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Perimeter vs Privacy: Guess who wins?

Late in the day yesterday, the Conservatives released a Perimeter Security and Economic Competitiveness Action Plan that Harper had invested a lot of political capital into. We read it over quickly and issued a statement rejecting it. Maude Barlow has also written about the border deal in today’s Huffington Post Canada. She says:

The alleged goal is to streamline trade and hasten transit time for people and goods as they cross the border while at the same time, protecting the continent from terrorist threats… My view all along has been that these are two different goals and should not be merged. In seeing the outline of the deal, I now feel that more strongly than ever.

While some news commentators claimed the Obama-Harper border plan was mostly a list of improvements to trade practices, on security it goes much further and is much worse than many privacy experts and civil liberties advocates had imagined.

According to a Canadian Civil Liberties Association response, the proposed action plan “suggests broad measures for information sharing, biographical and biometric data, and aims to remove all impediments to information sharing between law enforcement agencies. Profiling of travelers on all international flights to Canada will be done to assess their ‘risk’ profile and immigration status.”

The CCLA, one of several organizations to issue a statement of principles prior to the announcement of the action plan, states that the privacy implications for all the action items “are immense and well documented,” so it is “inappropriate to proceed with the plan without ensuring that there is agreement on privacy protection and that oversight mechanisms are in place.”

Like the Council of Canadians has done in the past, the CCLA calls for “any cross-border policing including the Shiprider Agreement to be limited, to be the exception and not the norm, and that US law enforcement operating in Canadian jurisdictions must comply with Canadian laws and Charter protections.”

The Council on American-Islamic Relations Canada (CAIR-CAN) said yesterday the government “has not learned lessons from its past mistakes of ‘dangerous’ information sharing practices.” The organization says it’s “deeply troubled by the deal’s apparent failure to adequately protect the civil liberties and privacy rights of Canadians by allowing for unfettered information sharing between security agencies of both countries.”

CAIR-CAN Acting Executive Director Ihsaan Gardee says:

In 2006, the Hon. Justice Dennis O’Connor of the Arar Public Inquiry presented a series of urgent recommendations which included a focus on the need to develop comprehensive and robust oversight and redress mechanisms regarding Canada’s information sharing practices with foreign countries. The Hon. Justice Frank Iacobucci, who headed another inquiry into the detention and torture of three other Canadians abroad, echoed those concerns for what he found to be ‘deficient’ practices by security agencies. Regrettably today, we find that those recommendations seem to have not been properly heeded by the government.

On regulatory harmonization, though the action plan in many ways simply revisits longstanding post-NAFTA plans for standardization, there are important red flags in areas like food safety. We’ll be looking into this carefully over the next few months.

Both the perimeter security and Regulatory Cooperation Council reports are short documents you can read for yourself here. They pick up exactly where the Security and Prosperity Partnership of North America left off then take it to the next level.

For example, a common understanding of the threat environment in the SPP becomes “a Threat to Either Country Represents a Threat to Both.” This is an enormously bold and broad statement. It would presumably account for failed visa or refugee applicants to the U.S. (Canada would deny them also), but also people denied entry to Canada or the U.S. for political reasons, or because they had been badly risk-profiled. Do political threats to the U.S. (ex. Occupy movement participants or war resisters) automatically get treated as such by Canadian law enforcement agencies with new information-sharing powers?

Canada seems to have committed to scrapping its national no-fly list in favour of a harmonized list with the U.S. I say “seems to” but this implies they will merge the lists:

– Use a common approach to screening methodologies and programs, including pretravel screening and targeting, “board/no-board” perimeter screening and decision processes, and technology;

– Share relevant, reliable and accurate information within the legal and privacy regimes of both countries, such as information contained in biographic and biometric national-security watch lists, certain traveller criminal-history records and immigration violations…

– Share risk-assessment/targeting scenarios and enhance real-time notifications regarding the arrival of individuals on U.S. security watch lists;

– Provide access to information on those who have been removed, or who have been refused admission to, or a visa from, either country, as well as those who have been removed from their respective countries for criminal reasons; and

– Implement a systematic and automated biographic information-sharing capability by 2013 and biometric information-sharing capability by 2014 to reduce identity fraud and enhance screening decisions, and in support of other administrative and enforcement actions.

These are general requirements. They don’t begin and end at the land border. It’s like establishing an European Union-style security zone only with a country with no privacy protections, no equivalent to the privacy commissioner, and where the current President has interpreted the government’s powers under the PATRIOT ACT much more broadly than even Bush did. This may be difficult to believe, but it could be worse for Canada to be pursuing deeper integration with the U.S. under this Democratic president than under the neo-conservative Republican predecessors.

For business travellers, life may get easier. The perimeter plan wants to “Increase harmonized benefits to NEXUS members,” for example. So if you are considered safe enough to get a NEXUS pass you may have more opportunities to use it. John Manley and his Canadian Council of Chief Executives were so excited about the action plan they released their statement before anyone had seen the actual perimeter deal.

Canada and the U.S. will expand the Shiprider project in which Homeland Security agents join RCMP ships on shared waterways (and vice-versa) to land-based operations, “to create integrated teams in areas such as intelligence and criminal investigations, and an intelligence-led uniformed presence between ports of entry.”

On privacy, the action plan assures that “both countries are committed to protecting privacy in all the initiatives undertaken and to ensuring that information sharing is pursued responsibly and with the appropriate safeguards. To this end, as an early deliverable, Canada and the U.S. will develop a set of joint privacy protection principles to guide and inform the implementation of all initiatives in the Action Plan. Information will be shared responsibly and in accordance with the Canadian Charter of Rights and Freedoms and Canadian privacy laws.”

Unfortunately there will be no involvement from the Privacy Commissioner of Canada in the development of those principles.

The Council of Canadians will be working closely with civil liberties groups, privacy experts and others over the coming weeks and months to better understand the implications of the border deal. As it says in our common statement of principles, nothing should happen without a debate. No new initiative should move ahead without adequate oversight and redress mechanisms as recommended by the Arar and Iacobucci commissions into the deportation and torture of Canadian citizens abroad.

Stay tuned for action and information updates on the perimeter deal.