By PAULINE EASTON and ENVER VILLAMIZAR
Since the New Year, a number of news reports have raised the problem of Canadian children, some just toddlers, being on no-fly lists without any explanation as to why this is the case. The federal government has responded by reiterating instructions that airlines are not to subject passengers under 18 whose names appear on a no-fly list to additional security screening.
This is the very least that can be done but what about the no-fly lists themselves? What is their aim? Who decides who is on them? Based on what criteria? What recourse do individuals have to question the addition of their names to these lists, or to have them removed as a matter of right? At present, individuals have to spend a small fortune in attempts to clear their names when even the smallest infractions of law get them flagged, even though such issues in no way make them terrorist suspects.
Issues of whose authority determines such things and where the jurisdiction lies to contest the decisions which affect their lives are matters of great concern to Canadians. The idea that a passport gives you free passage so long as definite objective criteria are met has gone with the wind. The criteria are no longer objective. Far from it, they are secret and serve aims that people know nothing about and are outside of their control.
The word “jurisdiction” (from the Latin ius, iuris meaning “law” and dicere meaning “to speak”) is the practical authority granted to a legal body to administer justice within a defined area of responsibility. It is the extent or range of judicial, law enforcement or other authority – the territory over which that authority is exercised.
The current security arrangements began to be put in place even before 9/11 after which the so-called War on Terror was unleashed by U.S. President George W. Bush. They started with the opening of borders as a result of free trade agreements that demanded all national authorities submit to decision-making put in place to benefit the integrated energy, transportation and security corridors. This first took place between Canada and the U.S. and then incorporated Mexico, and will extend in due course to encompass the entire Americas and Caribbean.
Following the 2011 election, the Harper government used its majority to swiftly extend various security arrangements put in place under previous Liberal governments. It signed the Beyond the Border Security and Competitiveness Agreement in 2011 with the Obama administration. This agreement established an executive committee for the integrated U.S. and Canadian economies and security agencies that guarantees the monopolies based in the two countries can compete against rivals. The agreement set out to unify the manner and authority under which regulatory arrangements between the two countries are implemented in all spheres of life. One area of focus is the movement of goods and people with the aim of establishing what is called a “security perimeter” around the two countries. In practice this perimeter has amounted to the extension of control by the U.S. security and military apparatus over Canada’s land, sea and air as well as surveillance over the movement of its people.
Now we see indications that the new Liberal government will continue in the same direction, while giving the impression that any abuse of the various data-sharing systems will be kept in check. This deflects attention from the fact that it is the very existence of the data-sharing systems that constitutes the abuse.
Along with these developments there is more troubling news. The Canada Border Services Agency (CBSA) now reports that in order to fulfill agreements signed by the Harper government with the U.S. and to increase efficiency, it has implemented and begun using a new system to profile passengers. The system, known as scenario-based targeting or SBT, has been in use by the United States for a number of years. No explanation is given at all as to how the new more efficient system will provide security. However, the CBSA tells media that the system “singled out” more than 2,300 passengers for “possible links to terrorism or serious crime” –0.03 per cent of the more than 7.5 million people flying into Canada over the course of only three months last year.
The CBSA describes the progression of the systems that it has put in place leading up to the new model:
“The Canada Customs and Revenue Agency implemented the Advance Passenger Information (API)/Passenger Name Record (PNR) program in October 2002, mandating the collection of prescribed information from commercial air carriers to identify persons who are or who may be involved with terrorism or terrorism-related crimes or other serious crimes, including organized crime, that are transnational in nature. In 2003 and 2004, the CBSA established the High-Risk Traveller Identification Initiative (HRTI) jointly with the United States Customs and Border Protection (U.S. CBP) to extend the API/PNR program to identify high-risk air travellers. Both parties agreed to implement a risk scoring methodology within their automated passenger systems to conduct risk assessment of unknown high-risk air passengers flying into their respective countries.”
We are now informed by CBSA that “After an extensive analysis of the risk scoring methodology and the continued commitment to comply with agreements made with the U.S. CBP, the CBSA undertook the replacement of risk scoring functionality with scenario based rules functionality on a limited basis. In January 2010, the Executive Policy Committee approved the implementation of a long-term solution for [scenario-based targeting] within the Passenger Information System (PAXIS).
“The scope of the [scenario-based targeting] project is to make changes to PAXIS, which previously used a risk scoring methodology, to accommodate a scenario-based methodology to enhance the processes which identify suspected high-risk travellers in the air mode. [Scenario-based targeting] will more effectively direct the focus on a smaller segment of the travelling population who represent a potential high risk.
“[Scenario-based targeting]-related enhancements to PAXIS will increase the efficiency, effectiveness and accuracy of the targeting officer’s otherwise manual and labour-intensive work, and thereby help facilitate the more efficient movement of legitimate people while safeguarding the border and the security of Canada. The enhancements also dramatically reduce scenario deployment times and costs enabling the CBSA to respond to imminent threats.”
The problem with integrating Canada’s traveller profiling with that of the United States is that the authority now lies outside of Canadian jurisdiction. Once the jurisdiction of the authority is no longer national, who will uphold the rights of Canadians and according to what criteria? Canadians feel more insecure than ever with an increasing number of people complaining about being arbitrarily flagged at the border based on their mental health background, national origin, appearance, religion, names or countries where they travel.
The annual report by Canada’s Privacy Commissioner Daniel Therrien, submitted to Parliament on December 10, raises a number of concerns about the new system. Amongst other things, he points out: “The new scenario-based method uses Big Data analytics – extensive number-crunching to identify patterns – to evaluate all data collected from air carriers. Designed to harmonize with the system used by the U.S., it could allow the operator to, for example, search for all males aged between the ages of 18-20 who are Egyptian nationals and who have visited both Paris and New York.”
Therrien says his office provided advice on the potential pitfalls, including the possibility of “false positives” that could result in unnecessary secondary screening for travellers. His recommendations include:
- Demonstrate the necessity of scenario-based targeting, beyond the general purpose of aligning Canada’s system with that of the U.S.;
- Be more transparent by fleshing out the privacy impact assessment with general descriptions of the types of scenarios that might be used to identify potentially high-risk travellers;
- Conduct regular reviews of the “effectiveness and proportionality of scenarios,” including an examination of impacts on civil liberties and human rights; and
- Prepare a broader privacy assessment of the overall program used to collect passenger information from airlines.
These measures are surely necessary. However, they do not address the experience of Canadians, which is that targeting is not based on objective criteria and infractions of the law. It is based on racial profiling and the outlook that all those countries and peoples who do not accept U.S. imperialist notions of democracy and human rights are threats to security and thus the violation of their rights is justified.
Now that the new federal Liberal government is taking over from where the Harper government left off it is expressing the desire to stem the more egregious abuses the profiling system gives rise to. Minister of Public Safety Ralph Goodale has told airlines that “additional security screening validation is not required for individuals under the age of 18.” The Minister has said he understands “the frustration of law-abiding travellers whose plans are interrupted as a result of false positives arising in the security screening of airline passenger manifests. We have heard the concerns of those who have gone through additional security screening that this situation can cause confusion and feelings of stigmatization.”
From this, it is clear Canadians cannot expect better protection. What they want is not the fine tuning of profiling. They want it ended, along with ending the integration of Canada into the U.S. security apparatus.
Will Goodale, for example, act to ensure that while travelling in the United States people labelled as false positives will not be harassed by U.S. security agencies or even disappeared? Will he take responsibility for information on Canadians that is handed over to the U.S. and used to violate their rights with impunity, a system which is already sanctioned?
Once the system is justified in the name of the high ideal of security and the fight against terrorism, then violations of rights are considered “collateral damage,” “unfortunate mistakes,” “unintended consequences,” and so on, as is the case with targeted assassinations conducted through drone warfare. It is the phoniest possible definition of what constitutes the “greater good.” It is a farce.
The issue of which authority presides over what jurisdiction is key to establishing who will defend you under what circumstances. Over what territory is Mr. Ralph Goodale exercising his authority? What authority is he exercising? For that matter, what is the federal government’s definition of authority? Providing answers to these questions will improve Canadians’ ability to secure their lives.
1.CBC reported the case of “a six-year-old Markham, Ont., boy named Syed Adam Ahmed, whose parents say has been flagged on a no-fly list since he was a toddler.
“His father, Sulemaan Ahmed, snapped a picture on an airport computer screen showing his son had been flagged on what’s known as a ‘deemed high profile’ list when he tried to take him to the NHL Winter Classic game between the Canadiens and Bruins on New Year’s Day in Boston.
“Since then, the parents of two other Canadian-born boys – both under three years old – have come forward saying their children are on no-fly lists and have faced airport security delays as a result.
“Ahmed, and his wife, Khadija Cajee, said they never got a straight answer from staff at the Transport and Public Safety departments about exactly what list their son might be on – or whether he is even on it.”