Sunday, December 30, 2007

Canada: Among World's Best in Privacy Protection

Privacy International, a London-based privacy watchdog, has cited Canada and Greece as the world's leading nations in the protection of individual privacy. Nonetheless, the group considers Canadian privacy protection to be subject to increasing, downward pressure.

Its report highlights the following points of concern:

CANADA
    • Privacy not mentioned in Charter of Rights and Freedoms, but courts have recognised the right to a reasonable expectation of privacy
    • Statutory rules at the federal level (public and private sectors) and provincial laws apply to sectors and governments
    • Federal commission is widely recognised as lacking in powers such as order-marking powers, and ability to regulate trans-border data flows
    • Variety of provincial privacy commissioners have made privacy-enhancing decisions and taken cases through the courts over the past year (particularly Ontario)
    • Court orders required for interception and there is no reasonable alternative method of investigation
    • Video surveillance is spreading despite guidelines from privacy commissioners
    • Highly controversial no-fly list, lacking legal mandate
    • Continues to threaten new policy on online surveillance
    • Increased calls for biometric documents to cater for U.S. pressure, while plans are still unclear for biometric passports

Simon Davies, Privacy International's Director, commented in this CTV report:

"The general trend is that privacy is being extinguished in country after country,'' said Simon Davies, director of Privacy International. "Even those countries where we expected ongoing strong privacy protection, like Germany and Canada, are sinking into the mire.

"I'm afraid that Canada has kind of lost the plot a plot a little bit this year and hence its move downwards,'' Davies told the Canadian Press in comments about Canada.
He cites the CIA's accessing the banking records of Canadians through the SWIFT banking information system, the Canadian no-fly list, and the Toronto Transit Commission's installation of security cameras as examples of the erosion of privacy rights.

He also decried the increasing number of programs involving the United States, which he said unfortunately has no federal privacy law.

"What's happening, is that Canadian information, sensitive information, is flowing across the border in increasing volumes,'' Davies said.

"Frankly, that's the sort of situation where government should put pressure on the U.S. government to protect that information legally,'' he said, "But it's not doing so.''

Matt at Think Progress comments on the group's ranking of the U.S. in its least favourable category as an "endemic surveillance" country:

In the recently released annual survey of worldwide privacy rights by Privacy International and EPIC, the United States has been downgraded from “Extensive Surveillance Society” to “Endemic Surveillance Society.” As Glenn Greenwald notes, this is “the worst possible category there is for privacy protections, the category also occupied by countries such as China, Russia, Singapore and Malaysia.” In general, “the 2007 rankings indicate an overall worsening of privacy protection across the world, reflecting an increase in surveillance and a declining performance of privacy safeguards.”

The report cites the following concerns regarding America:

UNITED STATES OF AMERICA

  • No right to privacy in constitution, though search and seizure protections exist in 4th Amendment; case law on government searches has considered new technology
  • No comprehensive privacy law, many sectoral laws; though tort of privacy
  • FTC continues to give inadequate attention to privacy issues, though issued self-regulating privacy guidelines on advertising in 2007
  • State-level data breach legislation has proven to be useful in identifying faults in security
  • REAL-ID and biometric identification programs continue to spread without adequate oversight, research, and funding structures
  • Extensive data-sharing programs across federal government and with private sector
  • Spreading use of CCTV
  • Congress approved presidential program of spying on foreign communications over U.S. networks, e.g. Gmail, Hotmail, etc.; and now considering immunity for telephone companies, while government claims secrecy, thus barring any legal action
  • No data retention law as yet, but equally no data protection law
    World leading in border surveillance, mandating trans-border data flows
    Weak protections of financial and medical privacy; plans spread for 'rings of steel' around cities to monitor movements of individuals
  • Democratic safeguards tend to be strong but new Congress and political dynamics show that immigration and terrorism continue to leave politicians scared and without principle
  • Lack of action on data breach legislation on the federal level while REAL-ID is still compelled upon states has shown that states can make informed decisions
  • Recent news regarding FBI biometric database raises particular concerns as this could lead to the largest database of biometrics around the world that is not protected by strong privacy law

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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