September 05, 2003 Features & Images » Feature Story

Feature - Security measures 

Two years after the Sept. 11 terrorist attacks are we facing another assault?

We may never fully understand he events that many of us woke to on Sept. 11, 2001, even though we watched them unfold live on television and innumerable times on video tape.

But even though we watched the World Trade Center towers fall and the troops roll into Afghanistan, two years later, we are only beginning to comprehend the impact of the terrorist attacks on New York and Washington. For families, co-workers and for nations, many things changed on Sept. 11, including the definition of the word "security".

Unquestionably security had to be redefined, but it’s been done in ways many of us wouldn’t have imagined. In the last two years increased security has made getting on a commercial airplane a much more serious and unpleasant task. Crossing the U.S.-Canada border has also become a bigger deal than it used to be. And there is more surveillance virtually everywhere.

High-profile events that draw large numbers of people, whether they are sporting events, business meetings or political summits, have also become security concerns. Even little resort villages in the mountains that host such events have to be concerned about security in the 21 st century.

South of the border, security has become such a hot topic since Sept. 11 that the U.S. government has instituted a colour coded terrorist alert warning. More relevant to most people, the U.S. has brought about the Patriot Act, which among other things, allows the state to hold terrorist suspects without charges and permits authorities to conduct search and seizure operations without warrants – things that Americans were supposed to be protected against in their Constitution.

A New York Times editorial last month called the Patriot Act "… the Bush administration's attempt to make the country safe on the cheap. Rather than do the hard work of coming up with effective port security and air cargo checks, and other programs targeted at actual threats, the administration has taken aim at civil liberties."

Meanwhile, as the impact of 9/11 began to sink in, Canada countered with the Anti-Terrorism Act, which was passed in December of 2001. The law is intended to prevent terrorists from getting into Canada and to protect Canadians from terrorist acts, "by activating tools to identify, prosecute, convict and punish terrorists," the Department of Justice Web site states. There is also a sunset clause that will see the powers provided in the legislation cease to exist in 2007 – unless the federal government specifically extends the Act.

The two main elements of the Act are "investigative hearing provisions" and "recognizance with conditions". The investigative hearing provisions, as described by the Justice Department: "allow a police officer, ‘for purposes of an investigation of a terrorism offence,’ to apply ex parte to a judge for an order to gather information relevant to that investigation… It authorizes the judge to order the examination of a material witness who may possess information regarding a terrorist offence that has been or may be committed."

To use the recognizance with conditions clause "a peace officer must believe on reasonable grounds that a terrorist activity will be carried out and suspect on reasonable grounds that imposing conditions for supervision or arresting a person is necessary to prevent this activity from being carried out. If these conditions are met, the peace officer can bring the person before a court, with a summons or alternatively by arrest with or without a warrant, so that a judge may determine whether or not to order a recognizance to keep the peace."

While these measures alarm many people – John Dixon, president of the B.C. Civil Liberties Association, has said the Act contains "draconian measures" which include allowing "the Communications Security Establishment to use its resources to monitor communications within Canada" – the Attorney General of Canada is required to present an annual report to Parliament on their use. For the first year the Anti-Terrorism Act was in place (Dec. 24, 2001 to Dec. 24, 2002) there were no applications to use either the investigative hearing provisions or the recognizance with conditions clause.

"The fact that these provisions were not used by the RCMP or federal prosecutors in the first year of their existence illustrates that these measures are not being abused and that these agencies are proceeding cautiously in using these powers," the Department of Justice Web site states.

However, the powers contained within the Anti-Terrorism Act and other laws have come under more scrutiny following the arrest and detention of 19 men of Pakistani and Indian origin in Ontario last month. The men are accused of violating the Immigration Act, but according to media reports a document filed for a detention hearing states: "Based upon the structure of this group, their associations, and connected events, there is a reasonable suspicion that these persons pose a threat to national security."

Two of the suspects have been set free in the last week – an adjudicator presiding over the detention hearing said she saw no concrete evidence linking them to terrorism – while a 20th man was also arrested in what is being called Project Thread. No charges have been laid against any of the men.

Perhaps not unexpectedly, the alleged terrorists have received little sympathy from the general public. A Globe and Mail Web site poll last week found 73 per cent of nearly 16,000 respondents felt such open-ended detentions are justified for national security reasons. And while some Pakistani Canadians accused authorities of racial profiling, several newspaper columnists defended the arrests.

Solicitor General Wayne Easter maintained, in an interview with CBC Radio last week, that "It’s not who you are, it’s what you do" that triggers arrests like those in Project Thread. Easter also stressed that authorities have to find "a balance" between national security and individual rights and freedoms.

But as titillating as Project Thread may be, it’s not just terrorists and alleged terrorists who are affected by security measures in the post 9/11 world. Dixon of the BCCLA wrote to Prime Minister Jean Chrétien last February about "a torrent of measures from your government undercutting the privacy rights of Canadians."

"Some of these laws are being justified on the basis that they are necessary for the war on terrorism, or so we are told," Dixon wrote. "Other measures are supposedly necessary to fight the war on organized crime, or the war on drugs or the war on child pornography. What is actually being waged is a war on privacy and the rights of Canadians to have a life free from constant scrutiny by their government or anyone else."

Through pressure from groups like the BCCLA and the office of former privacy commissioner George Radwanski, one of the most insidious proposals – and one that directly affected tourism – was substantially revamped earlier this year. The Canada Customs and Revenue Agency had proposed that data on airline passengers – both Canadian and foreign – be collected, maintained for six years and shared with all government ministries and agencies. It was proposed that more than 30 data elements be collected, including where and with whom people were travelling, method of payment for tickets, contact addresses and telephone numbers, and even dietary and health related requirements communicated to the airlines.

Although the Chrétien government originally stated that this "Big Brother" database would monitor only air travellers, information obtained by the BCCLA and others under the Access to Information Act revealed that the government intended to extend the database to travellers arriving by ship, train and bus as well.

In April, under mounting pressure from a number of groups, Revenue Minister Elinor Caplan announced the database would be restricted and much more tightly controlled.

After Caplan announced the revisions former privacy commissioner Radwanski released a statement that said the changes "very substantially address the concerns by myself and others.

"They effectively eliminate the use of this information for fishing expeditions such as identifying everyone who has travelled to a particular country a certain number of times, or routinely accessing travel profiles of individuals for tax review purposes. They eliminate meal and health information outright. And they very significantly limit the use and sharing of personal information about travel activities."

But Radwanski added: "It would, of course, be preferable from a privacy perspective not to have this database at all, or to have it absolutely restricted to anti-terrorism purposes."

What is allowed under the Customs Act is that Advance Passenger Information, which consists of information contained in a passport, will continue to be stored for six years and can be widely shared by government departments.

The more detailed Passenger Name Record, which contains all the information held by an airline, will be purged by Canada Customs of all meal and health information. PNR data will still be held for six years but use and access vary according to three time periods within the six years.

Privacy issues have become more important and more prevalent in recent years not just because of security measures taken following 9/11 but also because in the electronic world of the 21 st century there is more information about us readily available. Every time we use a credit or debit card, log online or make a phone call we leave a trail of electronic information behind.

And that information has become more valuable as it has become easier to compile, sort and package for any number of purposes.

To protect privacy the same government that is collecting information on air travellers has introduced privacy legislation that will apply to all Canadian businesses starting Jan. 1, 2004, unless a province has "substantially similar legislation" in place. B.C. does.

The B.C. government has introduced its own Personal Information Protection Act, Bill 38. The B.C. law is supported, by and large, by both the B.C. Civil Liberties Association and the B.C. Freedom of Information and Privacy Association.

The intention of both the federal and provincial laws is to protect individuals’ privacy by requiring organizations to follow fair information practices regarding the collection, use and disclosure of personal information.

But at the same time it’s telling businesses to be judicious with personal information, the federal government is considering a national identification card for Canadians. Last November Denis Coderre, Minister of Citizenship and Immigration, proposed a card that would contain an electronic copy of the holder’s thumbprint, retina or palm print.

Radwanski, the former privacy commissioner, told the House of Commons Standing Committee on Citizenship and Immigration: "The creation of a national ID card is not only an idea without merit. It is also an idea that is totally without any substantial support."

Video monitoring is another security measure that has become more common following 9/11, although it had been growing in popularity prior to the terrorist attacks.

The attraction of video monitoring is easily understood. People are less likely to misbehave if they know they are being watched, and as police and security resources in most communities are stretched video is a cheap alternative. A reduction in thefts of ski equipment on Whistler and Blackcomb in recent years would seem to be evidence of the effectiveness of video monitoring.

But some maintain there is a difference between video monitoring of a specific area for a specific purpose and video monitoring a large public space where any number of activities – most of them likely legal – can be expected to occur. Edmonton Journal columnist Lorne Gunter recently argued that video monitoring "turns the presumption of innocence on its head…"

"By their very nature, the cameras are an infringement of our ancient right to be free from scrutiny unless we have given authorities reason to suspect us and until they have provided a magistrate with enough evidence to convince him they are justified in watching us. The infringement begins, without a hearing, the second the lens snaps on and our images flicker onto the monitor’s screen," Gunther wrote.

Radwanski last summer launched an action to declare the RCMP’s video surveillance activities in Kelowna unconstitutional as a violation of the Canadian Charter or Rights and Freedoms. The appeal was withdrawn by new Privacy Commissioner Robert Marleau in July, but a press release announcing the withdrawal stated "… the Commissioner and his office continue to have a variety of concerns regarding video surveillance of public places by public authorities…"

The issue, again, is the collection of information on individuals for no specific purpose, although it could be used in many ways.

On the surface video monitoring and national I.D. cards seem far removed from the Anti-Terrorism Act and other measures invoked in the name of security after Sept. 11. But, the importance of the right to privacy cannot be over-emphasized.

Radwanski’s credibility suffered when he was forced out of the Privacy Commissioner’s office earlier this year in a spending scandal, but his understanding of what privacy means and his ability to convey that message is not lost. Speaking to the Canadian Community Newspaper Association about "the defining issue of this decade" earlier this year Radwanski noted that privacy is a fundamental human right, recognized as such by the United Nations. It’s sometimes described as the right from which all freedoms flow.

"Freedom of speech, freedom of association, freedom of thought, virtually any freedom you can name, all are based on the right to privacy, and are unthinkable without it," he said.

"How can we be truly free if our every move is watched, our every activity known, our every preference monitored? And yet, almost every day, in some new and creative way, this fundamental human right is being chipped away. Sometimes the diminution is subtle, sometimes it’s a full frontal attack – but the process is begun and it is a challenge we must answer.

"To do that, we must take the view that privacy is not just an individual right – it is a public good. It reflects decisions we have made as a people about how we will live as a society. Privacy is, as Justice La Forest of the Supreme Court of Canada has said, ‘at the heart of liberty in a modern state.’ And we are, all of us, the loser if individual liberty is lost."

Much was lost on Sept. 11, and the natural reaction is to improve security. But in the last two years some of our fundamental values have been under attack in the pursuit of security. Defending those rights and values is even more important in the world today.

In the words Alan Borovoy of the Canadian Civil Liberties Union, "If we were to needlessly surrender any of our precious freedoms, we could wind up awarding the terrorists a gratuitous victory."

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