Appearance before the Senate Standing Committee on Human Rights relating to “Examine and monitor issues relating to human rights and, inter alia, to review the machinery of government dealing with Canada’s international and national human rights obligations: Passenger Protect Program”

May 29, 2019
Ottawa, Ontario

Opening statement by Daniel Therrien
Privacy Commissioner of Canada

(Check against delivery)

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Good morning, Madam Chair and members of the Committee. Thank you for the invitation to speak to you today on the “No Fly List”. Lacey Batalov, Director of the Government Advisory Directorate, accompanies me today.

No one would contest the need to protect the safety of our citizens. Canadian travelers want to be and feel secure, but not at any and all costs to their privacy. What they want is a balanced, well-measured and proportionate approach. Our goal is to contribute to the adoption and implementation of laws and other measures that will demonstrably protect both national security and privacy. To that end, when we review national security activities, including the Passenger Protect Program, which implemented the “no-fly” list, we are always concerned about the impact on individuals who may not pose a threat to the security of Canada but who may nevertheless be negatively impacted by such programs.

While we recognize the importance of a program for assessing individuals arriving in Canada for potential national security threats, such activities must be undertaken in a manner which respects the rights of the traveling public. At its inception, the Passenger Protect Program raised concerns among many groups, including Privacy Commissioners, regarding its potential negative impacts on the rights of Canadians. As such, it has been the subject of significant engagement by my Office including an audit of the program in 2009, a follow-up audit in 2011 and review of several Privacy Impact Assessments, both from Transport Canada and Public Safety Canada.

Our review work has largely found that the Program is compliant with the law. We have offered policy-level recommendations over the years to Transport Canada and Public Safety on matters relating to safeguarding information, ensuring notice is provided to impacted individuals in a privacy sensitive manner, and confirming there is effective recourse for those improperly impacted by the Program.

As concerns safeguards, during our 2009 audit, we found that although personal information was collected and used under this Program in accordance with the Privacy Act and the Aeronautics Act, we raised concerns about the conduct of security assessments for the Program’s technical infrastructure. In a recent 2018 Privacy Impact Assessment, we noted that although Public Safety appeared to be protecting the list with adequate internal physical and technological security measures, it was not clear what measures they had in place to ensure protection of the list by those to whom it is disclosed, including air carriers. We received Public Safety’s response to our questions in this regard yesterday. Our preliminary review found that Public Safety has provided much of the information that we had requested, but our review of the response and the program is ongoing.  It should be noted that Bill C-59 proposes to repatriate the list into government hands, which should largely alleviate these concerns.

We have made inquiries with Public Safety about the manner in which air carrier staff inform individuals of their rights, including of access and correction to their information, at the time they are denied boarding. We have also requested details on how such an interaction takes place at the airport, given the sensitivity of the matter. Also on the issue of notice, we have recommended that Public Safety consider informing those who are subject to secondary screening as a result of being listed, but who are not ultimately denied boarding, be informed of their listed status. Currently only those denied boarding are informed that they are on the list.

On the issue of false positives, Bill C-59 proposes a system whereby travelers who share similar or the same name as a listed individual can apply for a unique identifying number in order to facilitate their travel. This will assist in reducing the negative impacts for those falsely identified as being on the list, such as being subject to additional secondary questioning and the risk of reputational harm, among other problems. Although the identifying information being collected will also increase, we have been informed by Public Safety that they believe it will reduce the possibility of incorrect information leading to travel problems for unlisted travelers. This is in line with requirements of section 6(2) of the Privacy Act which requires information be accurate, up-to-date and complete.

My Office continues to work with all stakeholders involved in the Program’s administration to help ensure that it is executed in a manner that safeguards the privacy rights of Canadians.

I would be happy to answer any questions you may have.