Canadian Lawyer

letters to the editor Send your letters to: gail.cohen@thomsonreuters.com Commissioners not stifling innovation I write to express disagreement with the article "Privacy commissioners stifle innovation," published in the November/ December 2011 issue of Canadian Lawyer. Jim Middlemiss argues that Canada's privacy commissioners are in a conflict of interest because they oversee both freedom of information laws and privacy laws, which Mr. Middlemiss apparently considers to be inherently contradictory. Another way to look at this is to see the role of the commissioners as balancing the collective societal value of disclosing information to citizens about the operations and decisions of government with the interests of individual citizens in protecting their personal information. These two values are interrelated and an appropriate balance is needed. After all, governments hold vast amounts of sensitive personal information about individuals. The article appears to give little consideration to this point with its focus on consumers who choose to utilize services such as Facebook and Google. Mr. Middlemiss argues that such consumers can simply bring on a class action if they are slighted by a company's handling of their personal information. Leaving aside that a breach of an individual's privacy is often a wrong that can never be fully "righted" (and therefore prevention of sloppy handling of personal information is paramount), this argument ignores the fact the civil courts provide little recourse in a situation where a government body fails to protect the security of (often sensitive) personal information it holds. The government requires the individuals it governs to provide significant quantities of personal information in numerous situations (e.g. on income tax returns, in medicare/pharmacare claims, through the census, etc.). There is little or no choice about providing this information. Most freedom-of-information legislation provides some level of immunity to government bodies against civil claims based on unauthorized disclosure of personal information. In these circumstances, I for one am content to pay my share of the taxes needed to support effective privacy watchdogs, especially watchdogs who focus on preventing information security breaches before they occur. Going back to the argument about consumers dealing with private sector service providers such as Facebook, Mr. Middlemiss states that the privacy commissioners "seem to think it is their role to protect those who are willing to expose their intimate details to the world." I share the author's apparent view that individuals should be able to make their own decisions about how much of their personal information they wish to share (and with whom). The difficulty is that some consumers were exposing their intimate details whether or not they were willing, because they were not provided with clear information about how to invoke the privacy settings that would override default settings that allowed certain personal information to be widely available. My reading of the federal commissioner's report on the Facebook investigation, for example, is that the focus was on ensuring individuals/consumers were provided with clear information about how and with whom their personal information would be shared, depending on the privacy settings they chose for their accounts. The objection of the commissioner was that insufficient information was being provided to consumers and some of the information being provided was misleading or confusing. I am a strong believer in the free market system, but in order for it to work, consumers need accurate and clear information, so they can make informed choices. Ensuring that both government bodies and private sector organizations provide clear and accurate information to individuals and ensuring that appropriate steps have been taken to minimize the risk of information security breaches does not, in my view, "stifle innovation." TAMARA HUNTER Davis LLP, Vancouver Eliminated jobs about 300, not 776 The author states in the latter half of "The death of collective bargaining?" [Canadian Lawyer, January 2012] that: "Close to 800 positions were eliminated in August at Environment Canada. . . ." This is incorrect. Canadians gave the government a strong mandate to complete Canada's economic recovery and balance the budget. As a result, Environment Canada has taken a hard look at its spending to ensure the department is spending its resources on priorities like improving air quality and cleaner water for Canadians. Environment Canada has issued to 776 of its employees a letter indicating that their positions may be affected by a workforce adjustment process. It is expected that the number of eliminated positions will be about 300. This represents less than 5 per cent of total Environment Canada employment. The reason the 776 is higher is because, to ensure fairness and transparency, when a function is reduced, all employees performing that same function are notified that their positions may be affected. These affected employees are indeterminate employees whose positions may no longer be required due to reduced resources. These employees are currently employed in a number of different areas and are located across the country. MARK JOHNSON Spokesman, Environnement Canada Gatineau, Que. welcomes letters to the editor but reserves the right to edit for space, taste, and libel considerations. Please include your full contact information. 6 FEBRUA R Y 2012 www. CANADIAN Lawyermag.com C anadian L a wy er OP I N ION BY JIM MIDDLEMISS BACK PAGE Privacy commissioners stifle innovation C anadian taxpayers spend millions of dollars annu- ally funding government agencies that purport to police our privacy. That's million for the Ontario information privacy commissioner, $37 million he offices of the information and y commissioners of Canada, $4.2 n for British Columbia, $6 million berta — you get the point. act, many of these offices have d their spending in the past and at least one commissioner's ng is outpacing inflation. The commissioner expects a 6.4-per- rease in spending according to 12 spending estimates, almost mes the rate of inflation. The these organizations earn in the of what federally appointed o. Not only is it a waste of ying to protect privacy in a e, but agencies like the fed- rio, Quebec, Alberta, and B.C. on and privacy commission- to be in a conflict of inter- ne hand, the commissioners edom of information laws, ire governments and agen- close information. So their ster openness and informa- payers pay governments to he other hand, the agencies privacy legislation. On that carp against government and the private sector g information private. It's qualms with their work s to supporting freedom . In a democracy, govern- open and transparent to nd voters they serve. But government be privacy police? We already have criminal laws governing identity theft and fraud and we have the civil courts, so if you feel slighted by a company whose comput- ers are hacked and financial records stolen, you can sue the company in a class action. Instead, we decide to create multimil- lion-dollar bureaucracies to police the "unpoliceable," when the money would be better spent beefing up enforcement of the Criminal Code's identity theft provisions. Federal Privacy Commissioner Jennifer Stoddart would rather seek headlines by beating up job creators like Facebook and Google over their privacy policies and attempt to drag Canada back into the Dark Ages, like an ecclesi- astical court from the mid-century. Signing up for web sites is a contrac- tual issue between users and the com- panies supplying a service. If consum- ers don't like the privacy policies, then they can choose not to use the service — simple as that. The free market rules. If consumers reject the company's pri- vacy policies, it will fail. It's their choice. There is a real paternalistic flavour to the privacy portion of the commission- ers' role. They seem to think it is their role to protect those who are willing to expose their intimate details to the world. The youth of today have a differ- ent attitude towards privacy than their elders. If they choose to post drunken photos of themselves on Facebook, it's their right. It's the same for posting vid- eos on YouTube. (No doubt some priva- cy commissioner somewhere has photos or video, if not tales, of doing something stupid in his or her youth. The only dif- ference is that person didn't have the Internet to share it with the world.) ECEMBER 2011 www. CA NADIAN Lawyermag.com 11-10-25 12:05 PM At a Legal Marketing Association seminar last year on the changing face of legal marketing, digital marketing guru Mitch Joel chuckled about con- cerns expressed by those over 35, who chide today's youth over their online antics. He basically said get over it. The job of managers in the future won't be to chastise job seekers for their Internet escapades. It will be to figure out which of those idiots to hire because they almost all engage in such activity. The privacy commissioners, and the gov- ernments that create them, should take note: we don't need the nanny state to protect us. If Google and Facebook can develop a better understanding of web surf- ers' habits and use that information to build new products and services, that's called innovation, which has built great economies in places like Canada, the United States, and the United Kingdom. Rather than stifling innovation, gov- ernments should get out of the way. Headline-seeking privacy commission- ers should butt out and focus on gov- ernments that don't like to cough up information. They're the ones that we really need to worry about. Jim Middlemiss is a Toronto lawyer and co-owner of WebNews Management Corp. He can be reached at jmiddlemiss@ webnewsmanagement.com. SCOTT PAGE

• Cover