Read before crossing

If you’re like us at the BCCLA National Security Blog, you store a lot of personal and private information on your laptops, smart phones, and other portable electronic devices. Today, we published a handbook (and a pocket guide!) to help you keep your information private when crossing the border into Canada. Why a handbook about border searches? Because the threshold for constitutionally-permissible search and seizure is lowered at the border, and because electronic devices — which can contain vast amounts of sensitive and personal information — are increasingly becoming the target of border searches.

So check out our handbook (which will get updated as the law and technology changes, in this rapidly evolving area), and our pocket guide (available for you to download and print out and fold into something wallet-sized). (And because we can’t help but brag a little: we made it onto Boingboing!)


Extraordinary assistance

The CBC is reporting today that U.S. flight logs show Canadian involvement in CIA extraordinary rendition flights:

Reprieve, based in London, said a chartered plane long suspected of transferring prisoners repeatedly stopped in Gander, central Newfoundland, on its way to Afghanistan from Guantanamo Bay in 2004.

In the United States, “extraordinary rendition” was used to apprehend and detain foreign nationals suspected of involvement in terrorism. The practice, as described by the ACLU:

The suspect would be arrested and secretly transferred to prisons run by foreign intelligence agencies in countries known to torture, or to CIA-run “black sites.” Once detained, these men experienced unspeakable horrors — often kept in squalid conditions, many of them faced interrogation under torture, including waterboarding, electrocutions, beatings, extreme isolation, and psychological torture.

Maher Arar is the most famous Canadian victim of the extraordinary rendition program. Based on faulty intelligence provided by the Canadian government, the United States arrested and detained him during a stopover at a New York airport, and delivered him to torture in Syria.

Maher Arar, like other extraordinary rendition victims, was forcibly disappeared via a private flight chartered by the CIA. And according to the evidence obtained by Reprieve, some of these rendition flights stopped in Canada before continuing on to CIA black sites in Lithuania. As reported by the CBC:

“The evidence suggests that Canada, by virtue of its location, was a very vital, logistical point for the extraordinary renditions program. That is evidence more and more clearly as time goes on,” said Crofton Black, who is with Reprieve.

Black said that’s verified by flight logs provided by the FAA, one of the 28 aviation authorities that received an access to information request from Reprieve.

This evidence of Canadian involvement in the CIA’s extraordinary rendition program is enormously important.

Torture and enforced disappearance are crimes under international law. And international law makes clear that states can be held responsible for aiding and assisting other states in their violations of international law, if they know that their aid and assistance is facilitating the misconduct. What that means here is if Canada was aware that the planes at issue were part of the CIA’s extraordinary rendition program (which were delivering individuals to enforced disappearance, torture or other ill-treatment), Canada should not have allowed its territory to be used to facilitate these flights.

There have long been concerns about Canadian complicity in facilitating rendition flights. In 2005, Amnesty International Canada wrote to then-Minister of Transport Jean Lapierre requesting information, following media reports that rendition flights were landing in Newfoundland. Receiving no response, Amnesty then followed up in January 2006 with then-Minister of Public Safety Anne McLellan. But as Alex Neve, Secretary General of Amnesty International Canada, told the CBC today:

“We could not get a clear answer at all, including, whether or not Canada was specifically reviewing these flights with Canada’s specific human rights obligations in mind. We couldn’t even get confirmation about that.”

As Amnesty noted in 2006, the Canadian response to these concerns was distressingly subdued. Unfortunately, not much has changed in the intervening years. While the Council of Europe has conducted inquiries into alleged CIA activities in Europe, and a number of European states have investigated the role of their own government officials in assisting the CIA’s rendition program, no similar inquiries have taken place in Canada.

Canada needs to clarify what has happened here, or risk being itself accused of violations of international law. This is not an academic concern: in the face of continued American refusal to provide a proper accounting for the CIA’s extraordinary rendition program, groups such as the Open Society Justice Initiative have launched litigation against states thought to be complicit in the CIA’s activities.

The CIA’s extraordinary rendition program represents some of the worst excesses of the “global war on terror.” In light of this most recent report of potential complicity, Canadians need to know what role — if any — their government played in facilitating renditions.


Seeing through airport scanner rhetoric

The BCCLA unpacks the Canadian response to the Underwear Bomber, pointing out critical flaws in the body scanning machines that will be appearing in Canadian airports in the near future. This article will break down the BCCLA’s complaints with the scanners, focusing on privacy concerns, weaknesses of the technology, and issues with the lack of public debate before the devices were purchased.

Unless you’ve spent the past month in a media vacuum, you know by now that on December 25, 2009, Umar Farouk Abdulmutallab allegedly attempted to blow up an airplane with explosive underpants.

The “Underwear Bomber” has since pleaded not guilty to charges of attempted murder and possession of weapons of mass destruction. For the next few weeks, what Bruce Schneier calls airport security theatre—attempts to do something (anything!)  for the sake of being seen to do something—became a theatre of the absurd.

In Canada, carry-ons were banned completely from U.S.-bound flights. Controversies erupted over what exactly could be brought onto a plane and who got to decide. Books were thought to be banned and then promptly unbanned. Travellers were told that they can’t be told what not to bring, because telling them would threaten security. Final decisions on many items not included on “the list” of approved items would be left to the discretion of airport screeners, and might vary based on criteria like the length of the flight.

While the carry-on restrictions and other new rules are both frustrating to travellers and illustrative of the knee-jerk reactions to obscure threats we’ve seen over the past few years (liquid bombers, shoe bombers), they pose few serious concerns for the BCCLA. The real threat to our liberties comes from what is set to be the real legacy of the Underwear Bomber—virtual strip search machines.

The BCCLA has several critical concerns with the scanners:

1. The privacy implications

A. Genital blurring bait-and-switch

When CATSA recommended the scanners for use in Canada in October, 2009 and placed its initial order for 7 of the machines, they were ordered without the ‘genital blurring software’ that had been in place during the Kelowna trial.

The images that have been plastered all over newspapers around the world are an example of what can seen with the genital blurring software enabled. That’s the picture below, center. To the left, you see the cartoony image that will be available to screeners interacting with passengers. To the right, you see what the scanners will see with genital blurring software disabled. These images are far more detailed and far more revealing.

B. Image retention and transmission

Canadians have been assured that the scanners being installed in Canadian airports will delete images after a passenger has passed through security screening, and will not have the capacity to save or send the images they capture. Putting aside the reality that screeners could just take photos of the image on their screen with their own cameras or even their cellphones, claims that the image cannot be saved or sent appear to be false.

Yesterday, the Electronic Privacy Information Center (EPIC) posted documents it has received as part of a lawsuit involving body scanners. The documents came from the Transportation Security Authority (TSA) in the United States, and detail administrative overrides on the scanning machines that would allow images of passengers to be saved and sent over the internet.

C. Secondary today, primary tomorrow?

One of the lessons of the war on terror has been that technology that is implemented for one purpose will soon be used for another. While Canadians are being promised that the machines will be used only for secondary screening and that concerned individuals can opt for a physical patdown search, how long will it be before we are told that it is necessary for these machines to be used in primary screening and without an option for a patdown?

The push for virtual strip search as primary screening has already begun in the U.S. and in Britain.

In the United States, body scanners are still mostly used as secondary screening, but they are a primary screening device in at least six airports, though patdown searches are also an option.

In Britain, travellers are being told that a random selection of passengers will be sent through the scanners, and they won’t have the option for a patdown instead:

Airline passengers will have no right to refuse to go through a full-body search scanner when the devices are introduced at Heathrow airport next week, ministers have confirmed.

The option of having a full-body pat-down search instead, offered to passengers at US airports, will not be available despite warnings from the government’s Equality and Human Rights Commission that the scanners, which reveal naked bodies, breach privacy rules under the Human Rights Act.

D. The patdown option

While some people say that they would prefer a body scan to a patdown search, the assured pressure to make scans more prevalent will disproportionately impact people whose religious beliefs include maintaining bodily modesty and people who have a profound dignity interest in preventing various items from being viewed, including those wearing incontinence garments, sanitary napkins, colostomy equipment, and so on.

E. Won’t someone think of the children?

In one of the more bizarre twists of the body scanner saga, concerns have been raised in the United Kingdom that scanned images of people under the age of 18 may run afoul of Britain’s child pornography laws:

A 12-month trial at Manchester airport of scanners which reveal naked images of passengers including their genitalia and breast enlargements, only went ahead last month after under-18s were exempted.

The decision followed a warning from Terri Dowty, of Action for Rights of Children, that the scanners could breach the Protection of Children Act 1978, under which it is illegal to create an indecent image or a “pseudo-image” of a child.

In Canada, minors have also been exempted, but this raises entirely new questions. How effective can the machines be if people under the age of 18 aren’t being screened?

2. The technology

A. Effectiveness

The BCCLA wholeheartedly agrees that security measures are necessary to make sure air travel is safe. However, it appears that the scanners being rushed into operation in Canada would not have detected the Underwear Bomber’s bomb, and in fact have difficulty detecting much that would not be detected by a metal detector. To quote security expert Bruce Schneier, body scanners are “not just a dumb idea, they don’t actually work.”

The failings of the body scanning technologies have been pointed out many times, including on this German TV clip showing a man bringing bomb making supplies through a scanner:

All varieties of body scanners available are good at picking up dense items, like metal or thick plastic, but looser items—powder, gels, or thin layers of plastic—are as invisible as your clothing. A 2007 report from the Committee on Assessment of Security Technologies for Transportation of the U.S. National Research Council found that “there is insufficient technology available to develop a system capable of identifying concealed explosives”, and recommended continued research before the systems are implemented.

Similar results have come out of the UK:

Yesterday, the London Independent reported on “authoritative claims that officials at the [UK] Department for Transport and the Home Office have already tested the scanners and were not persuaded that they would work comprehensively against terrorist threats to aviation.” A British defense-research firm reportedly found the machines unreliable in detecting “low-density” materials like plastics, chemicals, and liquids—precisely what the underwear bomber had stuffed in his briefs.

Even if the systems could detect explosives secreted on the surface of the body, they are not foolproof. They could not detect anything between folds of flesh or inside body cavities. Are cavity scans just around the corner?

B. Efficiency

The Kelowna trial also showed that the scanners would further slow the lines at airport security, processing people at only a fraction of the speed. Efficiency cannot be the deciding factor in what security measures are appropriate for airports, but when combined with the ineffectiveness, privacy concerns, and cost of the full body scanners purchased by CATSA, the additional time spent screening passengers is not worth it.

C. Health concerns

There are many health questions being raised around full body imaging systems, and the only definitive answer so far seems to be “we don’t know yet.” In all likelihood, the machines are safe. The American College of Radiation and American Roentgen Ray Society have both said they are not concerned by the technology. All the same, long term studies on the safety of millimeter wave technology have not been conducted, and the health impact on sensitive individuals—pregnant women, for instance—is still unclear.

3. The process

A. Lack of debate

The BCCLA has been monitoring the Canadian Air Transport Security Authority’s (CATSA) efforts to get the machines approved for and installed in Canadian airports for some time now. From June 2008 through January 2009, the machines were put through a trial at Kelowna International Airport in BC. The trial was cursory at best, designed to gauge passenger acceptance and not  test the efficacy of the machines. Based on those results, the machines were recommended by CATSA in September 2009, and seven were ordered before they had even been approved by the Privacy Commissioner of Canada. Finally, the machines were given approval by Canada’s Deputy Privacy Commissioner, Chantal Bernier, in October 2009.

On January 5th, Transport Minister John Baird announced that Canada will be installing 44 “body scanners”, virtual strip search machines that see through travellers’ clothing to reveal items concealed beneath. The first 12 of the scanners arrived in Canadian airports the week after.

On January 13th, Minister Baird claimed that the machines had been ordered months ago, and stressed the need to act immediately. “We’re taking the leadership in this. We have to move quickly and expeditiously.”

It’s very hard for politicians to say no to heightened security. They have to be seen to do something to respond to an attack, even if, as is the case with body scanners, that response wouldn’t have prevented the attack being responded to.

This type of security logic is badly broken. It amounts to an arms race, where security is geared toward the last attack that was tried, completely ignoring what might be tried in the future. Baird himself highlighted this issue, saying that, “We’ve always got to be raising our game, because the terrorists are always going to be changing theirs.” We’ve been “raising our game” ever since 2001; the benefits for safety are dubious and the cost to liberties has been high.

Ironically, the best security fixes since 2001 are incredibly non-intrusive, adapt to nearly every possible in-air terror plot, and costs the government next to nothing. Cockpit doors have been secured, and passengers now know they have to fight back. That knowledge—not shoe removal or naked scans—is what kept the shoe and underpants plots from being successful.

We need to sit back and think about that simple fix. We need to think about the real risks of terrorism and debate what measures are sensible to take to prevent it. The worst time to make decisions like that is in the emotional moments after an attack, yet we continue to do just that.

B. The body scan lobby

Michael Chertoff, founder of the Chertoff Group of security consultants and former head of the Department of Homeland Security, has been making the rounds on cable news promoting the use of body scanners in the wake of the attack. It was recently revealed in the Washington Post that Rapiscan, one of the manufacturers of body scanners, is a client of Chertoff’s company.

The conflict of interest apparent in the U.S. body scan lobby has made a difference in Canada, as well. The TSA’s assessment of body scanners weighed heavily in Minister Baird’s decision:

“We’re confident that these are the best machines available on the market and they are the only ones recognized by the (U.S.) Transportation Security Administration, so that was an important part of our decision.”

C. A better way

Where is the way forward on body scanners? There are several options.

The best option would be to hold off until the technology has improved, but that ship has sailed. If the scanners are deemed a necessity, there are options that are no more expensive, no less effective, and better at protecting privacy than the L-3 machines purchased by CATSA.

Some systems have a “privacy mode” that only show cartoon-like images of the body, highlighting areas where suspicious items are detected in red. There are also millimeter wave scanners that operate on exactly the same principles as the L-3 scanners, but do not generate images at all. Much like the metal detectors currently used in airports, these machines will sound an alarm if suspicious items are detected, and the individual who triggers the alarm can be searched physically.