Annex Regarding the Sharing of Biographic Entry Data to the 2003 Statement of Mutual Understanding on Information Sharing

Perimeter security and economic competitiveness

Between
The Canada Border Services Agency (CBSA),
The Department of Citizenship and Immigration Canada (CIC)
And
The U.S. Department of Homeland Security (DHS)


The Canada Border Services Agency (CBSA), the Department of Citizenship and Immigration Canada (CIC), and the United States Department of Homeland Security (DHS), hereinafter referred to as the “Participants”,

Having Regard For the long-standing co-operative relationship between the immigration authorities in Canada and the United States (U.S.);

Considering the increasing global patterns of both regular and irregular migration or international people movements, and that the compelling need to welcome genuine migrants, whilst tackling identity fraud and abuse of our countries’ immigration laws, is important to maintaining the prosperity and security of the societies of their respective countries;

Recognizing that the Participants share a common desire to implement the concepts articulated in the Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness Action Plan (herein referred to as the “BBAP”) relating to the initiative to establish and coordinate entry and exit information systems, including a system that would permit information sharing in a manner such that a record of a land entry into one country can be used to establish an exit record from the other (herein referred to as “Entry/Exit”), whose operations would be set out in this Annex to the Statement of Mutual Understanding on Information Sharing (SMU) signed in February 2003;

Committed to upholding individual privacy rights as outlined in the Beyond the Border Action Plan: Statement of Privacy Principles by the United States and Canada, issued by Canada and the U.S. on May 30, 2012;

Confirming that this Annex is intended to facilitate the systematic exchange of Biographic Entry Data between the Participants for their collective benefit and furthering the successful work conducted on Phase I of Entry/Exit.

Have come to the following understanding:

1. Preamble

a) As part of the implementation of this BBAP item, the Participants implemented Phase I of Entry/Exit through a Letter of Intent (LOI) in September 2012. In Phase I, Biographic Entry Data information collected at four predetermined ports of entry by Canada and the U.S., about Third-Country Nationals, Permanent Residents of Canada and Lawful Permanent Residents of the United States was exchanged:

i. To determine the ability to reconcile exit data to data previously collected, as entry data, for those same individuals;

ii. For statistical and analytical purposes to support the development of future technology, and other improvements to this BBAP item.

b) Phase I was launched on September 30, 2012 and the data exchanges concluded on January 16, 2013. A report for Phase I was concluded in May 2013.

c) This Annex covers Phase II of Entry/Exit. Phase II expands the initiative by:

i. Including all automated common land border ports of entry, and

ii. Eliminating the Phase I proof of concept, such that each Participant may make operational use of the exchanged data.

2. Purpose and Scope

a) The purpose of this Annex is to:

i. specify the terms and conditions to facilitate the systematic exchange of Biographic Entry Data to administer the Entry/Exit Initiative between the Participants.

ii. assist in the administration and enforcement of the respective immigration laws of the Participants, in part by:

A. Reconciling Biographic Entry Data received from a Participant to Biographic Entry Data previously retained on the same individuals;

B. Facilitating the Participants' determination of whether any Third-Country National or Permanent Resident, as defined in paragraph 3 of this Annex, has exceeded the period for which they were lawfully eligible to remain within Canada or the United States;

C. Facilitating the Participants' ability to focus immigration enforcement actions and investigations on Third-Country Nationals or Permanent Residents within their respective territories who may be inadmissible for reasons of, but not limited to, security, criminality, or immigration violations as per the Participants' respective laws.

b) This Annex is not intended to affect the exchange of information between the Participants pursuant to the SMU, other annexes to the SMU or other established information sharing arrangements or agreements.

c) The Participants do not intend to share biometric information under this Annex.

d) The Participants intend to carry out all work under this Annex in accordance with their respective domestic laws and policies.

3. Definitions

For the purposes of this Annex,

Automated Common Land Border Port of Entry
means a port of entry on the shared Canada-U.S. land border with a primary processing capacity to capture traveller (land, ferry and pedestrian) passage as an electronic record. This does not include large cruise vessels deemed to be sea crossings under the laws of Canada and the United States.
Biographic Entry Data
means the data elements systematically exchanged between the Providing and Receiving Participants on Third-Country Nationals and Permanent Residents:
  • A. First/Given Name;
  • B. Last Name/Surname;
  • C. Middle Name;
  • D. Date of Birth;
  • E. Nationality/Citizenship;
  • F. Gender;
  • G. Document Type;
  • H. Document Number;
  • I. Work Location Code/U.S. Port of Entry Code;
  • J. Date of Entry;
  • K. Time of Entry; and
  • L. Document Country of Issuance.
Citizen of Canada
means a person who has been granted citizenship in Canada as defined under section 3 of the Citizenship Act.
Lawful Permanent Resident of the United States
means a person who has been lawfully admitted for permanent residence, as defined in section 101(a)(20) of the U.S. Immigration and Nationality Act, as amended.
National or Citizen of the United States
means a person described in 8 U.S. Code Section 1401, who has acquired U.S. citizenship through the naturalization process, or is a "national of the United States" as defined in section 101(a)(22) of the U.S. Immigration and Nationality Act, as amended.
Permanent Resident
means a person meeting the classification for Permanent Resident of Canada or Lawful Permanent Resident of the United States, but who is not a citizen of Canada nor of the United States.
Permanent Resident of Canada
means a person who has acquired permanent resident status in Canada and has not subsequently lost that status under section 46 of the Immigration and Refugee Protection Act.
Providing Participant
means the Participant who provides Biographic Entry Data to the Receiving Participant.
Receiving Participant
means the Participant who receives Biographic Entry Data from the Providing Participant.
Registered Indian of Canada
means any person registered as an Indian under Canada's Indian Act.
Third-Country National
means a person who is not a Citizen of Canada or a Registered Indian of Canada nor a citizen or national of the United States, and includes a person not having a country of nationality.

4. Data Exchange Criteria

The Participants intend to exchange Biographic Entry Data on Third-Country Nationals and Permanent Residents who cross the common land border through an Automated Common Land Border port of entry on or after June 30, 2013.

5. Procedures for the Exchange of Information

a) The Participants intend to exchange Biographic Entry Data through existing secure electronic channels that have been previously established.

b) The Receiving Participant intends to reconcile the Biographic Entry Data received from the Providing Participant with biographic data contained in its own system of records to ensure a biographic record of exit is recorded for the corresponding Permanent Resident or Third-Country National.

c) The Participants intend that the exchange of Biographic Entry Data will occur after the actual passage event.

d) The Participants intend to notify the other Participant by telephone or in writing, within 24 hours where practicable, of an event that disrupts the exchange of Biographic Entry Data.

6. Designation of Officials

a) The Participants intend to designate officials to administer this Annex.

b) The Participants intend to inform each other in writing or by email of any such designations or changes.

c) The Participants intend to ensure that all information requests and information provided in response thereto is communicated between their designated officials.

7. Use of Biographic Entry Data

The Participants intend to use the Biographic Entry Data received under this Annex as outlined in paragraph 2(a) (ii).

8. Disclosure of Biographic Entry Data

a) The Receiving Participant intends to disclose Biographic Entry Data under this Annex only in the following circumstances, provided that the Participant intends to ensure that any entity to which a disclosure is made has arrangements in place to protect the Biographic Entry Data, and limits its subsequent disclosure, in a manner consistent with this Annex.

Biographic Entry Data may be disclosed:

i. To a domestic court or in a domestic administrative or judicial proceeding for the purposes identified in paragraph 2(a)(ii);

ii. To any domestic government agency for any law enforcement purpose, to include the enforcement of immigration laws consistent with each Participant's respective domestic laws;

iii. With any domestic government agency when the disclosure is otherwise required by the Participants' respective domestic laws;

iv. To any domestic government agency with a counterterrorism or national security mission, for a counterterrorism or national security purpose, within the same framework established for domestic information collected and provided to those same agencies consistent with each Participants' respective domestic laws; and

v. To partner countries in the Five Country Conference (the United Kingdom, Australia, and New Zealand) in accordance with applicable international agreements or arrangements and where the primary purpose of the exchange is to assist in the effective administration and enforcement of their respective immigration laws.

b) The Participants understand that any other disclosure not covered in 8(a) or 8(d) requires the express written consent of the Providing Participant.

c) The Providing Participant may apply additional restrictions as to the use or disclosure of Biographic Entry Data which it has provided under this Annex. Where this is done the Receiving Participant should comply with the restrictions subject to its domestic laws.

d) The Participants do not intend to interpret this article to preclude the use or disclosure of information if the Participants' respective domestic law requires or allows that use or disclosure in a criminal prosecution, or if obligated by the relevant Participants' domestic law, in response to a written request from a body with jurisdiction to compel the production of information. In these circumstances, the Participant requiring such use or disclosure intends to notify the other Participant in advance and provide details of that use or disclosure. In the exceptional case where advance notice is not practicable, the Participant using or disclosing the information intends to notify the other Participant as soon as possible.

e) The participants do not intend to interpret this article to preclude the disclosure of information if their respective domestic law requires that disclosure in immigration proceedings.

9. Accuracy of Information

a) The Participants intend to provide each other with the most current and accurate Biographic Entry Data available in their respective databases. In the event that either Participant becomes aware that the Biographic Entry Data being relied upon was inaccurate at the time it was provided, they intend to notify the other Participant immediately, as well as provide the correct information, where available.

b) The Participants intend to take corrective action as soon as possible if they receive notification from the other Participant that there are inaccuracies in the Biographic Entry Data originally provided, including informing any entity to whom the Biographic Entry Data was provided and requesting that corrections be made where correct information is available.

10. Right of Access and Rectification

a) To the extent specified in their respective domestic law, the Participants intend to provide persons who are the subject of Biographic Entry Data exchanged under this Annex with opportunities to request redress, access to the Biographic Entry Data to correct erroneous information or to request to add a notation to indicate a correction request was made. Any disclosure of Biographic Entry Data received under this Annex is subject to the provisions contained in paragraph 8.

b) In order to prevent the unauthorized disclosure, copying, use, or modification of Biographic Entry Data received under this Annex, each Participant intends to restrict access to Biographic Entry Data to its government agencies and individuals authorized to be responsible for pursuing the purposes set out in paragraph 2(a)(ii) or as otherwise required by domestic law.

11. Retention and Disposition of Information

Each Participant intends to retain and destroy the Biographic Entry Data received under this Annex consistent with its domestic laws and policies.

12. Transactions, Performance and Management Reporting

The Participants intend to maintain records of Biographic Entry Data provided and received under this Annex. The Participants intend to use this information to create joint reports based on jointly decided upon performance and management measures which may include, but not be limited to:

i. The number of exchanges on which Biographic Entry Data was provided;

ii. Percentage of match rates between the entry and exit records obtained by each Participant;

iii. Number of persons detected overstaying their lawful period of admission in Canada or in the United States;

iv. Number of entry and exit records indicating an exit from either country;

v. Number of persons identified as failing to meet residency requirements under the immigration or other laws of either country;

vi. Number of persons subject to a removal or departure order, but who can be identified as having departed from either country; and

vii. The number and severity of any security/privacy breaches of Biographic Entry Data exchanged under this Annex as well as a summary of the actions taken.

13. Compliance and Review

a) The Participants accept that they are accountable to ensure compliance with their respective domestic law and policies on the protection of personal information.

b) Either Participant may request assurances from the other that sufficient safeguards are being maintained with regard to the Biographic Entry Data exchanged under this Annex, which may include a review of the safeguards.

c) The Participants intend to address as soon as possible any deficiencies in safeguards identified as a result of actions taken under paragraph 13(b). Should a Participant consider it necessary to decline to provide further Biographic Entry Data pending the resolution of the issue, it is expected that the Participant provide written notice to the other Participant.

d) Each Participant intends to protect personal information by appropriate technical, security, and organizational procedures and measures to guard against such risks as loss, corruption, misuse, unauthorized access, alteration, disclosure or destruction, or any other risks to the security, confidentiality, or integrity of the information.

e) Each Participant intends to inform the other in the event that Biographic Entry Data is exchanged on citizens of Canada or citizens or nationals of the United States. The Participants intend to delete all erroneously transferred Biographic Entry Data from applicable systems upon notification of the exchange of such information.

f) Each Participant intends to notify the other Participant in writing as soon as practicable, after any accidental or unauthorized access, use, disclosure, modification or disposal of Biographic Entry Data received under this Annex, and within 24 hours of becoming aware of the security breach, to furnish all necessary details of the accidental or unauthorized access, use, disclosure, modification or disposal of that Biographic Entry Data.

g) The Participants intend to designate representatives to jointly review the Annex. The first review for the Annex is not intended to take place earlier than 1 year from the date this Annex comes into effect and no later than 2 years, and as mutually decided thereafter.

14. Application and Interpretation

a) This Annex is not intended to create legally binding obligations, nor create or confer any right, privilege or benefit on any person or Participant, private or public.

b) The Participants intend to resolve any differences arising out of the interpretation, or application of this Annex by mutual consultation.

c) The Participants intend to carry out the activities under this Annex in accordance with the laws of their respective countries as well as applicable international agreements to which their respective countries are a party.

d) The Participants intend to exchange Biographic Entry Data in accordance with the provisions of the SMU, which facilitates the sharing of immigration information between Canada and the United States. The Participants have made every attempt to ensure no aspect of this Annex conflicts with the SMU; however, where the parameters for exchanges of Biographic Entry Data outlined in this Annex differ from those in the SMU, the parameters outlined in this Annex should prevail.

15. Financing

The Participants intend to pay their own costs and use their own equipment and personnel resources in performing their work under this Annex.

16. Public Notification

The Participants intend to notify the public of the parameters of the collection of this Biographic Entry Data. The Participants intend to provide individuals, as required by law, with general notice to the purpose of the collection, disclosure, and use of personal information that concerns the individual, the identity of the entity controlling that information, the applicable policies or laws, the types of third parties to whom information may be subsequently disclosed, as well as other information insofar as is necessary to seek effective sanctions and/or remedies. In addition, the Participants intend to coordinate such notifications to the public, within the parameters of their respective domestic laws and policies.

17. Modification and Termination

a) The Participants may amend this Annex by their written mutual consent.

b) Either Participant may discontinue or suspend its activities under this Annex at any time by giving written notice to the other Participant. Discontinuance or suspension becomes effective sixty (60) days after receipt of such notice, except that the provisions of paragraphs 7, 8, 9, 10 and 11 should continue to apply to Biographic Entry Data shared pursuant to this Annex.

c) This Annex should take effect upon the last signature by the Participants.


The Participants have signed this Annex Regarding the Sharing of Biographic Entry Data to the 2003 Statement of Mutual Understanding on Information Sharing

For the Canada Border Services Agency

Cathy Munroe
Vice-President
Programs Branch
Canada Border Services Agency

Date

For the Department of Citizenship and Immigration Canada

Les Linklater
Assistant Deputy Minister
Strategic and Program Policy Sector
Citizenship and Immigration Canada

Date

For the United States Department of Homeland Security

David Heyman
Assistant Secretary for Policy
U.S. Department of Homeland Security

Date

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