bag. It's completely unregulated.

[Dennis Bevington, NDP, Western Arctic, NT]

This is again just a general question. Would you think that there's a responsibility here for the government to provide some kind of redress system within this law for passengers who are impacted by the sharing of this information with another country? I'll open it up to everyone.

[Dr. Mark Salter]

That brings up the question of sovereignty perfectly, because there is no way for Canada to require other countries to have a redress mechanism for our citizens. Our ability to provide redress stops at our border. One can think of the case of Maher Arar in this regard. He remains on the American no-fly list despite repeated attempts by the Canadian government to get him off that list in the face of reports by the government.

I'll let my colleagues speak to that.

[Ihsaan Gardee]

I would echo Professor Salter's concern about the lack of redress. As he rightly pointed out, if this bill must pass, it is in this area that we should be looking to work with our EU partners to try to negotiate robust and accessible redress mechanisms for Canadians who are prevented from flying as a result of secure flight.