Citizenship and Immigration Canada announced last December that it intends to collect biometrics (unique identifiers such as fingerprints, facial images and iris scans) from certain foreign nationals of 29 countries and one territory. To that end, on December 8, 2012, draft regulatory amendments to the Immigration and Refugee Protection Regulations, which outline the proposed changes to establish biometrics in Canada’s temporary resident immigration program, were published in the Canada Gazette Part I for a 30-day comment period. CIC has indicated that the new measures are necessary because of a “rise in global identity fraud” and technological innovations that “make it easy to steal, forge or alter identity documents.”
As a result, beginning September 2, 2013, foreign nationals applying for Canadian visas from countries such as Haiti, Jamaica, Saudi Arabia, Albania, Afghanistan, Sudan, Syria, Columbia, Burma, Egypt, Yemen and Pakistan, will undergo mandatory fingerprinting and digital photo collection at new visa application centres being established by Canada overseas. The fingerprints collected abroad will be sent to the Royal Canadian Mounted Police to be checked against the fingerprint records of refugee claimants, previous deportees, persons with Canadian criminal records, and previous temporary resident applicants before a visa decision is made. Once an individual arrives in Canada, her or his biometric data will be checked to ensure that the individual who was approved to travel is in fact the same person who is entering Canada. Where a border services officer has concerns regarding the identity of the visa holder seeking entry, the officer will have discretion to confirm that individual’s identity by requesting an electronic scan of the individual’s fingerprints at an equipped point of entry for comparison against the prints collected abroad.
CIC worked with Public Safety Canada, the Canada Border Services Agency, the RCMP and the Canadian Security Intelligence Service, and consulted with the Department of Foreign Affairs and International Trade and Industry Canada to develop the list of countries and territory whose nationals would be subject to biometric screening. The countries and territory were selected following an assessment of immigration patterns including volumes or rates of temporary resident visa refusals, removal orders, refugee claims and nationals arriving without proper documentation, or attempting to travel to Canada without proper documentation or under a false identity.
Immigration Minister Jason Kenney says the new biometrics program will provide border officials with “greater certainty,” to help them detect identity fraud, security threats, catch criminals and facilitate legitimate travel to Canada.
According to CIC:
The cost-benefit analysis indicates that the new program would result in a net benefit of $106 million over the 10-year horizon (2013–2022). The anticipated net benefit is largely due to the implementation costs of the use and collection of biometrics in Canada’s Temporary Residents program being partially offset by a biometric fee that would be collected, as well as the benefits derived from the number of potential criminals and persons who would contravene immigration laws that will either be stopped or deterred from coming to Canada and the number of persons making a refugee claim in bad faith who will be deterred from making a claim.
Regulations will establish the biometrics fee payable by applicants. Applicants required to provide biometric information would pay a biometrics fee of $85.
The Regulation allows the government and the RCMP to share biometric information with foreign countries and with other domestic law enforcement agencies. Canada and the United States have committed to increase immigration information sharing as part of the 2011 Perimeter Security and Economic Competitiveness Action Plan. In 2014, both countries will begin to systematically share biometric information, in the form of fingerprints, from third-country nationals from certain countries who are temporary resident visa, work permit or study permit applicants.
According to the International Civil Liberties Monitoring Group, a coalition that includes Amnesty International and other human rights groups, and those opposing such a program, the measures will threaten peoples’ civil liberties and privacy. These stakeholders say this program is offensive and invasive; areas of concern include unauthorized or unnecessary data collection, use and disclosure of personal information, forensic usage, usage as unique identifier—which can identify a person and his or her day-to-day activities through the linkage of various activities and databases—as well as function creep or biometric information collected being used for different or additional purposes than originally stated by the authorities.
It seems the balance between national security and individual freedom has never been more difficult to maintain. Nowadays, staying ahead of crooks and criminals intent on fraudulent activity often means collecting, storing and disclosing the penultimate type of sensitive personal data available: basic biometrics. With these new CIC measures, biometrics are simply fingerprints and photographs, which can mean all the difference when attempting to identify a person who has applied to enter the country. But it’s not hard to imagine a future where fraudsters will be able to fake fingerprints and disguise themselves to trick cameras, at which time authorities may require even more invasive measures, such as collecting and storing DNA samples.
Of course, even before such a time, the opposing concerns are valid. This basic biometric information can be used to violate individuals’ civil liberties. This is where the wording of the Regulations is important. It is crucial that the authors impose strict limits on the collection, use and disclosure of personal information. In this case, the federal public sector Privacy Act would apply. However, the federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act could also apply.
The federal Privacy Act allows, under certain circumstances, personal information under the control of a government institution (for example, information collected to issue passports or visas or residency) to be disclosed and transferred outside Canada without the consent of the individual to whom the information relates. This disclosure or transfer is for specific purposes under an agreement or arrangement between the Government of Canada and the government of a foreign state. These purposes include administering or enforcing any law or carrying out a lawful investigation.
PIPEDA could apply when fulfilling such purposes such as administering and enforcing the law. If a private sector company holds such information. Section 7 of PIPEDA permits the company to disclose personal information that is required to comply with a subpoena or warrant issued by a court, or to comply with a court order.
The Privacy Act and PIPEDA are already quite restrictive with respect to the uses of personal information. But with new regulations covering new territory, it is also crucial that stakeholders keep an eye on how authorities are interpreting the regulations and whether they are acting within the meaning as well as the word of the law.