Appearances before Parliamentary Committees

Appearance before the House of Commons Standing Committee on Transport, Infrastructure and Communities on Bill C-42, An Act to amend the Aeronautics Act

November 18, 2010
Ottawa, Ontario

Opening Statement by Jennifer Stoddart
Privacy Commissioner of Canada

(Check against delivery)


Introduction

I would like to thank this Committee for inviting us to appear today to speak with you about Bill C-42, An Act to amend the Aeronautics Act.  I am joined today by Carman Baggaley, a Senior Policy Advisor in our Office and Daniel Caron, our legal counsel on this issue.

C-42 is a deceptively simple Bill. It only contains two sections and it only does one thing: it amends the Aeronautics Act to allow the operator of an aircraft that is scheduled to fly over a foreign state to provide certain personal information about the passengers on the flight to the foreign state when required to do so by the laws of that state. 

Aviation security has always been important, but for reasons that we all understand, it has become a priority in Canada and for countries around the world.

Since the terrorist attacks of 2001, and subsequent aviation related incidents, we have witnessed the introduction in Canada of numerous aviation security measures, including the Public Safety Act, the implementation of the Advanced Passenger Information/Passenger Name Record (API/PNR) program and the Passenger Protect Program. 

All of these measures give rise to privacy concerns.  They have resulted in the creation of massive government databases, the use of secretive no-fly lists, the increased scrutiny of travellers and airport workers and greater information sharing with foreign governments.

However, C-42 differs from the measures listed above in that it will not result in the introduction of any new domestic aviation security programs nor will it involve the collection of additional personal information by Canadian government agencies. 

Rather, it will allow American  or other authorities to collect personal information about travellers on flights to and from Canada that fly through American airspace and this, in turn, will allow American authorities to prevent individuals from flying to or from Canada. 

C-42 raises important sovereignty issues. We are not questioning the American government’s authority to implement its Secure Flight Program – international law is clear that a State’s sovereignty extends to its airspace.  However, the Canadian government has a duty to protect the privacy and civil rights of its citizens. Thus it’s important that we understand how Secure Flight may affect Canadian travellers.

Before commenting specifically on Secure Flight, I would like to remind the Committee that we have just had an exhaustive study of aviation security in Canada. The Major Inquiry into the Bombing of Air India Flight 182 devoted a whole volume to the subject.

The Inquiry made two general recommendations that I think are germane to the subject:

When selecting equipment and procedures for passenger screening, consideration should be given to individual rights, including privacy rights and the rights guaranteed under the Canadian Charter of Rights and Freedoms.

Given the importance of the “no search, no fly” rule and the potential impact of security measures on individual rights, Transport Canada and the Office of the Privacy Commissioner of Canada should collaborate to devise tools and criteria to evaluate proposed security measures.

The Major Report also identified gaps or vulnerabilities in aviation security and it recommended that efforts to enhance security should focus on three areas:

  • Air cargo;
  • Airport security, particularly access to the airside and restricted areas of airports; and
  • Fixed Base Operations and General Aviation – recreational and business aircraft that often operate in close proximity to major airports.

From our perspective it’s noteworthy that the Major Inquiry did not recommend greater focus on passenger screening or collecting even more information about travellers. In fact, the Report states that Canada’s no-fly program has not proven to be effective.

With that context, I would like to highlight some of the significant aspects of Secure Flight, the American no-fly program:

  • Air carriers, including Canadian carriers flying through American airspace  will be required to provide DHS not only with basic identifying information – name, date of birth and gender – but also, “if available”, additional information such as passport information and itinerary information.  Since this information will always be available for international flights from Canada flying over the U.S. airspace, that full information will always be provided;
  • Although the DHS PIA is somewhat unclear on this, our understanding is that information collected can be disclosed and used for purposes other than aviation security, such as law enforcement and immigration purposes; and
  • DHS will retain this information for as long as seven days after the journey has been completed even for individuals who are not a match; for seven years for potential matches and 99 years for confirmed matches;

One important difference between Secure Flight and the Canadian program is that under the US program the responsibility for checking passengers against the no-fly list rests with the Department of Homeland Security, not with the airlines as in Canada.

According to DHS, this will result in greater accuracy and therefore fewer false positives – for example, a similar name but the wrong person.  However, this means that DHS will collect personal information of Canadian travelers.

The Canadian Government attempted to have all Canadian overflights exempted from Secure Flight.  It was unsuccessful although overflights between two Canadian cities, e.g., Montreal and Halifax, which may pass through American airspace were exempted.

If C-42 is passed we believe that the Canadian government has an important role to play in working with the American government and Canadian airlines to minimize the impact of Secure Flight. It should:  

  • Ensure that the minimal amount of personal information is disclosed to American authorities – Secure Flight only requires three pieces of information. In particular, Transport Canada should work with the airlines to avoid excessive disclosures of personal information.  On this point, we note that the Aeronautics Act currently allows the Governor in Council to make regulations respecting the type or class of information that may be provided to the foreign state;
  • Question the retention periods of seven days for no match and seven years for potential matches to fulfill the commitment from the U.S. to collect personal information only as necessary for airline security.
  • Negotiate robust and accessible redress mechanisms with DHS for Canadians who are prevented from flying as a result of Secure Flight;
  • Make Canadians aware of the Secure Flight Program and our Passenger Protect Program to minimize the confusion that may result from the operation of the two programs.

Thank you for giving me an opportunity to comment on this legislation

I will be happy to take your questions.