In the wake of the September 11th tragedy, President Bush declared a war on terrorism. Canada was quick to announce its support for Bush’s worldwide coalition against terrorists and the governments that supported them. Responding to the September 11th tragedy, Prime Minister Chretien stated, “It is impossible to fully comprehend the evil that would have conjured up such a depraved and cowardly assault upon thousands of innocent people…Terrorist acts are an offence against the freedoms and rights of all nations.”

After September 11th, both countries enacted anti-terrorist legislation designed to combat terrorism while protecting civil liberties. Both the Mobilization Against Terrorism Act (United States) and the Anti-Terrorism Act (Canada) received support from all political parties and quickly became law. However, Canada is considering going one step further by introducing a national identity card. Some people fear this poses a major threat to Canadian’s basic right to privacy. Some have brought up the specter of Nazi Germany and South Africa under apartheid, where identity cards – which citizens had to produce upon command - were used for racial profiling.

The following feature introduces national identity cards and their potential impact on privacy rights. The article is broken down into the following sections:

Bill C-36: The Anti-Terrorism Act

National Identity Cards - The Next Step?

What About the Right to Privacy?

Public Reaction to National ID Cards

An International Perspective

Final Thoughts and Further Reading

Bill C-36: The Anti-Terrorism Act

On October 15, 2001, the government introduced the Anti-terrorism Act (Bill C-36) in the House of Commons. The legislation was designed to give law enforcement and other officials' tools that would help them prevent acts of terrorism. Existing legislation limited them to responding once a terrorist act had already occurred.

The bill's main provisions include:

• Defining and designating terrorist groups and activities to make it easier to prosecute terrorists and those who support them;
• Making it an offence to knowingly participate in, contribute to, or facilitate the activities of a terrorist group
• Making it a crime to knowingly collect or give funds to carry out terrorist acts, whether directly or indirectly.
• Denying or removing charitable status from charities that support terrorist groups. Existing groups can have their assets frozen and seized.
• Enhancing the ability of law enforcement and national security groups to use electronic surveillance against terrorist groups
• Creating new offences for the disclosure of information considered to be “of national interest”
• Amending the Canada Evidence Act to prevent the disclosure of information considered to be “of national interest” during courtroom and judicial proceedings.
• Extending the DNA warrant scheme and data bank to include terrorist crimes.
• Permitting the arrest and detention of suspected terrorists in order to prevent a terrorist act, within defined limits.
  
  When introducing the Act, Justice Minister Anne McLellan pointed out that its provisions were consistent with Canada’s legal framework and the Canadian Charter of Rights and Freedoms, striking the right balance between civil liberties and national security. Nonetheless, several groups expressed concerns about the possibility of abuse. The following amendments were made to the original legislation:
  
• Revising the definition of “terrorist activity” to make it clear that unlawful activities such as trespassing and property damage could not be considered terrorist acts.
• Clarifying that the legislation is not intended to target specific ethnic or religious groups who are not engaged in terrorist activity.
• Adding a provision requiring the federal and provincial Attorney Generals, the Solicitor General of Canada, and ministers responsible for policing the provinces to provide an annual public report on each case of preventative arrest under Bill C-36.
• Adding a provision requiring the Attorney Generals of Canada and the provinces to report annually on investigative hearings that took place under Bill C-36.
• Adding a “sunset clause” so that the powers of preventative arrest and investigative hearings would expire after five years, unless Parliament chose to extend them for a further five years.
• Clarifying that individuals accused of aiding terrorist activity must have been aware that their action would help cause a terrorist act to occur.

Parliament passed the Anti-terrorism Act on November 28, 2001. It is subject to review every three years.

National Identity Cards - The Next Step?

In addition to the measures outlined in the Anti-terrorism Act (Bill C-36), the federal government is considering implementing national identity cards. At the request of federal Immigration Minister Denis Coderre, the House of Commons Immigration Committee on Citizenship and Immigration is holding hearings on the issue.

Both internal and external pressures are behind the Minister’s request. At home, the federal government wants to strengthen national security by making it harder for terrorists to enter the country. In addition to national security concerns, Coderre believes biometric cards will help corporations tackle the growing problem of identity theft. In 2001, nearly 12,000 Canadians were the victims of some form of identity fraud.

Externally, Canadians may soon need national identification cards to enter the United States. In October 2001, the United States passed legislation making it easier for border customs officials to identify foreign travelers who may pose a security risk. The US Patriot Act requires all foreigners entering the country to show ID displaying fingerprints or other biometric data. While diplomats are working to obtain an exemption for Canadians, national ID cards would be one way to solve the problem.

What are National Identity Cards?

Many Canadians question the need for a new piece of identification. We already carry several pieces of ID, including driver’s licenses, birth certificates, and passports. Why aren’t these enough?

The difference between traditional identification cards and the proposed new national identity cards comes down to technology. Today, several countries have instituted national identity cards that make use of biometrics – the scientific collection and analysis of biological data. Biometric data includes fingerprints, iris scans, and face scans –traits that are unique to every individual. In addition, “smart cards” have a built-in microchip that can hold large amounts of data on individuals, including a signature and photograph.

What are the Relevant Issues?

The Citizenship and Immigration Committee is considering several National ID card issues:

Should the card be mandatory or voluntary? If mandatory, should everyone in Canada be required to carry one at all times? Who would have the authority to demand to see the cards?

• What type of biometric data should be used?
• What level of government should be responsible? (Currently, the federal government has responsibility for passports, while the provinces are responsible for issuing driver’s licenses, birth certificates, and death certificates).
• What information besides biometric data should be included on the card?

Privacy Commissioner George Radwanski argues that once the cards are implemented, it is unrealistic to expect their use to remain voluntary. Businesses, authorities, and other officials will begin demanding them for identification. Furthermore, it will undoubtedly become more difficult for Canadians to cross the United States border without one. If implemented, the national identity card may replace the Canadian passport; civil libertarians fear that it may become a defacto internal passport as well.

As for biometric data, Canada will probably use fingerprint data. A recent Canwest News Services report revealed that the federal government planned to hire a New York based firm to study the strengths and weaknesses of various types of fingerprint readers. Only Canadian citizens would carry the cards, as permanent residents are already required to carry the Maple Leaf card, which can be modified to include biometric identifiers. (The Maple Leaf Card is a card for Permanent Residents that was introduced at the same time that the government made changes to the Immigration and Refugee Act in June 2002. It replaces the Immigrant Visa/Record of Landing previously issued to individuals when they attained permanent residents status).

Do We Need a National Identity Card?

There are several arguments for and against implementing biometric identity cards.

Arguments in Favor of Biometric ID Cards

• They are more secure than other pieces of identification. Unlike a passport or driver’s license, they contain data that is unique to the individual. Corporations and authorities such as customs agents and law enforcement officials can determine (with a high degree of certainty) whether or not the biometric traits of the cardholder match those on the card.
• National ID cards containing biometric data would make it easier for Canadians to travel abroad. In the aftermath of the terrorist attacks, international identification standards are changing rapidly. Foreign travelers may soon need a stronger piece of identification than a passport.
• It would help immigration officials screen out suspected terrorists. Canada has come under increasing criticism for its comparatively lax immigration laws. Critics claim Canada is a haven for terrorists wanting to use Canada as a springboard for entering the United States.

Arguments Against Biometric ID Cards

• Obtaining a biometric ID card still depends on the presentation of documents such as a birth certificate and driver’s license. A biometric ID card can verify that the cardholder’s biological data matches the data on the card. However, it is still possible that the cardholder obtained the card under a fraudulent name.
• The scanning technique is not 100 percent accurate. It is possible to have a false positive reading. (In 2002, a Japanese scientist made headlines when he successfully fooled biometric fingerprint readers using a fake finger made from Gummi bears). This could lead to errors in airports and other institutions that would make extensive use of the ID cards.
• If the cards were voluntary, individuals who chose not to get one would look suspicious.
• They can give a false sense of security. Many of the hijackers involved in the September 11th attacks were in the United States legally.
• They pose a threat to our right to privacy. The more that the cards are used, the greater the number of persons that have access to an individual’s private information.
• There is the possibility of abuse by law enforcement officials and other authorities

What About the Right to Privacy?

The most serious objection to national identity cards is the threat they pose to our privacy. Early common law only gave protection for the “right to life” – the right to be free from physical harm. Over time, this evolved into the right to enjoy life, which includes the right to privacy.

What is the Right to Privacy?
Canadians view privacy rights in several ways:

• The right to be left alone.
• The right to control what others know about us.
• The right to expect that information about us should be gathered only when it serves a specific purpose, and should be used only for that purpose.
• A social value that is shared by the rest of the community.

Since January 2001, Canadians have also been protected by the Personal Information and Electronic Documents Act. The Act protects how personal information about individuals is used in federally regulated areas of the private sector, including personal health information. By 2004 the Act will cover commercial activity by provincially regulated organizations.

Modern Technology
Recent technological advances threaten our right to privacy. Video cameras track our movements as we shop or walk along the streets; employers use specialized software to monitor our email messages and Internet use on the job.

This technological explosion is weakening the right to privacy as a social value. Increasingly, some see giving up privacy rights as the price that must be paid in an electronic age for the sake of efficiency and the safety of the community.

However, up until this point data has been collected in an unorganized manner. Whether it’s the grocery store providing customers with “loyalty cards,” or a credit card company recording our purchases, the data is being collected by a number of different entities. With a multipurpose, National ID card, there exists the real possibility of creating a database where all sensitive information about an individual – from travel to health and banking information – can easily be tracked. Many people would consider this an unacceptable violation of their privacy. Unfortunately, current privacy legislation doesn’t provide much protection against it. Under the 2001 Act, businesses and organizations have the right to collect, use or disclose personal information “for purposes that a reasonable person would consider appropriate under the circumstances.” If national identity cards are implemented, it would probably be considered appropriate for businesses and organizations to demand that customers and employees use them.

However, supporters of the cards point out that they can actually increase personal privacy by helping prevent identity fraud.

Public Reaction to National Identity Cards

With the exception of Immigration Minister Denis Coderre, it is hard to find support among Canadians for a national identity card. Civil libertarians are clearly worried about the prospect of the card turning into a defacto internal passport, which Canadian citizens would be forced to carry with them at all times. Minorities are concerned that the card will be used for racial profiling. Finally, there is the question of whether a mandatory ID card would survive a Charter challenge.

Here are viewpoints from different segments of the population, some of who made presentations to the House of Commons Standing Committee on Citizenship and Immigration holding hearings on the national identity card:

Politicians

Denis Coderre: In his address to the committee, Coderre made it clear he favored a national identity card with biometric data. He gave several reasons for supporting the card:

• It would strengthen national security.
• It would increase Canadians’ personal security by helping prevent identity fraud.
• It would improve the integrity of Canadian travel documents.
• Canada needs a national identification system. Right now responsibility for identification documents is divided between the federal government and the provinces.

Coderre is not getting much support from his own party. Liberal MP John Bryden, a House of Commons Immigration Committee member, said he believed the idea of identification cards containing biometric data was quite controversial, and raised serious doubts about a person’s right to privacy. He also ruled out a proposal to limit the requirement to carry ID cards with biometric data to non-Canadian citizens. Bryden said forcing only permanent residents to carry cards with biometric data would violate their equality rights under the Charter.

Inky Mark: Progressive Conservative MP Inky Mark believes a national identity card is a way to screen out terrorists and criminals while still encouraging immigration. Mark believes immigrants are being unfairly picked on in the wake of the terrorist attacks. “Canada needs immigrants,” Mark said in a recent article. “It’s time to stop blaming our immigrants for the woes of our immigration system.” (Source: “Don’t Blame the Immigrant,” from the Progressive Conservative Party of Canada website).

Legal Experts

Constitutional lawyer Morris Manning has made several criticisms of a national identity card with biometric data:

• It would violate the Charter of Rights.
• It would increase racial profiling.
• It would invade people’s privacy by creating a large database of personal information on individuals.
• It would do little to help reduce identity fraud.
• It is not an effective way to fight terrorism.

Manning told the committee: “If you have to produce a card to buy a car, to get on a plane, to travel across the country or even to walk the streets of Canada, then I believe we have changed from a free to an unfree society.” (Source: CBC News Online).

Lobby Groups

Like many others, Howard Pawley of the Canadian Civil Liberties Association is skeptical about the need for a national ID card. “My immediate concern is that this is public policy in a knee-jerk fashion, without thinking through the pros and cons, and we have to be very careful to ensure that anything we do is effective.” (Source: CBC News Online).

Grassroots Women is a Canadian organization designed to “address the systematic political and economic marginalization of working class women…” In their presentation before the Committee, they argued that a national ID card would result in racial profiling, both within Canada and at the American border. They believe a national ID card threatens Canadian values of democracy, human rights, and freedom.

Canada’s Privacy Commissioner

In recent months, Privacy Commissioner George Radwanski has repeatedly expressed concern that the federal government is placing national security above the privacy rights of Canadians. On March 18th, Radwanski appeared before the House of Commons Committee. Arguments he gave against the proposed national identity card include the following:

• There is no demonstrated need for it.
• It would not be effective in targeting terrorists or eliminating identity fraud. Even biometric cards can be faked, and most identity fraud takes place by electronic communications that don’t require an identity card, such as telephone and email.
• It has damaging implications for Canadians’ privacy rights by infringing on our right to anonymity. The damage to privacy outweighs the possible benefits in identifying terrorists.
• Having the card remain voluntary is not a realistic possibility.
• It would be expensive – up to $5 billion to implement.
• There is no public support for it.

National ID Cards – An International Perspective

In the aftermath of the terrorist attacks, several countries are considering national identity cards, both for internal security reasons and to make it easier for their citizens to travel abroad. However, other countries have rejected the concept, seeing it as a threat to an individual’s right to privacy. Here are examples of how this issue is playing out in the international arena.

Asia

Hong Kong - In 2003, Hong Kong will implement a “Smart Identity Card.” The card contains an embedded microchip that holds the name, birth date, and photographs of the cardholder, as well as both thumbprints. The card will be used for immigration and travel. It is expected to replace current identification documents and is mandatory.

Malaysia - Since 1999, Malaysia has gradually phased in the “MyKad” - a mandatory, multi-purpose smart card that functions as an identification card, driver’s license, passport, health card, and even an ATM bankcard. Biometric information on the card includes both thumbprints. The main complaint from Malaysians centers on problems when the card is lost – since all their ID is contained in the one card, it is difficult to replace.

Australia - In 1986, due to rising concerns over tax evasion and illegal immigration, the government introduced legislation creating the “Australia Card.” The mandatory card would contain a photograph, unique ID number, and a signature. Australians would need the card to travel, obtain health services, or open a bank account. The government was ultimately abandoned the concept after massive public opposition.

Europe

Britain - In July 2002, the British government unveiled plans to implement mandatory identity cards, called “Entitlement Cards,” for everything from obtaining employment to registering for social services. Like other countries, the government wants the cards to stem illegal immigration and curb identity fraud in addition to fighting terrorism. Identifiers on the card would include a photograph and fingerprints. Although the cards would be mandatory, it’s unclear whether British citizens would need to carry them at all times. The issue is still being debated.

Finland – Finland introduced electronic national ID cards in 1999. The card contains a unique identifying number and a signature but very little personal information and no biometric data. It is used for online banking, and travel throughout Europe. Use of the card is voluntary.

Italy - Italy has implemented the “carta d’identita”. Although the card is not mandatory, citizens are encouraged to carry and use it as identification, both abroad and at home. The card includes a photo, tax number, and other data, but does not contain biometric data.

North America

United States - In the aftermath of the September 11th attacks, the United States considered implementing national ID cards. A poll taken shortly after the September 11th attacks showed that sixty-eight percent of Americans favored a national identity card “to bolster anti-terrorism concerns.” Nonetheless, President Bush rejected the idea, due to concerns over privacy rights and possible Constitutional issues. Instead, the Patriot Act concentrates on better identification of illegal aliens, and improving visa standards to screen persons once they enter the country (three of the terrorists involved in the September 11th attacks had overstayed their visas, but were not ordered to leave).

However, Congress is considering another option. The “Driver’s License Modernization Act of 2002” was introduced in the Spring 2002 session of Congress by Virginia Senator James Moran. If passed, the Act would require States to standardize their driver’s licenses within five years to include biometric identifiers. Critics argue that this is simply bringing in a national identification system through the back door.

Final Thoughts
At this point it is impossible to tell whether or not Canada will implement a national identity card. The Canadian public's acceptance of the card will depend largely on whether or not it is voluntary. While some are open to the idea of a voluntary card to make international travel easier, there is little support for a card containing biometric data such as fingerprints that Canadians must carry on their person at all times, making it a defacto internal passport.

The federal government – or at least the Immigration Minister who launched the debate – appears to be out of sync with the public on this issue. If Canada makes the identity card compulsory, they would be the first common law country to do so. Even the United States has not taken such a bold step. Although Congress is considering legislation that would see standardized driver’s licenses containing biometric data within five years, individuals can always choose not to get a driver’s license. Practically this may be difficult, but the option exists. Requiring all citizens to obtain an identity card is a different matter entirely.

On the other hand, some might argue that Canada should be commended for opening debate on the issue. The government is not attempting to “sell” Canadians on the concept of ID cards by re-labelling them, as the British Government has done with “Entitlement Cards.” The government is also not attempting to bring national ID cards in through the back door by attaching them to other documentation – something the United States has been accused of doing with their plan for biometric driver’s licenses. Speaking before the Standing Committee on Citizenship and Immigration, Minister Denis Coderre stated: “There is an implicit, if not explicit, expectation that governments need to look at current practices and systems of establishing identity and evaluate their effectiveness.” Is a national identity card the answer?

What do you think?
Should Canada Implement a National Identity Card?

Further Reading
Statement by George Radwanski, Privacy Commissioner of Canada, before the House Standing Committee on Citizenship and Immigration regarding a National Identity Card
Office of the Privacy Commissioner of Canada

“Your Daily Data Trail”
Privacy Commission of Canada

“Database Spied on Citizens: Security Breaches of Police System Worry Privacy Activists”
WorldNetDaily.com

“Gummi Bears Defeat Fingerprint Sensors,”
The Register

“Go Slow on National Identification Cards”
Professor Ross, University of Notre Dame Law School

Anti-terrorism Act
Department of Justice Canada

Privacy Act
Department of Justice Canada