Uncle Sam is Watching (Part 2)

In a previous post, we discussed amendments to the Aeronautics Act which allowed Canadian airlines to provide passenger information to the United States Department of Homeland Security (“DHS”) for international flights that not only land in, but also overfly the United States.  The specifics of the information to be provided was to be set out in future regulatory amendments.  The new amendments came into effect on September 30, 2011.

Under the U.S. Secure Flight program, air carriers are required to share certain passenger information for flights travelling over continental U.S. airspace to a third country.  The information is to be provided to the DHS approximately 72 hours before departure.  In situations where the reservation was created within 72 hours of departure, the information must be submitted as soon as possible.

The amendments (found here and here) were brought into force to enable Canadian carriers to comply with this requirement without having to seek informed consent from all passengers (required under the Personal Information Protection Electronics Documents Act), which would impose significant costs to carriers and potential passenger delays.

Canadian carriers are now able to provide information relating to each passenger’s full name, date of birth, gender, and other passport information to DHS.  Further itinerary details may be provided as required and requested by the DHS.  This information may be provided to the DHS where the aircraft is due to land in the U.S.  However, carriers must notify all persons who are on board or expected to be on board the aircraft that information relating to them may be provided to a competent authority in the United States.

The amendments also introduce the U.S. “overflight” provision.  When an aircraft is due to fly over the U.S., information such as each passenger’s full name, date of birth, gender, other passport information and some itinerary information (such as place of origin and arrival, aircraft departure date and time etc.) may be provided to the U.S. DHS.

This “overflight” provision does not apply to flights between two Canadian cities that enter U.S. airspace, since they do not fall under the Secure Flight program.

If air carriers do not inform their passengers that their passenger information will be shared with the U.S. in cases where the aircraft is to fly over U.S. airspace, they can be subject to new monetary penalties of up to $5,000 for individuals, and a maximum of $25,000 for a corporation.