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Fighting privacy law questionable

In a year of headline-grabbing privacy developments in Canada, the Quebec government saved the best for last. On Dec. 17, just days before Canada’s national privacy law, the Personal Information Protection and Electronic Documents Act (PIPEDA), was scheduled to take full effect, the Quebec government initiated a constitutional challenge that threatens the law’s very existence. That challenge will likely kick off before the Quebec Court of Appeal early in 2004 and make its way up to the Canadian Supreme Court either very late this year or early in 2005.

Critics of the privacy statute have used the constitutional challenge to increase the volume of their dire warnings. In the words of skeptics, PIPEDA is a “tax,” a “multi-dimensional mess,” “unhinged,” “vague,” “ungainly” and now “constitutionally suspect.” What the critics don’t say is that the alternatives breed even greater business uncertainty, create the prospect for a data trade war with the European Union and simply don’t make sense in an era where provincial boundaries are largely irrelevant to most commercial transactions.

While critics often claim that the privacy law creates uncertainty within the business community, the truth is that a diverse collection of provincial privacy statutes would create a far more complex — and more expensive — legislative framework. Businesses of all sizes that shudder at the prospect of complying with a single privacy law, should consider the chaos of a framework featuring up to a dozen potentially conflicting privacy statutes.

The United States has long recognized the danger of multiple competing laws addressing the same issue by adopting the doctrine of pre-emption to cut off conflicting state laws with a single federal standard. For example, the recent decision by the U.S. Congress to pass anti-spam legislation was heavily influenced by the dozens of state anti-spam statutes. After California passed a state anti-spam law with far more onerous obligations than those found elsewhere, Congress was urged to set a national standard and pre-empt California’s statute.

A world where a typical consumer transaction may involve a product originating in British Columbia, a retailer in Alberta, a credit-card provider based in Ontario, a call centre in New Brunswick, and an order fulfillment provider in Quebec, recognizes that personal data traverse provincial boundaries with ease. Arguing that local businesses will struggle to comply with PIPEDA misses the larger point: the alternative would burden those same businesses with multiple provincial standards.

Critics of PIPEDA also claim that the federal statute lacks effective enforcement powers. While I too have argued that better enforcement is needed, a move toward multiple provincial privacy laws would actually exacerbate the enforcement problem. Quebec’s private sector privacy law has been in place for many years, yet there has been little discussion about the need for businesses operating in Quebec to comply since the reach of provincial privacy commissioners is far more limited than that of a federal commissioner.

By establishing a national privacy minimum but enabling provinces to enact their own “substantially similar” legislation, PIPEDA establishes an appropriate compromise between the interests of the federal and provincial governments. Moreover, it creates regulatory efficiencies by allowing businesses to address privacy compliance through a single national standard.

A finding that PIPEDA is unconstitutional would also set off a costly chain reaction from the European Union. The EU was an early privacy-law leader, establishing comprehensive privacy protections throughout Europe in the mid-1990s. The EU sought to extend those protections outside Europe by blocking the transfer of personal information to any non-EU member state that did not establish “adequate” privacy protections.

PIPEDA received the EU’s seal of approval in 2002, thereby removing the threat of data blockages between Canada and European countries.

`Stakes in the constitutional challenge (to data privacy law) are enormous’
If PIPEDA is now found unconstitutional, the EU’s approval will be lost. Each individual province will be forced to obtain its own adequacy finding, resulting in a regulatory nightmare that could leave some foreign businesses wondering whether the Canadian market was worth the additional compliance costs.

Given the serious costs that would be created by the elimination of PIPEDA, the stakes in the constitutional challenge are enormous.

The federal government will likely argue that the Canadian constitution grants it legislative authority to make laws in relation to trade and commerce. The trade and commerce power covers both interprovincial and international trade as well as general trade and commerce regulation that affects the whole country.

The first, fairly straightforward branch of the power assures that the federal government would face little difficulty in demonstrating the constitutionality of the privacy law as it applies to personal information that is used for commercial purposes between provinces or internationally.

The second, more general (and more contentious) branch was last the subject of a Supreme Court of Canada decision in 1989 when the court established five indicia to consider when assessing the validity of federal legislation premised on the trade and commerce clause.

The indicia include confirmation that a) the legislation is part of a general regulatory scheme; b) the legislation is continuously monitored by a regulatory agency; c) the legislation is concerned with trade generally rather than with a particular industry; d) the legislation is of a nature that the provinces jointly or severally would be incapable of enacting; and e) the failure to include one or more provinces within the legislative scheme would jeopardize the successful operation of the law elsewhere.

Although PIPEDA may have been crafted with these five indicia in mind, there are no guarantees once the law is subjected to the scrutiny of the courts. The federal government will argue that the law is general in nature with broad application, it is monitored by the federal privacy commissioner, the provinces could not enact an equally effective statutory framework, and, as the EU recognized, the failure to include a single province could create a data haven that jeopardizes the protection of all personal information. Whether the Canadian courts agree will have a huge impact on the future of privacy in Canada.

The Government of Quebec, along with PIPEDA critics, correctly claim that the new federal privacy legislation comes at a cost. Where they err is in failing to appreciate that the alternatives — whether the absence of legislation or multiple provincial statutes — are indeed far costlier for business, consumers and Canada’s credibility on the global stage.

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