Letter to Honourable Anne McLellan and Jean-C. Lapierre regarding BCCLA opposition to proposed “no-fly” list

Posted on

June 10, 2005

Dear Ms. McLellan and Mr. Lapierre:

Re: Opposition to Proposed “No-Fly” List

I am writing on behalf of the British Columbia Civil Liberties Association to express our opposition to the proposal to create a “no-fly” list in Canada and to call on you to initiate immediate and meaningful public consultation about no-fly lists and the Smart Border Agreement.

The British Columbia Civil Liberties Association is the oldest and most active civil liberties organization in Canada. We have spent more than 40 years working to preserve, defend, maintain and extend civil liberties and human rights in British Columbia and across Canada. We have longstanding and extensive involvement in the balancing of civil liberties and national security concerns.

We were alarmed to read media reports some months ago about a proposed no-fly list. We understand a no-fly list to be a list of individuals who are selected from the public at large by federal authorities according to secret criteria. Persons targeted for inclusion on the list are denied access to basic airport transportation or are subject to enhanced scrutiny at security checkpoints.

In conversation with Ministry of Transport staff on January 12, 2005, we were told that the Ministry is looking at options for a no-fly list, and that there would be an opportunity for public input on the proposal when it was developed. We are extremely concerned that the opportunity for public input will be delayed until after the no-fly list is fully implemented.

Our objections to no-fly lists are based both in principle and on evidence from the United States that no-fly lists do not demonstrably affect safety. More troublingly, we understand that the proposed no-fly list may be part of a broader traveler surveillance agenda that is being developed with the United States largely in secret and entirely without public debate and accountability.

No-fly Lists Impair the Rights of Ordinary Citizens

No-fly lists seriously impair the rights of ordinary citizens. The U.S. experience has shown that persons are pre-selected for flight refusal or enhanced scrutiny on the basis of secret and undiscernable criteria. Listed persons are unable to effectively challenge their inclusion on the list. Regardless of how the criteria for listing persons is chosen, the system will of necessity be over-inclusive. People will be denied access to basic transportation and subject to enhanced scrutiny on what appears from the outside to be an arbitrary basis. The system itself is a model for abuse and discrimination.

The U.S. experience shows that no-fly lists are fraught with problems, as you are no doubt aware. The U.S. no-fly list, originally intended to be quite small, has grown monstrous in more ways than one. Reports on the current size of the list range from 30,000 names to 120,000 names. The serious and persistent rights abuses generated by no-fly lists in the United States to date include:

  • Denial of due process rights

Thousands of non-dangerous passengers have either been mistakenly put on the lists or are detained for having the same or similar name as someone on the list and these people have no meaningful opportunity to remedy these errors or appeal their status. Most critically, there is no clear criteria for inclusion or exclusion and no actual appeal process.

  • Subjection to unreasonable search or detention

Thousands of non-dangerous passengers have been subjected to stigma and detention, and prevented from traveling.

  • Discrimination

These measures have been severely criticized for reliance not only on racial and religious profiling, but also for targeting political beliefs. The seven named plaintiffs in the American Civil Liberties Association constitutional challenge to no-fly lists include staff members of the ACLU and the Nobel Peace Prize winning pacifist organization the American Friends Service Committee.

No-Fly Lists Do Not Demonstrably Effect Aviation Safety

Despite serious impairments to the rights of ordinary citizens, no-fly lists do not demonstrably effect aviation safety. Provisions in the Aeronautics Act already exist to prevent persons who are believed to pose an immediate safety threat to airline security from boarding a plane. We have not seen any compelling argument that further measures are necessary to deal with threats to airline safety.

To date, not a single terrorist has been apprehended by the no-fly system. There is no evidence that no-fly lists improve aviation safety. The expected benefit of any such list is marginal and speculative.

It is inadequate to simply suggest that Canadians should build a better no-fly system than the American model. There has been no compelling justification presented for the use of no-fly lists and no aspect of such lists are benign. No-fly lists have shown themselves to be no more than a harmful piece of security theatre.

We say there is no reason beyond political pressure and security rhetoric for a more comprehensive passenger screening program such as a no-fly list to be implemented in Canada. There is no evidence that a no-fly system is effective in improving airline security or that the purported safety benefits outweigh the serious detriments.

No-Fly Lists May Be An Incremental Step in a “Deeper and Broader” Aviation Surveillance Plan

The BCCLA is extremely concerned that the Canadian government is following the U.S. example by working towards an invasive aviation surveillance plan.

The current U.S. no-fly system consists of a list of persons who can not board a commercial aircraft and a list of persons who must be intensively screened before being allowed to board an aircraft. This passenger screening system began in the late 1990’s and is officially known as CAPPS (Computer-Assisted Passenger Prescreening System). As you are undoubtedly aware, this system is being replaced by a new system called Secure Flight. In contrast to CAPPS, which vets passengers against watchlists, Secure Flight conducts routine background checks on every single traveler and assigns a “risk assessment” to ordinary passengers based on aggregate data from various sources and unknown criteria for analyzing it. Secure Flight’s routine background checks on everyday travelers is an unprecedented system of mass surveillance. It is the kind of measure imposed by invading forces on an occupied country. Secure Flight is slated to be operational in the U.S. by the fall of 2005.

The BCCLA is concerned that the Government of Canada is proceeding apace to take our citizens down the same disastrous road.

The Canadian government has already spent millions of dollars on a program to develop a “risk scoring” system for collecting information about international travelers and sharing it with the U.S. On January 17, 2004, the Toronto Star reported that Mark Connolly of the then-new Canada Border Services Agency had stated that the national risk assessment project was only just beginning. Mr. Connolly was reported to say that the goal was to work with the U.S. to target high-risk people coming into either country and this “obviously” meant that the criteria we used would have to match that of the U.S. The computer systems for the project were reported to be budgeted at $35 million and were said to be necessary “for Canada to honour commitments made to the United States”. The news report states that very few details of the program were available publicly, but that it appeared to be a complement to the earlier model of the U.S. Secure Flight system, known as CAPPS II. It is fair to conclude that the infrastructure for a Canadian version of the Secure Flight system has been in development for some time.

The Canada Border Services Agency Report on Plans and Priorities 2004-2005 states that the “next generation/beyond smart borders concept is a component of a strategy for stronger linkages between Canada, the U.S., and Mexico.” The report states ominously that ‘[t]his agenda would both deepen and broaden the existing Smart Border Action Plan and include such areas as food safety, cyber-security, public health, marine and transport security.” What is meant by “deepening” and “broadening” is not specified.

The BCCLA is very concerned that the Canadian government intends to and is working to replicate the U.S. Secure Flight system as part of the larger Smart Border agreement. If this is so, the no-fly program is no more than an intermediate stage in a larger program of surveillance and information sharing. The BCCLA is concerned that the notorious fallibility of no-fly lists will be used by Canadian authorities to attempt to justify expenditures on an expanded and more intense system of aviation surveillance and traveler control.

We are determined to ensure that Canada does not follow the U.S. example.

The Canadian Government has Failed to Consult the Public

The Canadian Government has completely failed to consult the Canadian public. The development of a Canadian no-fly list was announced as a fete accompli, subject only to working out the details. The Globe & Mail reported on March 8, 2005 that Jim Judd, the new director of the Canadian Security Intelligence Service said that the federal government is having difficulty determining the criteria for who should be considered a flight security risk and that technical problems have delayed the introduction of the computer system that checks airline passenger lists against a no-fly list.

Given that the technical capacity for implementing the “proposed” system is already well underway, we question whether any future public consultation will be meaningful. It would appear to some extent that the issue is regarded as already having been resolved internally without the need to consult the wider public.

It is certainly not news that Canada is under considerable pressure to fall into step with progressively more extreme and invasive U.S. security measures given initiatives such as the ‘common security zone” within North America. While the pressure from the U.S. is well known, it is nevertheless incumbent on the Government to explicitly put before the Canadian public the plans already in development for expanding the proposed program into an all-traveler “risk assessment” program like Secure Flight. The ground work for a mass traveler surveillance system is being laid and Canadians are apparently left to guess at the meaning of a few stray pieces of information about something that bureaucrats may have long promised to the Americans.

The traveler surveillance program that the Government appears to be prepared to adopt at the behest of the U.S. will have unprecedented impacts on Canadian citizens’ privacy and civil liberties. It is wholly unacceptable that these programs are being developed behind closed doors.

The BCCLA Demands Immediate and Meaningful Public Consultations

The BCCLA demands that the government immediately engage in meaningful public consultation regarding no-fly lists and the “next phase” of the Smart Border Agreement.

The collection of personal information about Canadians and the dissemination of that information across borders are matters of the utmost importance to Canadians. Any proposal to further integrate systems of national security with those of other nations cuts deeply into core notions of Canadian sovereignty. Canadians have a right to meaningful input into such matters. Canadians should have a say about whether Canadian sovereignty on this issue is worth the expected economic and diplomatic costs.

Similarly, the collection of personal airline passenger information, the potential for ethnic, cultural and political criteria for denial of airline passenger service, and the subjection of ordinary citizens to enhanced and deeply invasive searches and questioning are matters of great importance to Canadians. There is no reason to decide such matters behind closed doors without public consultation.

These government proposals have already progressed well beyond the planning stages without the benefit of public consultation. Meaningful consultation implies that the government should be prepared to reverse its plan and regard the public funds already spent as wasted expenditure.

It is time for the government to put an end to the rapid and silent bureaucratic implementation of matters that so deeply affect the rights of Canadians and Canadian sovereignty. There is no security emergency or threat that could justify the current pace of change without meaningful public consultation. The perception that the hijacking attacks on September 11, 2001 justify any and all security measures is at an end.

The BCCLA calls on the Minister of Transport and the Minister of Public Safety and Emergency Preparedness to immediately begin cross-Canada public consultation on the viability and desirability of no-fly lists in Canada.

We would appreciate an opportunity to meet with you to discuss these matters and to make submissions regarding the form and scope of public consultations.

Yours truly,

Jason Gratl,