If you've ever been clinically depressed or have attempted suicice, the US may refuse you. Photo by Chris Connelly via Flickr.
Ellen Richardson was enroute to her dream vacation when her world came crashing down around her.
Richardson, 49, is a paraplegic and uses a wheelchair to get around. In 2012, she organized her dream vacation—an all-inclusive, fully accessible Caribbean cruise—with a group of about 12 others through March of Dimes Canada’s accessible travel services program. Her cruise left from New York City, so Richardson, a resident of Weston, Ontario at the time, set about the first leg of her journey which would take her to the US.
The plan was that she would travel abroad from there. All told, Richardson put $6,000 of her own money toward her vacation plans. But when Richardson arrived at Toronto’s Pearson airport, a US Customs and Border Protection agent—working under the department of Homeland Security—informed her that she would not be permitted to enter the United States. The reason? Richardson had been hospitalized for clinical depression in 2012. Previously, in 2001, she attempted suicide. All of this was apparent to the Customs officer, who was able to see her private medical history on his computer screen.
Richardson was told she would not be crossing the border without clearance from one of three doctors pre-approved by Homeland Security back in Toronto.
Unsurprisingly, Richardson’s case and several others like it caught the attention of Ontario’s Privacy Commissioner, Ann Cavoukian. The commissioner's office recently released a report detailing her office’s investigation into just how and why the private, sensitive health information of Canadians became openly accessible to US Customs and Border Protection, Homeland Security, and even the FBI.
The key takeaway from the report is that the federal government of Canada maintains a database called the Canadian Police Information Centre (CPIC) through the RCMP, and the private mental health information of Canadians is routinely entered into it. The database is accessible to branches of the US federal government as well, so people often discover they are a part of CPIC when they try to travel internationally.
“I learned that there is currently a Memorandum of Cooperation between the RCMP and the US Federal Bureau of Investigation (FBI), providing the FBI with access to CPIC. I also learned that the FBI grants access to the CPIC database to the US Department of Homeland Security, which includes US border officials,” Cavoukian explains in the report.
In her investigation, Cavoukian defines CPIC as “a national law enforcement and public safety repository” that contains a great deal of information. Though her office’s report focused solely on suicide attempts which were entered into the database, when we spoke by phone, Cavoukian explained that, unfortunately, tangentially related activity (e.g. hospitalization for depression) may also potentially be uploaded to the database. “You could mean someone's really depressed, it could be dozens of things, they don't categorize it in terms of attempted suicide, it's much broader than whatever the exact number is, which no one knows,” she told VICE. But at the press conference where Cavoukian released the report, she gave a rough figure of just how many people were impacted in the city of Toronto, including those who fall under the broader category of “mental health episodes” that involve attempted or threatened suicide. These still get uploaded to the CPIC database.
“With respect to the Toronto Police, the figure we got was 4.1 percent of their cases. And what we got from the Police Services Board was that equalled roughly 19,000 cases,” Cavoukian said.
The Toronto Police Service appears to stand alone in exercising minimal discretion about the private, sensitive health information of Canadians and uploading all cases of threatened or attempted suicide to the database. According to Cavoukian’s report, after consulting with police services in Waterloo, Hamilton, Ottawa, and even the OPP, it became clear that all other police services exercise some sort of discretion to determine whether a suicide attempt will be entered into the database. What’s more, they are open to the Privacy Commissioner’s recommendation that a four-part test be administered to determine whether the disclosure private health status is warranted by a legitimate public safety concern.
As published in Cavoukian’s own report, “this test requires that one of the following four circumstances exists before any suicide-related information is recorded in the SIP repository of CPIC:
1. The suicide attempt involved the threat of serious violence or harm, or the actual use of serious violence or harm, directed at other individuals;
2. The suicide attempt could reasonably be considered to be an intentional provocation of a lethal response by the police;
3. The individual involved had a history of serious violence or harm to others; or
4. The suicide attempt occurred while the individual was in police custody.”
The Toronto Police have outright rejected Cavoukian’s proposed four-part test.
VICE was able to speak with Mark Pugash of the Toronto Police who insists that Dr. Cavoukian is wrong about the lack of discretion in automatically uploading attempted or threatened suicides to the database. When we spoke by phone, he claimed that in her capacity as provincial Privacy Commissioner, Cavoukian has singled out the Toronto Police to pick on because she doesn’t have the federal clout to influence CPIC, the RCMP, or the Memorandum of Cooperation.
But the problem isn’t necessarily that Canadian law enforcement is providing access to the CPIC to American authorities, it’s that too much information is being recorded in the CPIC to begin with.
In our conversations, Cavoukian referred to a practice of “data minimization”—basically minimizing the amount of sensitive information that leaves your control—that is central to this particular intersection of policing and privacy. Uploading all cases of attempted or threatened suicide to an international repository accomplishes the opposite of data minimization, and is arguably in violation of the municipal “Freedom of Information and Protection of Privacy Act”and its provincial equivalent.
Cavoukian also provided me with an email chain between herself and the Toronto Police’s legal counsel that transpired before Cavoukian’s report was publicly released. In that chain, there is an extended explanation of why the TPS didn’t accept the privacy commissioner's recommendation: “The (Toronto Police) Service could not support the recommendation because information is entered onto CPIC for the purpose of public and officer safety. However, the Service does exercise discretion after the entries are made when the disclosure of information is for the purpose of police clearance letters and vulnerable sector screening.”
This explanation seems to indicate that there isn’t much discretion when it comes to entering private information to the CPIC on the front end, i.e. when incidents occur, but rather there is more careful consideration taken once the information is entered into the CPIC. But again, this isn’t about being sensitive to clearance checks or vulnerable sector screenings—it’s about keeping the information in the database to begin with. Plus, this is contradictory to what Mark Pugash insists is occurring within the TPS, when it comes to how careful they are about putting information into the database.
While she expressed disappointment with the Toronto Police’s rejection of her recommendation, Cavoukian is not giving up. She feels she needs to fight for people who are already facing tremendous stigma and adversity in life.
“I'm not leaving it alone, I'm going to pursue this. There has to be a way. Because all the other police services: Waterloo, Hamilton, Ottawa, the OPP, said yes, we already exercise discretion and we're happy to follow the four-part test that you created. And they thought it was reasonable, they didn't think it was unfair and they didn't think it was putting anybody's life in jeopardy, [or threatening] public safety,” she said.
For those who live in Toronto, it’s important to ask: What public good does this policy serve? Who, for example, is made more safe because the Toronto lawyer cited in Cavoukian’s report as calling 9-1-1 for an overdose is now afraid to cross the border into the US on business in the event that he is detained in front of his clients, colleagues, and peers?
Cavoukian has made it clear that public safety is a priority for her. She believes that some information does belong in the database, it’s simply a matter of determining which cases are justified, hence her recommendation that a four-part test be administered. But public safety at the expense of privacy, or that directly harms a vulnerable demographic is something she’s not interested in.
“What concerns me about the Toronto Police's decision is that it will serve to actually victimize individuals who put themselves in harm's way by attempting suicide. And once they're past that traumatized experience, they usually get the help they need, they get better, you're going to retraumatize them again when they go to the border and they get turned away. And the effect that might drive people underground, not to get the help they need.” Follow Muna Mire on Twitter.