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.

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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.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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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

Canadian airlines look to goverment to solve privacy dilemma 

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:

The Canadian Press: Canadian airlines plead with government to solve U.S. security dilemma

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.

Copyright © 2010 The Canadian Press. All rights reserved

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Friday, June 26, 2009

"Clear" may put customer information up for sale 

Clear, the for profit company that did pre-screening of travelers so they could breeze through security, recently went out of business. Now there's a suggestion that the personal information they've compiled may be put up for sale. According to the release (below), it would be to a company that would provide a similar business and would be approved by the Transportation Security Administration.

Out of business, Clear may sell customer data ITworld

by Robert McMillan

June 26, 2009, 08:18 AM — IDG News Service — Three days after ceasing operations, owners of the Clear airport security screening service acknowledged that their database of sensitive customer information may end up in someone else's hands, but only if it goes to a similar provider, authorized by the U.S. Transportation Security Administration.

Until this week, the Clear service had given customers a way to skip long security lines in certain airports. For a $199 annual fee, air travelers could be pre-screened for flight and then use Clear's security checkpoints instead of the TSA's. Clear was run by New York's Verified Identity Pass, which also shut down on Monday.

Customers had to provide personal information, including credit card numbers, fingerprints and iris scans in order to participate in the program. After Clear abruptly shut its doors -- it has not yet declared bankruptcy -- some worried that this data could fall into the wrong hands.

"They had your social security information, credit information, where you lived, employment history, fingerprint information," said Clear customer David Maynor, who is chief technical officer with Errata Security in Atlanta. "They should be the only ones who have access to that information."

Maynor wants Clear to delete his information, but that isn't happening, the company said in a note posted to its Web site Thursday.

Clear's IT partner, Lockheed Martin, is working with the company "to ensure an orderly shutdown as the program closes," Clear said. But in a section of the note entitled, "Will personally identifiable information be sold?" Clear acknowledged that it could be used by someone else, presumably if Clear's assets were sold. "If the information is not used for a Registered Traveler program, it will be deleted," Clear said.

Boasting more than 260,000 customers, Clear was the largest private company authorized to provide airport security services, under a TSA program called Registered Traveler. Other providers, who may now be interested in purchasing Clear's assets, include Flo and Preferred Traveler.

Until Clear's demise, Registered Traveler companies operated in about 20 airports nationwide. Once a traveller has registered with any one of these companies, he is given a travel card that can be used for security screening by any company in the Registered Traveler program.

Last year the TSA temporarily yanked Clear's Registered Traveler status after the company lost an unencrypted laptop containing data on 33,000 customers at San Francisco International Airport. A few days later, Clear was allowed back into the program after the laptop mysteriously reappeared and the TSA determined that Clear was properly encrypting data.

Although it appears to be retaining information on its central databases, Clear said it has erased PC hard drives at its airport screening kiosks, and it is wiping employee computers as well, using what it calls a "triple wipe process." This technique, used by the U.S. Department of Defense, is considered to be a reliable way of erasing data.

"Clear is communicating with TSA, airport and airline sponsors, and subcontractors, to ensure that the security of the information and systems is maintained throughout the closure process," the company said.

Customers will be notified via e-mail when their information is deleted.

That wasn't good enough for Maynor. "How about the opposite? Where if they sell my information, they send me an e-mail," he said.

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Thursday, April 09, 2009

If you want to fly, show us your body or we'll feel you up 

An interesting review of the increasing intrusiveness of airport security: The expanding invasion of the naked body scanners. - By William Saletan - Slate Magazine.

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Wednesday, April 30, 2008

Air Marshals denied boarding due to no-fly list 

I think I may need an "Ironic" tag for this one ...

The Washington Times reports that it is not uncommon that Air Marshals are denied boarding on aircraft because they are misidentified as terrorism suspects and other baddies. Hmm.

See: Air marshals grounded in list mix-ups - - Breaking News, Political News & National Security News - The Washington Times.

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Wednesday, January 09, 2008

The problem with do-not-fly lists? 

The problem with name-based do-not-fly lists? Five year olds who get detained because of their names: TSA searches, detains 5 year old because his name was on no-fly list - Boing Boing.

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Saturday, November 10, 2007

Commissioner questions no-fly list in inquiry testimony 

In testimony before Justice Major's Air India Inquiry, Privacy Commissioner Jennifer Stoddart questioned whether the "opaque" no fly list is effective. Justice Major's comments suggest he agrees. The Inquiry's mandate is to review, among other things, air travel security in Canada. See: Privacy watchdog questions 'opaque' federal no-fly list.

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Friday, August 10, 2007

US unveils more privacy-friendly no-fly list 

Apparently the American government is about to implement its latest version of the no-fly list, without data mining using commercial sources. It looks a lot like the Canadian "Passenger Protect" program:

Even Bruce Schneier thinks it shows common sense.

Feds offer simpler flight screening plan on Yahoo! News

By MICHAEL J. SNIFFEN, Associated Press Writer

Thu Aug 9, 6:34 PM ET

The government proposed a new version of its airline passenger screening program Thursday, stripped of the data mining that aroused privacy concerns and led Congress to block earlier versions.

It's been three years since the Sept. 11 Commission recommended and Congress ordered that the government take over from the airlines the job of comparing passenger lists with watch lists of known terrorist suspects to keep them off flights. Even this new version of the Secure Flight program is open for public comment and will be tested this fall before it can be implemented fully in 2008.

The third version of the program, once known as CAPPS II, drew positive reviews from privacy advocates and members of Congress who had objected to more elaborate earlier versions. Congress enacted legislation blocking earlier plans to collect private commercial data — like credit card records or travel histories — about all domestic air travelers in an effort to predict which ones might be terrorists.

The new plan would require passengers to give their full name when they make their reservations — either in person, by phone or online. They also will be asked if they are willing to provide their date of birth and gender at that time to reduce the chance of false positive matches with names on the watch lists.

"Finally, this appears to have a coherent, narrow and rational focus," said James Dempsey of the Center for Democracy and Technology, a privacy advocacy group. "This is a vast improvement over what we've seen before."

Even Democrats in Congress were cautiously positive.

"They've been slow to admit that minimizing invasions and breaches of Americans' privacy is part of their job," said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt. "We will evaluate these steps to see if they measure up."

House Homeland Security Chairman Bennie Thompson, D-Miss., said he hoped the administration would stay alert to privacy issues. "I am extremely disappointed it has taken three years and passage of several pieces of legislation to get us to step one."

Thompson added that he hoped it was a sign of foresight that the new plan was announced along with new screening arrangements for international travelers.

At a news conference at Reagan National Airport, Homeland Security Secretary Michael Chertoff also announced that starting six months from now airlines operating international flights will be required to send the government their passenger list data before the planes take off rather than afterward, as is now the case.

Earlier sharing of passenger information is designed to give U.S. authorities more time to identify terrorists like Richard Reid, who attempted to light a shoe bomb on a trans-Atlantic flight in December 2001, and keep them off planes.

"Now the airlines give us their manifests after the plane has left the ground and that is too late," Chertoff said.

The Homeland Security chief said he was unaware of any specific, credible threat against airlines. But based on recent car bomb attempts in Great Britain and public statements by terrorists, he repeated his view that "we are entering a period where the threat is somewhat heightened."

"Look at the history of al-Qaida," Chertoff said. "The airplane has been a consistent favorite target of theirs."

On the domestic side, transferring watch-list checks to Transportation Security Administration officers "should provide more security and more consistency, and thus reduce misidentifications" that have frustrated passengers, Chertoff said.

Existing screening has been widely ridiculed because people like Sen. Edward M. Kennedy, D-Mass., other members of Congress and even infants have been blocked from boarding or delayed because their names are similar to names on the lists.

Chertoff said the new domestic system will avoid activities envisioned earlier that raised privacy concerns.

"Secure Flight will not harm personal passenger privacy," Chertoff said. "It won't collect commercial data (about passengers). It will not assign risk scores and will not attempt to predict behaviors."

Such plans alarmed Congress so much that it barred implementing the program until it passed 10 tests to ensure privacy and accuracy. The Government Accountability Office, Congress' auditing arm, found the previous version failed almost all of them.

Currently, only a passenger's full name is required when reservations are made although date of birth and gender usually become known to transportation security officers later in the boarding process.

Transportation Security Administrator Kip Hawley said volunteering those two items earlier would reduce misidentifications in watch-list matching.

"With the full name, we can resolve 95 percent of the cases correctly. The date of birth adds 3.5 percent to that, and the gender adds another one percent," Hawley said.

Privacy advocates like Dempsey and Bruce Schneier, chief technology officer at the security company BT Counterpane, also were pleased with limits on how long most records will be kept. A check that produces no match — which will be the case for the vast majority of travelers — would be kept only seven days. A false positive match would be kept seven years. Confirmed matches would be kept 99 years.

"On the surface, it looks pretty good," Schneier said. "I'm cautiously optimistic. It's nice to see some common sense."

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Thursday, June 28, 2007

Privacy Commissioners call for suspension of no-fly list pending reforms 

The Federal and Provincial Privacy Commissioners are meeting in Fredericton this week. About an hour or so ago, they jointly released the following joint resolution calling for the suspension of the "Passenger Protect" program (aka no fly list).

Canada's privacy guardians call for comprehensive changes to no-fly list program

Federal-Provincial-Territorial Meeting of Privacy Commissioners & Ombudsmen

FREDERICTON, June 28 /CNW Telbec/ - Federal, provincial and territorial privacy guardians are united in calling on the federal government to suspend its new no-fly list program, Passenger Protect, until it can be overhauled to ensure strong privacy protections for Canadians.

The information and privacy commissioners and ombudsmen today issued a joint resolution outlining reforms urgently required for Passenger Protect. (The resolution is available on the web site of the Office of the Privacy Commissioner of Canada:

The Commissioners, who are meeting in Fredericton to discuss issues of common concern, also released the following joint statement:

The Passenger Protect Program involves the secretive use of personal information in a way that will profoundly impact privacy and other related human rights such as freedom of association and expression and the right to mobility.

We are particularly troubled that Canadians will not have legally enforceable rights of appeal, to independent adjudication or to compensation for out-of-pocket expenses or other damages. Commissioners and Ombudsman are unanimously of the view that the use of such lists in the interests of airline security should only occur in a manner consistent with Canadian values in the area of privacy protection.

It is alarming that Transport Canada has not provided assurances that the names of individuals identified on its no-fly list will not be shared with other countries. We do not want,to see, through the failure to take adequate safeguards,other tragic situations arise where the security of Canadian citizens may be affected or compromised by security forces at home or abroad.

There is a very real risk people will be stopped from flying because they have been incorrectly listed or share the name of someone on the list. There have been many cases with the US no-fly list where false positives have meant that even children and well-known public figures such as Senator Edward Kennedy have been questioned or denied boarding.

Being placed on the list has serious repercussions for people. This is particularly worrisome since Canada's federal public-sector Privacy Act is in critical need of reform and offers no adequate protection or remedies to address the privacy risks that inappropriate use of the no-fly list creates.

Until the government substantially overhauls Passenger Protect in order to address significant risks of the no-fly list to the privacy and other rights of Canadians, the program should be suspended. Alternatively, Parliament should ensure that the program functions under strict ministerial scrutiny with regular public reports to Parliament until a comprehensive public Parliamentary review is completed and reforms are made.

See also:

I happen to be in Fredericton as well and was interviewed by Global TV. You should be able to see it online here, if you're interested.

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Thursday, June 21, 2007

Transport minister responds to critical coverage of no-fly list 

In the wake of some critical comments in recent news coverage, the Minister of Transportation has an op-ed piece in today's Chronicle Herald.

Nova Scotia News -

Program protects safety, respects rights


In view of recent articles on the introduction of the Passenger Protect Program in Canada on Monday, I would like to clarify some issues.

I must stress, in particular, that Passenger Protect relates to individuals who may pose an immediate threat to aviation security. The program will enable government law-enforcement and security organizations, working with Transport Canada, to alert air carriers to individuals who may pose a threat to a flight, in order to prevent boarding and unlawful interference during the flight that could endanger the general public, passengers and crew.

Such an individual is identified under strict guidelines. It can be someone who is or has been involved in a terrorist group, for example, or an individual who has been convicted of one or more serious and life-threatening crimes against aviation security.

The government began consulting with industry on passenger assessment in May 2004. The program was developed to include the privacy rights provisions needed and in consultations with different groups of the civil society: airlines, airports, police, labour representatives as well as civil liberties and ethnocultural groups. We continue to work with the Office of the Privacy Commissioner.

In short, the program has benefited from parliamentary and public scrutiny, and is based on public law. This government also has as a priority the privacy concerns of Canadians. To this end, we must be clear: Canada’s program has learned lessons from countries all over the world with respect to watch lists, and has taken necessary precautions. This is why the Canadians Specified Persons List took three years of parliamentary consideration, and two years of policy development.

In addition, Transport Canada has established an Office of Reconsideration to permit individuals to challenge a denial-of-boarding decision in a non-judicial, efficient manner. The office will be able to assist individuals to clear up ID issues, and provide a mechanism for review of a case by persons independent of those who made the original decision.

To address terrorism, we must learn from past events, assess evolving threats, and initiate efficient and effective programs that protect public safety and respect the rights of Canadians. Passenger Protect does just that.

I invite readers to get more information on the website, or by phoning 1-800-O-Canada (1-800-622-6232), ATS: 1-800-926-9105.

Lawrence Cannon is Canada’s minister of transport, infrastructure and communities.

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Tuesday, June 19, 2007

No-fly list has an apparently smooth takeoff 

With the no-fly list coming online in the last twenty-four hours, I haven't heard of any instances of people being excluded from flying on the first day. It will be interesting to see how it all shakes out.

I spoke with Chris Lambie of the Chronicle Herald yesterday morning and he spent part of the afternoon at the airport seeing how it went on. Here's his article:

Smooth lift-off for no-fly list -

Airline passengers seemed keen on heightened security

By CHRIS LAMBIE Staff Reporter

The federal no-fly list caused no problems Monday at Halifax Stanfield International Airport.

Passengers seemed keen on the idea of a list meant to screen out anyone who poses a potential threat to aviation security.

"As long as my name’s not on it, I’m happy," Mike Moir said as he waited for a flight back to Ontario.

"If the people are bad, I don’t want them on my plane."

The 67-year-old Hamilton, Ont., man was in Nova Scotia to work as an official for last weekend’s national canoe team trials on Lake Banook in Dartmouth.

The only dilemma he can see with the scheme to flag potentially dangerous flyers is if an innocent person has the same name as someone on the list.

"How many Smiths are there in the world?" Mr. Moir said. "If they just pick everybody with the same name, it could be a problem."

Still, he thinks the list is a necessity.

"With all the terrorism going on in this world nowadays, it’s a good measure."

Dawson Wentzell and his wife, Bethany, were waiting with their toy poodle, Bailey, to board a plane for Edmonton.

The list could prompt lawsuits against the federal government if people lose money because they couldn’t board flights due to name mix-ups, Ms. Wentzell said.

"If someone is delayed from work and this is the reason why, someone is going to get sued," she said.

They didn’t even think about the new security measure before checking in for their flight to Nova Scotia.

"We got up at 5 a.m. and believe me my mind wasn’t on lists," she said.

The couple from Daniel’s Harbour, N.L., wasn’t on the no-fly list and neither was their dog.

"God help us if he was," Ms. Wentzell said. "We’d really be in trouble then."

The no-fly list didn’t cause any problems at the facility, said airport spokesman Peter Spurway.

"If you didn’t know it was on, you wouldn’t know it was on," he said. "It has not made a single impact on our operations today or the operations of our partners in the airline business. I checked around a couple of times and it’s just been chugging along."

But David Fraser, a privacy lawyer in Halifax, won’t be surprised to hear from clients who suddenly discover their names are on the no-fly list.

"We’re likely to hear people are going to have some difficulty in Canada simply because of the way that these sorts of lists have to be structured in order to catch or include in them people with non-English or French names that have to be transliterated or made into English equivalents, and some of them can be common names," Mr. Fraser said. "So there’s probably a fair amount of wiggle room in the way that they match against peoples’ names."

The Specified Persons List, announced last fall, includes the name, birth date and gender of anyone who might pose an immediate threat to aviation security. Airlines that fly into and out of Canada must check the names of their passengers against the list.

"There’s really the opportunity that a whole bunch of people who aren’t actually on the list, just people who have similar names and similar birthdates and other identifying characteristics (as those) on the list," Mr. Fraser said.

"I think that there’s a good chance that people will be not allowed to fly based on that sort of confusion."

Travellers only find out their name is on the list when they try to check in and get a boarding card.

"Vacation plans can be ruined," Mr. Fraser said. "There’s no real accountability at that end for the real sort of negative impact that inclusion on this list might have."

Ottawa has refused to release the number of people on the list.

"There’s always a very delicate balance when you’re dealing with national security issues, Mr. Fraser said. "It’s a delicate balance between openness and necessary secrecy. I think the whole process needs to be done in sunlight.

"Everything related to the process of the inclusion criteria and how it’s actually applied and recourse that individuals might have to get off the list really needs to be completely open and transparent and subject to significant scrutiny.

"We are talking about a potential infringement on an individual’s constitutional right to travel within Canada and also the right to leave Canada. It’s right there in the charter that you have those rights. And many of those rights, in a country as large as Canada, can only be exercised by air travel."

Imam Jamal Badawi, professor emeritus of religious studies at Saint Mary’s University, said Muslims, including himself, often have problems flying in the United States, where a similar list is already in place.

"I’ve heard of many horror stories where a child, for example, five years old, they say, ‘No, his name matches the potential terrorist to look for,’ and still they have to go through the clearance (process)," Mr. Badawi said.

The Canadian Council on American-Islamic Relations has called on Ottawa to scrap the no-fly list until it fixes fundamental flaws in the program.

"Some people suspect that the lists made here in Canada may not totally be homegrown," Mr. Badawi said. "It’s quite possible also that, because of the co-operation between the intelligence agencies in both countries, that some of the names on the watch list in the U.S. might end up here on our lists in Canada."

That could make some Canadian Muslims reluctant to fly, he said.

"It’s part of the very unfortunate trend in the post 9-11 era that, in the name of security, there is a great deal of encroachment on privacy, a great deal of encroachment on civil liberties," Mr. Badawi said.

He doubts the list will make flying safer.

"Anybody intent on wrongdoing, they probably will find some other way of carrying out their plans," Mr. Badawi said. "But even if there is some slight improvement in security, what is the price? The worst scenario, really, is that democratic countries would move toward totalitarian regimes in the name of security."

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Monday, June 18, 2007

Canadian no-fly list takes effect today 

Canada's No-fly list takes to the skies today and the media is full of reporting on what are seen as the program's many shortcomings:
Critics raise alarms over Canada's no-fly list CBC Mon, 18 Jun 2007 4:19 AM PDT Canada's no-fly list comes into effect Monday as privacy advocates warn checking airline passengers' names against those of potential security threats could lead to abuses.

Critics raise alarms over Canada's no-fly list CBC via Yahoo! Canada News Mon, 18 Jun 2007 1:01 AM PDT Canada's no-fly list comes into effect Monday as transportation experts and privacy advocates warn that checking domestic airline passengers' names against a list of people deemed to be potential threats could lead to abuses.

'No-fly' list could blacklist innocents: critics Sun, 17 Jun 2007 6:53 PM PDT
Canada's no-fly list takes effect on Monday, and the anti-terror move has at least one human rights group warning it could create another Maher Arar-like case.

Biometric data could be linked to names on list
Vancouver Province Mon, 18 Jun 2007 0:27 AM PDT
OTTAWA -- The federal government has not ruled out eventually linking Canada's new no-fly list with technology that identifies travellers by biological features such as eye patterns or even DNA, says Transport Minister Lawrence Cannon.

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Sunday, June 17, 2007

Privacy Commissioner subpoenaed to appear before Air India Inquiry 

This is a bit odd. Jennifer Stoddart has been ordered to appear before the Air India Inquiry. Apparently she had informed the Commission of Inquiry that she had nothing further to say but subsequently gave a media interview that was critical of the Government's no-fly list.

It all sounds a little snarky:

Privacy chief called on carpet over no-fly list

Air India inquiry head John Major has ordered Canada's privacy commissioner to appear before him after she publicly criticized a no-fly list being implemented next week.

Mr. Major said yesterday that his Ottawa inquiry was earlier informed by the office of Jennifer Stoddart that she had nothing more to say related to the mandate of his commission into the June 23, 1985, Air India bombing and subsequent investigation.

But Mr. Major said Ms. Stoddart then gave a "free-wheeling" media interview in which she commented on testimony at the inquiry last week about the introduction on June 18 of a Canadian no-fly list.

Mr. Major said Ms. Stoddart should have made her comments in evidence at the Air India inquiry and not to a reporter. He issued a subpoena for her to appear today.

A lawyer for Ms. Stoddart responded by telling inquiry counsel later yesterday that the privacy commissioner would be happy to appear "willingly" but is on her way to Beijing.

An appearance date is expected to be determined this afternoon.

Ms. Stoddart's views on the controversial no-fly list appeared on June 8.

She said the list could become "quite a nightmare" for ordinary Canadians.

"Every time we go to the airport, do we expect to be challenged? That may be the new world," she said.

Ms. Stoddart also said she was surprised when an Transport Canada official testified before Mr. Major that the list could end up in the hands of foreign governments if their state-owned airlines pass it on to them.

"The commission could have benefited in preparing recommendations on air security from hearing from informed points of view with respect to that," she said.

Mr. Major said of Ms. Stoddart's comments: "She apparently had no hesitation in giving information to the public and the press that should have properly been given to this commission when the opportunity presented itself."

Mr. Major has expressed impatience several times during the inquiry when agencies or companies have expressed reluctance or declined entirely to testify.

He said yesterday that some people do not understand what a royal commission is and that he has the power to compel their testimony.

As for the subpoena for Ms. Stoddart, Mr. Major said: "This should not cause her much inconvenience as she appeared to have no difficulty last Friday in expressing publicly those thoughts to the press."

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Saturday, May 12, 2007

Canada's No-fly list takes to the skies 

Canada's new no-fly list is ready to take off:

CNW Group

Air security strengthened - Passenger Protect ready to take flight

OTTAWA, May 11 /CNW Telbec/ - The Honourable Lawrence Cannon, Minister of Transport, Infrastructure and Communities, together with the Honourable Stockwell Day, Minister of Public Safety, today announced new regulations that will strengthen air passenger security screening. Once implemented, new measures under a program known as Passenger Protect will prevent persons who pose an immediate threat to aviation security from boarding a commercial aircraft.

This made-in-Canada program was developed to provide an additional layer of security for the aviation system and to enhance public safety in a way that complies with the Canadian Charter of Rights and Freedoms and federal privacy legislation.

"Canadians want to fly secure, and Passenger Protect is a significant step forward. We must remember that Canada is not immune to the threat of terrorism and we must remain vigilant," said Minister Cannon. "Passenger Protect will not only make Canada's aviation system more secure, it will also help keep the world's skies safe by reaching beyond Canadian borders to screen everyone getting on a flight to Canada."

Under the new program, the Government of Canada is maintaining a list of specified persons who may pose an immediate threat to aviation security should they attempt to board a flight. Air carriers will be able to screen passengers against the specified persons list through a secure online system. If the air carrier identifies a person as a possible match with an entry on the list, the air carrier will contact Transport Canada to confirm the passenger's identity, and obtain a decision whether or not to allow him or her to board the flight. "Canada has one of the best aviation systems in the world and is always looking for ways to increase the safety and security of the travelling public,"said Minister Day.

The Government of Canada has held discussions with airlines, airports, and labour representatives, as well as civil liberties and ethno-cultural groups in developing Passenger Protect, to create a program that enhances security, respects the needs and realities of the aviation industry and protects the rights of Canadians. As part of the consultations, Transport Canada has established a reconsideration process to provide a non-judicial, efficient way for any members of the public who have been denied boarding to have their cases reviewed by persons independent of those who made the original recommendation.

Transport Canada has worked closely with the Office of the Privacy Commissioner in order to further strengthen the privacy provisions of the program. Implementation for flights within Canada and international flights to and from Canada will begin on June 18, 2007.

As of this date, new Identity Screening Regulations will require air passengers within Canada who appear to be 12 years of age or older to present one piece of government-issued photo identification (ID) that shows name, date of birth and gender or two pieces of government-issued ID - one of which shows name, date of birth and gender - before boarding an aircraft. The boarding pass provided by the air carrier must match the name on the ID.

Canadians will not need a passport for travel within Canada but rather can present a range of government-issued ID to the air carriers including a health card, a birth certificate, a driver's licence and a social insurance card. Current requirements for international travel will remain in place. This practice is consistent with procedures currently in use by most major airlines, and will allow the air carrier and Transport Canada to confirm the identity of a passenger who is a possible match with an entry on the specified persons list.

These proposed regulations were first published in the Canada Gazette, Part I on October 28, 2006, after which a 75-day period followed to enable interested parties and the public to provide comments.

The final regulations will be published in the Canada Gazette, Part II on May 16, 2007.

A backgrounder with more information on the Passenger Protect program and the new Identity Screening Regulations is attached.

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The Government of Canada began consulting with industry on passenger assessment in May 2004, and expanded consultations on a program proposal for Passenger Protect in the summer of 2005. Consultations with air carriers, airports, labour representatives, civil liberties and ethno-cultural groups as well as the Office of the Privacy Commissioner were essential to the successful design and implementation of a program that enhances security, respects the needs and realities of the aviation industry, and ensures that the privacy and human rights of Canadians are protected.

The Passenger Protect program adds another layer of security to Canada's aviation system to help address potential threats. Terrorist groups continue to target civil aviation, and seek means to defeat existing safeguards and measures.

Under the program, the Government of Canada is maintaining a list with the name, date of birth and gender of each specified person that will be provided to airlines in secure form. The airlines will compare the names of individuals intending to board flights with the names on the specified persons list, and will verify with the individual's government-issued identification when there is a name match. Identification will be verified in person at the airport check-in counter. When the airline verifies that an individual matches in name, date of birth and gender with someone on the list, the airline will be required to inform Transport Canada.

A Transport Canada officer will be on duty 24 hours a day, every day, to receive calls from airlines when they have a potential match with a specified person on the list. Transport Canada will verify information with the airline, confirm whether the individual poses an immediate threat to aviation security and inform the airline, if required, that the individual is not permitted to board the flight. The Royal Canadian Mounted Police (RCMP) would be notified immediately in the event of a match, and police of jurisdiction at the airport would be informed and take action as required.

The Passenger Protect program will be implemented for Canadian domestic flights and international flights to and from Canada on June 18, 2007. Creating the Specified Persons List

The Minister of Transport, Infrastructure and Communities has the authority under the Aeronautics Act, to specify an individual who is a threat to aviation security and to require airlines to provide information about the specified person.

A Transport Canada-led Advisory Group will assess individuals on a case-by-case basis using information provided by the Canadian Security Intelligence Service and the RCMP, and will make recommendations to the Minister of Transport, Infrastructure and Communities concerning their designation as specified persons or the removal of that designation. The Advisory Group includes a senior officer from the Canadian Security Intelligence Service and a senior officer from the RCMP (as advised by the Department of Justice), with input from representatives from other Canadian government departments and agencies.

Individuals are added to the specified persons list based on their actions, which lead to a determination that they may pose an immediate threat to aviation security, should they attempt to board an aircraft. Guidelines in making that determination are focused on aviation security, and may include:

  • an individual who is or has been involved in a terrorist group, and who, it can reasonably be suspected, will endanger the security of any aircraft or aerodrome or the safety of the public, passengers or crew members;
  • an individual who has been convicted of one or more serious and life-threatening crimes against aviation security; and
  • an individual who has been convicted of one or more serious and life-threatening offences and who may attack or harm an air carrier, passengers or crew members.

Identity Screening Regulations

As of June 18th 2007, new Identity Screening Regulations will require airlines to screen each person's name against the specified persons list before issuing a boarding pass, for any person who appears to be 12 years of age or older. The regulations take into account the various ways in which the boarding pass may be obtained: at a kiosk, through the Internet, or at an airport check-in counter.

Where there is check-in via Internet or kiosks, airlines will not allow printing of the boarding pass when there is a name match with the specified persons list. Passengers refused a boarding pass at a kiosk or through the Internet will be directed to the airline agent for in-person verification of government-issued identification (ID). ID verification will determine whether the name, date of birth and gender match those of a listed person.

The regulations also require air carriers to screen individuals at the boarding gate by comparing the name on government-issued ID with the name on the boarding pass. If the name on the ID is not the same as the name on the boarding pass, the air carrier will be required to check the name on the ID against the list.

Transport Canada will work with air carriers to provide training for agents and staff who will be involved in implementing the ID verification requirement, and establish procedures that respect the rights of passengers.

The ID requirement under the Passenger Protect program is for one piece of valid government-issued photo ID that shows name, date of birth and gender, such as a driver's licence or a passport, or two pieces of valid government-issued ID, at least one of which shows name, date of birth and gender, such as a birth certificate. The verification of passengers' ID is already a practice followed by most major air carriers in Canada.

The regulations will be published in the Canada Gazette, Part II on May 16, 2007.

Reconsideration and Appeals

The Passenger Protect program also includes a reconsideration process for individuals who wish to contest the denial of boarding. An individual who has been denied boarding under the Passenger Protect program will be able to apply to Transport Canada's Office of Reconsideration (OOR), which may arrange for an independent assessment of the case and make a recommendation. The goal is to provide a non-judicial, efficient mechanism for any member of the public to have their case reviewed by persons independent of those who made the original recommendation to the Minister. Individuals have the further option of making application to Federal Court for judicial review. Privacy and Human Rights

The protection of privacy and human rights is a core element of the Passenger Protect program. In developing the program, Transport Canada worked with stakeholders and consulted with civil liberties and ethno-cultural groups, and the Office of the Privacy Commissioner on privacy aspects.

A summary of the Privacy Impact Assessment conducted on the Passenger Protect program is available on the Transport Canada website at In addition, the Office of the Privacy Commissioner of Canada posed a series of questions to Transport Canada about the Passenger Protect program in August 2005. The questions and the answers shed light on the privacy protection features of the program and are available on the Web at

More details on the Passenger Protect program and the new Identity Screening Regulations are available on Transport Canada's website at

May 2007

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Monday, April 16, 2007

No fly lists 

Ryan Singel, at Wired News, has two interesting articles on the US "no fly" lists:

Particularly interesting as Canada mulls its own no fly list.

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Tuesday, January 23, 2007

More info on the Canadian "no fly list" 

CanWest News Service is running a very interesting feature-length report on the upcoming Canadian "no fly" list. Read the entire article ...

Canadian airline passengers will be kept under close scrutiny

Canadian airline passengers will be kept under close scrutiny

Don Butler

CanWest News Service

Tuesday, January 23, 2007

OTTAWA - The RCMP and the Canadian Security Information Service will be able to examine up to 34 pieces of information about everyone who flies in Canada under a comprehensive passenger screening program being developed by Public Safety and Emergency Preparedness Canada.

Among other things, the program will require airlines to gather and share the full legal name, date of birth, citizenship or nationality and gender of all passengers - information they don't currently collect for domestic flights.

The new program will affect about 90 million passenger trips a year, two-thirds of which are purely domestic.

The program is authorized under Section 4.82 of the Aeronautics Act, which gives CSIS and the RCMP the right to receive and analyse Advance Passenger Information (API) and Passenger Name Record (PNR) data from air carriers and operators of aviation reservation systems without a warrant.

API data is collected at check-in and include name, date of birth, gender, citizenship or nationality and travel document information. PNR data is collected at the time of booking and includes information relating to a traveller's reservation and itinerary.

Section 4.82, added to the Aeronautics Act in 2004 when the Public Safety Act was passed but not yet in force, also authorizes CSIS and the RCMP to match passenger information against any other data under their control.

The Section 4.82 program ''is envisioned as the next step'' in a two-pronged strategy to use airline passenger information to combat terrorist threats, said Philip McLinton, a spokesman for Public Safety and Emergency Preparedness Canada.

The first step - Canada's new no-fly list - will be introduced in March for domestic flights and in June for international flights.

McLinton said it's ''impossible to speculate how 4.82 would impact the no-fly list. It's just too early to say.''

Since 2002, airlines flying to Canada from abroad have had to provide API and PNR data to the Canadian Border Services Agency, which analyses and risk-scores it to identify passengers who require further review on arrival in Canada. The agency doesn't get the information until flights have departed for Canada.

Under the Section 4.82 program, the collection and analysis of passenger information will dramatically expand. Airlines and operators of reservation systems will have to send passenger information to the RCMP and CSIS for all domestic and international flights. And they'll have to do so before flights depart.

The no-fly program, known as Passenger Protect, obliges airlines to vet the names of passengers against the no-fly list and notify Transport Canada is there is a match. That responsibility will shift to the RCMP and CSIS under the Section 4.82 program.


Section 4.82 also authorizes CSIS and the RCMP to disclose passenger information to other organizations or individuals to promote public safety. They include the minister of Transport, the Canadian Air Transport Security Authority, air carriers, airport operators and police officers. ...

It is unclear how, or even whether, the passenger information gathered under the Section 4.82 program would be shared with the U.S. and other allies. The feasibility study cites two issues with the PNR data that would be collected and shared under the section 4.82 program.


Another issue is passenger information that is currently not collected during the reservation process, but is essential for the new Section 4.82 program to operate effectively.

Most important is full name, date of birth and gender, which the study says is ''widely viewed as the core set of information required'' to match existing law enforcement records. That information is not currently collected for domestic passengers, so regulations may be needed to make provision of that information mandatory.

''For domestic flights, if the government regulates a requirement for passengers to provide full name, date of birth and gender, the air carriers' view is that passengers would comply, and that air carriers would provide this data,'' the feasibility study says.

To avoid causing delays to the travelling public, the study also says swift and timely information flow is required that can take account of last-minute changes such as no-shows.


Ottawa Citizen

Here's the list of 34 pieces of information to be collected by airlines on everyone who travels on domestic or international flights flying in or out of Canada:

1. Surname, first name and initial or initials.

2. Date of birth.

3. Citizenship or nationality or, if not known, the country that issued the travel documents for the person's flight.

4. Gender.

5. Passport number and, if applicable, visa number or residency document number.

6. The date on which passenger name was first recorded with airline.

7. If applicable, a notation the person arrived at the departure gate with a ticket but without a reservation for the flight.

8. If applicable, the names of the travel agency and travel agent who made the person's travel arrangements.

9. Date airline ticket was issued.

10. If applicable, a notation the person exchanged their ticket for another flight.

11. The date, if any, by which a ticket for a flight had to be paid to avoid cancellation of the reservation; or the date, if any, on which the request for a reservation was activated by the air carrier or travel agency.

12. Airline ticket number.

13. Whether the flight is a one way.

14. If applicable, a notation the person's ticket for the flight is valid for one year and is issued for travel between specified points with no dates.

15. The city or country where the flight begins.

16. All points where a passenger will embark or disembark.

17. The name of airline.

18. The names of all airlines to be used on trip.

19. The aircraft operator's code and flight ID number.

20. The person's destination.

21. The travel date for the person's flight.

22. Any seat assignment on the person's flight selected for the person before departure.

23. Number of pieces of baggage checked by the person.

24. The baggage tag numbers

25. Class of service (first class, business class, economy).

26. Any specific seat request.

27. The passenger name record number.

28. Phone numbers of the person and, if applicable, of the travel agency that made the arrangements.

29. Passenger's address and, if applicable, that of the travel agency.

30. How the passenger paid for the ticket.

31. If applicable, a notation the ticket was paid for by another person

32. If applicable, a notation there are gaps in the passenger's itinerary that necessitate travel by an undetermined method.

33. Departure and arrival points, codes of the aircraft operators, stops and surface segments.

34. If applicable, a notation the ticket is in electronic form and stored in an aviation reservation system.

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Sunday, August 28, 2005

Does Canada Need a No-Fly List? 

Mathew Englander, who many of the readers of this blog may know becuase of his mostly-successful fight against his phone company and the Privacy Commissioner that wound up in the Federal Court of Appeal, has recently put some of this thoughts on the proposed Canadian No Fly List on his website. Check it out at: Mathew Englander -- Does Canada Need a No-Fly List?.

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