National Security, Surveillance, and Mental Health at the Canada-U.S. Border
Alex Rosenblat, M.A.
Department of Sociology, Queen’s University, Kingston, ON
Supervisors: David Murakami Wood and Annette Burfoot
September 2013
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Introduction
In December 2010, Lois Kamenitz, a Canadian woman, was denied entry to the
United States (U.S.) at Toronto’s Pearson International Airport after her digital records
alerted the border guard who was performing a routine interview with her that she had a
history of mental illness. When she asked why U.S. Custom and Border Patrol (CBP)
agents had access to her health records, they replied that they had her police record, and it
indicated that police attended her home in 2006 (Bridge 2005:NP). “I was really
perturbed,” Kamenitz says. “I couldn’t figure out what he meant. And then it dawned on
me that he was referring to the 911 call my partner made when I attempted suicide”
(Ibid.). Suicide is not necessarily the result of mental illness, but an indication of it is a
sufficient condition from which a border guard can infer a history of mental illness.
Kamenitz reported her border case to the Psychiatric Patient Advocacy Office (PPAO), a
government institution in Toronto. Since her case emerged in 2010, at least a dozen other
similar cases, Canadians denied entry to the U.S. after digital records indicated a mental
illness have been reported to the PPAO (PPAOb 2011:NP).
Evidently, police records generate informal mental illness labels that can have
consequences far beyond regional policing concerns. Once private information is shared
with agencies outside of those for which it was originally designated, there is the risk that
this practice will become normalized, grafting permanent stigmas onto the people who
are castigated by them. This essay will offer a sociological analysis of those
consequences by examining border controls, surveillance, and mental health. It will
compare pre-9/11 bilateral efforts in trans-border crime prevention with significant
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expansion in collaborative border security initiatives implemented post-9/11. This
expansion reflects a shifting focus in Canada-U.S. crime-prevention collaboration from
trans-border criminals to a new mandate revolving around National Security agendas.
After 9/11, there were some American suspicions that Canada was a vacuum for
terrorist activity. This vacuum represents a convenient foothold for greater American
insinuation into Canadian border operations. Indeed, the border became a source of
significant interest to the U.S. as it developed greater Homeland Security structures to
deal with the threat of terror. Canada is implicitly, and sometimes explicitly, included in
the ‘Homeland’ (Radia 2013). Canada subscribes to U.S. National Security initiatives at
the border as a function of several agreements it entered into concerning economic and
security relations. These relations are contextualized by a power disparity that exists
between the two nations in which the U.S. has the upper hand, although it is perceived as
a mostly neighbourly, not a coercive, figure in the Canadian historical imagination.
The U.S. has long pursued a strategy of zero-risk management to achieve its National
Security goals, something which became more explicit, intense, and obvious after 9/11
(Lyon 2013:101). At the border, broad surveillance systems are used to collect large
amounts of data on people, in order to sort them into categories ranging from low-risk to
high-risk. An analysis of this strategy indicates that locating risk, somewhat arbitrarily, in
varying objects and digital records, like mental health, promotes insecurity because it
deflects attention from less obvious markers of concern and creates queues behind the
security gate that can present a new target for terrorist attacks (Molotch 2012:106). The
solution to this dilemma thus far has been characterized by the building up of a culture of
fear to balance out the introduction of security measures with untested or unproven
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efficacy. The latter both inconvenience travelers, and can have significant negative
consequences to the travelers who are caught up in the security apparatus because they
are marked as ‘risky’. The capricious nature of risk assessment also provide a dangerous
precedent in terms of what kinds of governmental actions can be justified at the border
under the umbrella of ‘security’. Throughout this paper, the rhetoric of national security
will be addressed – specifically how it plays on notions of security and insecurity (Lyon
2013:100). This essay argues that some categories of risk, in particular mental illness, are
based on stigmas and stereotypes, and that there is little evidence that focusing on mental
health improves national security.
The overly broad nature of a category like mental illness makes about a fifth of the
Canadian population potentially ‘higher-risk’ than other Canadians because one in five
will experience a type of mental illness at some point in their lifetime (The Public Health
Agency of Canada 2002: NP). In the course of my research I have not found any
evidence that people with mental health issues are a higher security risk. It is an
unexamined assumption, held self evidently true because it has been a reason for denying
people entry to the U.S. for about a century (Bridge 2005:NP and U.S. Citizenship;
Immigration Services 1988: Sec. 212.7), although what mental illness referred to a
century ago is very different than what it encompasses today. This is evidence of one of
the flaws in broad surveillance systems, which is that casting too wide a net distracts
attention from more pointed searches for terrorists, and subsequently creates more
insecurities about what is ‘risky’. Conversely, when people are hindered in their travel or
mobility because of mental health issues or inferences, their experience serves to amplify
the stigma of mental illness on a broader, societal level. This is especially problematic
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because health information is considered highly sensitive, and less visible. Its sudden
visibility on the screen of a foreign border guard in a space fostered by intergovernmental co-operation signifies a type and scale of trespass that is jarring.
By sharing information on its citizens that includes sensitive references to mental
health status with U.S. border authorities, the Canadian government is enabling a foreign
government to discriminate against Canadians in ways that are prohibited at home by the
Canadian Charter of Rights and Freedom. This discrimination may even reduce actual
security by allocating resources to categories of risk that are too broad to be effective.
While the Charter does not apply, legally, at the border, it has the potential to apply to
information that supports stigma-based discrimination, which travels from Canada to the
U.S. More importantly, the Charter is a sort of map for the kind of society that Canada
aspires to be, and reflects distinctly Canadian values about discrimination and civil rights.
Simply put, it is impossible to sanctify one standard of rights and values within the
country, and then abandon that standard at the periphery, without creating dissonance in
values Canada stands for as a free and open society. The Kamenitz case is a clear
example of that kind of dissonance.
It is possible to take some action against this gap though, which is evidenced by the
Ontario’s Chiefs of Police Association’s positive response to the issues raised by
Kamenitz’s case, which was to implement guidelines advising police not to record mental
health information into police records, with some exceptions. Their actions, which will be
discussed in more detail later in this essay, lay the groundwork for further debate on the
intersection between policing and mental illness, and the appropriation of local police
records foreign governments to fulfill national security goals. In support of this debate,
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several examples of Charter and other rights issues that arise from collaborative bilateral
security and economic regimes will be offered throughout this essay to demonstrate that
Kamenitz’s case is part of a larger trend in governmental surveillance and Canada-U.S.
relations.
Throughout this essay, the term “Canadian citizens” will be used interchangeably
with “individuals.” Although the term “citizen” is slippery, nuanced and contested, it
does have a specific legal definition that will be employed here: it refers to people who
have official Canadian citizenship, rather than people who are in the process of applying
for citizenship or who are on any kind of visa. I make this distinction between people
who have legal status as Canadian citizens versus people who are more transient,
temporary or not yet permanent members of Canadian society, like foreign students,
travelers and refugees, in order to examine specifically how Canadians are treated at the
border. While both Canadian and American border control authorities have access to each
other’s national police databases, my intent is to focus on the impact of this convergent
surveillance on Canadians with mental illness. As well, just as “…in ordinary Canadian
speech, the word ‘border’ resonates to mean primarily one thing: the crossing-point to the
continental USA,” (New 1998:35). All mentions of the border in this essay refer to that
crossing-point.
A Brief History of Canada-U.S. Information-Sharing Practices on Criminals Before 9/11
Canada developed a computer-based system for compiling and sharing
information between provinces and jurisdictions on violent crime in the 1980s as an
investigative tool for tracking serial offenders who commit serious crimes. An FBI
program in the U.S. called the Violent Criminal Apprehension Program (ViCAP) inspired
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the creation of a national database of Major Crime Files (MCF) in Canada. These
automated systems are aimed at organizing criminal apprehension efforts across regional,
provincial and national borders, between the U.S. and Canada. The MCF system proved
ineffective with only 800 cases in the database and 1 linkage (RCMP, ViCLAS:NP). In
1991, Canada sent a representative to the U.S. to study their serious crime linkage
systems who subsequently revamped the Canadian system successfully; as of 2007, it
contained 300 000 cases and 3 200 linkages, according to the Plans for the Future section
of the RCMP website. Today,
The RCMP are working with the FBI who are in the process of redesigning their ViCAP system. It
is hoped that by sharing information they will be able to develop a system that will allow the
portability of information across systems” (NP).
However, the RCMP’s website does not specify what kinds of information they want to
share and if this goes beyond records of serious crimes.
The Canada Police Information Centre (CPIC) was established in 1972 to form a
centralized national database of police records. CPIC is also connected to the United
States National Crime Information Center (NCIC), run by the Federal Bureau of
Investigation (FBI), which allows both countries to access each other’s national criminal
databases. Indeed, in a comment on the Kamenitz case, RCMP Inspector Denis St. Pierre
says,
The database contains anything that could alert authorities to a potential threat to public safety and
security, and all CPIC information is available to the U.S. Department of Homeland Security….
(Bridge 2011:NP).
A cursory summary of the Privacy Impact Assessment of CPIC (neither the actual
assessment nor a substantial summary is publicly available yet, according to the RCMP’s
website, because there is no formal departmental process for processing it) makes no
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mention of privacy concerns related to bilateral information-sharing practices between
the U.S. and Canada. It does discuss the current functions and goals of these practices:
CPIC…will continue to be integral to meeting the RCMP strategic objectives by facilitating
information sharing at the national and international working levels, thus facilitating the
prevention of situations such as terrorist attacks…CPIC is and will continue to be a national
repository of information of interest to the law enforcement community and provide query
capabilities to other indexed data repositories of administrative and law enforcement systems such
as…NCIC [National Crime Information Centre] and NLETS [The International Justice and Public
Safety Information Sharing Network] in the United States…(RCMP 2005: NP)
While most information in CPIC is currently available to U.S. authorities, through
a Memorandum of Cooperation made between the RCMP and U.S. border authorities,
there are some exceptions. For example, Wandering and Missing Person’s information is
restricted (BC Civil Liberties Union 2012:NP).
The method by which the U.S. CBP officers would have gained access to CPIC's
police records database in Kamenitz’s case is through a Memorandum of Understanding
(MoU) between CPIC and the Toronto Police, and subsequently through a Memorandum
of Cooperation (MOC) between the RCMP and the FBI, although the specific MoU in
question is not available in the public domain. A request made to the RCMP in 2011
under The Freedom of Information act, submitted by Fritsch when he was legal counsel
to the PPAO, for information on a,
MoU or other agreement between the Canadian Govt [government], the RCMP and the USGovt /
US Dept Homeland Security governing the cross-border sharing of CPIC information, both current
and all historical agreements going back to 1980 (Fritsch 2011:NP).
was met with a reply to the effect that no such records could be found. In any event,
Kamenitz’s lawyer, Sean Dewart, did manage to obtain copies of a an MoU between the
RCMP and the Toronto Police, as well as Memorandum of Cooperation dated July 25,
2008 between the RCMP and the FBI, “which "built upon and supplemented" a 1999
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Memorandum of Cooperation ("the 1999 MOC") dated May 6, 1999” (Dewart Factum
2012) regarding the direct automated CPIC/NCIC Interface. However,
The 2008 MOC observes that the “use of information contained in the CPIC and the NCIC/III is
for criminal justice purposes…However, neither the 1999 MOC or the 2008 MOC address the
types of records and the extent of disclosure of information in the records to be shared on the
direct automated computer interface. (Ibid. 11)1
It is standard practice for police officers to submit police records to CPIC. At the
border, the Automated Canadian United States Police Information Exchange System
(ACUPIES) gives U.S. CBP officers access to CPIC files. Although it is unclear when
the ACUPIES program began, it currently processes over 12 million transactions per year
(RCMP 2006:NP).
CPIC files became part of an automated system of bilateral data surveillance
through the Integrated Customs Enforcement System (ICES) program. ICES was
originally a U.S.-based initiative for U.S. customs and border enforcement purposes, but
since 2004, Canada’s CBSA has been participating in it as well to share and compare
notes on passenger information for those who travel across the border. This program is in
place typically at major border crossings only, such that a person who is flagged at
Toronto’s Pearson International airport may not be flagged at a point of entry in rural
Quebec. As the Office of the Privacy Commissioner of Canada (2010) reports,

ICES also contains records on arrests, seizures and customs investigations.

Using ICES, CBSA officers are able to create, access, maintain and issue “lookouts.” A
lookout flags or identifies particular travellers or vehicles on the basis of risk
indicators or other available intelligence. [emphasis added]

Some travellers may be pulled over for secondary inspections or searches. In that case, all
related information is also entered into the ICES database, including the reason for the
additional screening; the results of the search; interview notes; identity information such
as name, age, address, citizenship, licence and passport numbers; details of any CBSA
The original citation within the Factum is this, but I do not have access to it: St-Pierre Affidavit, Exhibit
E, Applicant's Compendium, Tab 3E, p. 73
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actions taken (for example, if the individual was searched, arrested or detained), and the
names of travel companions.

Personal information collected under this program is retained for six years.
Kamenitz’s incident above was recorded into the CPIC’s centralized database
with this kind of flagging system, and the information collected on her for policing
purposes was clearly instrumental in creating trouble for her at the border. Her data
double superseded any reassurance she could have offered U.S. border authorities about
her mental state. Law enforcement officers routinely enter over 540,000 criminal records
into that system annually (RCMP 2009:NP) and these records include any information
relevant to a criminal investigation, even if no charges are ever brought against the party
under investigation. As Dewart (2012), Kamenitz’s lawyer, notes, “The creation of a
CPIC record for an individual who has attempted suicide is absolutely discretionary.
There is an absence of clear criteria or statutory authority for determining when a CPIC
record for a suicide attempt is required” (p. 4). The RCMP (2009:NP) manages 9.6
million CPIC records, which are available to U.S. border authorities. According to the
Privacy Commissioner of Ontario, Ann Cavoukian (2007), in a report on police
background checks,
… police databases often contain… information about an individual’s mental health…In fact, if
you have had any contact with the police or have come to the attention of police for any reason,
this may be recorded in police records (p. 1).
The process by which a non-criminal police record, like Kamenitz has, is created is
outlined below in the graphic by the PPAO (PPAOd 2011:4)2 :
Graphic sourced directly from: “What is a Mental Health Police Record?” Mental Health Police Records:
Issues and Solutions. Presented by the Police Records Check Coalition, Nov. 22, 2011.
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A police record contains data about any encounter an individual has had with
police, including observations that police make about the mental status of those they
encounter. Despite the graph above, a hospital visit is not necessary for the purpose of
creating a record based on an encounter, but the visit itself guarantees the creation of a
record. Recorded encounters include the medical emergencies to which police are alerted,
and can contain misinformation or misunderstandings about the details of the supposed
crisis. A person who is misidentified with mental illness issues is equally subject to a redflag at the border as is a person having a medical emergency, and the limited recourses
available to rectify misinformation poses a continual obstacle to citizens who are fighting
for their mobility, and their liberty.
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According to the British Columbia Division of the Canadian Mental Health
Association (CMHA), the scope of the issue of police intervention in mental illness
events is significant:
A 2008 research study by the Vancouver Police Department found that more than one-third of all
calls for Vancouver Police involve people with mental health issues. In the Downtown Eastside, it
increases to almost one in every two calls. A CMHA BC Division study found that over 30% of
people came into contact with police during their first experience trying to access mental health care
in BC. (CMHA 2012:NP).
Sometimes, well-meaning officers arrest people they perceive to be having a mental
health crisis just to guarantee that the person will be seen by a hospital (MHCC 2013:50).
Suffice it to say that ill intent of officers is not the issue; the issue is how easily mental
health can become a policing concern, and how this has significant consequences when
concern transpires into something much more dire in a national security context at the
border.
At the border, each U.S. CBP officer has the legal right to use discretion to deny
entry to anyone for any reason according to the DHS (2010:NP), but automatic flagging
is likely to make them less reliant on personal discretion – after all, each officer is very
likely terrified of admitting the next 9/11 terrorist into the country. However, the way
that information on Canadians travels to the U.S. is problematic because it puts individual
citizens at the sometimes-capricious mercy of CBP officers, whose power or job exists in
its current format on the basis of the fear and unease perpetuated by the security
apparatus that it represents. This raises important questions about the principles behind
risk assessments as they are made at the border, and how they came about.
In the wake of 9/11, the DHS was created to fight the War on Terror that thenPresident George Bush declared in October 2001. The DHS was given the mandate to
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secure U.S. borders against external threats to U.S. national security under the Homeland
Security Act of 2002 (Haddal 2010:1). That act brought the Bureau of Customs and
Border Protection (CBP) under DHS control. Risk management became DHS’s main
strategy for securing U.S. borders (Muller 2008:2) against terrorists, illegal aliens,
smugglers and other criminals (Haddal 2010:1). Risk is calculated as part of this strategy:
DHS collects vast amounts of information on people, which it uses to sort them into
categories of risk at pre-clearance screening stations.
Why Is The U.S. More Concerned With The Canadian Border After 9/11?
After 9/11, Canada was mistakenly but popularly identified as a potential source
of some of the terrorists who entered the U.S. in the 9/11 attacks. “The 9/11 Commission
Report” by the National Commission on Terrorist Attacks upon the United States (2004)
did note that there were “…examples of terrorists entering from Canada, awareness of
terrorist activity in Canada and its more lenient immigration laws…” 3 (p.81) before 9/11.
Prior to the attacks, the border had been perceived as,
…a dividing line so accepted that it has been described in recent years as the longest undefended
cliché in the world. Canada and the United States were the archetypical “good neighbours.”
(Taylor 1989:241).
Post-9/11, the border loomed large in America’s national imagination as a source of risk
to national security, even though none of the 9/11 terrorists entered the U.S. via Canada.
In the wave of finger pointing that followed the attacks, Canada was noted as a possible
The “9/11 Commission Report” is referring to the case of Ahmed Ressam, who arrived in Montreal in
1999 using a false passport, admitted it was false when he underwent questioning by Canadian border
guards, and successfully claimed political asylum for false persecution in Algeria. He later drove a car full
of precursor materials for a bomb from Victoria, Canada to Port Angeles, but was selected for secondary
inspection because he looked nervous. He panicked, and tried to run away. Ressam claimed that a Bin
Ladin lieutenant, Abu Zubaydah encouraged and facilitated the plans for attack. (National Commission on
Terrorist Attacks upon the United States 2004:176-177). It also noted that, “All but one of the 9/11
hijackers acquired some form of U.S. identification document, some by fraud” (Ibid.:398).
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source for future attacks as “…the keeper of an under-policed border which posed a
security threat to its powerful neighbor, the United States.” (Murphy 2007: 4). In 2001,
for example, Democratic Senator Byron Dorgan suggested that,
We have a 4,000 mile border between the United States and Canada, with 128 ports of entry, and
100 of them are not staffed at night. At 10 o’clock at night, the security between the United States
and Canada is an orange rubber cone, just a big old orange rubber cone. It cannot talk. It cannot
walk. It cannot shoot. It cannot tell a terrorist from a tow truck. It is just a big fat dumb rubber
cone sitting in the middle of the road (Moens and Gabler 2012:10).
While the rubber cone is, hopefully, a metaphorical function of rhetoric, it signifies a
notion that does play into public perceptions of Canada in America, which is that it is
unable to defend itself, or America’s interests, without a stronger American presence in
Canadian border operations. Indeed, in a report prepared for the U.S. Congress in 2010,
Chris C. Haddal (2010:25), a specialist in immigration policy noted that as per concerns
raised after 9/11, the U.S.
…emphasis on intelligence and cooperation with Canada reflects the concern that terrorists may
attempt to infiltrate the United States along the sparsely defended northern border. In their report,
the 9/11 Commission noted that prior to the terrorist attacks, the northern border received very
little attention from Congress or the White House…
After 9/11, this attention shifted and Canada became the focus of border talks that had a
national security agenda tied in explicitly with an economic or trade relations’ agenda.
Before discussing how those relations shifted, it is worth outlining the U.S. attitude
towards risk management and broad surveillance, the defining precepts of U.S. National
Security.
The State of Pure Knowing
Current risk management practices at the border invoke a type of relationship
between risk, security, information, and surveillance that represents a grounded
application of American philosopher John Dewey’s (1984) idea that the “quest for
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complete certainty can be fulfilled in pure knowing alone” (p. 7). Indeed, the Director of
Administration of The International Justice and Public Safety Information Sharing
Network (NLETs) characterizes the role of information-sharing practices as follows:
In the post-September 11 world, information is the cornerstone of protecting citizens and property.
Whether it’s the officer on patrol…or an agent at an international border, the 21st-century law
enforcement and criminal justice professional faces a daunting task (Locke 2005:NP).
Since the 9/11 terrorists were from the Middle East, risks to national security became
more strongly associated with foreign or foreign-looking bodies that pass through the
border. This effectively relocates uncertainty and insecurity away from the confines of a
national space and onto groups that are conceived of as foreign and deviant. Indeed, the
larger discourse of risk is about labeling risk, whether or not it really exists, by
identifying sources of it. If there are no good ways to identify sources of it, then stigma
fills the vacuum. The stigmatized are left to grapple with proving that they are not risky
to people working for the DHS or CBP, which is difficult to do, because stigma is a
powerful thing, and because those with mental health issues involving police records tend
to have little to no recourse for getting a third, more powerful body to weigh in on the
risk assessment.
Indeed it has long been established in the human rights arena, and in particular by the
Ontario Human Rights Commission (2009: 13), that there is a “…domino effect,”
whereby barriers in one area (such as education or employment), lead to barriers in other
areas (such as housing)...” This domino effect can equally be used to describe the way
that mental illness stigmas evolve into higher-risk stigmas at the border.
Mental Health Stigmas
Overall, mental illness has become so widespread as a label that terms like
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‘depression’ or ‘bipolar’ have entered the common vernacular as an explanatory category
for describing deviant or anti-social behavior. A survey conducted by the Canadian
Medical Association (CMA) in 2008 revealed that, “Almost half of Canadians, 46 per
cent, think people use the term mental illness as an excuse for bad behaviour” (CBC
2008:NP) The former president of the CMA, Dr. Brian Day, commented, “In some ways,
mental illness is the final frontier of socially-acceptable discrimination” (Ibid:NP). The
border manifests this conceptual frontier physically, where socially acceptable
discrimination has become the basis for profiling. When medical labels are appropriated
as a tool for securing the border in an effort to shield society from a perceived threat of
people with mental illness, they become a permanent feature of that individual’s profile
in the CPB database and beyond. In an age of wide-scale medicalization of ‘abnormal’
behaviour, medical diagnoses can present risks far outside the range of a doctor-patient,
diagnosis-treatment protocol.
Mental health is particularly sensitive to societal overreaction associated with
stigmatized identities because stereotypes about it are so prevalent. As Corrigan
(2000:49) notes, “Research has shown that well-trained professionals from most mental
health disciplines also subscribe to stereotypes about mental illness.” Many disorders
share similar diagnostic criterion. Moreover, the symptoms of mental illness can be
described qualitatively; they do not routinely rely on clearly physical indices of disease,
like the laboratory results of blood work tests. All of which makes mental illness
diagnoses more subjective and thus more vulnerable in a culture that promotes
medicalization. As psychiatrist and academic Thomas S. Szaz wrote in The Myth of
Mental Illness,
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The notion of mental symptom is therefore inextricably tired to the social (including ethical)
context in which it is made in much the same way as the notion of bodily symptom is tied to an
anatomical and genetic context (Szasz 1960:NP).
In The Depsychiatrization of Mental Illness, anthropologist Joseph Dumit (2005:
9) notes how pressures in the West from the pharmaceutical industry to expand its market
has led to a trend of mass diagnoses of illnesses and the creation of a state of ‘dependent
normality’, where people depend on medication to regulate their daily life. In other
words, it has become ordinary for people to seek out a medical diagnosis and a label for
their ills; and every medical label is characterized by the danger or risks inherent to the
disorder it defines. This is not to discount the real medical conditions for which people
seek treatment, but it does highlight a societal standard for mass medicalization that
includes mental health. This trend has become so conventional that it is being entrenched
in legal codes. For example, Illinois passed into law the Children’s Mental Health Act,
2003, and a task force was subsequently established to design mandatory screening
processes for mental illness in pregnant women and children ages zero to five (Center for
the Study of Social Policy 2012:13). This type of legislation speaks to the fixity of mental
health surveillance, and the potential hazard of using it in governmental functions that go
beyond ensuring the health or well-being of the nation. If it is used to keep people under
control via their category, it leaves very little space for individuals to have privacy. As
Cohen (2012) observes about the need for individuals to have privacy in a surveillance
sosciety, “It is also and more generally about preventing the seamless imposition of
patterns predetermined by others” (p. 149).
Medical data in particular exacerbates the existence of the ‘Other’ by identifying
multiple classifications of abnormalities. It can also provide fodder for what Beck (2006)
describes as, “the ‘mathematicized morality’ of expert thinking and public discourse on
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‘risk profiling’” (p. 333). On a theoretical level, Beck has posited that, “risk exposure is
replacing class as the principal inequality of modern society” (Ibid). Therefore, the
increased medical surveillance of Canadian citizens is potentially introducing a model for
social control that catalogues people according to their risk, and confers or reduces legal
and social privileges on them accordingly. For instance, the Nexus card, which allows
travelers who are considered low risk to pass through the U.S.-Canada border more
quickly than non-card holders, can be considered a metaphor for the digitization and
classification of citizens into the ‘haves and the have nots.’ In other words,
medicalization of individuals’ behavior is one way to facilitate or hamper their social
mobility – it helps to determine who has the privilege of movement and who is restricted.
In examining how risk is manufactured in modern societies, Beck (2006)
observed that, “…in the face of the production of insuperable manufactured uncertainties
society more than ever relies and insists on security and control…” (Ibid:335). The US
National Security apparatus is tasked with finding the exception, the terrorist, and in
doing so it has created broad categories that make everyone a possible exception. Having
overly broad categories of risk is clearly counter-productive to finding a needling terrorist
in a haystack, which is what broad surveillance systems are all about.
Broad Surveillance Systems
The border is a unique place in time and space where the digital data doubles of
men and women take precedence over the characteristics or information that can be
observed from the contents of their baggage or a search of their person for the purpose of
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border controls. Instead, mass amounts of data are collected from a variety of sources and
are used to sort travelers into low or high-risk categories. Records or information on
people that did not previously cause hassles at the border are newly relevant to post-9/11
risk management regimes that aim to achieve better security through broader surveillance
practices. As Gilles Deleuze (1992) argues,
The numerical language of control is made of codes that mark access to information, or reject it.
We no longer find ourselves dealing with the mass/individual pair. Individuals have
become “dividuals,” and masses, samples, data, markets, or “banks” (NP).
To wit, “Surveillance societies do not monitor people qua individuals but operate
through dissembling and reassembling data points (Taipale 2012:NP), resulting in
“dividualization”. Lyon has further noted, with reference to consumer marketing and data
mining practices and their value to post-9/11 security surveillance practices, that,
The key practice here is that of coded categories through which persons and groups of persons
may be sorted (Cayhan 2005; Lyon2003b). If personal data can be extracted, combined, and
extrapolated in order to make profiles of potential consumers for targeted marketing purposes,
then, by a similar logic, such data can be similarly processed in order to identify and isolate groups
and persons that may be thought of as potential perpetrators of “terrorist” acts. Such “social
sorting” has become a standard way of discriminating between different persons and groups…”
(Lyon 2006:404).
In practical terms, one of the criticisms levied against the TSA by the U.S. House
of Representatives (2011) is that it has,
…failed to develop an effective, comprehensive plan to evolve from a one-size-fits-all operation—
treating all passengers as if they pose the same risk—into a highly intelligent, risk-based operation
that has the capacity to determine a traveler‘s level of risk and adjust the level of screening in
response (p.10).
In a one-size-fits-all operation of broad surveillance, citizens become ‘dividuals,’ and,
instead of creating an improved albeit homogenizing security machine, broad
surveillance adopts a bulldozing approach to security with unclear effectiveness at the
19
high cost of civil liberties. Security technologist Bruce Schneier4 (2009) argues that,
…it is largely unnecessary to trade civil liberties for security, and that the best security measures –
reinforcing the airplane cockpit door, putting barricades and guards around important buildings,
improving authentication for telephone and Internet banking – have no effect on civil
liberties…(NP)
Moreover, he argues that using data mining to uncover future terrorist plots is
untenable. “We’re not trading privacy for security; we’re giving up privacy and getting
no security in return” (Schneier 2006:NP).
The TSA encourages people to submit lots of information about themselves so it can
be processed by data banks, but it is not easy to prove that you do not belong in the
category of risk that your information may put you in. One way to deflect risk and to
increase mobility, according to TSA schemes, is to let them know more about you, either
through application to pre-screening programs like Nexus, where you submit forms
detailing your travels and habits over a lengthy period of time, or by being invited to join
an alternative pre-screening program like PreCheck if you are identified as a frequent
traveler whose habits are already known well enough, as opposed to the less frequent
traveler about whom less is known. Both of these schemes, and others like it, have to do
with the perceived banality of security to people in higher-income classifications, who
are considered lower-risk in the first place. Reducing the hassles of security screening is
about making traveling easier for those with the incomes to be highly mobile; the flip
side is that the TSA can reduce the energy it expends on interviewing everyone by
making exceptions of an elite. While higher-income/lower risk ratios initially applied
more to the flying elite of the private jet world, there is a developing trend that makes
Bruce Schneier is a long-time critic of the TSA’s ‘security theatre’ and was removed from the witness list
appearing before a congressional meeting of the Committee on Oversight and Government Reform and the
Committee on Transportation and Infrastructure at the TSA’s request in March 2012 (Masnick 2012:NP).
4
20
flying without the hassles of TSA screening, in pre-clearance forms or otherwise,
available to the ‘mass affluent’ (Rosenbloom 2013:1). These hassles reflect a broader
trend that Kamenitz’s case demonstrates well: mobility is a privilege, and one that is
subject to capricious restrictions at the border in the name of national security.
What matters less is what you have become, but rather, what identity markers on your
primarily digital profile are currently being selected out for security purposes, which
means that old stigmas can resurface in unexpected ways, in particular to restrict mobility
at the border. Kamenitz’s record of a suicide call was four years old by the time she was
flagged at the border, and she had traveled freely between 2006 and 2010 before that. In
times of crisis, stigma has a nasty way of resurfacing to form social controls over
‘suspicious’ groups of people. This process is sometimes trumpeted as national security.
In other words,
…the ontological assumptions made in "emergency" situations about the categories of “people”
and “things,” and how these value judgments structure and define the concept of “emergency"
itself. (Stark 2012:1).
According to a representative from the DHS, mental illness is now on America’s
border security radar. He is quoted as saying, “Mental illness is actually under our law as
a reason that you may not get admitted…The issue is always going to be: could someone
be a danger to someone [else]?” (Bridge 2005:NP). Indeed, the U.S. Department of State
(1995:NP)) highlights Section 212(a)(1)(A)(iii) of the 1965 U.S. Immigration and
Nationality Act on its website to note that any alien who has,
a physical or mental disorder and behavior associated with the disorder that may pose, or has
posed, a threat to the property, safety, or welfare of the alien or others,” may be ineligible for
admission to the U.S (NP).
21
Mental illness has been a reason for denying an individual admission to the U.S.
since 1917, a time when mental illness primarily referred to mental retardation (Ellis
Island Exhibit 2012). Although the U.S. has long held legislative policies on the
exclusion of the mentally ill (U.S. Citizenship and Immigration Services 1988: Sec.
212.7),5 these laws could not be readily mobilized against Canadians with digital records
of mental illness until the computerization and digitization of various databases occurred,
and until databases that contain mental health references were made available to U.S.
border authorities. The risk of mental illness is relevant to the DHS now presumably
because a zero-risk border securitization strategy demands more stringent management of
anything perceived as risky. As criminologist Pat O’Malley (2006) notes,
…a move to a “risk-based” approach will not necessarily entail a radical transformation but,
rather, will represent the formalization and intensification of practices that are already in place (p.
414).
In a zero-risk border management policy, suspicions are given more weight than
good security because risk is about fear and stigma. As Beck (2009) describes, “Risks
exist in a permanent state of virtuality, and only become “topical” to the extent that they
are anticipated. Risks are not “real,” they are “becoming real” (p. 292). The possibility of
risk-management as a source of security is tempting strategy because life-logs of people
5
The U.S. has long held an immigration policy on this issue. According to Title 8 of the U.S. Code of
Federal Regulations, in Section 212(a)(1) of the Waiver of Certain Grounds of Excludability, various
stipulations regulate what constitutes what kinds of mental health records or indications make its subject
eligible or ineligible for admission: “If the alien is excludable under section 212(a) (1) or (3) (because of
mental retardation or because of a past history of mental illness) he or his sponsoring family member shall
submit an executed Form I - 601 to the consular or Service office with a statement that arrangements have
been made for the submission to that office of a medical report. The medical report shall contain a complete
medical history of the alien, including details of any hospitalization or institutional care or treatment for
any physical or mental condition…and findings as to the current mental condition of the alien, with
information as to prognosis and life expectancy and with a report of a psychiatric examination conducted
by a psychiatrist who shall, in case of mental retardation, also provide an evaluation of the alien's
intelligence. For an alien with a past history of mental illness, the medical report shall also contain
available information on which the U.S. Public Health Service can base a finding as to whether the alien
has been free of such mental illness for a period of time sufficient in the light of such history to
demonstrate recovery” (U.S. Citizenship and Immigration Services 1988: Sec. 212.7)
22
are becoming available, such that biographical events of the past are regaining new
meaning.
As such, the present ability to capture and store vast amounts of information is inspiring a vision
of pervasive computing that generates ubiquitous information of the present, which is kept to
become a continuous record of the past. (Dodge and Kitchen 2007:432)
While the DHS is not necessarily tracking all life events of everyone, it seems
inspired by that same vision of pervasive computing as a salve to the despairing question
of how to catch terrorists. Being able to identify, or condemn, someone based on a thing
they did in the past, that other people probably did as well, on the pretext that this event is
sufficient proof of their ability to harm something as substantial as national security is a
powerful tool for mobilizing state resources against them, and for garnering public
support for this powerful step. That is not the equivalent of good security, which is what
the rhetoric about national security and 9/11 claims; rather, it is a way of showing
strength in much the same way that a bully shows strength by picking not on an enemy,
but on someone whose oddness or even criminality might be credible by virtue of the
stigma they carry, as a weaker party. Bullying rhetoric works to rile up support for
national security regimes because there is a general consensus that national security is
important, to avoid another 9/11. In fact, young soldiers at Guantanamo Bay are made to
watch an FBI presentation on the events of 9/11 because they were in grade-school when
9/11 happened, and the government wants to keep the attacks fresh in the minds of its
young fighters (Currier 2013:NP).
As part of the U.S.’s War Against Terror, the DHS has spent huge sums on
programs of unverifiable efficacy using the post-/911 rhetoric to solicit large budgets
from the U.S. Congress in many areas, but for border patrol in particular. A
Congressional Research report in 2010 noted that,
23
Appropriations for the Border Patrol has grown steadily, from $1.06 billion in FY2000 to $3.58
billion requested in FY2011 – an increase of 238%. The bulk of this increase has taken place since
the formation of DHS in FY2003 and demonstrates Congress’s interest in enhancing the security
of the U.S. border post 9/11. (Haddal 2010:6).
Indeed, specific costs-effectiveness reports have been missing components of the
information DHS releases. The National Priorities Project, a non-governmental
organization based out of Massachusetts, which aims to make government budgets
transparent, offers, critically, that
The lion’s share of responsibility for border security lies with part of the DHS, the U.S. Customs
and Border Protection (CBP), which had an $11.7 billion budget in fiscal 2012. But in the land of
utter duplication that is Washington’s version of counter-terrorism, there is also something called
the Border Security Program at the State Department, with a separate pot of funding to the tune of
$2.2 billion last year. The jury’s out on whether these programs are faintly doing their jobs, even
as they themselves define them. As with so many other DHS programs, the one thing they are
doing successfully is closing and locking down what was once considered an “open” society.
(Kramer and Hellman 2013:NP).
Public support for this kind of huge spending is fueled more by rhetoric and less by
firm, transparent data or clear (not mixed) results. It is evident, however, of an
observation that philosopher Giorgio Agamben (2005) observed about our current
situation: “The State of Exception tends increasingly to appear as the dominant
paradigm” (p.2). Wildly increasing defense expenditures, coupled with major shifts in
border policies, are symptoms of this exceptionalism. The attitude is that we must do
whatever it takes to prevent another 9/11, which leads, in many cases, to another attitude
about civil liberties: this attitude is that they can be sacrificed in times of war because
national security is more important, or there will be no civil liberties left to discuss.
As The 9/11 Commission Report notes, “The terrorists have used our open society
against us. In wartime, government calls for greater powers, and then the need for those
powers recedes after the war ends” (2004:394). However, the vagaries in this ‘War on
24
Terror’, with the ever-expansive definition of what constitutes terror, and the unclear
distinction between terrorist versus criminal motivations, leads to an indefinite
justification of the State of Exception. Indeed, as Lyon observes,
Security – by which is often meant some ill-defined idea of ‘national’ security – is today a
political priority in and across many countries, and of course it is a massive motivator in the world
of surveillance…It seems that, ironically, today’s security generates forms of insecurity as a byproduct – or maybe in some cases as a deliberate policy? – an insecurity felt keenly by the very
people that security measures are supposed to protect. (Bauman and Lyon 2013:100-101).
Lyon also notes that, “There’s no knowing when the categories of risk may
‘accidentally’ include us or, more accurately, exclude us from participation, entry or
entitlement” (Ibid.:101). Lyon’s point speaks to the reasons why Canadians, whether they
are affected by mental illness or not, should be concerned about surrendering their
privacy too easily without benefit to themselves except the promise of ‘economic
competitiveness’. As McGrath (2004) notes about street surveillance cameras, but which
applies readily to surveillance and policing, “Operators of surveillance systems routinely
use the systems to watch, zoom in on and follow the members of the public they judge
likely to display criminal behaviour” (p.22). The same can be said for the way that
surveillance operates at the border. Indeed, the dangers of broad surveillance were
anticipated by “The 9/11 Commission Report”, which gave a thorough review of all the
factors leading to the 9/11 attacks, and recommendations for the prevention of future
terrorist attacks, the authors warned that,
Overreactions can impose high costs too-on individuals, our economy, and our beliefs about justice We
advocate a system for screening, not categorical profiling. A screening system looks for particular,
identifiable suspects or indicators of risk. It does not involve guesswork about who might be
dangerous…The border and immigration system of the United States must remain a visible
manifestation our belief in freedom, democracy, global economic growth, and the rule of law, yet serve
equally well as a vital element of counterterrorism. (National Commission on Terrorist Attacks upon
the United States 2004:387).
25
The ‘guesswork’ that the authors refer to happens in the sense that broad surveillance
systems are put in place; they allocate risk onto an increasing number of types of
suspicious people, characteristics, and objects; and those things become subject to greater
scrutiny because they are questionable for one reason or another. As Molotch (212:95)
observes, the “…latent effect of any security system that expands the number of potential
offenses that then, thanks to modern technology, follow the individual into realms where
security has no relevance.” The widening security net subsequently creates a greater
sense of fear about airports or other places of transport across borders, and prompts a
stronger belief in the need for more surveillance and security. This subsequently creates
the sense that we are still justifiably subject to the ontological assumptions made about
people in a State of Emergency (Stark 2012:1).
In the U.S., there have been numerous examples of people caught up in the TSA’s
overly wide National Security net who are good examples of the failures of such a wide
surveillance system. Current U.S. airport border security practices assign low risk to
every passenger (TSA 2011:Slide 10), and uses expanded pre-screening procedures
(passenger data collection and analysis); behaviour detection and screening programs;
and random and unpredictable selections of passengers for further screening to counter
the threat of unanticipated risks to national security. At Southwest Florida International
Airport, forty-three TSA employees were fired or disciplined in June 2012 for not
performing enough secondary inspections or random checks (Davidson 2012:NP).
The TSA began using a specific program, nicknamed the Assessor Project, in
August 2011 to identify suspicious passengers by having short interrogative interviews
with each person who tries to cross the border. It has received criticism from the U.S.
26
House of Representatives (2011) because,
Unfortunately, rather than employing several highly-trained transportation security personnel to
observe and question selected high-risk passengers, the demonstration project employed a large,
bureaucratic ensemble of Transportation Security Officers (TSOs) who expended an unnecessarily
lengthy time performing meaningless interviews with all passengers, regardless of risk level…(p.
12).
However, it is difficult to imagine how the TSA could avoid performing interviews with
everyone, and rely on a system of digital risk-assessments that do not have profiling as an
implicit part of the screening process, as per the recommendations of “The 9/11
Commission Report” that favors screening, but is against profiling (National Commission
on Terrorist Attacks upon the United States 2004:387). Risk-assessment necessarily has a
built-in idea of what to look for (Bauman and Lyon 2013:101), and in lieu of actual
effective measures for what a needle in a haystack might look like, broad surveillance
really means profiling according to categories. As Lyon (Ibid.) notes in addressing
Bauman in their ongoing correspondence about “liquid surveillance”,
So far from modernity managing to conquer fears one by one, liquid modernity now discovers that
struggling against fears is a lifelong task. And if we in the West weren’t fully conscious of this
before 9/11, what you call the ‘terrors of the global’ caught up with us then. After 9/11 the
practices of risk management, already de rigueur for several decades, became well known,
obvious. And again, you observed that with the surveillant focus on ‘external, visible and
recordable objects’, new surveillance systems were also bound to be ‘oblivious to the individual
motives and choices behind the recorded images, and so must lead eventually to the substitution of
the idea of “suspicious categories” in place of individual evildoers’. 6 (p.101).
6
Originally cited from Bauman (2006:6).
27
The Assessor Program is one example of a risk management policy that shifts
dichotomously away from the pre-9/11 idea that all risk is calculable and towards the idea
that all risk is, to some extent, unimaginable and unknowable and only knowable by
good, suspicious guesswork. That notion can be credited in part to the findings of the
9/11 Commission, which attributed the attacks in part to U.S. intelligence agencies’
inability to imagine the probabilities of unknown risks (Surveillance Studies Centre
2011), because they “did not connect the dots that could have prevented the attacks”
(NYDailyNews 2012:NP).
The Assessor Program recently came under fire again after more than thirty
federal officers from Boston’s Logan International Airport raised complaints against
racial profiling practices that emerged in the media in August, 2012, and
…asserted that passengers who fit certain profiles — Hispanics traveling to Miami, for instance,
or blacks wearing baseball caps backward — are much more likely to be stopped, searched and
questioned for “suspicious” behavior…The practice has become so prevalent, some officers said,
that Massachusetts State Police officials have asked why minority members appear to make up an
overwhelming number of the cases that the airport refers to them (Schmidt and Lichtbau 2012:1).
Despite mounting criticism, the Assessor program has been recommended as a model for
airport security all over the country, and was recently extended to Detroit Metropolitan
Wayne County Airport (TSA 2012).
If passengers object to any part of the screening process, they potentially risk
undergoing more invasive screening procedures. Technically, people are allowed to opt
out of going through the Advanced Imaging Technology units, or ‘body scanners,’ and
they are searched by hand instead, but they risk undergoing more invasive screening
procedures. There have been multiple examples of this happening reported in the media,
whereby TSA agents find nitrates on the bodies of passengers who opt out of the body
28
scanners; this provides the excuse for closer bodily inspections. Nitrates can indicate
residue from explosives, but they are also prevalent in a variety of non-explosive sources.
Traces of nitrates can be found in some medications, and on clothing from a variety of
sources, such as grass fertilizer, fireworks, firearms, and some hand lotions (USPA
2008:NP). In one instance, an entire airport was evacuated because someone’s cosmetics
were wrongly identified as explosives (Schneier 2008:3).
One woman, Dr. Tammy Banovac, who is bound to a metal wheelchair, always
refuses to go through the metal detector, so she is routinely patted down. Exasperated
with increasingly invasive physical searches she was subjected to, she appeared at an
Oklahoma City airport dressed in a bra and panties to protest treatment that made her feel
violated. Subsequently, she was sequestered for an additional one-hour search of her
person because nitrates were found on her body (Diaz 2010:NP). While the one-hour
search seems spiteful, it fits in with an idea about what kinds of ‘threats’ are being used
“to fill a vacuum of fear agendas” (Molotch 2012:9) when quotas for catastrophes are
unmet.
In another instance, a Florida passenger, who is a former TSA agent herself, is
facing misdemeanor battery charges for groping a TSA agent who had grabbed at her
breasts and crotch in the screening process. In the U.S., the right to protest invasive
searches was recently established in court in the case of John Brennan. He opted out of
the body scanner screening process and chose to be inspected by a TSA officer instead.
His clothing was swabbed for an Explosive Trace Detection test and traces of nitrates
were found on his clothing, so he stripped down completely to prove that he was not
29
carrying an explosive, against the protests of the TSA agents on hand (Ross 2012:NP).
He was subsequently prosecuted on a violation related to charges of disorderly conduct,
although he maintains his legal right “…to be nude, but not lewd as a form of protest”
(Frauenfelder 2012:NP). He is quoted as saying,
“It’s security theater,” Brennan said. “They know it doesn’t do anything, but it gives the
appearance of doing something. The TSA needs to justify itself and the billions of dollars they’re
spending. They need to do their job, and I felt I needed to do my job, which is protecting my civil
rights” (Ross 2012:NP).
In July 2012, a judge agreed with him on his right to use nudity as a form of
protest, and the charges were dropped (Kravets 2012: NP). There is no commensurate
legal precedent in Canada in relation to protests at the border at this time. However, on
the topic of discriminatory security screening practices at the border, Karl Flecker, the
National Director of Human Rights and Anti-Racism at the Canadian Labour Congress
commented on discriminatory profiling practices that,
The government must acknowledge this reality and Parliament should engage in a review of these
practices to reaffirm that they are inappropriate under the Canadian Charter of Rights (ICLMG
2010:NP).
In the ongoing battle between civil liberties and Homeland Security, there is no
way to appeal to a higher authority against the treatment meted out by TSA agents nor is
there any way to protest their processes on-site, except, as Brennan did, through rights to
nudity. Conversely, if TSA agents act more prudently or cautiously in their searches, they
can be fired. Beyond the more titillating reports of inspection hazards, TSA methods are
giving way to more serious concerns about the profiling of activists, and searches of
computer hard-drives at the border, which raise significant privacy issues. TSA agents
met one activist, hacker, and computer-security researcher, who goes by his hacker
30
moniker, Moxie Marlinspike, at his plane when it arrived at JFK because his name was
on a list of sorts. He was held for four and a half hours while his devices, included his
laptop’s hard-drive, were searched. He comments,
If there’s some information that they think I have — I can’t speculate about what that might be —
they can’t legally get that because they don’t have any reasonable suspicions,” he said. “But they
can do whatever they want at the border. And it feels like that is possibly being abused (Zetter
2010:NP).
This type of extreme measure (at least, from a civil liberties perspective) is a
predictable consequence of anti-terrorist security measures that are free from
constitutional scrutiny. For example, in 2009, the American Civil Liberties Union
(ACLU) drew the media’s attention to a DoD Antiterrorism and Force Protection Annual
Refresher Course that indicated that protests are amongst “…certain First Amendmentprotected activities that may amount to “low level terrorism” (ACLU 2009:01). This
assertion has remained true to the present day. Four years after this determination from
the DoD, in September 2012, James Tyson, an activist who was traveling to the
Democratic National Convention was arrested for driving with a revoked license, was
informed that he is on a terrorist watchlist (Wright and Off 2012:NP) and ostensibly
jailed to prevent him from participating.
One viable alternative to profiling by categories of suspicion may be to rely on the
expertise of veteran agents, but that is hard to achieve, perhaps in part to the high
turnover rates of TSA agents, which stood at a 17% voluntary attrition rate in 2008 (U.S.
House of Representatives 2011:8). According to a 2010 Congressional Research Report
that refers to statistics offered by a General Accounting Office report from 1999,
…the average experience level of Border Patrol agents had declined agency-wide, and that the
percentage of agents with less than two years of experience had almost tripled, from 14% to 39%,
31
between 1994 and 1998. (Haddal 2010:33).7
One of the additional criticisms levied at the TSA by the U.S. House of Representatives
(Ibid., cited from O’Keefe 2010:NP) is that the quality of their hires is poor:
Despite TSA’s claims that it operates as an intelligent risk-based organization, TSA advertised for
employment at the Washington Reagan National Airport on pizza boxes and on advertisements
above pumps at discount gas stations in the D.C. area.
The National Commission on Terrorist Attacks upon the United States did note that one
of the potential 9/11 hijackers was stopped by the good instincts of one veteran agent,
however (2004:387), and perhaps trusting the instincts of reliably-recruited, intelligent
agents who have incentives to stay and to do their job well is one way to balance out the
need for security with the need for discretion. Schmitt (as cited in O’Connor and de Lint
2009:40) noted that,
…deciding the exception is a capacity of a competent sovereign. In order to maintain the capacity
to make competent decisions agents seek to advance opportunities where they can and with the
tools and technologies that they are uniquely positioned to exploit. Competence, being “absolute
and independent of the correctness of its content” (p. 15), may not be derogated and audited for
particular types of decisions.
Indeed, even if the TSA agents have adequate surveillance or other risk-assessment
technologies at their disposal, their ability to use discretion in a reasonable way is
obviously impaired if the ability of agents themselves is questionable, or they have to
work under conditions where their ability to use discretion is minimalized by overly
cautious or zero-risk management systems and lack of constitutional controls.
The absence of really good, compelling reasons for the way security is currently
conducted brings into question what the cost of broad surveillance measures is in other
7
The original citation, to which I do not have access, is: U.S. General Accounting Office, Border Patrol
Hiring: Despite Recent Initiatives, Fiscal Year 1999 Hiring Goal Was Not Met, GAO/GGD-00-39,
December 1999, p. 2.
32
areas. It seems like part of the purpose of big security systems that bulldoze over privacy
and other civil rights areas is to maintain a sense of insecurity, to justify a selfpropagating security apparatus. That brings into question, what exactly is being secured?
While this is a question worth exploring, it is beyond the scope of this essay. For now, it
will examine what mental health has to do with National Security, or rather, how the
mental health of Canadians became available to DHS through non-criminal police
records.
Does Mental Illness Create Insecurity?
Muller has identified the principle method of U.S.-Canada border risk management
security strategies as the ‘technologization’ of security. This results in the classification
of people into risky and non-risky travelers based on the digital information available on
them. In an overview on surveillance issues, Hacking (cited in Lyon 2007: 81) discusses,
…a “…‘looping’ effect that occurs with categorization, such that when a group of people are
classified, this is associated with certain laws or regularities concerning others in that group…Of
course, as Hacking also remarks, some classifications are ‘inaccessible’ to those classified, but the
classifications may generate institutional practices with which the classified may well interact, thus
once more creating looping effects.
To this end, any information that can be gathered on travelers through digital databases or
by TSA schemes that comes under the purview of centralized authorities is used to assess
the incalculable or unquantifiable risk that mobile citizens represent at border crossings.
However, as security technologist Bruce Schneier (2008) points out,
It’s not about data collection; it’s about data analysis…Demands for even more surveillance miss
the point. The problem is not obtaining data, it’s deciding which data is worth analyzing and then
interpreting. Everyone already leaves a wide audit trail as we go through life, and law enforcement
can already access those records…(p. 6).
Admittedly, it is difficult to know what information is valuable for sorting out potential
33
criminals or threats to national security, and what is a misleading signal (Cohen
2012:118). However, broad surveillance and its tools, like profiling, may make things
less secure, as both Schneier (2006) and, to similar effect, Molotch (2012:105) have
argued: “Profiles bias scrutiny toward those lacking the wit to fit in, not the sophisticated
plotter.” These ‘global marginals’ (those subject to scrutiny under emergent security
regimes in international settings) become quite vulnerable to what Bauman describes as
“…the increasingly concerted activities of international ‘managers of unease’ such as
police, border officials and airline companies” (Bauman and Lyon 2013:60-61).
While these ‘managers of unease’ are consumed with watching those who are
profiled, they create an opportunity for terrorist activity. There is an endless procession of
objects that can become ‘risky’ (TSA 2013:NP) if terrorists want to add to that list. All it
takes is one failed shoe bomb (Frischling 2011:NP) to result in a widespread,
international policy of shoe removal at the airport, which creates further queues and
another thing to be ‘managed’. As more objects or record types are identified as ‘risky’,
broad surveillance actually becomes the tool of the terrorists, who can use it to a) create
riskier situations for passengers who have to queue endlessly for any variety of security
measures, and b) force the U.S., and anyone following suit, to devote more and more
resources to airport security. At a certain point, it becomes evident that a better costanalysis needs to be in place to determine how broad is too broad.
While the social consequences of these information-sharing practices are still
developing, it is unlikely that it is any advantage for a citizen to have other governmental
or security agencies, local or international, alerted to their mental health issues. For
34
example, if there was a concern about protecting people from unnecessary border
difficulties, then perhaps they could be given papers providing medical clearance.
However, the U.S. panel-appointed physicians who examine Canadians with mental
illness and clear them for admission to the U.S. are prohibited from giving any
documentation to those travelers (Office of Dr. Seiden 2011). Instead, they must fax the
clearance information to a U.S. CBP station, and this information is maintained in the file
collected on each passenger. This creates another unknown for the weary traveller whose
mobility is at stake – did CBP receive the fax? Will the CBP officer they encounter go
find it if it’s not readily available? This obvious uncertainty indicates that the purpose of
this security measure is not to ensure safe passage for Canadians; rather, it is to add to a
sense of fear and uncertainty about their freedom of movement. Using records to create a
sense of insecurity is not very different from finding more and more objects, like
shampoo in excess of 30mL (Molotch 2012:95), to create an ongoing low-level panic
about what the terrorists might try next. There are no explicit concerns that the DHS has
stated about mental illness, or the risk the individuals with mental health issues or records
pose to national security. There is simply an operating assumption that mentally ill people
are prone to doing risky things that can harmfully affect others (Bridge 2005:NP). There
is no explicit concern that suicide bombers have mental health issues.
There is no procedure or protocol in place to appeal or to change or delete the data
collected on Canadians once it is given to the U.S. authorities, despite this policy in
section 7.2 of CPIC’s Reference Manuel:
CPIC Information from the Investigative Databank may be released for security and reliability
clearances or for private employment purposes; however, no CPIC information should be released
for this purpose unless:
35
1.
2.
3.
4.
confirmation and verification with the record owner (originating agency) has been carried
out; and,
the originating agency has been notified of the reason for the check and has consented to
the release; and
personal visual identification by the law enforcement agency of the subject of the check
has taken place; and,
the results of the check are communicated directly to the subject of the check… (OACP
2011:8)
Indeed, as Canada’s Privacy Commissioner points out,
When personal information moves across borders individuals may lose some of their
privacy rights such as the ability to request access and challenge the accuracy of the
information. One of our concerns about information that flows to government agencies in
the United States is that the US Privacy Act does not apply to foreign nationals, thereby
depriving Canadians and the citizens of other countries of certain privacy protections—
including access and redress rights—under American law (Office of the Privacy
Commissioner of Canada 2005:NP).
Canadians can request the criminal record kept on them by the RCMP through The
Privacy Act of Canada, and they are able to subsequently file a complaint if the
information on them is incorrect (John Howard Society of Alberta 2000:NP). However,
this does not necessarily rectify the information collected on them by U.S. authorities.
Indeed, as Cohen (2012) observes, “…the gap between the rhetoric of liberty and the
reality of diminished individual control is nonetheless striking” (p.3).
Murakami Wood and Graham observe on this type of boundary making between
categories of social groups to which risk is ascribed,
This is leading to an increasingly coded or software-sorted society and ‘splintered’ urban
landscape characterized by highly differentiated mobilities: corridors of high mobility and easy
access for some, and slow travel and difficult, expensive and blocked access for the majority.
However, for neither class is the permeability particularly negotiable, whether or not such controls
were highly accepted voluntarily or even requested (as most are in the case of higher income
groups) or were enforced. Once introduced, both access and blockage are increasingly functions of
encoded categorization. (Murakami Wood and Graham 2006: 178).
It is just this type of categorization or ‘encoded risk’ that resulted in Kamnitz filing suit
against the Toronto Police Service and the RCMP. She is arguing essentially that her
36
mobility was impaired because they enabled her private mental health information to
travel to the DHS, and that this is wrong and unlawful.
Kamenitz issued a Notice of Application to file suit against the Toronto Police
Services Board in the Ontario Superior Court of Justice that was heard on December 5,
2011. The Notice of Application makes,
(a)
a declaration that the Toronto Police Service contravened the Municipal Freedom of
Information and Protection of Privacy Act and the Canadian Charter of Rights and Freedoms in disclosing
the applicant’s personal medical information directly, or indirectly, to the United States Homeland Security
Service or to other known persons;
(b)
a declaration that the Royal Canadian Mounted Police contravened the Personal
Information Protection and Electronic Documents Act and the Canadian Charter of Rights and Freedoms
in disclosing the applicant’s personal medical information directly, or indirectly, to the United States
Homeland Security Service or to other known persons (Ontario Superior Court of Justice 2011:3).
The case was resolved privately, and the details of it are not available to the public, but
the question of how the Charter applies remains ripe for debate, and for legal action.
However, evidently, until clear policies are legislated on information-sharing practices
that take into account the Charter and Canadian privacy law, disputes that arise in this
area will be resolved in courts.
It is worth noting that the information available on her in the CPIC database has
the potential to be protected from border securitization policies if the information does
not indicate criminal activity.
As the Factum in her case points out,
The CPIC Manual distinguishes between the release of information for criminal/investigation
purposes and “non-criminal purposes” such as “security clearances”. The protocol for the
dissemination of information for “non-criminal purposes” is as follows:
If the request for release of CPIC information is for security and reliability clearance, you
must have written consent of the subject of the query. The subject must agree to the
release of information, identifiable to that person, that may be on the CPIC system.
[Emphasis from original source] (Dewart 2012:13)8
8
The original citation within the Factum is stated as the following, although I do not have access to it: 9
Supplementary St-Pierre Affidavit, Exhibit C, p. 44 [Bold emphasis added], Applicant's Compendium, Tab
4C, p. 149.
37
What a history of mental illness in general, and not with regard to specific
incidence of violence or threat to anyone or any thing’s security, has to do with national
security is largely based on myths about mental illness. What mental health has to do
with national security is unclear, and may bear no relation to it. For example, he U.S.
DoD gave implicit recognition to this when, in July 2008, they readjusted their
employment application form, which requires undergoing a background check to gain
security clearance, to reflect that mental health history alone does not make one ineligible
to work with them. The DoD’s “Questionnaire For National Security Positions” notes
that,
Mental health counseling in and of itself is not a reason to revoke or deny a clearance.
In the last 7 years, have you consulted with a health care professional regarding an emotional or
mental health condition or were you hospitalized for such a condition? Answer “No” if the
counseling was for any of the following reasons and was not court-ordered:
1) strictly marital, family, grief not related to violence by you; or
2) strictly related to adjustments from service in a military combat environment. (Henderson
2013).
In March 2013, the DoD became more specific on its form, which reflects the need to
articulate a useful policy change directed at job applicants who might be confused about
how their mental health history affects their ability to work towards national security:
In the last seven (7) years, have you had a mental health condition that would cause an
objective observer to have concern about your judgment, reliability, or trustworthiness in
relation to your work? Evidence of such a condition could include exhibiting behavior that was
emotionally unstable, irresponsible, dysfunctional, violent, paranoid, or bizarre; receiving an
opinion by a duly qualified mental health professional that you had a condition that might impair
judgment, reliability, or trustworthiness; or failing to follow treatment advice related to a
diagnosed emotional, mental, or personality condition (e.g., failure to take prescribed
medication). These examples are merely illustrative. Merely consulting a mental health
professional is not, standing alone, evidence of such a condition. [Emphasis added] (Henderson
2013:NP).
38
Evidently, the DoD thinks that mental illness is not a reasonable or definitive category of
risk because it is too broad, even though this is its border policy. This indicates that broad
surveillance is being used instead of better measures of risk, which lends more credence
to the argument that stigma is being used as a short-cut to security. Indeed, the DoD’s
change,
…reaffirms that an individual’s decision to seek mental health care alone cannot adversely impact
the individual’s ability to obtain or maintain eligibility to hold a national security sensitive
position or eligibility for access to classified information. Further, mental health counseling alone
cannot form the basis of a denial of a security clearance. The decision to seek personal wellness
and recovery should not be perceived to jeopardize an individual’s security clearance and may
favorably affect a person’s eligibility determination. (Office of the Director of National
Intelligence 2013:NP)
This policy articulation signifies that, in fact, mental illness is not prohibitive to good
national security work, a policy that is not subsequently reflected in the broad
surveillance classification systems applied to Canadian citizens at the border. Of course,
the DoD scrutinizes work applications in much greater and discriminating detail than can
be readily applied to the average traveler, so the opportunity that job applications have to
explain their mental health history is significant. It is worth noting, though, that using any
mental illness history to revoke privileges of mobility across the border is clearly overly
broad according to their own logic. The point is that they have the power to revoke those
privileges, and the Canadian government helps them do it by failing to put in place
appropriate privacy guards on trans-border information flows.
There is no explicit policy requiring the Canadian government to take note of its
citizens’ mental health records for the purpose of national security, so the way that it
happens is difficult to contest, especially since there is also no policy explicitly
prohibiting it. For example, the capriciousness or discretion with which the police create
39
records of mental health issues in the line of duty is noted by Dewart (2012:4), who
writes that,
The creation of a CPIC record for an individual who has attempted suicide is absolutely
discretionary. There is an absence of clear criteria or statutory authority for determining when a
CPIC record for a suicide attempt is required. In this case, it cannot be said that the collection of
the applicant’s private information regarding her suicide attempt was for the purpose of detection,
prevention or suppression of crime, or for the enforcement of any law.
Indeed, in response to the Kamenitz case, the Ontario Association of Chiefs of Police
(OACP) confirmed through its LEARN Guideline, discussed further in this essay, that a
“…police criminal record check will NOT include…Any reference to incidents involving
mental health contact that did not result in a conviction. (OACP 2011:53). The social
implications of linking criminality with mental health incidents indiscriminately are
clearly harmful and not warranted for good policing.
Beyond the logic of the DoD, and the Toronto Police, there is the simple math
available to put mental health flagging in perspective as clear proof that it is too broad to
be a reasonable way to flag for potential threats to national security: The Public Health
Agency of Canada (2002: NP) estimates that twenty-percent of Canadians will suffer
from a mental illness during their lifetime. Clearly, it does not make sense to flag one in
five people at the border because that kind of risk calculation is overly broad, imprecise,
and amounts to a bad security practice. CBP officers do not routinely ask passengers if
they have a mental illness, but it can come up, through a police record check, for
example, or through questions raised during the initial screening. For instance, if a
passenger is traveling to the U.S. for a medical appointment, a CBP officer might ask
what the purpose of the medical appointment is, and if it happens to be for mental health
40
reasons, then a red flag is raised. So, what is the purpose of having a rule on the books
against admitting people with mental illness to the U.S. that is haphazardly applied and
under-advertised? Even if the rule was being stringently applied, declaring one in five
people ineligible for entry to the U.S. is excessive. Moreover, there is a huge variety in
the types and symptoms of mental illnesses that exist. It might make sense to flag people
with violent disorders, if there is a way to flag for that, but it does not make sense to flag
everyone who has ever suffered from depression. The result of that would be a huge
amount of false positives for increased risk, which would distract the DHS from better
ways for catching terrorists. In fact, it is probable that the people who actively seek
treatment, and who are being treated, are most likely to have records of mental health,
and are therefore more likely to be caught by this rule, which essentially punishes them
for following and being open about their treatment regime. If it is not practical to flag
broadly for mental illness, and it is difficult to be more precise in flagging for ‘riskier’
disorders, then it is possible that the rule simply helps to maintain a sense of uncertainty,
suspicion, and fear at the border, which in turn supports the institutionalization of a state
of exception at security checkpoints. Molotch (2012:106) argues that this sort of
nonsensical profiling comes out of impotence on behalf of the state, in despairing how to
otherwise increase security effectively:
One reason for the great concentration of security at airports in the first place is not that it is
effective, but that it can, quite simply, be arranged. Against the inherent ambiguity of
securitization, having control at entry gates presents itself as something doable. Planes are nice
discrete people holders that have narrow points of ingress: passengers can be bunched up for
clearance at specific choke points. Logistical possibilities of this sort influence just where security
operates within the airport, even when it creates crowds that would otherwise not exist. The extra
questions at check-in slow down movement and cause people to cluster up. The security gate
furthers the gathering up, making for dense crowds- still not yet scrutinized for weaponry – often
in a snaking queue. This is a security-generated target often consisting of a large number of people
than would be on an airplane. It is a common observation in the security business that in hardening
a particular facility against perpetrators, you may deflect attack to a more opportune location…In
41
my discussions with former high officials at TSA, they express frustration with this problem,
which has evaded solution.
However, the solution has been to create a culture of unease to sort of justify
various actions of negligible or unproven efficacy that create hassles for travelers, and
have more sinister repercussions for those individuals who bear markers that exclude
them from easy passage at the security gate. As Lyon (2006) notes, “an intensification of
surveillance will likely produce more generalized suspicion, something that has been
patently obvious since 9/11 (Lyon 2003a)” (p. 406). What that generalized suspicion does
do, however, is support an increasingly bulky security apparatus that seeks out more and
more costly, and not necessarily effective, surveillance technologies. More information
does not mean more identified risk – it means that the increasing number of those who
are identified as risky experience more problems at the border. This theoretically enables
potential terrorists to identify what categories of risk exist, and then to create further
categories so as to consume the energies of the DHS or CBP, and then to outwit that
system by appearing as something that is not under closer scrutiny in a broad surveillance
system. Kamenitz is an example of someone whose profile came under closer scrutiny
because stigmatizing information from her non-criminal police record was available to
CBP, not because she threatened national security.
A few well-meaning individuals are fostering some public awareness of this issue.
The leading figures in this effort are human rights lawyer Ryan Fritsch and Kamenitz
herself, who became an activist on this issue after her border ordeal. Fritsch’s interest
originated at the Psychiatric Patient Advocacy Office where Kamenitz registered her
complaint, although he has since left the PPAO. He founded the Mental Health Police
42
Record Check Coalition (PRCC) in July 2011 with five other co-chairs who are
connected to various mental health and patient rights organizations, including the Human
Rights Commission, and took up the issue there. The work of the PRCC is primarily
limited to offering guidelines to Ontario police on how to minimize references to mental
health in the records they keep, and guidelines to mental health consumers on trouble
they can encounter at the border. Beyond offering advice to Ontario police on keeping
mental health terminology out of police records, the PRCC has not had significant
activity since May 2012, despite setting up social media outposts earlier in the year to
prospectively disseminate further information. Canada’s Privacy Commissioner is the one
other significant source of warnings about privacy issues associated with all kinds of
surveillance, but there has been no flurry of media activity or gripping political or public
debate about the hazards of bilateral information-sharing practices.
And yet, mobility is one of the most prized privileges one can have, especially in an
increasingly globalized world. Murakami Wood and Graham (2004:1) observe that,
Mobility has always been configured by borders and boundaries composed of a multiplicity of hybrid
objects, from infrastructure and technology to law and culture. These boundaries are permeable to
different degrees creating a society that is differentiated by speed and access, reflecting deeper trends
towards privatisation, social polarisation and the development of a risk-society…there is a tendency
towards technological lock-in which threatens to divide contemporary societies into high-speed, highmobility, connected and low-speed, low-mobility, disconnected, classes. Levels of permeability are
increasingly determined by automated systems of surveillance which continuously categorise, encode
those categorisations and enforce them upon individuals or groups based on the perceived danger that
they pose. This is leading to an increasingly coded or software-sorted society and ‘splintered’ urban
landscape characterised by highly differentiated mobility: corridors of high mobility and easy access
for some, and slow travel and difficult, expensive and blocked access for the majority.
The collection and use of private information, like mental health issues, for the
purpose of broad surveillance and security at the border leads to discriminatory security
screening practices of vulnerable populations; they are selected for increased scrutiny,
and in some cases, denied entry to the U.S. if their data is considered ‘risky’. There have
43
been more infamous cases of this like that of Maher Arar, who was deported to Syria by
U.S. security authorities and tortured during his investigation after he was nabbed on his
way back to Canada from Tunisia via the U.S. He was nabbed because of the type of
collaboration of Canada and the U.S. that is described in relation to the Kamenitz case.
The Kamenitz case is a good example, however, of what happens when ‘democratic
decency’ ceases to apply to the way that Canadians are allowed to be treated by the U.S.,
and that same attitude can result in extraordinary rendition or deportation. Her case
exemplifies better the real and potential vulnerabilities of people to databases used as
instruments of surveillance. Indeed,
Databases… are the modern apparatus of a particular form of knowledge about the human and the
international that collects and weighs massive quantities of information to be organized into
attributes and objects, presented in rows and columns. This information is inherently instrumental,
it is produced through what Max Weber referred to as ‘knowledge of the techniques by which
life—both external things and the behaviour of people—can be ruled through calculation (Ansorge
2011:2).
To this end, it is worth outlining what opportunity Canadians who have had their
health information retrieved by the DHS have to rectify the red-flag on their record, or to
‘void the calculation’.
If an individual is rejected at the border for medical reasons, they are given
paperwork for one of the three U.S. panel-appointed physicians who work in Canada to
fill out and submit back to CBP. In Toronto, this physician is Dr. Seiden, who runs a
practice that specializes in medical evaluations for immigration purposes. He charges
$250 CAD for an examination of an individual who is denied entry to the U.S. for
medical reasons, and the process can take four to six weeks.
44
A patient who undergoes this medical evaluation is unlikely to be physically seen
by the U.S. panel-appointed physician. Instead, the patient sends some forms to their
personal physician(s), if they happen to have one, and signs a consent form releasing that
or those physician(s) from keeping their records confidential. Subsequently, the personal
physician(s) answers several questions in writing that more or less ask if that patient has
ever caused harm to his or herself, or to others; what the patient has been diagnosed with
previously; and the treatment regimes prescribed for any such illnesses.
After these forms are sent to a U.S. panel-appointed physician, s/he can either rely
on the content of these forms to decide whether the patient will be put into Class A or
Class B, or s/he can follow-up with the patient. If further consultation is required with the
patient’s personal physician, the patient can be charged $500 an hour for this work.9 If an
individual returns to the border after being categorized as Class B (admissible), then they
can apply for entry again, although they could still be rejected by the CBP. This means
that medical classifications are not a free pass, but they help guide CBP officers in
determining the risk posed by individual travelers.
Class A disorders, which indicate that a person demonstrates harmful behavior
ranging from suicide attempts to substance abuse, are inadmissible, although those with
substance abuse problems can get their records re-evaluated after three to six months to
prove that they have ‘stayed clean’ (Serotte 2011:5). Incidentally, physicians who
conduct this evaluation are prohibited from sharing the evaluation document, which is
submitted directly to CBP by fax, with the individuals who are undergoing the
evaluation. This process underscores the sense of negative uncertainty that individuals
9
This information was obtained from several unrecorded telephone conversations with the secretary of the
Office of Dr. Seiden at 365 Bloor St. East, Suite 1400, Toronto, ON, in June, 2012.
45
with mental illness are subjected to by these protocols. Individuals cannot know what risk
they are perceived to pose, and therefore how to appeal their categorization (Cohen 2012:
234). At the border, an individual is only as good as their digital record indicates, or what
proof they have on paper to verify their identity and records. One can only hope that there
is no miscommunication or lost paperwork between a U.S. panel-appointed physician and
CBP. The question remains, why would Canada put some of its citizens into such a
vulnerable position? Or, in a broader sense, why is it so cooperative with the U.S. in
issues of National Security? One theory is that its cooperation is born out of its history of
mutual and neighbourly interests; the more sinister aspect of this is how easily a
neighbourly quality in bilateral relations can lend itself to coercive economic and security
regimes that put the sovereignty of Canada into question.
Good Neighbours
President Franklin Roosevelt once observed in a speech given at Queen’s
University in Kingston, Ontario in 1938 on Canada and the U.S.
We, as good neighbors, are true friends, because we maintain our own rights with
frankness…because we settle our disputes by consultation, and because we discuss our common
problems in the spirit of common good (Eagleburger 1989:59).
Then again, as Woody Allen once observed, “The lion will share the lamb’s bed, but the
lamb won’t sleep very well” (Pelletier 1989:226). The uneasy relationship between
Canada and the U.S. is, evidently, an outcome of the power disparity that exists between
the two countries. The U.S. is Canada’s largest trading partner, although Canada is not
the majority trading partner of the U.S.
According to Statistics Canada, 86% of Canada’s merchandise exports went to the
U.S. in 1999, for example (Haggart 2001:NP), and the U.S. continues to be Canada’s
46
largest trading partner. In 2011, 72% of Canada’s total merchandise exports went to the
U.S. (Statistics Canada 2012:NP). Evidently, Canadian government authorities are
motivated to find ways to relieve a ‘thickening’ of the border (more secure, theoretically,
but with long wait times). As Hier and Walby (2009) observe, “For the U.S. government
and, to a lesser extent, the Canadian government, information is a key weapon in the
‘War on Terror’” (p.12). Canada is one of many countries subscribing to the U.S.
domination of security ideas as a function of its economic subservience, although it is the
only country that will be discussed here. Molotch (2012:118) observes that, “U.S.
domination over security regimes stems from the country’s predominance in setting
standards for world commerce by making its own policies ipso facto global policies.”
Whether Canada participates in U.S. security regimes out of mutual interest, or out of
neighbourliness, or out of coercion, it is important to note that the disparity in power
between the two states is part of the framework for Canada’s participation in U.S.-led
border security initiatives. Moreover, substantial literature on U.S.-Canadian border
securitization indicates that Canada’s information sharing and risk management policies
are made in response to U.S. concerns. Political scientist Benjamin Muller (2008) notes
that,
The interests of cultural, political and market factors with long standing histories of cross border
collaboration and cooperation in borderlands have been neglected, ignored, or in the most
nefarious reading of the situation, intentionally disempowered. The reliance on RM [risk
management] strategies in border security leads almost inevitably to a “zero risk” approach to
border security (p. 2).
While the RM strategies that Muller speaks of will be addressed later in this essay, it is
important to note how the collaboration that Muller describes can lead to worrying
attitudes about sovereignty, and imbalances in Canada-U.S. relations.
47
The American attitude toward Canadian security, and sovereignty in that matter,
is summed up well by this recent photo, taken by the Associated Press, and featured in a
Huffington Post article entitled “Canada, Mexico become part of U.S. ‘homeland’ during
NSA [National Security Agency] Senate hearing” (Radia 2013):
It is worth noting the absence of Canadian sovereignty in this map.
Within Canada, “national security” and “trade” have been presented as two sides of the
same coin, as is evident in the title of a December 2011 agreement entitled the “CanadaU.S. Perimeter Security and Economic Competitiveness Action Plan.” Prior to this
agreement, however, other initiatives were introduced after 9/11 to make clear that a
secure border is necessary for secure trade. For example, in November 2001, the U.S.
48
launched a voluntary supply chain security program with its trading partners, including
Canada, called the “Customs-Trade Partnership Against Terrorism” (C-TPAT).
The implication of Canada’s voluntary subscription to C-TPAT is that a secure
border is necessary for secure trade, one of the major strongholds of the Canadian
economy. The less explicit implication is that Canada seems willing to play a lesser
sovereign role, or a greater cooperative, almost neighbourly role, in bilateral border
security talks, perhaps out of fear that the trade economy would suffer in the wake of
9/11. Indeed, Moens and Gabler (2012) observe that, “One enduring consequence of 9/11
was the damage to the commercial interaction between Canada and the US, which had
been growing for well over a decade (p.5).” Beyond the scope of economic coercion,
there is something to be said for the fact that Canadians “…remain deeply attached to our
vision of a model bilateral relationship with the United States, within a broader context of
multilateralism and collective security…” (Taylor 1989:243). While that vision
permeates Canadian-American relations, it should not act as a rationale for blindness on
the consequences of this cooperation. As Canadian poet and literary critic W.H. New
(1998) observes,
Because the American options are so readily accessible, Canadians are often strongly tempted to
mistake American priorities for domestic ones, and (at least temporarily) to blur cultural
differences…Merely to accept all American options, however, even in the name of openness,
would be to invoke a social closure of a different kind (p. 41).
Recent discussions between the U.S. and Canada about the border have brought
together the two issues of trade and national security into a singular bilateral concern.
Canada’s Minister for Public Safety, a ministry which was established in 2003 as
Canada’s version of the U.S. Department of Homeland Security (DHS), announced in
November 2010 at the 11th Canada-United States Cross-Border Crime Forum Ministerial
49
that,
This Forum is another demonstration of our Government’s commitment to working with our longtime friend and ally to combat crime at our shared border. Our discussion focused on how we can
build upon existing cooperation that addresses our mutual concerns, in a way that promotes
competitiveness and economic prosperity. We face the same threats, and share the same concerns
(Public Safety Canada NP).
C-TPAT was followed by the “Smart Border Declaration” from the U.S. and
Canada in December 2001, which culminated in the “Canada-U.S. Perimeter Security and
Economic Competitiveness Action Plan” in December 2011. The Action Plan outlined
the ways in which Canada and the U.S. would create a common perimeter for the passage
and of people and goods through a singular binational security ring in order to reduce
security threats, purportedly by allowing the U.S. to take the lead on Canada’s border
security, and to speed up waits at the border to achieve better trade relations. As one
scholar on Canadian-American relations has noted,
As the less powerful country on this continent, Canada has always had to stake out fences for
protection, not from American imperialism but from the force of continental pressures (Holmes
1989:27).
Canada was quick to come to terms with U.S. concerns through the “Smart Border
Accord,” an initiative that was implemented in 2002 in the aftermath of 9/11. While post9/11 bilateral information-sharing practices plans expand upon “already existing
measures, practices, and processes” (Lyon 2006:399) in regards to security and
surveillance. As well, bilateral information-sharing practices have antecedents in the pre9/11 world, “…Canada had been pressing for a “smart border” agreement for some time,
but 9/11 seemed to offer the vital opportunity” (Ibid.). This
Under the Accord, Canada and the U.S. formed Integrated Border Enforcement
Teams (IBETs) to provide a coordinated identification system of tracking passengers who
cross the border. The social impact of this coordinated surveillance on Canadians has not
50
been taken into account in these comprehensive agreements. Parliament of Canada (2009)
responded to the privacy concerns raised in the Privacy Commissioner’s audit in its
official Government Response, it noted that the CBSA was making progress by having,
“Started a series of initiatives to harmonize risk-scoring practices with the United States
Customs and Border Protection” (NP). In other words, Canada is cooperative, and will try
to think of Canadian security and risks posed to it in the same terms and constructs that
inform U.S. national security. However, Bennett and Raab (1998) argue, “…data
protection systems are better oriented toward understanding the functional variety of data
users than the sociological variety of data subjects…” (p.4). Therefore, the trend towards
bilateral, harmonized information-sharing practices and risk assessments is an
increasingly and ambiguously risky business for Canadians who wish to travel freely
between the U.S. and Canada, given the sociological variety and availability of digital
data, like, but not limited to, mental health records on them.
What Does Canada’s Cooperation Involve?
In November 2001, two months after the events of 9/11, legislative amendments
were made to Bill C-11, the Immigration and Refugee Protection Act, that required
commercial and charter carriers to provide the Canada Border Services Agency (CBSA)
with access to “…all reservation information held by the commercial transporter on
passengers to be carried to Canada” (Bennett 2005:129). At airport crossings, the CBSA
collects passenger information including “name, date of birth, gender, citizenship, travel
document data, itinerary, address, ticket payment information, baggage details and
contact telephone numbers” (Office of the Privacy Commissioner of Canada 2010:NP).
51
This information is obtained from a Passenger Name Record (PNR), which is often
created under the Galileo reservation system. Galileo is part of a larger network of global
distribution systems used by many Canadian travel agents (Bennett 2005:115).
Additional information can be included in or gauged from a PNR, to reveal,
where you went, when, with whom, for how long, and at whose expense. Behind the closed doors
of your hotel room, with a particular other person, they show whether you asked for one bed or
two. … Through meeting codes used for convention and other discounts, PNRs reveal affiliations
– even with organizations whose membership lists are closely-held secrets not required to be
divulged to the government. Through special service codes, they reveal details of travelers’
physical and medical conditions (Hasbrouck 2004 quoted in Bennett 2005:118).
This information is collected by the CBSA for the explicit purpose of performing a risk
assessment of travelers prior to their arrival in Canada as part of the Advance Passenger
Information/Passenger Name Record program. According to the CBSA, the Passenger
Information System (PAXIS) has a Passenger Assessment Unit that systematically
analyzes API/PNR data and red flags persons in high-risk categories for further
inspection (CBSA 2006). Lyon has noted that,
After 9/11, not only consumer data from airline passengers but also data relating to consumptions
of many kinds of commodities, from gasoline to motels to convenience-store goods, immediately
become of interest to criminal justice and intelligence personnel” (Lyon 2006:404).
Explicitly, “Canada and the United States have an agreement to share API/PNR data
under the terms of initiative number 8 of the Canada-U.S. “ Declaration and associated
32-point Action Plan” (CBSA 2008). However, according to an audit of the CBSA by the
Office of the Privacy Commissioner of Canada (2006), the CBSA lacks, and therefore,
…needs a coordinated method of identifying and tracking all flows of its trans-border data. The
Agency cannot, with a reasonable degree of certainty, report either on the extent to which it shares
personal information with the United States, or how much and how often it shares this information
(NP).
The ambiguity of information-sharing practices between the U.S. and Canada
continues to be a problem with consequences that are still developing. Kamenitz’s
incident is one example of how a seemingly non-pernicious system of dataveillance
52
(Clarke 1987:NP) and risk assessment can have a significant and negative impact on
those who are identified as risky. As Bennett (2005) points out,
The crucial process, therefore, is not the capture and transmission of the information, but the prior
procedures, and the assumptions that underpin them, about who is or is not a high-risk traveller (p.
132).
Bilateral agreements between the U.S. and Canada have found legislative support
within Canada, despite similar concerns raised by select members of Parliament. One
legislative example of this collaborative effort in Canada is an amendment that was
recently made to The Aeronautics Act through Bill C-42, which was initially proposed as
The Public Safety Act and is now called the Strengthening Aviation Security Act: An Act
to amend the Aeronautics Act, and which was last introduced to Parliament in March
2011 and is now an official law. Section 4.83(1) of Bill C-42 (Parliament of Canada
2011: 1) reads,
Despite section 5 of the Personal Information Protection and Electronic Documents Act… an
operator of an aircraft departing from Canada that is due to land in a foreign state or fly over a
foreign state and land outside Canada or of a Canadian aircraft departing from any place outside
Canada that is due to land in or fly over a foreign state may, in accordance with the regulations,
provide to a competent authority in that foreign state any information that is in the operator’s
control relating to persons on board or expected to be on board the aircraft and that is required by
the laws of the foreign state.
Bill C-42 was created in response to the U.S. Transportation Security
Administration’s (TSA) Secure Flight Program, initiated after 9/11, which requires
airlines to collect and share passenger information so that it can be matched to the U.S.
‘No-Fly’ watch list. This list is used to identify passengers who have been identified as a
security threat and the sharing of further details on each passenger is meant to reduce the
chance that a passenger with the same name as someone on the watch list is
misidentified. Before Bill C-42 passed into law,
53
NDP Member of Parliament Don Davies warned that Bill C-42 would give U.S. security agencies
unprecedented access to Canadians' personal information… This includes, “credit card
information, who we are travelling with, our hotel, other booking information such as tours or
rental cars, any medical condition of the passenger that may have been disclosed, dietary
preferences, our email address, our employer information, our telephone information, our baggage
information.” Davis also added, “This bill would effectively allow the United States to determine
when Canadians can leave Canada to fly to many destinations in the world that have nothing to do
with the United States. This bill violates Canadians' freedoms. It violates Canadians' mobility
rights” (Dana 2010: NP).
According to The Council of Canadians, a social justice activist and research
group, “75 per cent of all domestic flights in Canada will be covered by the U.S. Secure
Flight rules” (Trew 2011:NP) which effectively puts a large proportion of mobile
Canadians under U.S. surveillance, far beyond the scope of the threat that could be
reasonably contained by a watch list matching system. Notably, TSA agents cover
security for all domestic flights within the U.S., and they operate in tandem with CBP
officers for international flights.
Mobility is arguably one of the greatest assets to Canadian citizens in an increasingly
globalized economy of international networks and communities. Being unable to
participate in mobile networks of family, friends, business relationships, etc. renders
individuals less able than their freely mobile counterparts to participate in the global
economy. This restriction of movement denies them a level of privilege and function that
is life-altering. When one group of citizens is privileged over another group, it raises
questions about the justification of that gap, and the methods by which it is wrought.
As it stands now, Canadians have no sovereignty over their information after it
migrates across the border to the U.S., from where it is out of Canadian control. For
example, Jennifer Stoddart (2005), the Privacy Commissioner of Canada, notes that the
…US Privacy Act does not apply to foreign nationals, thereby depriving Canadians and the
citizens of other countries of certain privacy protections—including access and redress rights—
under American law. If data is held in Canada, my office can view the records even if they are
54
held by law enforcement and national security, but that is no longer the case once the data crosses
the border (NP).
In a tangential but telling example of the dangers of third-party access to private
information on passengers who cross the border by land, the Electronic Privacy
Information Center (EPIC) made headlines in the media in August 2012 for revealing that
U.S. Customs both tracks license plate information and shares it with insurance
companies. A spokesperson for EPIC raised a lot of questions that could equally apply to
all of the information Canada has agreed to share with the U.S.:
Who can these third parties share their data with? What other ways might it be shared? You have to
think about the ways this data slowly spreads out to third parties, and who then has access to it. It
shouldn’t be shared, and if it is, there should be more transparency about the details of who’s doing
the sharing, how it’s used and how long the data is retained (Greenberg 2012:1).
Greenberg’s observation is quite pertinent to the way the non-criminal police records on
Canadians can contain data that is hazardous to the mobility of those for whom the record
is created. Those hazards have clearly been overlooked or obscured by the Canadian
government, perhaps because the consumer and economic benefits of further
collaboration with the U.S. has been the publicized highlight of bilateral relations since
9/11.
Consumer v. Citizen
The duty that the Canadian government has to ensure the best interests and rights of
all of its citizens in terms of civil rights and privacy has been subsumed to the
commercial interests of the consumer-citizens, and the economic and security interests of
the state. This is evident in the types of surveillance that have emerged over Canadian
citizens in the interests of placating U.S. security concerns, and the types of economic
and security arrangements that Canada has entered into with the U.S.
55
Bauman (2005: 45) theorizes that,
The once complete and integral sovereignty of the state-nation evaporates upwards in to the
anonymous realm of global forces evading territorial allegiance and commitment…No longer in
full charge of the economy, security, or culture, the state cannot promise its subjects the whole-life
protection from the cradle to the grave which it not so long ago strove to provide. Fewer promises
mean, however, less need for the patriotic dedication and spiritual mobilization of its subjects. On
the soil of impoverished expectations, no longer fertilized by promises and hopes, heroic
patriotism is unlikely to grow; as it happens though, in the age of small professional armies the
state no longer needs heroes. Satisfied consumers, busy running after their own affairs, are doing
splendidly, thank you…
Although Bauman’s observation seems to encompass a more abstracted circumstance, his
note about ‘satisfied consumers’ applies quite readily to the Canadian government’s own
actual promotion of it’s goals. For example, In April 2012, the Privacy Commissioner of
Canada, Jennifer Stoddard, alerted Ottawa to pressing privacy concerns implicit in the
Action Plan (Savage 2012: NP). Subsequently, in May 2012, Canada and the U.S. issued
a Statement of Privacy Principles, mentioned earlier. It is significant to note, however,
that following on the heels of the Privacy Principles announcement, literally in the same
month of May, Canada raised the amount of goods that could be brought back duty-free
from the U.S. from $400 to $800 for a travel period of 48 hours (Davison 2012:NP). The
‘improved trade relations’ here helped to divert public attention away from scrutiny about
privacy issues and towards the ‘reward’ offered to Canadians who have to undergo
increased screening and surveillance at the border. However, while there have been
online consultations surrounding the perimeter security agreement, there has yet to be any
open public hearings or congressional and parliamentary debates (Dana 2012:NP).
Statistics Canada reported that Canadians took 807 000 trips overseas in June
2012, while Canadians took approximately 1.9 million overnight trips to the U.S. in that
same month, shortly after the duty-free limits were raised (The Canadian Press 2012:NP).
56
Given the sheer volume of Canadian travelers to the U.S., the lack of public debate on the
merits or consequences of the types of sensitive information on its citizens that Canada
shares with the U.S. that can affect so many Canadians is odd. This pitfall in part reflects
a purposeful governmental obscuration of the agreements and information-sharing
practices between the two countries, in part by calling those agreements things like ‘smart
border accords’ or ‘economic competitiveness action plan’.
As well, there is a notion within Canada that both countries have quite similar
concerns, being neighbours, and there is real precedent prior to 9/11 for bilateral
information-sharing in the area of criminal justice in the post-9/11 era. It is perhaps this
precedent that Canada has been drawing on in the last few years to extend its history of
U.S. collaboration in issues of crime that involve trans-border criminals into a system of
collaborative national security. Indeed, the RCMP and the FBI as well as the DHS have
asserted that they “…share the same “number one” mandate of criminal justice” (Dewart
2012:11). However, the effect of imagining criminal justice as the number one mandate
of border crossings can make everyone who crosses the border seem like a potential
criminal.
To be clear, neither Canada nor the U.S. has made any report to the effect that
mental health, or a history of mental health, has anything to do with national security.
However, it is common to associate mental health with criminal activity (which is not the
same thing as a threat to national security, but at least a history of criminal activity has a
longstanding history of being a criterion for reducing travel privileges. Dewart (2012)
57
observes that Kamenitz, “prior to her suicide attempt…had virtually no interaction with
the Toronto Police Service, and had no involvement in the criminal justice system” (p. 4).
Police Responses to Kamenitz
In July 2010, about six months after Lois Kamenitz was rejected at the border
after her medical records became available to CBP through a criminal record check, the
Ontario Association of Chiefs of Police (OACP) responded to this potential breach of
privacy law by overhauling the variable guidelines, which formerly differed from police
station to station (PPAOc 2011:1), which instruct police officers on how and what
information is recorded on the individuals they encounter. OACP produced the LEARN
guideline for police record checks that are meant to become a province-wide standard.
According to the PPAO (PPAOd 2011:11), the
Guideline concretely defines three levels of screening:
58
For PIC and VSC, review of police contact information limited to past five years. 10
These guidelines advise front-line officers and emergency care responders to
protect the privacy of people with mental illness when they enter their reports into police
databases. The guidelines explicitly state that, “The police criminal record check will
NOT [original text] include…any reference to incidents involving mental health contact
that did not result in a conviction” or that did not result in a criminal charge (OACP
2011:3). The record check will still list any court dispositions where an individual was
deemed not criminally responsible by reason of mental disorder (Ibid. 4). Moreover, the
Police Vulnerable Sector Check (PVSC), which is conducted on people who seek
volunteer or employment positions in an area with vulnerable persons, like children or
people with disabilities, will not include Mental Health Act terminology (Ibid. 5). The
Mental Health Act governs how mental health care records are kept and assessed (Ibid.
37). However, in an individual’s PVSC, mental health contact information can be
disclosed, even if a criminal charge was not laid if the police report indicates that the
individual placed themselves or others in harm’s way (Ibid. 34). While these guidelines
encourage police in Ontario to be very cautious when making reference to mental illness
and in disclosing this information to third-parties, OACP has not yet implemented a
system for ensuring compliance or accountability in the application of LEARN.
However, the PPAO and the Ontario Mental Health Police Record Check Coalition have
started training police on how to apply the LEARN guidelines in the course of duty
(OACP 2011:NP).
10
Original source: LEARN Draft Guideline for Police Records Checks. Presentation to Police Records
Check Coalition. February 25, 2011.
59
Kamenitz’s case highlights the negative impact that medical and police
surveillance can have not only on the life of a stigmatized individual, but also on the
sovereignty Canada has over the private information on its citizens. Moreover, how
Canadians’ medical and police record information is recorded, stored and shared with the
U.S. that raises concerns which extends beyond the border into the medical field, and in
society. If medical surveillance is used as a mechanism of social control at the border,
will physicians take this into account when they conduct mental health evaluations of
their patients? Will individuals be less likely to accept medical labels or to seek them out
if they know their medical records can impact their freedom of mobility? Canada more
generally seeks to avoid conflating criminal conduct with mental illness incidents that
involve the police. As such, the Kamenitz case reflects a conflict of values between the
way in which Canada allows its citizens with mental illness records to be treated by a
foreign government, versus the way they are treated at home. This is evidenced by the
development of Canada’s Mental Health Courts.
Decriminalizing the Mentally Ill
One of the issues with using police records as a context for records of mental
illness is that the context lends an element of criminality to an already stigmatized label.
This element takes on another level of amplified meaning when it is put in the context of
national security. This, in turn, serves to enhance the suspect nature of mental illness, as
it is understood in a social, stigmatized, and non-clinical way. That process is counterproduct to the significant efforts that have been made in Canada to avoid criminalizing
the mentally ill. To explore this effort, this essay will use the example of Canada’s mental
60
health courts. The Canadian legal system aims to avoid criminalizing the mentally ill by
diverting them to mental health courts when they are involved in criminal activity, away
from a punitive criminal justice system and towards a model of therapeutic justice. For
example, the current presiding judge of Toronto’s Mental Health Court, the Honourable
Mr. Justice Richard D. Schneider, is both a trained lawyer and a clinical psychologist.
This kind of approach to the intersection between the law and mental health indicates that
mental health can be treated positively in the legal system to avoid standard criminal
proceedings for criminal issues that may have more to do with illness than any criminal
intent. The mental health courts in Canada were established in 1997 in response to the
broad-scale de-institutionalization of the mentally ill (Toronto Mental Health Court
2008a:NP). This deinstitutionalization was in part effected by the implementation of the
Charter; it has been and continues to be mobilized by people with mental illness to
challenge legal processes and practices that undermine their Charter rights, specifically
their right to life, liberty, and security of person under section 7 and the right not to be
arbitrarily detained under section 9 (Ibid. 2008b:NP). However, to some extent these
Charter rights continue to be negotiable in order to facilitate therapeutic forms of justice.
Prior to the advent of the Charter, legal advocates for the mentally ill would avoid
the insanity defense for all but the most serious offenses because the presumption was
that their client would be detained indefinitely without legal recourse in a mental hospital,
based on British laws that were incorporated into Canada’s Criminal Code in 1892.
Indeed, “No matter what the mental status of an accused at the time of the alleged
offense, anyone found “unfit” to stand trial on account of insanity would also be held at
the pleasure of the Lieutenant Governor” (Pilon 2002:NP). This section of the Code was
61
amended to replace the Insanity Defense with the Mental Disorder Defense in 1991
through Bill C-30 because the original section did not comply with the Charter, according
to a Supreme Court ruling made in R. v. Swain.11
If police, lawyers, or other agents of the criminal justice system identify an
individual who commits a crime with a mental illness, that individual can be diverted to
the mental health courts, primarily for minor to moderate level offences (Schneider et al
2007:6). These courts emphasize therapeutic justice rather than punitive justice and the
goal of these courts is to ensure that those with mental illness are not treated as criminals
(Ibid.). They view criminal conduct by the mentally ill as a reflection of their mental
disorder(s), rather than as a reflection of criminality (Ibid.).
In the two decades before the rights of the mentally ill were being recognized in
the legal system, psychiatric models for treating the mentally ill were undergoing a
paradigm shift that lessened the authority wielded by psychiatrists in the legal system. In
the 1960s and 1970s, psychiatry was coming under heavy criticism as a science, and
questions were being raised about the ability of psychiatrists to identify mental illness
and to treat it. Asylums started closing down on the premise that, “One does not, after all,
deprive persons of liberty because they have elected to communicate distress in
idiosyncratic ways” (Applebaum 1994: 6).
In this sense, the legal rights and social privileges of mobility depend on the
surveillance of medical data that is normally considered private; and on how that
information is sorted, and by whom (police, psychologists, CBP…). People become
11
In R. v. Swain, the Supreme Court of Canada determined that in certain circumstances, the Crown can
override the accused’s objection to raising the Insanity defense in certain circumstances; and, the period in
which the accused is being assessed for ‘dangerousness’ cannot be indeterminate because this violates
Sections 7 and 9 of the Charter (Schneider et al 2007:20).
62
normalized into the profiles they are organized into because they are treated according to
what they represent in any variety of circumstances. If a characteristic of their profiles
indicates something stigmatized, that stigma can travel with them through numerous
databases and into their real life interactions so that they come to embody the stigma
assigned to them. This normalization paves the way for various actors, including the state
or multiple states, to control and discriminate between citizens in areas of society beyond
the border. Or, in the words of Cohen (2012:46)
…networked information and communication technologies play an increasingly significant role in
constructing embodied experience. The relationship between the embodied self and networked
digital technologies is not a one-way street, in which “technology” is an object of “experience.”
Rather, the relationship between the embodied self and technology is a mutually constituted one.
Mental health information flows across governmental, and inter-governmental networks
can lead to greater stigma for mental illness. A person who cannot travel from Canada to
the U.S., as so many Canadians are wont to do, is unable to participate in some of the
family, community, job, or travel functions that are characteristic of a mobile society, and
they must explain why to the people who invite them abroad. Kamenitz, for instance, was
trying to attend Thanksgiving dinner with family in California (Bridge 2011:NP).
Moreover, this has potential implications for the way that diagnoses are performed. For
example, if a physician knows that a medical diagnosis and label will have consequences
well beyond a treatment regimen, is it important for him to acknowledge the extramedical impact of his medical opinion on his patient’s life? Will a patient avoid seeking
treatment in order to avoid being labeled, coded, packaged, and disseminated? How
medical labels are managed in Canadian courts are perhaps much more telling about the
63
appropriate approach to negotiating ‘unknown criminal risks’ than they are managed in a
CBP screening station.
In the mental health courts, the privacy of medical records that is normally
protected by doctor-patient confidentiality is lifted in order to offer legal protection to
individuals with mental illness who have violated the law, in an effort to avoid
criminalizing them. The medical label that a physician applies to a patient is used as a
diagnostic tool, and it is subject to change. This is acknowledged in a forum run by a
lawyer-psychologist, but it is not acknowledged in a CBP interview, and that is an
important distinction for determining when privacy on mental health issues should be
lifted. While a CBP officer can redirect the troubled traveler to Dr. Seiden’s office for
more expert evaluation, it is an onerous process. Moreover, it is being imposed on
someone who has not actually committed a criminal offence. When a non-medical
institution appropriates that label, that label imputes certain inherent and immutable
characteristics to a given individual. In Kamenitz’s case, an observation about her mental
health by a police officer became sufficient evidence of a permanent mental illness and
an inherent feature of her identity at the border. Summarily, an identity that is informed
by a medical event has consequences that are difficult to negotiate with without the aid of
a medical expert on hand to grapple with border controls.
Chart(er)ing the Border: Where Should Canadians Draw The Line?
The border functions to maintain peaceful relations between two democratic
countries, and yet it offers no guarantees of civic rights and freedoms, including a right to
privacy, that are associated with democracies. On the U.S. side of the Canadian border,
64
the Charter does not apply. The Charter would normally protect Canadians’ civil liberties,
and would help to define what constitutes criminal behaviour, both on the part of customs
officers and of people undergoing inspection. In the Canadian constitutional context, the
Supreme Court of Canada confirmed in 2007 in R. v. Hape that Canadians are not
protected by the Charter from foreign or even by Canadian police investigations when
they are abroad. Justice Binnie, did, comment in this case, without dissenting, that,
Issues of more far-reaching importance will soon confront Canadian courts, especially in the
context of the 'war on terror' and its progeny…we should, in my view, avoid premature
pronouncements that restrict the application of the charter ... (Canwest News Service 2007:NP).
At U.S. CBP checkpoints that exist inside Canada, for example, at Toronto’s
Pearson International Airport, there is no prohibition levied against unreasonable
searches of persons or against the seizure of goods when passengers are undergoing
security inspections by American or Canadian agents, a method which would normally be
deemed in violation of Section 8 of the Charter.12 Since the Charter does not apply to
these inspections, especially since Canadians are considered to be in U.S. territory while
they are in Toronto if they are inside the U.S. security checkpoint, civil liberties are
effectively null and void in foreign space on Canadian soil.
A discussion in this area is quite pertinent to continuing developments in CanadaU.S. cooperation at the border, and the confusion that results from confusion over
sovereignty. As recently as June 2013, there was a somewhat comical confusion over a
cancelled Air Canada flight at Toronto’s Pearson International Airport bound for New
York. As the Globe and Mail tells it,
The flight was slated to leave Toronto Pearson International Airport at 5:15 p.m. for New York’s
LaGuardia Airport, but it was cancelled after sitting on the tarmac for more than an hour. Having
The Canadian Charter of Rights and Freedoms, section 8, reads, “Everyone has the right to be secure
against unreasonable search and seizure” (The Government of Canada 1982: Section 7).
12
65
precleared U.S. customs, the passengers had technically entered the U.S. But they hadn’t physically
left Canada, let alone the runway. (Blaze Carlson 2013:NP)
Passengers were prevented from disembarking in a timely manner because no one was
sure whether the pre-cleared passengers who had not, in physical terms, left Canada, but
who had technically entered the U.S. by passing through U.S. customs, had to re-enter
Canada through Canadian Customs and Immigration. There was also confusion over
whether passengers trying to board a different flight would have to go through U.S.
Customs again if they re-entered the airport. They were ultimately requested to do so by
the U.S. While this sort of confusion might be passed off as a sort of tussle between
benign neighbours, the principles of collaboration that lead to confusion over U.S.
authority within Canada’s borders deserves greater opprobrium.
For example, a pilot project meant to have U.S. and Canadian customs and security
officers working together on Canadian soil to pre-clear cargo headed for U.S. soil,
entitled the Next Generation policing project, is underway. An internal RCMP memo
raises concerns that,
The United States wants its police officers to be exempt from Canadian law if they agree to take part in
a highly touted cross-border policing initiative (Bronskill 2013).
With regard to the implications of this pilot, one Liberal MP, Sean Casey (2013), from
Prince Edward Island, gave vent to the ire that Canadians may be subsequently
experiencing, in a specific attack on the Canadian Conservative government agenda, as
follows:
Bit by bit, agreement by agreement, Canada is giving away more and more in the name of trade.
To Conservatives, none of this is a threat to our sovereignty, as if the very act of stating so makes
it so.
But let us consider this fantasy scenario: RCMP officers stopping American citizens on the
Buffalo side of their border. Picture the horrified expression of those resilient New Yorkers as they
are forced to slow down on their Interstate highway so as to be greeted by a smiling RCMP officer
66
who is to inspect their property, ask questions about where they live, where they've come from,
and the like -- all part of a so called "pre-clearing" program.
Of course, this scene would never occur. The United States protects, obsessively, their
sovereignty. But here in Canada, armed American police officers will now be able to stop
Canadians, in Canada, inspecting, checking and asking questions.
Again, the Conservatives will tell us that an armed American cop in Canada is all about trade, jobs
and security, not sovereignty.
As was previously mentioned, the Charter does not apply once a Canadian steps onto
U.S. territory (even if this territorial space is located inside of Toronto’s Pearson
International Airport). How it applies to a U.S. officer operating on Canadian soil, like in
Canadian pre-clearance stations, is also unclear (Bronskill 2013). This is also true in a
murkier sense, in that the way that the Charter application to information-sharing
practices between Canadian law enforcement authorities and U.S. border authorities is
unclear.
The Charter’s recognition of equal rights for all Canadians is a necessary
condition of democratic citizenship, and its application should go beyond creating an
environment of tolerance for people of unequal capabilities if it intends to achieve
substantial, not formal, equality. Indeed,
Canadian equality jurisprudence in the Charter era has been marked from the beginning by its
rejection of a formal equality approach in favor of the pursuit of substantial equality (Réaume
2006:143).
That is to say that the courts recognize that laws which apply equally to all
citizens, and which treat all citizens as though they are the same, can have a
disadvantageous impact on some segments of society. In an effort to achieve substantive
equality, the Charter is applied in such a way that the courts take into account the social
context to examine the effect of a law on vulnerable groups. As Hannah Arendt has
pointed out, “Sameness is not equality, and “political equality, therefore is the very
opposite of the equality before death or of equality before God” (Lasch 1996:88). At the
67
border, all citizens are treated with equal suspicion, but the assignation of risk to certain
characteristics has the effect of subjecting vulnerable groups to unequal and
discriminatory screening processes at the border. Whether or not the Canadian courts
have upheld the idea of substantive equality is another area for debate, and that is a topic
for another essay. However, I hope that I have drawn attention to an area where the
Charter could offer some useful guidelines as privacy advocates seek out ways to prevent
‘collateral damage’ to civil liberties when Canada and the US make collaborative efforts
to achieve border security through overly broad surveillance systems.
Conclusion
The Kamenitz case highlights the frightening ease with which Canadians have
surrendered their actual privacy and mobility for a narrative about U.S. national security.
It examines how that freedom was surrendered for no governmentally promoted benefit
to Canadians other than the promise that cooperation in matters of border security would
increase trade efficiency. This cooperative stance plays on the oft-held idea in Canada
that it is similar to its neighbour, and therefore has similar interests in numerous areas.
This makes it even more important for Canada to make clear distinctions between what it
stands for apart from its neighbour’s values and intentions. It is evident that the surrender
of Canadian privacy, and sovereignty, to the whims and uses of the U.S. government
reduces Canadian freedom overall, and stands in direct conflict with notions of privacy
and civil liberties in an open and free Canadian society.
Kamenitz’s border troubles began because of two main items: (1) she had a police
record of mental health issues; and (2) information in Canada’s police databases have
68
become more broadly accessible to U.S. border guards as a result of post-9/11 bilateral
information-sharing practices. Subsequently, the outcome of broad surveillance systems,
zero-risk management strategies, and bilateral information flows is a significant reduction
of the mobility of Canadians with mental health records at the border.
Evidently, the Canadian government enables a security regime that allows some of its
citizens to be marginalized by sharing information that can reveal ‘suspect’
characteristics about its citizens to the U.S. To profile Canadians into categories of risk,
the DHS relies in part on information it receives from Canadian governmental
organizations. This essay examined the breadth of what is considered suspicious, and
whether or not that breadth is justified – does the type of broad surveillance being
implemented increase security? The research outlined in this essay suggests that it
actually worsens security by relying on stigmatized identities to amplify fears about
unknown terror, rather than applying more discretionary or competent security measures.
Canada’s responsibility to care for its more marginalized citizens has lapsed in its
enthusiasm to come to neighbourly terms with the U.S. However, as Lyon notes, in
reference to the snowballing surveillance he and others witnessed after 9/11,
From that commitment to responsibility for the Other proceeds peace and prosperity, freedom and
security, sought otherwise through false priorities. This is a city whose gates are never shut. It is a
place of inclusion and trust. (Lyon:2003, as cited in Bauman and Lyon 2013:119-120).
In order to maintain a free and open society with a commitment to civil liberties, it is
important to examine the security regimen that Canada is willing to implement, and its
implications for the way that private information on Canadian citizens is handled. The
publicizing of private information to a foreign nation is the key issue here -- one over
which Canadian governmental authorities, both federal and local, have the power, and
69
duty, to stop, as was demonstrated by the police response to Kamenitz’s case. Use of very
broad, often indiscriminate categorizations based on “mental illness” for security reduces
large sectors of the population’s mobility privileges.
The broad swathe of people it potentially, and seemingly arbitrarily affects, raises
questions about the efficacy of broad surveillance and security measures. Clearly,
allowing Canadians to become more vulnerable to U.S. ideas about National Security is a
questionable government policy; obscuring that effect by failing to implement
appropriate privacy controls to protect Canadians from unnecessary damage to their civil
liberties and to the their mobility deserves opprobrium and reform. Without making it to
clear to Canadians what they are giving up when they join U.S. National Security
agendas to advance ‘economic competitiveness’, the Canadian government is providing a
harmful precedent in terms of sovereignty and in terms of the types of discrimination it
allows, enables, or supports.
70
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