Accounting for Law

Canada's sensitive data on the table at NAFTA talks: Levine

Canada risks losing control of the sensitive personal data of its citizens if pending free trade negotiations end restrictions on the flow and storage of information, says Vancouver privacy and information lawyer Sara Levine.

Levine, suggests it could have a profound impact on its citizens' lives if Canadian governments lose control of that data.

She comments after the National Post reported that Canadians' privacy rights will be on the negotiating table in the upcoming talks on the North American Free Trade Agreement (NAFTA).

Of concern is an American trade objective to "establish rules to ensure that NAFTA countries do not impose measures that restrict cross-border data flows and do not require the use or installation of local computing facilities," according to the Office of the U.S. Trade Representative.

The Post says the U.S. demand counters existing provincial legislation in B.C. and Nova Scotia requiring local storage of data, as well as federal policy.

Levine tells that federal and provincial governments are one of the largest clients for private-sector computer firms with IT contracts across the country in the hundreds of millions of dollars. But these laws and policies function like trade restrictions, as "American companies might be less competitive because a government body can't store its data in Seattle, for example," she says.

Levine says governments demand security they can control and rely on since they are the gatekeepers of personal information and are sensitive to the need to have laws and policies on how it can be used and shared.

"Most government records are really very well protected and can't be shared willy-nilly,” Levine says, “There are many people on the ground that are working to ensure this information is kept private and confidential. In many circumstances this means that government agencies require the data to be stored in Canada, so that they can maintain control."

This is “because data is subject to the laws of the jurisdiction where it sits, that's how laws work," Levine says. "If the server is in Burnaby, then the law there applies. But if the servers are in Houston, the law in Houston applies.”  

So the debate around control and access comes into focus if that information were to be stored outside the country, she says. However, the idea of putting borders around information, technically, “is not always as easy as it sounds," Levine says. "This is not a new problem but reopening this discussion won't be a simple conversation.

"It looks like the U.S. wants to try to get that discussion going through NAFTA negotiations" and those potential amendments could allow Americans to challenge Canadian privacy legislation and policies, she says.

Potentially, it would give American authorities access to that information and the concern includes provisions in its laws such as the Patriot Act where warrants can be issued in secret.

"What you're doing when data is held in another jurisdiction is potentially subjecting your data to what another government decides they want to do with it," Levine says. "And you don't have any input into how that government makes that law because you can't vote, you don't participate in their lawmaking process."

She suspects Canadian negotiators will may deal with data as a trade issue similar to how it was dealt with under the Trans Pacific Partnership.

"I don't know where this is going to go," Levine says. "But it's certainly going to be a live issue during negotiations.

"The risk is that we stop paying attention to the issue and we give up because it's confusing, and as a society, we get tired of the struggle and say, 'Oh, fine, whatever.’ But it's really where we have to be engaged, because data control is only growing in importance," she says.

"It’s our future. It's where we're going to live and where our children are going to live," Levine says.

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