Pilot required to consent to open-ended collection and disclosure of personal information
PIPEDA Case Summary #2002-106
A commercial airline pilot complained when his employer asked him to sign an authorization form, required by the U.S. government, in order to take required twice-yearly training on aircraft simulators in the United States.
Summary of Investigation
The Canadian Aviation Regulations prescribe the safety rules for the airline industry, including the standards of training and certification of pilots, and airport security. Accordingly, pilots must receive training on aircraft simulators twice a year in order to maintain their professional certification. The complainant's employer has a contract with a flight simulator school in the United States, where its pilots who fly a particular aircraft usually go for their training.
As for airport security, commercial aviation pilots and airline personnel are required to have an Airport Restricted Area Access Clearance (ARAAC) certificate in order to be airside at 89 Canadian airports, i.e., working on the ground handling baggage or in an airplane cockpit. To receive the certificate, pilots undergo a background check involving fingerprint verification, a Canadian Security Intelligence Services check, a criminal record check, and since April 1, 2002, a check against the databank of lost or stolen passports, and a confirmation of the applicant's landed immigrant status, if applicable.
In response to the September 11, 2001 terrorist attacks, the United States passed legislation authorizing it to conduct security clearance checks. The U.S. government has instructed all U.S. flight simulator companies to have non-U.S. students sign the "Authorization for the Release of Information" form and forward the completed forms to the government. The form authorizes the U.S. Department of Justice to:
...obtain any information relevant to my requests for flight training from any relevant source...This information may include, but is not limited to, biographical, financial, law enforcement, and intelligence information.
I further authorize the U.S. Department of Justice to disclose any records or information...obtained in connection with my requests for training to: ...other individuals or entities potentially having information related to the request, including, but not limited to employers and training providers.
The Canadian federal government has expressed its concerns about this form to the U.S. government and has requested that the United States accept Canadian airport security screening criteria for the purpose of clearing Canadian commercial pilots for training at U.S.-based flight simulation schools.
When the complainant's employer presented its pilots with the form and asked that they sign it, the pilots' union initially urged members not to sign. Later, however, the union indicated that it was up to the individual pilot to decide whether or not to sign because it had negotiated an agreement with the airline, specifying that the decision to sign the form is voluntary and not a condition of employment. The agreement provides measures to safeguard the personal information of pilots who choose to sign the form and obligates the company to provide alternative training for pilots who decline. The agreement, however, is a temporary measure and contains an expiry date. The complainant refused to sign the form.
The airline initially secured an extension of the complainant's professional certification, which has since expired. The airline has not provided him with training at an alternative site, and without his certification, the complainant is not legally allowed to fly.
The airline has cited two issues that, in its view, make a resolution of this situation difficult, unless the United States accepts the Canadian airport security screening criteria as an equivalent. The first is logistics. Canadian Aviation Regulations stipulate that a pilot and co-pilot of an aircraft receive training simultaneously, and that an instructor and tester attend each training session. To send all four to a U.S. school requires two days of travel, training and testing. To send the same individuals to another site, the closest being in Europe, would require four days, doubling the time commitment. The airline argued that most employees prefer to be away from home for as short a time period as possible. If one person chooses not to sign the form while everyone else does, the airline must organize an approved training program for one person at an alternative site.
The second consideration is financial. It costs considerably less to send employees to the United States than to send them to Europe. Because of the increased time commitment, salary costs are doubled, and hotel and travel costs are significantly higher. The airline must also send a government inspector to the site once a year to certify that the training program meets Canadian training standards.
Issued December 19, 2002
Jurisdiction: As of January 1, 2001, the Personal Information Protection and Electronic Documents Act (the Act) applies to any federal work, undertaking, or business. The Commissioner had jurisdiction in this case because an airline is a federal work, undertaking, or business as defined in the Act.
Application: Section 5(3) states that an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.
The Commissioner objected strongly to the form, noting that it does not provide adequate information on what the purposes for the collection and disclosure of personal information are, nor does it place limits on the collection or disclosure. In sum, the form fails to meet fair information principles, which are the cornerstone of Canadian privacy legislation.
He then considered the issue of whether it was reasonable and appropriate for a Canadian airline to require its pilots to sign such a form or risk losing their job. While he allowed that the airline's reasons appeared reasonable on the surface, he concluded that they were not when considered in a broader context. Indeed, he noted that, in order to achieve its objective of providing required training at minimal cost and inconvenience, the airline would require its pilots to consent to collection and disclosure practices that are clearly in contravention of Canadian law. He pointed to the option the airline has to make alternate training arrangements. Yet, he noted, the airline chose not to do so, leaving the complainant with the prospect of losing his professional certification.
The Commissioner considered the negative consequence facing the complainant to be all the more unacceptable given that the real purpose of the form, namely, enhancing U.S. security, could be met without contravening Canadian law, and would have the benefit of enabling the airline to meet its own objectives. Specifically, he referred to the fact that Canadian pilots have already received security clearance. Given this, he did not think a reasonable person would find it appropriate to require these same pilots to then consent to unacceptable collection and disclosure practices at the request of a foreign government. The Commissioner further indicated that he thought most reasonable Canadians would find this encroachment on Canadian rights to be highly objectionable and would want the employer to provide options and the government to raise its concerns with the United States.
Therefore, having determined that the purposes for collecting and disclosing the complainant's personal information were entirely inappropriate, he found the airline in contravention of section 5(3) of the Act.
The Commissioner concluded that the complaint was well-founded.
The Commissioner recommended that the airline promptly make whatever arrangement necessary to ensure that the complainant receive his training without his privacy rights being violated.
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