Executive Summary:

The British Columbia Civil Liberties Association opposes the development of a Canadian no-fly list. No-fly lists impair the rights of citizens (denial of due-process, subjection to unreasonable search and detention, discrimination) without demonstrably affecting air travel safety. We are further opposed to the creation of no-fly lists because they appear to be an incremental measure in a more sweeping traveler surveillance program.

Introduction:

In late 2004, the media reported that the Ministry of Transport was developing a no-fly list, as contemplated by the Public Safety Act passed by Parliament in May, 2004. In early 2005, the Association contacted the Ministry of Transport and was told that the model for the no-fly scheme had not yet been decided and that there would be an opportunity for public input. The only “model” for a no-fly list that the Association is aware of is that of the United States, which has had a no-fly list for several years.

Individuals who are listed on a no-fly list are selected by federal authorities on the basis of secret criteria. These individuals are then denied access to basic airport transportation on the grounds that they pose a security risk, or are subject to enhanced scrutiny at security checkpoints. The enhanced scrutiny list is called the “selectee list”, but we refer to both lists in this paper as no-fly lists.

No-Fly Lists Impair Rights Without Demonstrably Affecting Safety

The current U.S. no-fly system is built on a passenger screening system that began in the late 1990’s and is officially known as CAPPS (Computer-Assisted Passenger Prescreening System).

The experience in the United States has shown no-fly lists to be fraught with problems. The U.S. list, originally intended to be quite small and focused, has grown monstrous in more ways than one. Reports on the current size of the list range from 30,000 to 120,000 names. In addition to the names actually on the list, there are also unknown numbers of people who are caught by the no-fly system for having names that are either the same or similar to a person who is on the list. The fallibility of the system is notorious. Some of the people who have been mistakenly caught by the system have included high ranking members of the United States government.

The serious and persistent rights abuses generated by the no-fly lists in the U.S. to date include:

• Denial of due process rights: thousands of non-dangerous passengers have either been mistakenly put on the list or are detained for having the same or similar name to 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.

Despite serious impairment to the rights of ordinary citizens, no-fly lists do not demonstrably affect aviation safety. To date, not a single terrorist has been apprehended by the no-fly system. There is no evidence that the no-fly lists improve aviation safety. The expected benefit of any such lists is marginal and speculative.

A No-Fly List May Be An Incremental Step to A Broader Surveillance Plan

The justly criticized U.S. no-fly scheme is being replaced by a new system called Secure Flight. In contrast to CAPPS, which vets passengers against watchlists, Secure Flights also conducts routine background checks on every single traveler and assigns “risk assessments” to ordinary passengers based on aggregate data from various sources and unknown criteria for analyzing it. As such, Secure Flight is an unprecedented system of mass surveillance. It is slated to be operational on a trial basis in the U.S. by the fall of 2005.

The BCCLA is concerned that initiatives to create a “common security zone” within North America will continue to pressure Canada to fall in line with ever increasing and increasingly invasive “security measures” dictated by the U.S. While Canada does not have an acknowledged no-fly scheme in place at this time, we do have extensive resources committed to compiling “threat assessments” and “watchlists” and the Government’s reporting on these threat assessment operations continually stress the “interoperability” with the U.S. systems. Which is rather an oblique way of saying that the systems are essentially the same. The Canadian Border Services Agency has a National Risk Assessment Project about which very little is publicly known, but which appears to be a complement to an earlier version of the U.S. Secure Flight system. It is reasonable to conclude that the infrastructure for a Canadian version of the Secure Flight system has been in development for some time.

The “harmonization” of our security measures is proceeding apace at the diplomatic level, seemingly far removed from public or even Parliamentary debate. The Canada-U.S. Smart Border Agreement is only a first step, according to the Canada Border Services Agency Report on Plans and Priorities 2004-2005, which speaks to the “next generation/beyond smart border concept”. The BCCLA is concerned that the notorious fallibility of no-fly lists will be used by Canadian authorities to attempt to justify the more “comprehensive” aviation surveillance and traveler control program that is being introduced in the United States.

To be clear, the Association is not merely making a “slippery slope” argument. On the basis of the interoperability of the infrastructure systems already under development, it is more likely than not that the Canadian government is preparing to expand traveler surveillance in ways that will have an unprecedented impact on Canadian citizens’ privacy and civil liberties. The Association is deeply concerned that these developments are happening essentially behind closed doors.

Position of the Association

The BCCLA believes there is no reasonable justification for no-fly lists. There are provisions in the Aeronautics Act to prevent persons who are believed to pose an immediate safety threat to airline security from boarding a plane. This is a necessary authority. In contrast, no-fly lists are unacceptable because persons are pre-selected for flight refusal or enhanced scrutiny on the basis of criteria that no one is able to discern or, generally speaking, challenge.

It is not sufficient for the Canadian Government to propose to build a better no-fly list by, for example, bringing in due process measures. There is no compelling justification presented for the use of no-fly lists and no aspect of such lists are benign.

The Information and Privacy Commissioner for British Columbia has expressed concern to the Federal Privacy Commissioner that there are no effective redress mechanisms being discussed by Transport Canada in regards to the no-fly list plan. In fact, there are only minimal mechanisms that are possible in such a system. While a no-fly system could provide listed individuals with an opportunity to correct any mistakes in the recording of their personal information, it is certainly not going to provide such individuals with the basis for knowing how they got “risk scored” as a security threat. Therefore, what constitutes “redress” is necessarily limited to those with the same or similar names as persons listed. Persons actually listed on the basis of “secret criteria” that it is reasonable to suppose may well include racial, religious and political belief profiling, cannot have redress under this system. Therefore, regardless of the “model” chosen for such a system, the system itself is a model for discrimination and abuse.

The BCCLA opposes the development of a Canadian no-fly system.