Law Times

Law Times • November 24, 2014 Page 7 www.lawtimesnews.com COMMENT Co-operation a big focus for privacy enforcement By CHanTal Bernier For Law Times he International Conference of Data Pro- tection Authorities that took place in October in Mauritius highlighted important progress in the collaboration between privacy and data protection authorities. The conference marked the adoption of a global cross- border enforcement co-operation arrangement among privacy enforcement authorities and the expansion of their international network. The global arrangement is a big step for privacy en- forcement authorities, which refer to "any public body that has as one of its responsibilities the enforcement of a privacy and/or data protection law, and that has powers to conduct investigations or take enforcement action." That would include the Federal Trade Com- mission and other foreign institutions with the same jurisdiction model. Framed within the principles of reciprocity, confiden- tiality, respect for data protection, privacy, and co-ordina- tion, the arrangement follows the 2007 Organisation for Economic Co-operation and Development recommen- dation on cross-border co-operation in the enforcement of laws protecting privacy. It put forward three concrete steps towards that end. First, privacy enforcement authorities will improve their domestic legal frameworks to better enable interna- tional co-operation. For example, from my experience at the Office of the Privacy Commissioner of Canada, such collaboration would include signing bilateral co-opera- tion agreements to provide the legal basis to exchange in- formation and co-operate on joint investigations with a foreign regulator. The Canadian regulator has concluded six such agreements with Germany, Ireland, the Nether- lands, Romania, Britain, and Uruguay. Second, privacy enforcement authorities will provide mutual assistance to each other through notification, complaint referrals, and knowledge sharing. Again, from my experience, a particularly effective measure for inter- national enforcement of privacy law is complaint referral. For example, the U.S. Federal Trade Commission alerted the Canadian regulator to a laptop rental company with affiliates in Canada that had surreptitiously activa ted cameras and registered keystrokes to locate devices. Fol- lowing an investigation, the practice came to a halt. Third, privacy enforcement authorities will engage relevant stakeholders in discussions and activities to further co-operation in enforcement of privacy laws. There has already been improvement in that area as the arrangement deliberately moves away from the established notion of data protection authorities to include privacy enforcement authorities. This move clearly seeks to encompass a broader scope of regula- tors to properly ref lect diverse governance structures. Regulators may have privacy protection as one of their functions among others or enforce privacy laws through broad fair commercial practice rules. The approval of the arrangement marks the inten- sification of current international privacy law enforce- ment activities. We can expect more co-ordinated ac- tivities in the future, such as the immensely successful Internet sweeps where privacy enforcement authori- ties from around the world choose one day to monitor privacy policies and practices on the Internet. I also believe we will see more internationally co-ordinated investigations that rationalize privacy enforcement and leverage local resources by sharing the work. Broadly, Canada has already implemented these mea- sures. The federal regulator has obtained the co-opera- tion of a foreign privacy enforcement authority to put a stop to the unlawful use of e-mail information, helped lead co-ordinated investigations with foreign counter- parts, and reached out to international organizations to co-ordinate intervention on cross-border breaches. Growing international co-operation is now the way we look to approach data security and privacy best practices. To further sustain co-ordinated intervention and worldwide privacy protection, privacy enforcement authorities recently created the Common Thread net- work. This new network brings together Common- wealth privacy enforcement authorities, thus bring- ing into the fold emerging or booming economies that currently lack an effective domestic privacy legal framework. India, for example, is still working on a new privacy bill and most African states are adopting information technology in the absence of a regulatory framework. In general, these international efforts seek to cohesively address growth in the digital economy and international data transfers as well as expansion of the cloud and contracted-out data processors in estab- lished and emerging markets in order to ensure data protection compliance and security. This brings privacy enforcement authorities into five main networks: Asian-Pacific Economic Co-operation; L'Association francophone des autorités de protection des données personnelles, which brings together franco- phone states; the Ibero-American network where Latin American states join efforts as witnessed in the adoption of the memorandum on the protection of personal data and privacy in Internet social networks specifically in re- gard to children and adolescents; the Article 29 Working Party composed of European states, European institu- tions, and the European Commission; and the Common Thread network. What does all of this mean for organizations? Having participated in and helped lead the consolidation of in- ternational enforcement of privacy law, I see the develop- ments in Mauritius as progress on a continuum. Already, we have seen manifestations of the privacy enforcement authorities' resolve to act in a co-ordinated manner. The Dutch commissioner and I led the first internationally co-ordinated investigation and there is more to come. For privacy enforcement authorities, the benefits of join- ing efforts arise in the strengthening of impact and more efficient use of resources. For organizations, I believe international co-opera- tion among privacy enforcement authorities is beneficial as well. It should mean the end of multiple investigations into the same incident, harmonization of legal inter- pretation of privacy law, and streamlined enforcement through the discipline of international co-ordination. LT Chantal Bernier is counsel at Dentons Canada LLP as well as former interim privacy commissioner of Canada. She's currently a senior fellow at the Graduate School of Public and International Affairs at the Univer- sity of Ottawa. u SPEAKER'S CORNER Help for Del Mastro shows some win even as they lose olitics have ruined the lives of many people, but a lot of them ruin their own lives as well. Only a few intense years ago, for- mer Conservative MP Dean Del Mastro was on his way up as the toughest, rough- est, hardest-hitting member on the gov- ernment benches. Prime Minister Stephen Harper adored him. He named him his parliamentary secretary, a role requiring him to act as his personal pit bull of sorts as he defended the party and its leader day after day. He seemed sure to get a cabinet post at some point. Today, all of that is over. Del Mastro resigned after an Ontario judge pro- nounced him guilty a month ago of mis- spending during the 2008 election by bol- stering his campaign with his own money and covering it up by falsifying his elec- tion expenses report. So Del Mastro can forget about any fu- ture cabinet appointment. His Conservative colleagues don't even want him running under their banner in the next election. Del Mastro continues to deny he did anything wrong. Only last week, he said he still didn't accept the Ontario Court of Justice ruling, telling reporters it was only the judge's "opinion" and he hoped to challenge it on appeal. The House of Commons was to decide his fate as a member of Parliament on Nov. 5. But what would happen to his travel budget, his office staff, his riding assistants, and, most importantly of all, his parliamentary pension? If his colleagues tossed him out of the Commons, Del Mas- tro would lose his pension. So he promptly resigned, allowing him to keep his pension that starts at age 55. Del Mastro has been an MP since January 2006, making him eligible for a full pension that includes the bonus as Harper's parliamen- tary secretary. Under the Canada Elections Act, any MP convicted of an offence can't sit in the Commons for five years from the date of conviction. But the act doesn't make clear whether that applies if the conviction is under appeal. Earlier this month, Del Mastro delivered a teary speech in the Commons in which he tried to argue his innocence and said he'd continue fighting the court verdict. Did that mean he'd appeal and the Commons would have to debate whether it should allow him to continue to sit as an MP pending the appeal? " I've got a big heart, but nobody should ever confuse that with any willingness on my part to ever back down," he said, al- most in tears. "I did not donate too much money to myself. I did not and I stand by my filings in 2008." That wasn't the way the judge saw it in court a few weeks earlier. Putting it as kindly as she could, Ontario Court Justice Lisa Cameron cast doubt on Del Mastro's credibility, par- ticularly for failing to report a personal contribution of $21,000 to his own campaign and falsifying the report after- wards. "There are a number of inconsistencies and improb- abilities" in his testimony, she said. "At times, the way in which he testified led me to believe that he was avoiding the truth. . . . He frequently obfuscated the evidence." When reporters confronted him with the judge's words, Del Mastro shot back: "That's her opinion. My opinion is quite different." Cameron found him guilty of three counts of election fraud. Outside the courtroom, Del Mastro told reporters: "This is obviously not a fi- nal decision." Actually, it will be final unless Del Mastro wins his case on appeal. Cameron set Nov. 21 as the date for his sentencing in Lindsay, Ont. But last week, Del Mastro fired his lawyer and the hearing now won't happen until January. There was one more surprise for Cana- dian taxpayers last week. They learned that the money raised at a big Conservative association fundraiser at Toronto's Albany Club featuring for- mer prime minister Brian Mulroney and a number of his old pals actually went to- wards paying Del Mastro's legal bills. The fundraiser collected $39,310 to help pay Del Mastro's legal bills. The big surprise for us came when we found out the money had actually gone to the Peterborough Con- servative riding association and only after- wards went to cover the legal bills, thereby making it a legitimate political donation eligible for a federal political tax credit. It was shades of the Conservatives' old in-and-out tax scheme for which they even- tually ended up in court and pleaded guilty. There's no law preventing riding asso- ciations from spending money for politi- cal purposes, which presumably includes paying an MP's legal bills. Since the $39,310 goes down on the campaign books as a political donation, the people making the contribution can claim part of it as a political tax credit de- pending on amount. News organizations such as the CBC later calculated that the people attending the fundraiser might have been able to claim a total of $23,851.13 in tax credits. Some people always seem to win even when they lose. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers.com. T P The Hill Richard Cleroux

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