Bill C-7, the Public Safety Act, 2002
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Senate Standing Committee on Transport and Communications
March 18, 2004
Privacy Commissioner of Canada
(Check against delivery)
I very much appreciate this opportunity to appear before you this morning to comment on Bill C-7, the Public Safety Act.
I would like to be very clear at the outset. We object strongly to this Bill for two reasons: first, because the legislation is far too broad; and second, because it co-opts private sector organizations by pressing them into service in support of law enforcement activities.
Before I begin discussing these two concerns, I would like to take a moment to comment on the history of this legislation. I was trained as a historian so I hope you will forgive me if I suggest that looking at the past can be instructive.
A history marked by controversy
Bill C-7 originally began life as Bill C-42, which received first reading in November 2001, shortly after the terrorist attacks of September 11, 2001. Bill C-42 was one of three Bills that formed part of the Government's legislative response to the events of September 11. The other two — Bill C-36, the Anti-Terrorism Act, and Bill C-44, amending the Aeronautics Act — were passed in late 2001. C-42 was withdrawn in response to significant criticism, revised somewhat, and reappeared as Bill C-55. C-55 died on the Order Paper when Parliament prorogued in September 2002. Bill C-17, its successor, also died on the Order Paper. Now we have Bill C-7, the latest reincarnation.
Reminding ourselves of the history of Bill C-7 can be instructive for two reasons: first, C-42 was introduced shortly after the September 11 attacks when understandably we were all horrified by this new face of terrorism and the federal government felt that it needed to act decisively. Now, two and half years later, it is time to ask ourselves whether this legislation is still appropriate.
The second point I would make is that this is now the government's fourth attempt to have the Public Safety Act adopted by Parliament. Throughout this process many individuals and organizations and many Parliamentarians have expressed serious concerns about the implications of this legislation for privacy and human rights. This includes seven provincial information and privacy commissioners and the International Civil Liberties Monitoring Group. If this legislation has been subject to this much criticism and if it has taken this long to get to where we are to-day, then we would suggest that it is because the approach it represents is fundamentally flawed.
Provisions of concern
Bill C-7 amends some 23 existing Acts, and enacts a new statute to implement the Biological and Toxin Weapons Convention. This is a complex Bill, but I only propose to comment on two aspects of the Bill, the proposed amendments to the Aeronautics Act dealing with airline passenger information and a related amendment to the Personal Information Protection and Electronic Documents Act (PIPEDA).
Clause 5 of the Bill adds a new provision to the Aeronautics Act (Section 4.81) empowering the Minister of Transport or authorized departmental officers to require certain passenger information from air carriers and operators of aviation reservation systems.
The Bill would also add a new section (section 4.82) to the Aeronautics Act authorizing the Commissioner of the Royal Canadian Mounted Police (RCMP) and the Director of the Canadian Security Intelligence Service (CSIS) to require air carriers and operators of aviation reservation systems to provide them with information about passengers. This information would be used and disclosed for transportation safety and national security — purposes directly related to the legislation. As well, the information would be used for the enforcement of arrest warrants for offences punishable by five years or more of imprisonment — a purpose that has no direct connection to the legislation.
Finally, clause 98 amends PIPEDA to allow organizations to collect personal information, without consent, for the purposes of disclosing this information to government, law enforcement and national security agencies.
Serious privacy concerns
These provisions raise serious issues of privacy. The proposed amendment to PIPEDA, in effect, allows organizations to act as agents of the state by collecting personal information, without consent for the sole purpose of disclosing this information to government and law enforcement agencies. Under the existing provisions of PIPEDA, this information is collected with the knowledge and consent of the individual. This is fair. The proposed amendment that would allow collection without consent is not.
The amendments to the Aeronautics Act require air carriers and operators of reservations systems to turn over information about passengers to government officials, including officials of foreign governments, the RCMP and CSIS.
These provisions dangerously blur the line between the private sector and the state by enlisting businesses, not only in the fight against terrorism, but in identifying individuals against whom there may be outstanding warrants for a wide variety of offences.
This legislation establishes a new and troubling precedent. What's next? Are we going to start requiring car rental firms, couriers and telecommunication companies to collect information for the purpose of turning it over to law enforcement agencies?
This runs directly counter to the increased recognition of the importance of privacy as reflected in Parliament's decision to pass the Personal Information Protection and Electronic Documents Act. PIPEDA, over which my Office has oversight, prevents private sector organizations from collecting or disclosing personal information without consent. As a nation we have decided that it is important to put restrictions on how private sector companies collect, use and disclose our personal information.
Are we now prepared to stand back and allow law enforcement and national security agencies to demand that same information and use it in ways that are dramatically at odds with fair information principles?
Far beyond fighting terrorism
I can understand the need to defend ourselves against future terrorist attacks. And as we saw last week with the bombings in Spain, international terrorism is still a threat.
If Bill C-7 dealt only with anti-terrorism or transportation security I would still have reservations about this legislation, but my concerns would not be as great. However, the legislation goes beyond fighting terrorism and enhancing transportation safety.
Proposed subsection 4.82(4) allows the RCMP to match the passenger information it receives, even for flights entirely in Canada, with any information under its control. Subsection 4.82 (11) then empowers RCMP officers to notify local authorities or take appropriate steps to effect an arrest if, as a result of this data match, they identify anyone who is wanted on a warrant for any of a wide number of Criminal Code offences.
The list of offences in the proposed regulations is lengthy. It includes arson; it includes procuring; and it includes forgery of a credit card. These are offences that have no connection whatsoever with national security or transportation safety.
One of the basic fair information principles is that information collected for one purpose should be used for that purpose only. This legislation violates that principle. Air carriers collect personal information for the purpose of facilitating travel. This legislation will require them to turn that information over to law enforcement and national security agencies for purposes unrelated to facilitating travel, and largely unrelated even to air transportation.
The former Solicitor General of Canada, when he appeared before the House Committee studying Bill C-17 justified this provision by claiming, "I believe that Canadians would expect the RCMP to take action to help arrest dangerous fugitives in the interest of public safety. If we had the means to identify a dangerous wanted criminal or a terrorist from another country and apprehend them before they could harm someone else, shouldn't we make use of these tools?"
The former Solicitor General's comment suggests that it is acceptable to use any personal information collected by a government department or agency — income tax information, for example — for other purposes that have a public interest. This of course flies in the face of the underlying premise of the Privacy Act and more importantly, it flies in the face of our basic rights as citizens. That is why this argument establishes a very dangerous precedent, and so does this legislation.
We have followed the debates in both the House and Senate and we have reviewed the comments made by government officials when they appeared before the House committee that studied the Bill. We have yet to hear any compelling reason why the warrant provisions are needed and how we will be safer as a result of these provisions.
A dubious premise
The last point I would like to make is that this legislation, along with much of the anti-terrorism legislation that has been passed here and abroad, is based on the premise that the more information the state has about everyone, regardless of whether they have done anything to incur suspicion, the safer we will be.
I will leave it to this Committee to assess the merits of this assumption because it is a question that is outside my area of expertise. However, at this point in our history, it is not clear how reducing the freedoms of all individuals in society will prevent further threats to public safety whether by terrorists on a political mission or for that matter, sex offenders acting on uncontrolled impulses.
But I can tell you that as we collect more information about more individuals we are increasing that possibility that people will be subjected to unnecessary scrutiny, that more people will be singled out, and that more people will be treated unfairly.
The sections of the Bill that we have addressed leave us with great unease. It appears to be an unreflective and very quickly thought out response to a real and legitimate problem. In conclusion, we would urge the Committee members to look very critically at the bill, to provide the careful and thoughtful analysis that to date seems to have been absent.
Specifically, we urge the Senate to consider the following amendments.
The proposed amendment to PIPEDA should be dropped. While we understand the intent of the proposed amendment to PIPEDA, we are not convinced it is necessary. Certainly the broad wording causes us serious concerns: it applies to any organization subject to PIPEDA, not just air carriers; secondly, it does not limit the amount of information that can be collected without consent; and finally it does not place any limits on the sources of information.
With respect to the issue of warrants, our concerns could be addressed if the RCMP was limited to matching passenger information against databases specifically related to national security. As long as the RCMP is allowed to match this data against any information in its control it will inevitably turn up people wanted on warrants for offences unrelated to national security or transportations safety. If it is not a possible to limit data matching in this way, then we recommend that the legislation be amended to require that the regulations listing the offences be tabled with Parliament for its scrutiny. Furthermore, we recommend that list of offences for which information can be disclosed to execute a warrant be significantly reduced.
Finally, we would like to see a requirement that air carriers and operators of reservation systems be required to inform individuals that they routinely provide the government and law enforcement agencies with their personal information.
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