Scoop has an Ethical Paywall
License needed for work use Register



Cablegate: Canadian Privacy Law and Policy: Background

This record is a partial extract of the original cable. The full text of the original cable is not available.

082016Z Nov 04








E.O. 12958: N/A



1. On October 29, the Information and Privacy Commissioner
for the Canadian Province of British Columbia released a
report titled "Privacy and the US Patriot Act." The report
(reftel) finds a "general consensus" that, under the Patriot
Act, U.S. authorities could order a U.S.-based corporation
to produce records held in Canada. The example in question
is personal health data on Canadian citizens which the
corporation might hold as part of a data services
arrangement with a Canadian province's health ministry. On
November 4, in an annual report, the Privacy Commissioner of
Canada proposed (among other things) an audit of the cross-
border flow of Canadians' personal information and the
impact this may have on their rights to privacy.

2. These reports have intensified discussion in Canada of
privacy issues, particularly those raised by the interplay
of the world's largest cross-border commercial relationship
with U.S. law enforcement and counterterrorist activity. As
background to inevitable USG participation, this message
outlines the Canadian context of such issues. END

Advertisement - scroll to continue reading

Are you getting our free newsletter?

Subscribe to Scoop’s 'The Catch Up' our free weekly newsletter sent to your inbox every Monday with stories from across our network.


3.There are two key Canadian laws governing privacy:

-- The 1983 Privacy Act required some limits on the GOC's
collection, use and disclosure of personal information, and
gave Canadians the right to access and correct it.

-- The 2001 Personal Information Protection and Electronic
Documents Act (PIPEDA), which extended privacy protections
beyond the federal government to personal information
collected in any commercial activity.

4.Key guidelines of PIPEDA are that (a) the individual's
knowledge and consent are required; (b) purposes must be
identified at or before the time of collection, and the
information cannot be used or disclosed for other purposes;
and (c) individuals generally must be given access to the
information about themselves, and be able to challenge it.

5.The key difference between the Canadian and U.S. legal
approaches to privacy is that independent offices, called
Privacy Commissioners, exist to enforce these laws at both
the federal and provincial levels in Canada. While these
officials' direct power is constrained by their very limited
staff resources, they comment regularly on privacy issues
(including on government policy and legislation) through
publications, media, and Parliamentary channels, and their
views are widely reported. The federal Privacy
Commissioner's website is


6.EU DIRECTIVE: Beginning in 1995, the European Union's
Policy Directive on Personal Data accented differences
between EU and US practices, and threatened to bar the
commercial transmission of personal data across the
Atlantic. Canada's privacy regime, with its (albeit modest)
enforcement capacity, was significantly closer to the EU
model than the United States'. While the EU and the United
States spent several years negotiating USDOC's "safe harbor"
compromise, the GOC responded by developing the legislation
which eventually resulted in PIPEDA.

7.CUSTOMER DATA: Throughout Canadian society in the late
1990's, as in the United States, there was heightened
concern about telephone and Internet privacy:
telemarketing, customer "loyalty" or "reward" programs, the
sale of mailing lists and other customer data, and the
collection and distribution of personal information through
the Internet. These mainly focussed on practices in the
private sector, rather than in government. Privacy
Commissioners commented extensively on these issues, which
PIPEDA was also intended to address.

8. OPENING MAIL: In 2001, the federal Privacy Commissioner
successfully rolled back Canadian customs officials' right
to open international mail. Until then, customs inspectors
could not open letters under 30 grams without consent or a
warrant, but they could legally open any correspondence
contained in a larger package, such as a courier envelope.
The GOC admitted that this was done regularly to assist in
the enforcement of immigration law. Immigration lawyers
appealed to the Privacy Commissioner, who persuaded the GOC
to exclude the weight of courier envelopes from the 30-gram


9. In the rush to enact anti-terrorist measures in both
Canada and the United States in the wake of September 11,
2001, advocates viewed privacy rights as being threatened by
over-hasty government action. In addition, Canada's federal
Privacy Commissioner repeatedly cautioned the GOC against
relying too heavily on pressure from the USG as a
justification for its measures. In his view, national
security could well provide reasonable grounds for
diminishing Canadians' privacy rights, but the GOC had to do
so in a Canadian legal context. In his words, "The
Americans made us do it" could not be a sufficient excuse.


10. The GOC unveiled an extensive Public Safety Act which
worked its way through Parliament during 2003, to close
scrutiny from the media and the Privacy Commissioners. Much
of the Act dealt with transportation security questions,
such as the provision of airline passenger data to the
federal police and intelligence services (RCMP and CSIS). A
key issue in this context was the extent to which this data
might be used not just for counter-terrorist purposes, but
for broader law enforcement and surveillance. Again, the
Privacy Commissioner stressed that if this were to occur, it
should be done transparently and not hidden behind a "mask"
of counter-terrorism. The Act also touched on other privacy
issues, such as federal authorities' access to financial
records of non-governmental organizations.


11. At the beginning of 2004, PIPEDA became applicable
across the private sector, i.e. to all personal data
gathered in the course of commercial activity. Enforcement
of PIPEDA (and its provincial equivalents) is complaints-
driven and is expected to be constrained by the size of
Privacy Commissioners' staffs. The Public Safety Act became
law on May 6, 2004. The appropriate use of airline
passenger data continues to be discussed both within Canada
and between U.S. and Canadian authorities.

12. GOC privacy concerns and constitutional constraints
present significant barriers to information sharing with the
U.S. law enforcement community. In 2002, as part of our
efforts to facilitate the Border Action Plan, Embassy
recommended a joint USG-GOC review of privacy regimes in
order to provide for effective law enforcement, national
security, the rule of law, and protection of constitutional

13. While the Public Safety Act was before Parliament in
2002-2004, Embassy made efforts to raise the level and
frequency of our contacts with the federal Office of the
Privacy Commissioner (OPC). These efforts - and the work of
the Office - were disrupted by an administrative and
financial scandal at OPC in 2003, and we intend to renew
them in coming months.


© Scoop Media

Advertisement - scroll to continue reading
World Headlines

UN News: Aid Access Is Key Priority

Among the key issues facing diplomats is securing the release of a reported 199 Israeli hostages, seized during the Hamas raid. “History is watching,” says Emergency Relief Coordinator Martin Griffiths. “This war was started by taking those hostages. Of course, there's a history between Palestinian people and the Israeli people, and I'm not denying any of that. But that act alone lit a fire, which can only be put out with the release of those hostages.” More

Save The Children: Four Earthquakes In a Week Leave Thousands Homeless

Families in western Afghanistan are reeling after a fourth earthquake hit Herat Province, crumbling buildings and forcing people to flee once again, with thousands now living in tents exposed to fierce winds and dust storms. The latest 6.3 magnitude earthquake hit 30 km outside of Herat on Sunday, shattering communities still reeling from strong and shallow aftershocks. More

UN News: Nowhere To Go In Gaza

UN Spokesperson Stéphane Dujarric said some 1.1M people would be expected to leave northern Gaza and that such a movement would be “impossible” without devastating humanitarian consequences and appeals for the order to be rescinded. The WHO joined the call for Israel to rescind the relocation order, which amounted to a “death sentence” for many. More

Access Now: Telecom Blackout In Gaza An Attack On Human Rights

By October 10, reports indicated that fixed-line internet, mobile data, SMS, telephone, and TV networks are all seriously compromised. With significant and increasing damage to the electrical grid, orders by the Israeli Ministry of Energy to stop supplying electricity and the last remaining power station now out of fuel, many are no longer able to charge devices that are essential to communicate and access information. More


Join Our Free Newsletter

Subscribe to Scoop’s 'The Catch Up' our free weekly newsletter sent to your inbox every Monday with stories from across our network.