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Ottawa, May 15, 2002 - The Privacy Commissioner of Canada, George Radwanski, today sent the following letter to the Honourable David Collenette, Minister of Transport, on the subject of Bill C-55:
Dear Minister Collenette:
On May 6, I requested your responses to a number of questions that would assist me in assessing the degree to which provisions of section 4.82 of your Bill C-55 meet the tests - necessity, effectiveness, proportionality and unavailability of less invasive alternatives - that should be applied to any proposal to limit the fundamental human right of privacy in pursuit of enhanced security.
Since the government has indicated that it intends to rush Bill C-55 to passage before Parliament rises for the summer in June, just weeks from now, time is of the essence. For this reason, I requested that you reply to the questions in my letter by last Friday, May 10. I have to date received no response from you.
I therefore feel obliged at this time to complete my assessment of the provisions that concern me and to provide you with my specific recommendations for some very limited but crucial amendments.
Let me begin by reiterating, as I have consistently stated since September 11, that I have no intention as Privacy Commissioner of seeking to stand in the way of necessary and justifiable measures to enhance security against terrorism, even if they entail some encroachment on privacy rights. But I have equally made clear - and I wish to repeat on this occasion - that I consider it my duty, as the Officer of Parliament mandated to oversee and defend the privacy rights of Canadians, to object vigourously to any proposed privacy intrusion that cannot be clearly justified.
I believe that Canadians are particularly entitled to vigilance against any attempt by the police or other agents of the state to use response to the tragic events of September 11 as a cover for the expansion of privacy-invasive powers for purposes not directly and demonstrably related to enhancing security against terrorism.
As I detailed in my statement of May 1, I am specifically concerned about two sets of provisions in section 4.82: those that permit the RCMP to use the personal information of all air travellers for the purpose of seeking out individuals who are subject to a warrant for any offence punishable by imprisonment for five years or more; and those that permit the RCMP and CSIS to retain the personal information of passengers for such purposes as searching for suspicious travel patterns.
Let me address these provisions in turn.
I am totally unpersuaded that empowering the RCMP to examine the personal information of air passengers in search of individuals wanted on outstanding warrants is necessary, likely to be sufficiently effective, proportional to the intrusion on privacy rights, or justifiable by a lack of alternatives within existing police methods. As well, this provision clearly goes far beyond Bill C-55's purported purposes of protecting aviation security and national security.
It appears to be, quite simply, a power grab by the police. More precisely, since the police in a free and democratic country like Canada cannot seize power for themselves, a provision like this could only go forward into law as an award of unnecessary and unjustified new powers to the police by naïve or indifferent political authorities. I respectfully call on you today, in the strongest possible terms, not to allow that to become the case.
The implications would be extraordinarily far-reaching.
In Canada, police forces cannot normally compel businesses to provide personal information about citizens unless they obtain a warrant. Section 4.82 would empower the RCMP, and CSIS, to obtain the personal information of all air travellers without a warrant.
In the process, section 4.82 would set the very dangerous precedent of infringing on the important privacy right of Canadians to anonymity with regard to the state. In Canada, it is well established that we are not required to identify ourselves to police unless we are being arrested or we are carrying out a licensed activity such as driving. Since we are required to identify ourselves to airlines as a condition of air travel and since section 4.82 would give the RCMP unrestricted access to the passenger information obtained by airlines, this would set the extraordinarily privacy-invasive precedent of effectively requiring compulsory self-identification to the police.
I am prepared, with some reluctance, to accept this as an exceptional measure that can be justified, in the wake of September 11, for the limited and specific purpose of aviation security against terrorism. But I can find no reason why the purpose of this de facto self-identification to the police should be extended to searching for individuals who are of interest to the state because they are the subject of warrants for any of the very wide range of Criminal Code offences punishable by imprisonment for five or more years.
The reasoning appears to simply be that once the RCMP has access to the personal information of all air travellers, it might as well be used to search for wanted persons. But this is function creep of the worst kind. It overlooks the fact that giving the police access to this information in the first place can only be justified as an exceptional measure to combat terrorism. Invoking this exceptional access, in turn, as a basis for broader uses of the information is more than a slippery slope for privacy rights - it is an abrupt cliff.
The very fact that an anti-terrorism measure is already being used to justify a broader extension of police powers far beyond anti-terrorism proves that the danger is not merely theoretical but very real.
If we accept the principle that air travellers within Canada can in effect be forced by law to identify themselves to police for scrutiny against lists of wanted suspects, then there is nothing to prevent the same logic from being applied in future to other modes of transportation. Particularly since this provision might well discourage wanted individuals from travelling by air, why not extend the same scrutiny to train travellers, bus passengers or anyone renting a car? Indeed, the precedent set by this provision could ultimately open the door to practices similar to those that exist in societies where police routinely board trains or establish roadblocks to check identification papers in search of anyone of interest to the state.
The place to draw the line in protecting privacy rights is right at the outset, at the first unjustifiable intrusion.
Therefore, I consider it necessary to formally advise you that, from the perspective of privacy rights, the provisions of section 4.82 pertaining to warrants are unacceptable and should be deleted in their entirety from this bill.
I accordingly recommend the following specific amendments:
4.82 (1): Delete the definition of "warrant".
4.82 (4): Delete "or the identification of persons for whom a warrant has been issued".
4.82 (11): Delete entirely this subsection, which states: "A person designated under subsection (2) may disclose information referred to in subsection (7) to any peace officer if the designated person has reason to believe that the information would assist in the execution of a warrant."
As you know, I have also expressed serious concern about another aspect of section 4.82: the provisions that empower the RCMP and CSIS to retain the personal information of selected air travellers for prolonged periods for the very broad and vague purposes of "transportation security" or "the investigation of 'threats to the security of Canada'".
My first concern is that subsection (14) would permit the personal information of all airline passengers to be kept by the RCMP and CSIS for up to seven days before being destroyed unless it is of further interest to the state. This appears to be an inordinately long time for the RCMP and CSIS to keep the personal information of great numbers of law-abiding citizens.
Unless you are able to demonstrate very clearly and specifically why this is necessary and what will be done with the information during this period, I recommend the following amendment:
4.82 (14): Delete "seven days" and replace with "48 hours" so that the subsection reads: "Information obtained under subsections (4) or (5), and any such information obtained under subsection (6), must be destroyed within 48 hours after it is provided or obtained, unless."
I am even more concerned about the latter part of subsection (14) which empowers the RCMP or CSIS to keep the personal information of any passenger indefinitely if it is "reasonably required for the purposes of transportation security or the investigation of 'threats to the security of Canada' referred to in paragraph (c) of that expression in section 2 of the Canadian Security Intelligence Service Act".
I have been given to understand that this is intended to allow the RCMP and CSIS to keep information in order to search for suspicious travel patterns. The difficulty is that what appears suspicious to an outside observer might be entirely innocent if all the facts were known. Consequently, there is reason for concern that large numbers of law-abiding Canadians might have RCMP or CSIS files opened on them labeling them as potential security risks - with no opportunity to find out about it or clear their names.
The language of subsection (14) is so broad that it is impossible to predict what criteria will be used in exercising this power and what the scale of its application will be.
Nevertheless, I am reluctant to object to this provision outright at this time, in view of the possibility that it might be of some genuine benefit in combating terrorism and enhancing security. At the very least, however, it is essential to facilitate immediate oversight over the use of such a sweeping new privacy-invasive power, to ensure that it is used with restraint, reasonably and on an appropriately limited scale.
Since the Privacy Commissioner of Canada already has oversight over the RCMP and CSIS, and since I and the appropriate members of my investigative and audit staff are security-cleared to access all personal information in the possession of both institutions, I recommend the following amendment:
4.82 (14): Add at the end "and a copy of this record must be provided within seven days to the Privacy Commissioner unless the Privacy Commissioner waives this requirement in writing to the Commissioner and/or the Director", so that this subsection reads in its entirety:
"Information provided under subsections (4) or (5), and any such information obtained under subsection (6), must be destroyed within 48 hours after it is provided or obtained, unless it is reasonably required for the purposes of transportation security or the investigation of 'threats to the security of Canada' referred to in paragraph ( c) of the definition of that expression in section 2 of the Canadian Security Intelligence Service Act, in which case a record must be prepared and kept setting out the reasons why the information is being retained and a copy of this record must be provided within seven days to the Privacy Commissioner of Canada unless the Privacy Commissioner waives this requirement in writing to the Commissioner and/or the Director."
I wish to emphasize that I have confined myself to recommending only very few and limited amendments that can in no way possibly have any adverse effect on the protection of aviation security or national security.
With the possible exception of the recommended change from seven days to 48 hours in subsection 14 - which is contingent on lack of justification as to why the longer period is necessary - I regard these amendments as absolutely essential if your Bill C-55 is to meet the minimum acceptable standard of respect for the fundamental privacy rights of all Canadians.
You have introduced legislation that on the whole strikes a reasonable balance between enhancing security and respecting privacy. Please do not, with these few unnecessary and insufficiently-considered provisions, turn it into an unprecedented and destructive assault by your government on the privacy rights of Canadians.
I look forward to your reply.
Privacy Commissioner of Canada
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Tel.: (613) 995-0103
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