Passenger Protect Program (No-Fly List)

Background

The Passenger Protect program – better known as the no-fly list – came into effect June 18, 2007, for flights within Canada, and for international flights to and from Canada. This program prevents people who have been deemed an immediate threat to aviation security from boarding a flight from Canada or boarding an aircraft destined to Canada.

The Office of the Privacy Commissioner of Canada (OPC) has concerns that such a list could have profound implications for the privacy rights and civil liberties of the traveling public. 

When it was first announced by Transport Canada on August 5, 2005, the Privacy Commissioner raised concerns that the list could be a serious incursion into the human rights of travelers in Canada, including the right of privacy and right of freedom of movement.  These concerns remain and are widely shared by many working in the privacy field.

While we do not question the desire to make air travel more secure, it remains to be seen whether a list of this kind will in fact make air travel more secure. Transport Canada has not provided studies or evidence to show the effectiveness of no-fly lists. Despite repeated requests that such evidence be produced, the necessity and effectiveness of such a measure have yet to be demonstrated.

Canadians need to keep in mind that we are not talking about known terrorists that law enforcement or national security agencies officials are trying to apprehend, we are talking about people who are suspected of being a threat to aviation security.

Privacy concerns

Transport Canada officials have been working cooperatively with the OPC. Transport Canada has submitted a Privacy Impact Assessment  to our Office, and has responded to a list of questions/concerns raised by the Privacy Commissioner.  We have made a number of recommendations to help mitigate privacy risks and influenced the way the program was implemented.  However, having a dialogue with Transport Canada about how to make the no-fly list more privacy sensitive does not mean the OPC supports or endorses this measure, nor does it mean that we are determining how the program will work.  

Indeed, we remain concerned about the program as a whole and risks that appear beyond the control of Transport Canada, including the following:

• Will the list be shared with foreign governments? We remember situations like the case of Maher Arar and the role that information sharing played in his deportation to Syria. Being placed on the list could have serious repercussions for individuals, and although there are Canadian regulations against sharing the information with unauthorized persons, the list will be held by air carriers in foreign countries. In such cases, the information falls under the jurisdiction of the country in which it is held and it can be required to be shared with the foreign government – regardless of Canadian safeguards to the contrary.
• How will passengers be advised that they are on the list? Will they be informed privately? Being told an hour before your flight is scheduled to depart can be more than inconvenient – it can be embarrassing if handled in a very public manner and even damaging to one’s reputation if singled out in front of professional contacts, acquaintances, etc.
• If on the list erroneously, how will people get their names removed? Although an Office of Reconsideration has been set up by Transport Canada, operating procedures are still being worked out. It is not clear at this point whether these procedures will be fair, transparent or accessible to individuals. Further, the process by which an individual can apply to have a listing decision reviewed is administrative – not enshrined in legislation or set out in the regulations.
• In a broader context, we are concerned with a trend towards identity vs. physical screening for security. Identity based screening relies on analysis of large amounts of personal information to assess an individual’s risk based on who they are.  This kind of system is only as reliable as the identity information that feeds it, leading to pressure for the collection and use of greater amounts and more privacy invasive types of information such as fingerprints and facial recognition.  Some security experts suggest that beefing up physical screening – including more thorough screening of luggage and cargo – would be a more effective approach to enhancing aviation security.

Next steps

The OPC will monitor the program as it unfolds, and we will continue our consultations with Transport Canada. The U.S. has a no-fly list and it has received a great deal of negative publicity as a result of infants and high profile individuals, including Senator Edward Kennedy, being refused access to an airplane. Some Canadian Members of Parliament have also raised concerns about people with identical names to them being on the list. We plan to analyse the Passenger Protect program once it has been operational for about a year, if not earlier, to determine whether privacy rights are being managed properly.

We are not convinced that the security benefits outweigh associated privacy risks.  The OPC will monitor the program and, within a year, plans to audit its personal information handling practices and review data on results of the program.

We believe Parliament itself should be satisfied that the Passenger Protect program is beneficial, well designed, and does not represent an unnecessary intrusion into the privacy of Canadians.

The Office of the Privacy Commissioner encourages all Canadians with concerns about this program to let our office know by contacting us at 1-800-282-1376 or 613-947-1698, or by contacting Transport Canada.

June 2007