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Resolution of Canada’s Privacy Commissioners and Privacy Enforcement Officials
Passenger Protect Program – Canada’s Aviation No-fly List
June 28, 2007
WHEREAS:
- The Aeronautics Act does not provide a clear or adequate legislative
framework to support the Passenger Protect Program as it has been described
by Transport Canada in the Regulatory Impact Analysis Statement accompanying
the Identity Screening Regulation;
- Neither the Aeronautics Act nor any regulations passed under
it: define or circumscribe the creation, administration, and maintenance
of a no-fly list; provide for criteria for inclusion on a no-fly list;
set out the procedures governing a listing decision; or establish a right
to appeal a listing decision or seek redress for injuries associated
with a listing decision;
- The Privacy Act requires reform and offers no adequate protection
nor remedies to meet the privacy risks resulting from this type of initiatives;
- Transport Canada has not provided assurances that the Specified Person
Lists will not be shared with foreign governments or their agents;
- The Program involves the collection, use, and disclosure of excessive
as well as sensitive personal information of travelers by Transport Canada,
law enforcement, intelligence agencies, air carriers, and others;
- The Program creates real risk of harm to individuals as a result of
inaccurate or unreliable information, noting that the U.S. Department of
Homeland Security recently acknowledged a significant concern about the
quality of data and its underlying intelligence in U.S. lists;
- The Program involves the secretive use of this information
in arriving at determinations impacting on the legal rights
and interests of persons traveling by air within Canada
and abroad including their fundamental rights and freedoms;
- The Program contemplates the Department of Transport
establishing a “reconsideration” office that
cannot and will not provide for a legally enforceable right
of appeal, independent adjudication, the right to know
and answer the case to meet, a right to an oral hearing,
the right to written reasons, or the right to compensation
for out of pocket expenses or other losses or injuries;
- Transport Canada has indicated that air carriers operating
in Canada are using and may use the no-fly lists of other
unspecified countries, as well as the no-fly lists of the
United States of America;
- 10. Given the purpose of the no-fly list, which has an international
dimension, it is possible that the information could be compelled
under foreign law, despite Canadian privacy and other laws.
RECALLING THAT:
- Privacy is a fundamental human right related to and interdependent
with other fundamental human rights including freedom of
association and expression, the right to mobility, the right
to life, liberty, and security of the person and the right
not to be deprived thereof except in accordance with the
principles of fundamental justice; and
- In September 2003, the 25th International Conference of
Data Protection and Privacy Commissioners passed a “Resolution
concerning the Transfer of Passengers’ Data”,
calling on countries to pay full regard to data protection
principles in their responses to terrorism including those
involving the regular international transfer of personal
data;
- In September 2003, the 25th International Conference of
Data Protection and Privacy Commissioners also passed a “Resolution
on Data Protection and International Organizations”,
calling on international and supra-national bodies to provide
for strong privacy protections in their handling of personal
information and their establishment of standards, rules or
common practices which affect personal data handling within
the jurisdictions of their constituent members;
- In September 2005, the 27th International Conference of
Data Protection and Privacy Commissioners issued the “Montreux
Declaration” which recognized “the need in a
democratic society to efficiently fight terrorism…,
but reminding that this purpose can be achieved in the best
possible way when human rights and in particular dignity
are respected;
- In November 2006, the 28th International Conference of
Data Protection and Privacy Commissioners issued a “Closing
Communique” which emphasized that:
“…unseen, uncontrolled or excessive surveillance
activities also pose risks that go much further than just affecting
privacy. They can foster a climate of suspicion and undermine
trust. The collection and use of vast amounts of personal
information by public and private organizations leads to decisions
which directly influence peoples’ lives. By classifying
and profiling automatically or arbitrarily, they can stigmatize
in ways which create risks for individuals and affect their
access to services. There is particularly an increasing
risk of social exclusion.”
THE UNDERSIGNED CANADIAN PRIVACY COMMISIONERS AND
PRIVACY ENFORCEMENT OFFICIALS CALL ON:
- The Government of Canada and the Parliament of Canada to:
(a) Refer the Program to a Parliamentary committee for comprehensive
public scrutiny, debate and report to Parliament on:
- the justification for the Program, including any evidence
that the Program is reasonably likely to assist in the detection,
prevention or investigation of terrorist threats to aviation
security;
- the use of the no-fly lists of other countries on flights
originating in and passing through Canadian airports;
- the impact of no-fly lists on fundamental rights and
freedoms; and
- the adequacy of the current legal framework, any inadequacies
of the framework and recommendations respecting any inadequacies;
(b) Enact comprehensive legislative criteria, procedures
and powers to govern:
- the use of Canadian and foreign no-fly lists in Canada;
- the listing of persons on Canadian watch lists;
- Independent adjudication to ensure that individuals
have legal rights to appeal listing decisions, to be
removed form watch lists and to obtain compensation for
injuries flowing form listing decisions;
(c) Confer on an appropriate oversight body that is independent
of government the duty and function of regularly reviewing
and reporting on the use and operation of no-fly lists (including
the Program) in Canada, their capacity to promote public
safety, and their impact on fundamental rights and freedoms;
and
(d) Suspend the operations of the Program and the Identity
Screening Regulations, pending the completion of the foregoing
or, in the alternative, ensure that the Program functions
under strict ministerial scrutiny with regular public reports
to Parliament until such time as Parliament completes the
foregoing review and report.
- The International Civilian
Aviation Organization and the International Air Transport Association
to:
(a) Defend and advance privacy principles,
transparency and strong privacy protections in their establishment
of any standards, rules or common practices governing the screening
'of travelers using watch lists or other passenger assessment
programs which affect personal data handling within the jurisdictions
of their constituent members;
(b) Ensure that travelers are given timely written notice
of which no-fly lists are in operation on each airline or
air route, with the notice including at a minimum a clear
description of the purposes of any related collection, use
or disclosure of personal information, the contact information
for the government agencies with legal responsibility for
the creation and administration of the listing regime, and
information setting out the nature of and contact information
for available administrative and legal redress mechanisms;
and
(c) Include representation from the privacy and data protection
community.
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