1.

All carriers are required, under Canadian law to provide the Canada Border Services Agency (CBSA) with Advance Passenger Information (API) and Passenger Name Record (PNR) information relating to all persons on board flights bound for Canada. The lawful authority of the CBSA to obtain and collect such information is found in section 107.1 of the Customs Act, and the Passenger Information (Customs) Regulations made thereunder, and in paragraph 148(1)(d) of the Immigration and Refugee Protection Act and Regulation 269 of the Immigration and Refugee Protection Regulations made thereunder.

2.

API and PNR information will be collected by the CBSA only in respect of flights arriving in Canada. The CBSA will use API and PNR information collected from European and other carriers only to identify persons at risk to import goods related to, or persons who are inadmissible to Canada because of their potential relationship to, terrorism or terrorism-related crimes, or other serious crimes, including organized crime, that are transnational in nature.

3.

API and PNR information will be used by the CBSA to target persons who will be subjected to closer questioning or examination on arrival in Canada, or who require further investigation, for one of the purposes described in section 2. No enforcement action will be taken by the CBSA or other Canadian law enforcement officials only by reason of the automated processing of API and PNR data.

4.

The list of API data elements that will be collected by the CBSA for the purposes set out in section 2 is set out in paragraphs 3(a) to (f) of the Passenger Information (Customs) Regulations made under the Customs Act. (1) The list of PNR data elements that will be collected by the CBSA for the purposes set out in section 2 is set out in Attachment A. For greater certainty, ‘sensitive data elements’ within the meaning of Article 8.1 of Directive 95/46/EC (hereinafter referred to as ‘the Directive’), and all ‘open text’ or ‘general remarks’ fields, will not be included within these 25 data elements.

5.

The CBSA will not require a carrier to collect PNR information that the carrier does not record for its own purposes, and will not require the carrier to collect any additional information for purposes of making it available to the CBSA. Therefore the CBSA recognizes that it will collect those data elements listed in Attachment A only to the extent that a carrier has chosen to place them in its automated reservation systems and departure control systems (DCS).

6.

The CBSA will consult and agree with the European Commission regarding revision of the 25 required PNR data elements set out in Attachment A, prior to effecting any such revision,

7.

The CBSA’s Passenger Information System (hereinafter referred to as ‘PAXIS’) has been configured to receive API and PNR information pushed from a carrier.

8.

Where the API and PNR information relates to a person who is not the subject of an investigation in Canada for a purpose described in section 2, it will be retained in the PAXIS system for a maximum of 3.5 years. During this period, the information will be retained in an increasingly de-personalized manner, as follows:

9.

Where the API and PNR information relates to a person who is the subject of an investigation in Canada for a purpose described in section 2, it will be placed in an enforcement database of the CBSA. These databases contain only information with respect to persons who have been investigated or subjected to an enforcement action under CBSA legislation. Access to these databases is made available only to those CBSA officials whose duties require such access and is closely monitored. API and PNR information that is transferred to such an enforcement database will be retained in that system for no longer than is necessary, and in any case for a period of no more than six years, at which time it will be destroyed unless it is required to be retained for an additional period by virtue of the Privacy Act or the Access to Information Act, as explained in paragraph 10 b.

10.

Where personal information is used by the CBSA for purposes of making a decision affecting the interests of the data subject to whom it relates, it must be retained by the CBSA for a period of two years from the date of such use in order that the data subject may access the information upon which such a decision has been made, unless the individual consents to its earlier disposal or where a request for access to the information has been received, until such time as the individual has had the opportunity to exercise all his rights under the Privacy Act or the Access to Information Act.

11.

API and PNR information will, at the expiry of the retention periods described in sections 8 through 10, be destroyed in accordance with the provisions of the National Archives Act (2).

12.

All disclosures of API and PNR information by the CBSA are governed by the Privacy Act, the Access toInformation Act and the CBSA’s own legislation. Although the Privacy Act and the Access to Information Act grant a right of access to records unless an exemption or exclusion applies, these Acts do not otherwise require any mandatory disclosure of API and PNR information. A copy of the CBSA's administrative policy governing the disclosure, access to and use of API and PNR information, Memorandum D-1-16-3 entitled Interim Administrative Guidelines for the Disclosure, Access to and Use of Passenger Name Record (PNR) Data, (hereinafter referred to as the ‘CBSA's PNR disclosure policy’) will be published and available for public access on the CBSA website. This policy, further described in section 37 of these Commitments, directs that API and PNR information could be shared with other Canadian government departments only for the purposes set out in section 2, unless the disclosure is made to comply with the subpoena or warrant issued, or an order made by, a court, person or body with jurisdiction in Canada to compel the production of the information or for the purposes of any judicial proceedings.

13.

API and PNR information will not be disclosed in bulk. The CBSA will only release select API and PNR information on a case-by-case basis and only after assessing the relevance of the specific PNR information to be disclosed. Only those particular API and PNR elements which are clearly demonstrated as being required in the particular circumstances will be provided. In all cases, the minimum amount of information possible will be provided.

14.

The CBSA will only disclose API and PNR information where the proposed recipients undertake to afford it the same protections which are afforded to the information by the CBSA. Canadian government recipients of PNR information are also bound by the requirements of the Privacy Act to the extent they are listed in the Schedule to this act. The Privacy Act applies to personal information which is information about an identifiable individual, recorded in any form, and under the control of a Canadian federal government department or agency subject to the Act. Such a department or agency is precluded from collecting any personal information unless it ‘relates directly to an operating program or activity of the institution’.

15.

The CBSA requires, as a matter of practice and as a condition precedent to disclosure, that Canadian federal or provincial law enforcement authorities undertake not to further disclose the information received, without the permission of the CBSA, unless required by law.

16.

The CBSA can share API and PNR information with the government of a foreign state, in accordance with an arrangement or agreement under subsection 8(2) of the Privacy Act and subsection 107(8) of the Customs Act.

17.

Such arrangements or agreements could include a memorandum of understanding developed specifically for purposes of the CBSA’s PNR Program, or a treaty pursuant to which CBSA authorities are required to provide assistance and information. In either case, the information will only be shared for a purpose consistent with those set out in section 2, and only if the receiving country undertakes to afford the information with protections consistent with these Commitments. In all cases, the minimum amount of information possible will be provided to the other country.

18.

API and PNR information retained in PAXIS will be shared only with a country that has received an adequacy finding under the Directive, or is covered by it.

19.

API and PNR information retained in an enforcement database described in section 9 can be shared in accordance with treaty obligations under a Customs Mutual Assistance Agreement or a Mutual Legal Assistance Agreement. In this case, API and PNR elements will only be shared on a case by case basis and provided that the CBSA is in possession of evidence that directly links the request to the investigation or prevention of crimes referred to in section 2 and only to the extent that the data elements provided are strictly necessary to pursue the specific enquiry in question.

20.

Notwithstanding anything in these Commitments to the contrary, the CBSA may disclose API and PNR information to relevant Canadian or other government departments and agencies, where such disclosure is necessary for the protection of the vital interests of the data subject or of other persons, in particular as regards significant health risks.

21.

The CBSA will provide information to the traveling public regarding the API and PNR requirements and the issues associated with its use, including general information regarding the authority under which the data will be collected, the purpose for the collection, protection that will be afforded to the data, the manner and extent to which the data will be shared, the identity of responsible CBSA officials, procedures available for redress and contact information for persons with questions or concerns.

22.

The PNR program may be subject to compliance reviews and investigations by the Privacy Commissioner of Canada and the Office of the Auditor General of Canada.

23.

Canada’s independent data protection authority, the Privacy Commissioner of Canada, can investigate the compliance by government departments and agencies with the Privacy Act, and can monitor the extent to which the CBSA complies with these Commitments. Following accepted standard objectives and criteria, the Privacy Practices and Review Branch of the Office of the Privacy Commissioner may conduct compliance reviews and may also conduct investigations. The Privacy Commissioner of Canada may disclose information that, in her opinion, is necessary to carry out an investigation under the Act or establish the grounds for findings and recommendations contained in any report made under the Act.

24.

The Office of the Auditor General of Canada conducts independent audits of Canadian federal government operations. These audits provide members of the Canadian Parliament and the public with objective information to help them examine the Government’s activities and hold it to account.

25.

Final copies of the Office of the Privacy Commissioner and Office of the Auditor General reports are made available to the public through annual reports to Parliament and, at their discretion, are readily available on the Internet. The CBSA will provide the Commission with access to copies of any such reports that relate in any way to the PNR program.

26.

In addition to the above review processes which are provided for under Canadian law, the CBSA will participate on an annual basis or as appropriate, and as agreed with the Commission, in a joint review of the PNR program relating to transfers of API and PNR data to the CBSA.

27.

The Canadian Charter of Rights and Freedoms, which is part of the Canadian Constitution, applies to all government actions, including legislation. Section 8 of the Charter provides the right to be secure against unreasonable search and seizure and protects a reasonable expectation of privacy. Section 24 of the Charter permits a person whose rights have been infringed to apply to a court of competent jurisdiction for such remedy as the court considers appropriate and just in the circumstances.

28.

The right of a foreign national to access records under the control of a Canadian federal government department, by virtue of Extension Order Number 1 of the Access to Information Act (ATIA), is granted to anyone present in Canada. Subject to exemptions in the Act, a foreign national present in Canada or alternatively a person present in Canada with the consent of the foreign national not present in Canada, could make an ATIA request for records concerning the foreign national and be given access to such records, subject to specific and limited exemptions and exclusions in the Act.

29.

Under the Privacy Act, the right to access personal information and request corrections or notations is extended by virtue of Extension Order Number 2, to anyone present in Canada. Therefore subject to exemptions in the Act, a foreign national may exercise these rights if he were present in Canada.

30.

In addition, however, the government department who holds personal information about a person may administratively afford access, correction and notation rights to foreign nationals who are not present in Canada. The CBSA will extend these rights in respect of API and PNR information in its possession to EU citizens or other persons that are not present in Canada, provided that the disclosure is otherwise permitted by law.

31.

The Privacy Commissioner may initiate a complaint if the Commissioner is ‘satisfied that there are reasonable grounds to investigate a matter under [the Privacy] Act’ and has broad powers of investigation in respect of any complaint. Additionally, the Privacy Commissioner may address complaints referred to it by the Data Protection Authorities (DPAs) of any of the Member States of the European Union (EU) on behalf of an EU resident, to the extent such resident has authorized the DPA to act on his or her behalf and believes that his or her data protection complaint regarding API and PNR information has not been satisfactorily dealt with by CBSA as set out in paragraph 30 above. The Privacy Commissioner will report its conclusions and advise the DPA or DPAs concerned regarding actions taken, if any.

32.

The Privacy Commissioner also has special powers to investigate the extent to which Canadian government departments and agencies are complying with the Privacy Act, with respect to the collection, retention, use, disclosure and disposal of personal information.

33.

Access to the PAXIS system will only be provided only to a restricted number of CBSA targetters or intelligence officers located in passenger targeting units in Canadian regional offices and at the CBSA’s Headquarters in Ottawa, Canada. These officers will access the PAXIS system in secure work locations that are inaccessible to members of the public.

34.

In order to access the PAXIS system, officers will be required to use two separate logins, using a system-generated user ID and password. The first login will provide access to the CBSA’s Local Area Network, while the second will provide access to the Integrated Customs System platform, which in turn provides access to the PAXIS application. Access to the CBSA network and any data contained in the PAXIS system will be strictly controlled and restricted to the selected user group, and every query and review of passenger data in the system will be audited. The audit record generated will contain the user name, the work location of the user, the date and time of access and the PNR file locator number for the information accessed. The CBSA will also restrict access to particular API and PNR data elements within the system on a ‘need to know’ (user type/profile basis). These access controls will ensure that access to API and PNR information is provided only to the persons described in section 33, for the purposes set out in section 2.

35.

Access, use and disclosure of API and PNR information is governed by the Privacy Act, the Access to Information Act as well as by section 107 of the Customs Act and the administrative policy described in section 37 of these Commitments, which reflect the protections and safeguards outlined in the present document. Section 160 of the Customs Act and internal codes of conduct provide for criminal and other sanctions in the event that these policies are not respected and, as noted above, the Privacy Commissioner is empowered under the Privacy Act to commence an investigation in respect of the disclosure of personal information.

36.

The CBSA’s PNR disclosure policy sets out the procedures which must be followed by all CBSA employees who have access to API and PNR information. The policy of the CBSA is to protect the confidentiality of the information and to manage it in accordance with the authorities in Canadian legislation, as well as CBSA and Canadian Government policies related to the management and security of information, as described in section 38.

37.

The CBSA’s PNR disclosure policy provides:

38.

The CBSA’s PNR disclosure policy falls under the umbrella of several CBSA-wide policies for the protection and management of information collected under the various statutes administered by the CBSA. In addition all CBSA employees are bound by Government of Canada security policies in respect of the protection of electronic systems and data protection. (3)

39.

All CBSA employees are familiar with these policies and the consequences of non-compliance, and adherence with them is a condition of their employment.

40.

The Aeronautics Act allows Canadian air carriers operating flights from any destination, or any carriers operating flights departing from Canada, to provide a foreign state with information concerning persons on board such flights and bound for that state, where the laws of that state require the information to be provided.

41.

In the event that the European Community, the European Union or any of its Member States decides to adopt an airline passenger identification system and passes legislation which would require all air carriers to provide European authorities with access to API and PNR data for persons whose current travel itinerary includes a flight to the European Union, section 4.83 of the Aeronautics Act would permit air carriers to comply with this requirement.

42.

These Commitments will apply for a term of three years and six months (3.5 years), beginning on the date upon which an agreement enters into force between Canada and the European Community, authorizing the processing of API and PNR data by carriers for purposes of transferring such data to the CBSA, in accordance with the Directive. After these Commitments have been in effect for two years and six months (2.5 years), the CBSA will initiate discussions with the Commission with the goal of extending the Commitments and any supporting arrangements, upon mutually acceptable terms. If no mutually acceptable arrangements can be concluded prior to the expiration date of these Commitments, the Commitments will no longer apply to any data collected from that moment onwards. Data collected while these Commitments were in force will remain protected by the terms of these Commitments until any such data is deleted.

43.

CBSA fulfils its Commitments via the application of existing Canadian law, or, where not already covered by Canadian legislation, in regulations formulated specifically for that purpose or through administrative processes.