[author: Tim Banks @TM_Banks]
A perennial issue in Canadian privacy law is what to do about the USA Patriot Act. Just when we think we have things reasonably sorted out, the issues pop up again in a new context. This time it is cloud computing.
What’s the USA Patriot Act?
The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (usually referred to as the “USA Patriot Act” or just the “Patriot Act”) is US legislation that was passed following the September 11, 2001 attacks on the World Trade Centre in New York City. Among other things, the Patriot Act made it easier for US law enforcement officials to intercept electronic communications and business records. One of the controversial measures was that officials were granted the power to issue a National Security Letter to electronic communication service providers requiring them to hand over information without informing the affected parties (in some cases without any judicial oversight).
For the purposes of this discussion of cloud computing, however, one of the most important provisions is section 215, which deals with access to business records. Section 215 repealed and re-enacted provisions of the Foreign Intelligence Surveillance Act (USA). Pursuant to section 215 of the Patriot Act, the FBI may apply to a federal judge for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities. US commentators agree that this definition covers electronic business records.
What’s cloud computing?
In its most complete form, cloud computing involves outsourcing applications (e.g. email, customer relationship management, and accounting software), platforms (e.g. database architecture) and infrastructure (e.g. servers). All of these IT functions are offered as a service to organizations either independently or as a package. An organization’s data (e.g. its emails) may be stored in segregated servers or intermingled with the data of other organizations and segregated through the functionality of the service provider’s information technology. The organization accesses its data through Internet portals.
Where’s the Cloud?
The cloud isn’t in the sky. Data sent over the Internet in a cloud computing arrangement may be (and often will be) stored outside of Canada and may be intermingled with data from other organizations. In many cases, the cloud computing service provider may subcontract the storage of data to one or more organizations operating data centres. If these data centres are in the US, well, therein lies the rub. The data is going to be subject to the laws of the United States, including the Patriot Act. Actually, if the data is even accessible from the US or by an organization subject to the jurisdiction of the US, the data is likely to be subject to the laws of the United States.
Okay, so the USA Patriot Act may apply, do I have a Canadian privacy problem?
But organizations aren’t prohibited from using US-based cloud services, if they are only operating in the private sector. Federal and provincial private sector privacy legislation does not prohibit the transfer of personal information to an organization in another jurisdiction for processing and storage, provided that:
The transfer does not entitle the receiving the personal information to use that information for purposes other than those for which individuals expressly or impliedly consented.
The transferring organization remains accountable for the protection of the personal information that has been transferred.
The organization receiving the personal information provides a comparable level of data security as would be required under Canadian law and the terms on which the collecting organization collected the information.
Disclosure is made to individuals. As a general rule, this disclosure to individuals should include notice that (1) their personal information will be transferred outside of Canada for processing and storage, (2) their personal information will be subject to the laws of the foreign jurisdiction and (3) the laws of the foreign jurisdiction may be different (and less protective) than those of Canada.
The transferring organizations will wish to consider obtaining meaningful contractual commitments to administrative, technological and physical security protections from the organization to which the personal information is being transferred. The transferring organizations will also wish to consider audit or other rights that would permit ongoing diligence of these security protections as well as the use being made of the personal information.
The Patriot Act provisions do not (on their own) mean that personal information will not be subject to a comparable level of security. An interesting survey and comparison of surveillance laws in Canada, the US, the UK and France was conducted by the Office of the Privacy Commissioner of Canada in 2009, which remains an important reference. Since 1990, Canada and the US have had Treaty on Mutual Legal Assistance in Criminal Matters in which each country has agreed to assist the other with the investigation, including seizure of records, of criminal activity. The Canadian Security and Intelligence Service Act (Canada) provides for secret warrants for the interception and seizure of, among other things, electronic data. The National Defence Act (Canada) permits the Minister of Defence (without judicial supervision) to authorize the Canadian Communications Security Establishment to intercept communications relating to foreign entities under certain circumstances. In addition, the Criminal Code (Canada) permits seizures of electronic data. The combination of this legislation has led the Office of the Privacy Commissioner of Canada to conclude in three decisions (here , here, and here) not only that Canadians are at risk of personal information being seized by Canadian governmental authorities (including without the knowledge of the target) but also that there is already a risk of that information being shared with US authorities. (This is not to say that reasonable people cannot still differ as to whether they wish to have their personal information stored outside of Canada.)
But if you are a public sector organization or contracting with a public sector organization in British Columbia or Nova Scotia (and probably Alberta), you need legal advice. Cloud-based services get a bit trickier when dealing with public sector organizations. British Columbia, Nova Scotia and Alberta each have legislation the prohibits or, in the case of Alberta, potentially prohibits the storage of data outside of Canada. In these cases, organizations would be prudent to obtain legal advice.