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| Sergio R. Karas |
The ArriveCAN app must be used within 72 hours prior to the traveller’s arrival, and they must provide proof of vaccination, contact information and in some cases pre-entry test results and more. Individuals may be subject to hefty fines or required to quarantine if they fail to use the app or provide inaccurate information.
Glitches in the ArriveCAN app have been reported. Some individuals are either unsuccessful when attempting to log into it or have had all their information erased. As a result, some travellers have been fined up to $10,000 as they were unable to produce the relevant information at the port of entry and others have been denied entry. CBSA officers have been granted wide discretion to deal with non-compliant travellers. This has caused anxiety and has led to significant delays at all ports of entry.
Senior citizens who are not proficient with technology, do not own smartphones or desktops, or are travelling alone may encounter additional difficulty in registering with the ArriveCAN app. They must often rely on others for assistance or hope that officers will be lenient.
The significant delays at ports of entry like Toronto Lester B. Pearson International Airport combined with strict capacity restrictions due to fear of COVID-19, have resulted in numerous instances of passengers having to remain inside aircraft after their arrival at the gate and wait for CBSA clearance to disembark. CBSA are thoroughly screening all travellers entering Canada, including those who have NEXUS privileges. The process transforms arrival at a Canadian airport into a counterproductive, unpleasant and chaotic ordeal with large crowds and congestion in the arrival hall.
The collection and storage of copious amounts of personal data through the ArriveCAN app raises significant privacy concerns. The federal government issued a privacy notice that explains how it will use the information, not only when the traveller enters Canada, but how it may also be shared with other departments in accordance with the Privacy Act and Emergency Orders. Details entered in the ArriveCAN app may be retained for a minimum period of two years. The potential for misuse, security breaches and data sharing with unauthorized parties remains high. There are concerns that CBSA and PHAC may be the target of hackers, as was the Canada Revenue Agency recently, resulting in 80,000 users being locked out of their online account.
The Information Science and Technology Branch of Public Safety and Emergency Preparedness claimed on their website that the ArriveCAN app cannot be used to track location automatically. However, the app has the capability to use GPS or other location-tracking technology to obtain user information. U.K.-based company Top10VPN recently flagged this as a potential breach of privacy. According to that organization, the ArriveCAN app contains a permission to “access fine location,” that allows it to monitor GPS. This feature was removed after it was made public by the media, but there is little to prevent the authorities from restoring it.
The concern about misuse of traveller information is heightened by recent reports that the authorities may have collected data from mobile phones to monitor the movement of citizens during the pandemic. PHAC revealed that they used location data to monitor, collect and access the movement of 33 million people by accessing cell-tower locations. Telus provided the movement trends to PHAC, which viewed the information to evaluate the effectiveness of the “stay at home” measures. This backdoor arrangement was designed to allow the agency to track population movement for five years to address public health issues other than COVID-19. This may constitute a serious breach of individual privacy rights, and it may bleed into other domains if unchecked.
The Privacy Commissioner was requested to provide recommendations about the use and safeguards associated with the ArriveCAN app. It recommended that PHAC put measures in place to prevent broad collection of personal information. Notwithstanding those recommendations, PHAC continued to track arriving travellers and collect their personal information. There have been discussions between CBSA, PHAC and the Privacy Commissioner for use of the ArriveCAN app beyond the pandemic, for mandatory declarations such as customs and immigration forms. However, there are few details regarding the extent of such proposed use on Canadian citizens. This is concerning, as other databases already hold considerable traveller information. For example, NEXUS holders are vetted for compliance with customs, immigration and criminal issues before their applications are granted and are “safe travellers.” A further layer of information may require that the United States agree to further data collection, which is unlikely.
CBSA already has tools to screen individuals who pose a health or security risk to Canada. PHAC should not be allowed to continue to collect data on citizens in the post-pandemic era. The intrusion on individual privacy far outweighs the minimal gain that can be gleaned from the information collected in the name of public safety. The magnitude of potential security breaches, unauthorized information sharing and surveillance should alarm the public. With most COVID-19 measures scrapped, there should be no reason for Canadian citizens to provide further information through the ArriveCAN app, and it should not be utilized to engage in fishing expeditions.
Government agencies should focus their efforts on travellers not already authorized to enter Canada, and on those who may have visited countries that raise security and health concerns. The authorities should avoid collecting information on the movement or travel histories of Canadian citizens.
Sergio R. Karas, principal of Karas Immigration Law Professional Corporation, is a certified specialist in Canadian Citizenship and Immigration Law by the Law Society of Ontario. He is past chair of the ABA International Law Section Canada Committee and current co-chair of the International Ethics Committee, Section of International Law, past chair of the Ontario Bar Association Citizenship and Immigration Section, past chair of the International Bar Association Immigration and Nationality Committee, and editor of the Global Business Immigration Handbook. He can be reached atkaras@karas.ca. The author is grateful for the significant contribution of Reeva Goel, student-at-law, in the preparation of this article.
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