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Posted
Feb. 3, 2005 |
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By Tom
Price |
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Repressive new screening rules invade privacy, take jobs Imagine having to tell the government about your in-laws’ political activities, or having to give them your credit history and medical records, just to keep your job. This, and much more, is what ILWU Canada longshore members will have to do early next year if the Ministry of Transport imposes the most invasive screening program yet. And Canada’s Transport Security Clearance Process (TSC) could become a model for the maritime world. Transport Canada wants to require dockers to provide information on parents, spouses, associates and relatives. They would have to report on their education and residential, travel and employment histories. They would have to give their “hair colour, eye colour and complexion” information—that’s code for “race.” They would have to give permission for background searches into immigration, criminal and Royal Canadian Mounted Police records. The RCMP is Canada’s FBI. “Simply put, they’re trying to make a database to racially profile our members,” ILWU Canada President Tom Dufresne told The Dispatcher. “They also want to politically and financially profile our members.” According to
the ministry, dockers would also have to supply “any and all
information that will facilitate an assessment by the CSIS.” The
Canadian Security Intelligence Service, founded in 1984, is Canada’s
CIA. Information against dockers could also be provided by employers,
stool pigeons or just plain bloody minded people with a score to settle.
“You don’t have to be a conspiracy theorist to worry that governments can go too far when they’re given too much power, we have seen it time and again,” Dufresne said. A worker’s failure to provide the information would mean no clearance, and then no job on the docks. Once the government has the information, a worker could be subject to more investigation by the RCMP, CSIS and other unnamed agencies. In a reversal of the basic “innocent until proven guilty” principle, if clearance is denied, the worker would have to prove the charge false in order to get the clearance. And the government wouldn’t necessarily have to tell the worker what all the charges were, or where they came from. Workers would have to go through TSC every five years. The passage of the Anti-Terrorism Act of 2001, Canada’s Patriot Act, and the Marine Transportation Security Act of 1994 enabled Transport Canada to set up TSC without going back to parliament for approval. Transport Minister Jean-C. Lapierre announced the new directives in a Sept. 17 news release. The ministry began public hearings Sept. 20. Since then, ILWU Canada, the Canadian Labour Congress (CLC) and other transport unions have bird-dogged ministerial representatives at public discussions in ports around the country. Bill Chedore, the CLC’s National Coordinator of Health, Safety and Environment, was on the tour: “Most of them [from the ministry] have never had more than a cursory glance at the docks,” Chedore said. “So we took them on tours. We demonstrated how lax the security was toward empty containers. We used to check them, but because of economics the employers took all that inspection away. The logic was they didn’t want to spend money checking empty containers because when they’re empty, they’re empty. “In Montreal they once had checkers who directed truckers where to pick up containers,” Chedore said. “The checkers would say container number so and so goes onto this truck. They got rid of those guys, and the truckers now come in and make hand signals to the gantry crane operator saying they want this or that can put on their truck. The truckers direct the container moves, and they are exempt from screening. In Montreal the ministry people actually saw this happening! They scratched their heads.” “In our opinion Transport Canada is attempting to make up for failed past government policies, things like eliminating the port police and taking customs off the docks,” Dufresne said. “To make up for those failures they’re trying to scapegoat longshore workers in Canada, trying to hang the hook on our members.” Dufresne outlined what ILWU Canada found most offensive to the rights, freedoms and privacy of its members in an Oct. 21 Submission to the Transport Ministry. These include the unlimited scope of information collected, the fact that a lifelong career could be ended without due process, and the reversal of the burden of proof, where the worker would be assumed guilty and have to prove innocence. The employers would have a “tremendous potential…to abuse the security clearance system so as to circumvent the collective bargaining rights of union members,” Dufresne wrote. It gets worse when it comes to processing the workers’ info. The clearance would be approved, or not, based on highly subjective criteria. Did the docker associate with those who, in the ministry’s words, might have “a propensity to aid and abet those likely to be involved in terrorism”? [emphasis added] Is the worker “at risk to be prone or induced to commit an act or assist to commit an act” of terrorism? Does the person have “a propensity to be bribed or blackmailed”? Just knowing certain politicians could put a person’s job in danger. The ministry could deny security clearances for any of the above reasons, or any other reasons the Minister might decide upon, with or without notice. “The ministry said if they came across something interesting then they would share it with whoever they wanted to,” Dufresne said. “They could share it with Syria, Israel, the U.S. That puts our members in jeopardy, because when you’re traveling in other countries and the security service sees your name pop up as a ‘person of interest’ in your own country—they’re going to pay special attention to you even though it’s something like the minor things in this regulation.” So much of the information collection relies on “guilt by association” that profiling would almost naturally occur. Union political activity, or just old fashioned militancy, could be grounds for suspicion, and suspicion is all the ministry needs to pull someone’s book. TSC rules would be imposed by the Minister and not brought before elected Members of Parliament for public debate, a move so anti-democratic even the Bush administration didn’t try it. “In this regard, it must be noted that in 2002, the government of the United States (the main target of international terrorism) considered measures of a similar nature to be sufficiently serious to be placed before Congress for approval,” Dufresne’s Submission stated. The Oct. 21 Submission went on to quote Local 63 treasurer and Legislative Action Comm. member Peter Peyton’s Feb. 13, 2002 testimony before the U.S. House of Representatives’ Coast Guard and Maritime Transportation Comm. The ILWU in the U.S. opposed similar federal proposals because they violated Constitutional safeguards for workers and didn’t include inspection for cargo, the real source of threats. The U.S. government seemed more interested in protecting the ports from the workers than it was in protecting workers from dangers coming into the ports. Peyton told the House committee that workers would be the first to suffer and were on the front line in preventing attacks. Union dockers should be the first people the U.S. government partners with because ILWU members are also watchmen on the docks and know who should or should not be there. ILWU marine clerks check manifests and container seals, and over the years dockers have found stowaways and contraband. The Canadians have a similar idea. “Our view is that dock workers must be part of the solution to achieve secure ports and we will resist any effort to portray them as part of the problem,” Canadian Labour Congress President Ken Georgetti told The Dispatcher. So far governments have resisted more vigorous customs inspection and employers refuse to hire the people to do on-the-dock inspections. “Rather than blame the dockers, they should bring in the properly trained port police force,” Chedore said. “If they feel ownership of this security program they will be the eyes and ears on the ground and the can stop things from happening.” ILWU Canada and the CLC continue to talk to the ministry. In an Oct. 26 press conference attended by Georgetti, the union presented the Oct. 22 legal brief it gave the ministry. The 19-page brief outlined the union’s argument that the ministry’s screening would blatantly violate Canada’s Privacy Act and Canada’s constitution, the Canadian Charter of Rights and Freedoms. The Charter guarantees freedom from discrimination based on marital or family status. It also guarantees freedom of association, which TSC would violate. Since jobs would be lost if the worker refused to comply, the worker would be coerced into providing the information. The government would be able to snoop into a person’s personal papers without court order or reasonable suspicion of a crime, violating the right of protection from unlawful search and seizure. Since the information could be shared with many sources, it could not be guaranteed private. Punishing someone who has already paid for a crime a second time through loss of a job would violate the concept of “double jeopardy.” Passing regulations to punish past, previously legal, behavior would violate the principle of “no ex post facto laws” enshrined in English Common Law. The presumption of guilt that permeates the TSC violates a thousand years of common law practice. Depriving a worker of a job without due process violates fundamental worker rights and scoffs at ILWU Canada’s collective bargaining agreements. The Charter violations are so severe they “threaten the rule of law itself,” the Oct. 22 brief states. Later on it says: “A democratic state’s answer to terrorism calls for a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the values of the rule of law.” ILWU Canada has asked for the release of a Privacy Impact Assessment the ministry did before announcing the TSC. Other ministries have had to change practices when the PIA revealed the ministry’s practice has violated human rights. The courts have ruled many times against such privacy invasions, the Oct. 22 brief states. “The fact that TSC makes such a search possible is sufficient to render it unconstitutional.” Lawsuits will surely follow if the ministry imposes these rules early next year. The ILWU and the CLC continue to pressure the ministry. Meetings with members of parliament and ministers have been planned, and the government promises no regulations will be posted without further consultation. But the union is far from satisfied. “There’s no proper appeal to the Federal courts procedure built into this thing, it’s patently unfair, unreasonable and discriminatory,” Dufresne said. “You’re only allowed to appeal whether or not they followed the process, you’re not allowed to appeal whether the decision they made was wrong. That is left to their discretion. They would be entitled to be wrong as long as they followed the process. That’s very scary.” |
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