U.S. law called a privacy threat
Canadians' data vulnerable, B.C. watchdog says

USA Patriot Act reaches beyond borders: Report

Oct. 30, 2004


VANCOUVER—Canadians' personal information cannot be protected from the prying eyes of U.S. intelligence agents if it's handled by American firms, a new report says.


In a long-awaited review of the USA Patriot Act, British Columbia Privacy Commissioner David Loukidelis yesterday called for a toughening of laws "to address risks posed by transfers of personal information" from Canada to the U.S.


"Our research and analysis led us to the conclusion that the USA Patriot Act knows no borders," the commissioner told a news conference in Victoria.


And, until a deal is reached between Ottawa and Washington to ensure privacy is protected, he said the B.C. government should delay plans to contract out to a U.S. company the billing of its Medical Services Plan health-care insurance premiums.


"It's an important part of the protection that it stay here until we can work this out," Loukidelis said.


Civil libertarians and the B.C. Government and Service Employees' Union (BCGEU) lauded Loukidelis for acknowledging privacy concerns over the U.S. anti-terror law.


But government officials made it clear they have every intention of pushing forward.


In his 151-page report that was spurred by union concerns over the provincial government's plan, Loukidelis concluded the Patriot Act, passed in response to the terror attacks of Sept. 11, 2001, has a reach that extends beyond American borders.


Of particular concern is Section 215 of the act, which enables the FBI to access "any tangible thing" for foreign intelligence purposes or protect against international terrorism.


Critics have argued that with such sweeping powers at their disposal, American intelligence agents could use personal information — including health, genetic characteristics, sexual orientation, associations or religious views — against them.


Loukidelis shares their concerns.


`Our research and analysis led us to the conclusion that the USA Patriot Act knows no borders.'


David Loukidelis, privacy commissioner


"We have concluded that if information is located outside B.C. it will be subject to the laws that apply where it is found, regardless of the terms of the outsourcing contract," he said. "Therefore, if an outsourcing arrangement calls for personal information to be sent to the U.S., that information would be subject to the Patriot Act while in the U.S."


Laws in place do not prevent the FBI and other agencies from using the Patriot Act to force U.S. companies or their foreign subsidiaries to turn over private data, he said.


"We cannot ignore the fact the U.S. courts have upheld subpoenas ordering corporations to disclose records located outside the U.S., even where a foreign law prohibits disclosure," said the report, which has 16 recommendations to the provinces and Ottawa to better protect the privacy of Canadians.


The commissioner said although he was examining the impact of the provincial government's policies on personal privacy, the issues raised are also of importance to the private sector, other provinces and countries in the world.


"It definitely has broader implications," said Loukidelis, admitting he was surprised to have received more than 500 submissions from across Canada, the U.S. and Europe.


Loukidelis noted Nova Scotia and Saskatchewan contract-out data storage to U.S. firms. But he stopped short of calling for a ban on such practices.


Micheal Vonn, policy director of the B. C. Civil Liberties Association, said the report "validates the reality of the risk" her group and others have been raising.


"He certainly endorses that the risk to privacy is real and substantial," she said. "It's a wake-up call for everybody...." Proclaiming "we were right," BCGEU president George Heyman called on the government to scrap plans for contracting out government services to U.S. firms.


"There's no iron-clad guarantee that the FBI won't or can't access our personal information once it's handed over to American-linked companies," he said in a news release. "The only rational response for the B.C. government is to put the brakes on outsourcing."


But B.C. Management Services Minister Joyce Murray said the government will push ahead, especially after being lauded by Loukidelis for a move earlier this month to amend privacy legislation to restrict the storage and access of private records outside Canada.


"Government has already taken decisive action on these fronts," Murray said in a release.


The new law includes fines of $2,000 for individuals and $500,000 for corporations.


With files from Canadian Press

Additional articles by Daniel Girard