From: "Paul C. Bryan" <[EMAIL PROTECTED]>
To: David Jones <[EMAIL PROTECTED]>
Cc: [EMAIL PROTECTED]
Subject: Re: Canada's new Privacy Law ... your thoughts??
Reply-To: "Paul C. Bryan" <[EMAIL PROTECTED]>
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Dear Dr. Jones:
I agree that privacy is an important issue in today's information based
society, and I too consider it to be a fundamental individual right.
However, just I have a Common Law right to engage in voluntary transactions
of money and property, so should I have a right to exchange information with
other parties, and on whatever terms that are mutually agreeable.
If I provide information to a party voluntarily - without coercion - I don't
have any moral right to demand anything of that party outside of whatever
agreement was made. If the party were to disregard the terms of the
agreement, then I would clearly have legitimate grounds for civil
litigation.
In the case of Air Miles, or Safeway Club, or web sites that collect
personal information, I believe the exchange of information for goods and/or
services is perfectly legitimate. If I don't care for the terms, then I can
simply choose not to engage in such a transaction, and my privacy would
therefore be adequately protected.
In Canadian law, when there is a dispute over whether the terms of a
contract are being met, the burden of proof is rightly placed on the party
that contends otherwise. The "access to information" provision of Bill C-6
puts this well founded principle on its head, placing the burden of proof on
the holder of the personal information to prove that it is in compliance.
One case I have heard cited in favour of such privacy protection laws is of
some (American) company that filed for bankruptcy, and the Receiver
proceeded to liquidate its assets, including its amassed personal
information without the consent of those that provided it. In this case, I
believe that this would be legitimate grounds for civil litigation if the
terms under which the information was supplied were not upheld. But who to
sue? The company would be defunct.
If instead of individuals' personal information being sold, we suppose it
was the "Colonel's Secret Recipe" or the source code to Microsoft Windows
that was previously licenced to the (now defunct) company, it would be clear
to the Receiver that such information could not be legally resold. Such an
action would violate the terms of the contract with the information
supplier, and would undoubtedly expose the Receiver to significant legal
liability. So should be the case if the terms of the contract between
individuals and the defunct company are not upheld.
This liability should be enough to protect our privacy when we deal with
voluntary transactions of information. If we need legal privacy protection,
it should be to protect individuals against those who acquire this
information through involuntary means, namely our governments. Governments
have the power to coerce private information from us, then use and
distribute this information as it sees fit, without the necessary checks and
balances in place to protect our privacy.
So far, I believe Canadian governments have been relatively benign in this
regard, but that's certainly no guarantee that it will continue to be the
case. For instance, various state governments in the United States have
recently sold personal information from their driver's license databases to
private corporations, without the consent of their citizens. These citizens
had no choice but to supply this information if they wanted to legally
operate automobiles in those states.
In cases where the provision of personal information is involuntary, then I
strongly believe we need laws that place significant restrictions on what
can be done with that information - laws such as those in Bill C-6. The
holders of such personal information should be required to be accountable
for their actions, and there should be legal remedies for those who have had
their private information unjustifiably released.
How we as individuals or companies choose to process information stored on
our own computer systems should remain our own business, unless we have
agreed to do otherwise.
If we want to protect our freedom of speech, we must equally protect our
freedom to receive, store, manipulate and transmit information. The best way
to achieve this is not through restrictive laws such as those in Bill C-6,
but to uphold existing contract law and keep the activities of our
governments in check.
Sincerely,
Paul C. Bryan
[EMAIL PROTECTED]
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