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This Week's Focus - Pressure on to protect privacy in outsourcing

|Written By Mark Bourrie for Law Times

Privacy-lawexperts expect provincial and federal governments to be pressured for more lawsto protect confidential information that is now ending up in the hands offoreign-based private businesses because of government outsourcing.

No laws exist in Canada to restrict the flow of information in the private sector, says Theodore Ling.
No laws exist in Canada to restrict the flow of information in the private sector, says Theodore Ling.
But, while Canadians fear the U.S. government may be able to gain access to this material under anti-terrorism laws, they also realize that Canadian businesses are net beneficiaries of the trend toward outsourcing,

At the federal level, the controversy over government information outsourcing came to a head last year, when New Democrat MPs revealed the government had awarded a contract for the 2006 census to a Canadian subsidiary of Lockheed Martin.

At the provincial level, in 2004, the British Columbia government was pressured by its public-sector unions to stop its plan to outsource the management services of its health insurance and pharma-care systems. Rather than back down on the proposal, the government passed stringent rules regarding the protection of the data.

Outsourcing of data management is a huge business. The government of the United Kingdom outsources $140 billion worth of services, an amount nearly equivalent to Canada's entire federal spending. Canadian and U.S. governments are catching up, and, because of Canada's English-speaking workforce and relatively low labour costs, it is a preferred location for U.S. firms.

(U.S. politicians, however, have tried to block foreign outsourcing of data management. The U.S. Senate passed a bill to prevent the practice, but it was not enacted.)

And, while Canadian unions claim outsourcing of government services will cost as many as 75,000 jobs, proponents of outsourcing say Canada could see a net gain of 165,000 jobs.

Theodore C. Ling of Baker and McKenzie LLP in Toronto said firms are watching to see whether the policy of the British Columbia government becomes the norm across the country.

"The situation in B.C. has been of high interest to any company that might be engaged in outsourcing because it's the first time we've seen a government change a law to restrict that type of outsourcing activity," Ling said.

"It has evolved from a specific situation where Canadian public sector workers were going to lose jobs. But (the B.C. policy) affects only the public sector. No laws exist to restrict the flow of information in the private sector," he said.

The B.C. statute is similar to laws in many European countries. It prevents disclosure of information based on foreign court orders. Critics of foreign outsourcing say the law does not go far enough, since there are now about 350 laws in the U.S. that allow police and prosecutors to demand information without a court review.

The penalties under the B.C. law are a $2,000 fine for individuals and $500,000 fines for corporations. However, U.S. courts have ruled that criminal sanctions in a foreign country do not prevent U.S. courts from compelling production of information.

Ling said businesses are concerned that the federal government is going to use its regulatory powers over sectors of the economy such as banking and transportation to toughen privacy rules in Canada, and for Canadian information held abroad.

"Service providers are mobilized to say to government 'Hey, don't be too quick to expand these laws. That will affect our ability to get this kind of work or outsource this kind of work. This would be very bad for the Canadian economy,'" Ling said.

"The question before us is: Will the federal or provincial governments want to restrain the flow of information?

"There are people who will care about their privacy rights because the concern is so much greater in the public sector. It was information about the public. In the private sector, companies handle information about their business partners and their employees.

"So you may see the federal government try to change laws or put in place guidelines about how the federal government outsources government activities. You may see industrial guidelines. I don't think we will see new laws in Canada that restrict that flow of information from Canada," he said.

But Lydia Wakulowsky, chairwoman of the health law group at McMillan Binch Mendelsohn LLP, said there's such a gap between privacy laws in Canada and the U.S. that many privacy advocates are worried about the flow of information over the border.

"The U.S. federal government enacted the U.S.A. Patriot Act as an anti-terrorism measure shortly after Sept. 11, 2001. The U.S.A Patriot Act makes it easier for the FBI to gain access to records containing personal information in the U.S.," she said.

In fact, the law allows U.S. authorities to compel the disclosure of information held in the U.S. by foreign and U.S. companies. The Patriot Act and related statutes give U.S. police and grand juries wide subpoena power, and allow investigators to slap gag orders on companies that have been ordered to hand over data.

"This is relevant to Canadians when Canadian companies outsource information management functions to U.S. firms. B.C. has responded by amending its Freedom of Information and Protection of Privacy Act. The amendments prevent public-sector institutions from storing personal information outside of Canada; prohibit public bodies and their service providers and suppliers from disclosing personal information outside of Canada and make it mandatory for them to report any foreign demand for such information that is not authorized by the B.C. Act.," she said.

Both Ling and Wakulowsky expect the Ontario government to be confronted with the issue.

"Ontario has not yet introduced similar provisions, but Ontario companies have started to re-evaluate their own information-handling processes," said Wakulowsky. "They are asking prospective vendors whether any information would be processed in the U.S. and they are taking steps to ensure information is processed only in Canada."

The issue will be discussed at the federal level next year. Ottawa's federal Personal Information Protection and Electronic Documents Act is due to be reviewed in 2006. Wakulowsky said the review gives the federal government has an opportunity to address the issues arising from the U.S. Patriot Act.

The federal Personal Information and Electronic Documents Act (PIPEDA) took effect in 2001. All businesses must now comply with the law.

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