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Implications of the USA Patriot Act on government outsourcing

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Privacy is an important part of the BCCLA’s mandate.  Over the years, we have become a leading advocate for privacy rights of British Columbians and we have been involved in a number of high profile dossiers in this area, including the Anti-Terrorism Act and the API-PNR database.

The Privacy Commissioner is conducting an inquiry into the following two questions:

  1. Does the USA Patriot Act permit USA authorities to access personal information of British Columbians that is, through the outsourcing of public services, in the custody or under the control of USA-linked private sector service providers?  If it does, under what conditions can this occur?
  1. If it does, what are the implications for public body compliance with the personal privacy protections in the FOIPP Act?  What measures can be suggested to eliminate or appropriately mitigate privacy risks affecting compliance with the FOIPP Act?

The immediate context for this inquiry is the Province’s contracting out of the Medical Services Plan (MSP) and Pharmacare administration to Maximus, an American-based company.  Our submission will address this context specifically, and make more general comments where those are warranted.

BCCLA’s submission will make the following points:

  1. The personal information at issue requires the highest order of privacy protection, not only under the Freedom of Information and Protection of Privacy Act (“FOIPPA”), but as engaging constitutionally protected privacy rights.
  1. The potential for United States authorities to access databases like MSP and Pharmacare is real and actual.  Existing mechanisms for data sharing, such as the Treaty between the Government of Canada and the United States of America on Mutual Legal Assistance in Criminal Matters (“MLAT”), are not analogous to the Patriot Act.
  1. The Province’s proposal for contractual and corporate structuring means of preventing access to the records do not appear feasible.
  1. Where there are credible legal opinions and arguments to both justify and oppose the proposed outsourcing, the Commissioner should employ a Precautionary Approach which would prohibit putting the personal information of British Columbians at risk.

Read the BCCLA submission >>