The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.
The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.
For full contact information and a brief bio, please see David's profile.
The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.
This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.
Saturday, January 02, 2010
The timing on this couldn't be worse, in the aftermath of the Christmas day "underwear bomber" and unprecedented scrutiny of airline passengers.
The National Airlines Council of Canada is looking to the federal government to develop a "permanent solution" to the dilemma they are facing. Airlines that overfly the United States are required to send passenger information to the US TSA, but the airlines contend this violates Canadian privacy laws.
There are a number of circumstances under Canadian privacy laws where organizations require the collection of personal information that's not strictly necessary for the provision of goods or services. PIPEDA permits collection, use and disclosure where it is "required by law", but this is not a Canadian legal requirement.
From the Canadian Press:
Canadian airlines plead with government to solve U.S. security dilemma
By Jim Bronskill (CP) – 13 hours ago
OTTAWA — Canada's major airlines say they will be forced either to break privacy laws or to ignore new American air security rules unless the federal government comes up with a response to U.S. demands for passenger information.
The National Airlines Council of Canada, which represents the four largest Canadian carriers, is pleading with the government to find "a permanent solution" to the dilemma posed by the U.S. Secure Flight program.
The program would collect the name, gender and birth date of the approximately five million Canadians who fly through American airspace each year en route to destinations such as the Caribbean, Mexico and South America, even if their planes don't touch the ground in the States.
The U.S. Transportation Security Administration (TSA) would then vet the names against security watch lists.
Passengers whose names appear on the list could face anything from extra security screening to being barred from a flight. There are also concerns the personal data could be used for purposes unrelated to aviation security.
Washington is still reeling from an apparent attempt by a Nigerian man to blow up a jetliner over Michigan by igniting explosives sewn into his clothes.
The near-disaster has put renewed pressure on the TSA to ensure the skies are safe.
Canadian airlines have already begun passing along the personal information for flights that land in the United States.
But the requirement to hand over information for international flights over U.S. airspace was put on hold last February pending discussions with the governments of Canada, Mexico and some Caribbean countries.
In a November letter to Bill Baker, deputy minister of Public Safety, the National Airlines Council says Canadian carriers "are not aware of any progress" on the discussions and are concerned the TSA might suddenly enact the overflight provisions.
The council says this would force Canadian airlines to breach either Secure Flight or the Personal Information Protection and Electronic Documents Act, a federal privacy law that applies to Canadian companies.
An internal Public Safety document prepared last January agrees that sharing such information is "currently prohibited" under the privacy law.
Nicole Baer, a spokeswoman for the federal privacy commissioner, said it was too early to determine whether giving overflight data to the Americans would break Canadian privacy law.
The Public Safety document, obtained under the Access to Information Act, raises other concerns about Secure Flight.
"It is possible that Canadians overflying the United States could be denied boarding based on U.S. no-fly lists that were developed based on lower U.S. risk tolerance," says the January 2009 assessment.
"There are also no guarantees how the U.S. will use the information it obtains from carriers overflying its territory."
The United States has indicated it will waive the Secure Flight requirement to provide information for overflights if Canada creates an equivalent security screening system.
Last March, the airlines council told Public Safety Minister Peter Van Loan in a letter that application of U.S. Secure Flight rules in Canada "is a direct result of the failure to ensure" that Canada's no-fly list, known as Passenger Protect, is "an accepted part of a continental aviation security system."
The airlines council favours a homegrown system as long as carriers don't bear any new costs.
Canada has been working for years on a more comprehensive passenger screening system. The Public Safety Department had no immediate update on those plans.
Critics say extending the Secure Flight program to Canadian flights that merely pass over the U.S. would indeed be a threat to Canadian sovereignty.
The Ottawa-based International Civil Liberties Monitoring Group has argued that sprawling American watch lists could ensnare many Canadians - or activists, immigrants and refugees who want to fly to Canada from Latin America but must travel through American airspace to do so.
Washington says Secure Flight, which transfers the task of watch-list screening to the TSA from individual airlines, will reduce the number of false matches - a longstanding problem with common names - and clear up mistakes more quickly.
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