Principles to Maintain Civil Liberties for U.S.-Canadian Border Policy

Document Date: December 5, 2011

In February 2011, U.S. President Obama and Canadian Prime Minister Harper reached an agreement to create a “North American Security Perimeter.” This plan outlined the following objectives: “addressing threats early,” trade facilitation, integrated cross-border law enforcement, and critical infrastructure and cybersecurity.

However, greater harmonization of U.S. and Canadian security policies such as a continental entry-exit system must not lead to large scale surveillance systems . Both countries recognize a constitutional right to travel, and the legal systems of both countries recognize that privacy is a fundamental right.

In order to ensure that implementation of the Security Perimeter comports with both nations’ longstanding values of privacy and civil liberties, we call on both leaders to require that the proposed Canada-U.S. Security Perimeter Cooperation Agreement adhere to following principles:

  1. HIGHER STANDARDS PREVAIL: Where there are differing standards of legal safeguards between the two countries, the standard granting the greater protections to individuals should be adopted.
  2. ADHERENCE TO EXISTING OBLIGATIONS: Both countries must uphold the International Covenant on Civil and Political Rights, the 1951 International Convention Relating to the Status of Refugees (including the principle of non-refoulement), the UN Convention Against Torture, and the UN Convention on the Rights of the Child, and all other relevant international human rights laws to which either country is party.
  3. LEGITIMATE, NECESSARY AND PROPORTIONAL: States must comply with the International Covenant on Civil and Political Rights’ prohibition against arbitrary or unlawful deprivation of an individual’s right to privacy. In order to ensure that a limitation on the right to privacy is not arbitrary, it should be legitimate, necessary and proportional as follows:
    1. It must be essential to achieving a specific, legitimate aim that is specified in advance.
    2. It must be the least intrusive means possible of achieving such an aim.
    3. It must be proportional to the interest to be protected.
    4. To ensure these principles are met, any limitation must be based on individualized suspicion or evidence of wrongdoing.
  4. COLLECTION: States should only engage in targeted, lawful collection of personal information.
    1. Surveillance and “intelligence” about domestic subjects must be individually targeted, based upon individualized suspicion of wrongdoing, and subject to judicial oversight.
    2. The creation of dossiers, watchlisting, “intelligence” collection, investigation and infiltration must never be based on invidivuals’ exercise of their rights to freedom of expression and religion.
    3. New technologies permitting broader forms of surveillance must be subject to full public consultation and debate, authorized by law, necessary and proportional, and subject to independent assessment and oversight.
  5. LIMITS ON INFORMATION SHARING: Any information exchanges between security and intelligence agencies must be subject to clear controls and limits – both between Canadian and U.S. agencies and among domestic agencies. In particular, information shared among or between national intelligence agencies must be subject to a public, written agreement between the national agencies with respect to purpose, use, storage, dissemination.
    1. Any information sharing must be restricted to its particular purpose, and not used, disseminated or stored for secondary uses.
    2. The storage of personal information must be subject to rules limiting the duration of its retention to reasonable periods.
    3. Information should never be shared with third countries that are suspected of engaging in or condoning serious violations of human rights, including torture or cruel, inhuman, or degrading treatment or punishment.
  6. OVERSIGHT AND ACCOUNTABILITY: Information collection, sharing, use, dissemination, and storage practices must be subject to independent oversight, review, and accountability procedures. This applies to all intelligence agencies, in both countries, engaged in information sharing practices. In Canada, the federal Privacy Commissioner for example, would have the expertise to monitor and review all information sharing agreements and practices. In the United States, such independent oversight could be provided by the Privacy and Civil Liberties Oversight Board – an institution created by Congress in 2007 yet which has stood vacant ever since as presidents Bush and Obama have refused to nominate members to the Board.
  7. NONDISCRIMINATION: In the treatment of personal information, there must not be any discrimination between U.S. and Canadian citizens, or between citizens and permanent residents of either country.
  8. DUE PROCESS: No person should be subject to impingements on their right to travel or other ill effects without full due process, including:
    1. The right to notice of the deprivation and of the legal and factual bases for the deprivation.
    2. The right to access and review the evidence against them.
    3. The right to challege the accuracy or reliability of the evidence against them, and to receive redress.
    4. The right to challenge adverse designations through an adversarial process before a judge and subject to judicial review.
    5. Cooperation between countries and jurisdictional issues shall not be permitted to form a barrier to individuals seeking redress.
  9. WATCH LISTS: Watch lists must be narrowly focused on persons who pose a genuine and immediate threat. No person should be placed on a watch list (or denied access to a “trusted traveler” whitelist) unless:
    1. They are given full due process as outlined above, including the right to notice that they have been included on a watch list or excluded from a whitelist.
    2. There are tight, well-defined criteria by which individuals are added to a watch list, or excluded from a whitelist.
    3. The watch list is subject to independent oversight, including rigorous procedures for the removal of names that should not be on the list.
    4. The agencies involved in placing names on the watch list or denying access to a whitelist refrain from using “guilty by association” in targeting individuals.
  10. DATA MINING: Security screening determinations or any other decisions that produce legal effects or significantly affect the data subject may not be based solely on automated processing of data. A form of appeal and other due process rights must be provided when automatic decision making processes are used.
  11. CYBERSECURITY: All cybersecurity measures must comply with the principles listed above.
  12. FOREIGN INFORMATION SHARING AND MUTUAL ASSISTANCE: Steps must be taken to ensure that domestic law enforcement can never use foreign law enforcement to circumvent legal safeguards that apply to the domestic agency. A law enforcement agency must not carry out surveillance on one country’s citizens on behalf of another country’s law enforcement agencies in circumstances where those agencies are prohibited from carrying out such surveillance on their own.

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