The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Saturday, April 28, 2007

Does the SWIFT incident expose PIPEDA's loopholes? 

IT Business is running an article entitled SWIFT scandal exposes PIPEDA holes, in which the Privacy Commissioner of Canada and Phillipa Lawson of the Canadian Internet Policy and Public Interest Clinic lament that PIPEDA allows the disclosure of personal information without consent in response to a foreign subpoena.

(For some background, see my previous posts on SWIFT.)

Is this a loophole or something that should be remedied? Certainly the European Union thinks that disclosing European info in this way is not OK.

I'm not sure there is really anything that can be done about this, other than to keep data out of jurisdictions with laws that you consider offensive. Certainly, we have seen that the EU and some Canadian provinces think that the USA Patriot Act is overbroad and a threat to privacy. Unlike some public sector laws in Canada, PIPEDA is completely silent with respect to the export of personal information. But if data is in a jurisdiction with a lawful power to compel the production of that information, the practical impact of a foreign law is virtually nil. Particularly if the foreign law is as toothless as PIPEDA.

Practically speaking, the solution is really to keep those data warehouses out of those jurisdictions. While SWIFT is a European outfit, they had a data centre in the US that was within the lawful jurisdiction of the US authorities armed with subpoenas. As an international clearing system, it would obviously have to transmit some data back and forth between HQ and the US. But there doesn't seem to be any compelling argument to suggest that all that data should have been kept there.

Canada, with it's European-accepted privacy laws, would have been an ideal place to locate the SWIFT data centre. Miliseconds from New York and Brussels, but a world away from the US as far as privacy laws go. Any international company doing business with personal information in the United States really should think about this. What SWIFT did may have been completely lawful in the US, but it certainly has caused more than its fair share of headaches and has opened it up to potential liability in the EU.

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