Privacy and Information Sharing: The Search for an Intelligent Border [Washington]

Mary Ellen Callahan, Chief Privacy Officer, U.S. Department of Homeland Security

Jim Harper, Director of Information Policy Studies, Cato Institute

Wesley Wark, Associate Professor, Munk School of Global Affairs, University of Toronto

New technology should not be viewed as the whole solution to address border security threats, said Wesley Wark of the University of Toronto at the Washington, D.C., launch of the Canada Institute's 13th One Issue, Two Voices publication. The publication explored the topic of privacy, information sharing, and security in Canada-U.S. border management. Wark was joined on the panel by co-author Mary Ellen Callahan, chief privacy officer, U.S. Department of Homeland Security. Jim Harper of the Cato Institute moderated discussion and provided opening remarks. In his introductory comments, he stressed the need for a risk management approach to border security that would balance the benefits and costs of all border measures.

U.S. Federal Privacy Practices

Callahan stated that while Americans and Canadians share similar values and privacy expectations, both countries have very different systems to protect sensitive information. Unlike in Canada, the U.S. Department of Homeland Security's (DHS) Privacy Office is an active participant in formulating new policies and programs in the Department. The DHS Privacy Office works with all other departments within DHS to ensure that proper privacy considerations have been considered before implementing new policies. This embedded approach to privacy security allows DHS to effect change before new programs are set to begin. Callahan also said that her office has the authority to stop new programs that do not adhere to U.S. privacy protection standards. She said that her office has used this power on occasion, but did not specify which programs had been halted.

She also noted that the DHS Privacy Office can act as an arbitrator as well, and investigate any program that may not be complying fully with privacy standards. The Office also reviews privacy complaints from the public and can act to redress them.

Callahan discussed the recent controversy over privacy concerns surrounding the U.S. Transportation Security Administration's use of Advanced Imaging Technology (AIT) at various U.S. airports. According to Callahan, two factors led to the decision to implement AIT: (1) terrorists still view airplanes as a favored target; and (2) the use of non-metallic weapons, such as plastic explosives, prompted the need for more advanced security screening technology. She explained that DHS did conduct extensive outreach with privacy advocates prior to implementing AIT. Measures were also taken to make the technology less intrusive, including making faces unidentifiable, discarding the images immediately after screening, and analyzing images in a room separate from the scanner. Such efforts, said Callahan, are typical of DHS's goal to make newly implemented technology as unintrusive as possible for the American public.

The Canadian Perspective

Canada's dependence on the United States as a trading partner elevated the need for the Canadian government to develop a plan that balanced trade and security aims at the border following the attacks of September 11, said Wark. He explained that crafting and negotiating such a plan with the United States was a daunting challenge for Canada. This was primarily because the United States was entirely focused on security after 9/11, while Canada, further removed and not a target of the attacks, was fighting to keep the free-flow of goods and services moving across the border.

Nevertheless, Canada successfully negotiated and signed the Smart Border Declaration on December 12, 2001. Among other initiatives, the Smart Border Plan promised to harmonize security policies with the United States and increase information sharing between the two countries.

According to Wark, the agreement provided leverage for the United States to demand an unprecedented amount of sensitive information from Canadian intelligence agencies. This, in tandem with the passing of Canada's first anti-terrorism legislation in 2002, led to opposition from George Radwanski, Canada's then Privacy Commissioner—an officer of Canadian Parliament who serves as an advocate of Canadian privacy rights. Radwanski warned that Canadian privacy rights were at stake as a result of Canada's willingness to follow the United States' lead in collecting and disseminating sensitive information to combat terrorism.

Wark explained that although Radwanski's warnings drew considerable public attention, they failed to acknowledge the demands of the new national security environment. Radwanski was soon dismissed after those comments, Wark said, and his successor, Jennifer Stoddart, has found a more balanced tone in privacy and security aims.

Radwanski's fears were realized, however, when the Maher Arar story broke in 2003, said Wark. Arar, a dual Canadian and Syrian citizen, was detained in the United States in 2002 on a return trip back to Canada from Tunisia on suspicion of having connections to Al Qaeda. Although these charges later proved baseless, he was rendered to Syria where he spent a year in prison before the Canadian government was finally able to negotiate his release.

Wark maintained that the Arar case illustrated the dangers of opening the floodgates to information sharing and the failure of a U.S. approach to homeland security that strived for the unattainable goal of 100 percent protection against all security threats. According to Wark, there are some risks "we can't fully mitigate." A more effective approach to border security, said Wark, is for the U.S. and Canadian governments to develop a common risk assessment strategy that defines security threats and implements a reasonable set of deterrents against them. Gathering and acting on credible intelligence information, noted Wark, will do far more to protect Canadian and U.S. citizens than relying on added layers of technology to screen everyone at the border.

Drafted by Ken Crist
David Biette, Director, Canada Institute