Cablegate: Canada's Privacy Commissioner Announces

VZCZCXRO2296
RR RUEHGA RUEHHA RUEHQU RUEHVC
DE RUEHOT #2458/01 2282205
ZNR UUUUU ZZH
R 162205Z AUG 06
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC 3497
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE
RUEATRS/DEPT OF TREASURY WASH DC
RUEAHLC/DEPT OF HOMELAND SECURITY WASHDC
RUEAWJA/DEPT OF JUSTICE WASHDC

UNCLAS SECTION 01 OF 02 OTTAWA 002458

SIPDIS

SENSITIVE
SIPDIS

STATE FOR WHA/CAN, EB/IFD/OIA, EB/CBA, AND S/CT
TREASURY FOR IMI:HOEK

E.O. 12958: N/A
TAGS: EFIN ECPS ECON PTER CA
SUBJECT: CANADA'S PRIVACY COMMISSIONER ANNOUNCES
INVESTIGATION OF SWIFT BANK TRANSACTION MESSAGING SYSTEM

REF: A. OTTAWA 2158

B. OTTAWA 2149
C. OTTAWA 2060 (NOTAL)
D. STATE 103650

1. (U) SUMMARY: THE JUNE 23 U.S. PRESS ARTICLES DISCLOSING
THE EXISTENCE OF THE USG'S TERRORIST FINANCING TRACKING
PROGRAM AND THE COOPERATION IT RECEIVED FROM THE
INTERNATIONAL "SWIFT" BANK TRANSACTION MESSAGING SYSTEM HAVE
RESULTED IN THE AUGUST 14 ANNOUNCEMENT OF TWO INVESTIGATIONS
OF SWIFT BY CANADA'S OFFICE OF THE PRIVACY COMMISSIONER
(OPC). ONE INVESTIGATION WAS SELF-INITIATED BY THE PRIVACY
COMMISSIONER HERSELF AND THE SECOND WAS REQUESTED BY TWO
PRIVACY WATCH DOG GROUPS. THE INVESTIGATIONS WILL SEE
WHETHER THE POSSIBLE DISCLOSURE OF PERSONAL BANKING DATA
ABOUT CANADIANS TO THE USG OUTSIDE APPROVED PROCESSES FOR
SUCH DATA TRANSFERS (I.E., WITH JUDICIAL AUTHORIZATION; VIA
FINTRAC, CANADA'S FINANCIAL INTELLIGENCE UNIT; OR VIA A
MUTUAL LEGAL ASSISTANCE TREATY (MLAT) WAS APPROPRIATE AND
VIOLATED CANADA'S PRIVATE SECTOR PRIVACY LAW. END SUMMARY.

2. (U) ON AUGUST 14, CANADA'S OFFICE OF THE PRIVACY
COMMISSIONER (OPC) OFFICIALLY LAUNCHED AN INVESTIGATION OF
THE SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL
TELECOMMUNICATION (SWIFT), THE BELGIAN-BASED COMPANY THAT
OPERATES AS A WORLDWIDE MESSAGING SYSTEM FOR TRANSMITTING
BANK TRANSACTION INFORMATION IN MORE THAN 200 COUNTRIES,
INCLUDING CANADA. THE OPC SAYS THAT THE PURPOSE OF THE
INVESTIGATION IS "TO DETERMINE WHETHER PERSONAL INFORMATION
RELATING TO CANADIANS' FINANCIAL TRANSACTIONS IS IMPROPERLY
DISCLOSED BY SWIFT TO FOREIGN AUTHORITIES." THE OPC HAS
NOTIFIED SWIFT OF ITS INVESTIGATION.

3. (U) PRIVACY COMMISSIONER JENNIFER STODDART NOTED THAT
"THE RISKS RESULTING FROM PERSONAL INFORMATION FLOWING ACROSS
BORDERS IS SOMETHING THAT WE HAVE BEEN EXPRESSING CONCERNS
ABOUT FOR SOME TIME. THE SWIFT SITUATION CONCERNS PRIVACY
COMMISSIONERS WORLD WIDE AND IS SOMETHING WE NEED TO EXAMINE
IN MORE DETAIL. ALTHOUGH THERE ARE TIMES WHEN WE ARE UNABLE
TO LAWFULLY INVESTIGATE A COMPLAINT ABOUT SOMETHING TAKING
PLACE OUTSIDE CANADA WITH CANADIANS' PERSONAL INFORMATION, WE
HAVE DETERMINED THAT WE ARE, IN FACT, IN A POSITION TO
INVESTIGATE THIS IMPORTANT MATTER."

4. (U) BEFORE LAUNCHING ITS OFFICIAL INVESTIGATION, THE OPC
LOOKED INTO THE SITUATION TO EXAMINE WHAT WAS TAKING PLACE
AND TO DETERMINE THE EXTENT TO WHICH IT COULD GET INVOLVED,
GIVEN QUESTIONS OF JURISDICTION AND THE APPLICATION OF
CANADA'S PRIVACY LAWS. BASED ON THE INFORMATION HER OFFICE
GATHERED, THE PRIVACY COMMISSIONER DECIDED THAT SHE HAS
REASONABLE GROUNDS TO SELF-INITIATE A COMPLAINT AGAINST SWIFT
TO SEE IF THERE HAS BEEN A VIOLATION OF THE PERSONAL
INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT (PIPEDA),
CANADA'S PRIVATE SECTOR PRIVACY LAW.

5. (U) MOREOVER, THE OPC HAS RECEIVED A COMPLAINT AGAINST
CANADA'S SIX LARGEST BANKS AND THEIR INVOLVEMENT IN THE SWIFT
MATTER. THIS WAS TRIGGERED BY A JULY 27 COMPLAINT FILED WITH
THE OPC AGAINST THE ROYAL BANK OF CANADA, THE
TORONTO-DOMINION BANK, THE BANK OF NOVA SCOTIA, THE CANADIAN
IMPERIAL BANK OF COMMERCE, THE BANK OF MONTREAL AND THE
NATIONAL BANK OF CANADA. THE CANADIAN INTERNET POLICY AND
PUBLIC INTEREST CLINIC (CIPPIC) AT THE LAW FACULTY AT THE
UNIVERSITY OF OTTAWA, AND PRIVACY INTERNATIONAL, A
LONDON-BASED SURVEILLANCE AND PRIVACY WATCH DOG, FILED THE
COMPLAINT. NO TIME FRAME FOR THE COMPLETION OF THE SWIFT
INVESTIGATIONS WAS DISCLOSED.
QINVESTIGATIONS WAS DISCLOSED.

6. (U) THE WATCH DOG COMPLAINT ALLEGES THAT CANADIAN BANK
DISCLOSURES OF CUSTOMER DATA VIA SWIFT TO THE USG CONSTITUTE
A VIOLATION OF PIPEDA, SINCE THEY "ARE MADE A) IN RESPONSE TO
ADMINISTRATIVE SUBPOENAS OR OTHER REQUESTS OF QUESTIONABLE
VALIDITY, AND B) ENTIRELY OUTSIDE THE LEGAL PROCESSES
ESTABLISHED BY CANADA, THE U.S., AND OTHER COUNTRIES OFR THE
INTERNATIONAL SHARING OF SUCH DATA."

7. (U) EMBASSY COMMENT: WHILE THE PRIVACY COMMISSIONER'S
ACTIONS AND REPORTS RECEIVE SIGNIFICANT PRESS ATTENTION IN
CANADA, THE COMMISSIONER IS AN OFFICER OF PARLIAMENT, NOT OF
THE GOC, AND SHE HAS NO DIRECT ENFORCEMENT POWER. THE OPC'S
FUNCTION IS TO ADVISE AND INFORM PARLIAMENT AND ITS VIEWS MAY
DIFFER FROM THOSE HELD BY THE HARPER GOVERNMENT. END COMMENT.

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OTTAWA 00002458 002 OF 002

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