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Will Privatizers Invade Our Privacy?

A U.S. firm could win control of B.C.'s medical records - and reveal your secrets to the F.B.I. Time to study the fine print of America's 'Patriot Act.'

Barbara McLintock 29 Mar 2004TheTyee.ca

Barbara McLintock, a regular contributor to The Tyee, is a freelance writer and consultant based in Victoria and author of Anorexia’s Fallen Angel.

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The whole question of personal privacy is becoming one of the most complex issues facing governments today.And the B.C. government is no exception.Information technology is advancing so rapidly that just about any attempt to regulate it is already running behind the technological changes being announced nearly every week. Identity theft, cell phones that snap unwanted photos, e-mail spam - all downsides to the many benefits of enhanced communications technology.Now add to the mix a dose of U.S. politics, and the complications become even stranger.Earlier this year, both the federal and provincial governments were moving in what most citizens believed to be the right direction with the proclamation of privacy laws that covered how the private sector collects and uses personal information about individuals. (Governments, police forces, health authorities and other public bodies have been covered for years through laws which sought, albeit not always successfully, tobalance the rights of the public to know about  government activities with the privacy rights of individual citizens.)The main goal of both the federal and provincial legislation is to ensure that personal information about individuals is neither collected unnecessarily nor used for purposes for which the individuals have not given their consent. Stores or businesses can't sell your name on a client list to other retailers who will then bombard you with e-mails or phone calls in the hopes you'll buy one of their products as well. Just that one provision alone would probably make the legislation worthwhile for a majority of British Columbians.The legislation also requires businesses to ensure that the information they do collect is secure, whether that's by buying a better computer security system or just by ensuring the document file drawers are locked when not being used. And it makes clear that businesses can't demand unnecessary information, such as social insurance numbers.The legislation is still in the shake-down stage, and a few glitches have come up. Still, over-all, most British Columbians would congratulate the government on making a good start on a very difficult issue.At least, that is, until the government announced its intention to contract out the administration of Medical Service plan files. The idea of contracting out complex computer-based data systems is one that has taken root among various governments across North America that believe the private sector can do the job more efficiently - and more cheaply. In B.C., the Campbell administration has done the same thing with theadministration of B.C. Hydro accounts, contracted out to the international giant, Accenture.'Patriot' passed just after 9/11Health Services Minister Colin Hanson announced back in July that the government was looking for a private-sector partner to take on the MSP administration because the system was becoming hopelessly backlogged and needed millions of dollars to be spent on new technology.From the beginning the NDP and the B.C. Government Employees Union were wary of the idea, accusing the Liberals of having deliberately set up the gridlock problem to make the privatization model more palatable to the public. NDP House leader Joy MacPhail noted that the government had laid off about 40 percent of MSP staff and closed walk-in offices in Victoria and Burnaby - steps which resulted in the growing backlog.Early on, the BCGEU in particular wondered just how the confidentiality of the patient files, arguably some of the most sensitive material held by government, was going to be guaranteed.But the real potential problems with the move came in the past few weeks when the BCGEU realized that the two final bidders for the MSP contract were both American-based and that that could bring British Columbians' files under the rubric of the U.S. federal Patriot Act.The two potential contractors are Maximus and IBM. Maximus is based in Virginia. IBM is a US-based multinational with a Canadian subsidiary which would be responsible for the running of any MSP contract. But legal opinions remain unclear as to whether even the existence of a Canadian subsidiary would be enough to protect the files of B.C. residents from the long arm of the Patriot Act.The Patriot Act (the official name of which is Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) was passed by the U.S. government only six weeks after 9/11, when emotions and passion were,  understandably, at fever pitch in the U.S.The section which could potentially cause problems with any MSP privatization effort is formally entitled "Access to Certain Business Records for Foreign Intelligence and International Terrorism Investigations." But U.S. experts point out that the scope of the authority is far broaderand applies to virtually any records relevant to an individual, American citizen or not.Explains EPIC, the Electronic Privacy Information Centre, a research centre based in Washington, D.C.: "This amendment, which overrides state library confidentiality laws, permits the FBI to compel production of business records, medical records, educational records and library records without a showing of "probable cause" (the existence of specific facts to support the belief that a crime has been committed or that the items sought are evidence of a crime). Instead, the government only needs to claim that the records may be related to an ongoing investigation related to terrorism or intelligence activities."U.S. itching to scan for B.C. 'narco-terrorists'In the U.S., the greatest opposition to the section has arisen from librarians who are horrified that they may be required to turn over to the FBI the records of which of their members have borrowed what reading material.Moreover, no one need ever know that their records have found their way into the hands of the FBI. Under the Patriot Act rules, businesses served with a search warrant under this section are legally not allowed to disclose the existence of the warrant or the fact that records were provided to the government. So theoretically, IBM or Maximus could be required to provide British Columbia MSP files to the FBI - but theywouldn't even be allowed to tell the B.C. government that they had had to do so.Ironically, U.S. citizens are actually granted more safeguards under the section than would be the case for Canadian citizens. The FBI is not allowed to go on fishing expeditions in U.S. citizens' files, solely on the basis of something the person has read, written or said publicly. But that isn't the case for citizens of other countries. Theoretically, the FBI could go searching in someone's files on the basis of outspoken comments made about the George W. Bush administration.This controversial clause, and several others, were originally scheduled to remain in place only until the end of 2005. But President Bush and his Attorney General John Ashcroft have already started advocating that they be extended past that deadline date.Indeed, there are suggestions in the US that a new bill, with even stricter provisions, will replace the Patriot Act. One draft entitles it the Victory Act, and some Republican Senators have suggested that it should combine the "war on terror," with the "war on drugs." It would contain a new crime called "narco-terrorism," which is defined as "the crime of selling, distributing or manufacturing a controlled substance with the intent of helping a terrorist group."Ironically, were this new law to come pass, it would be hard for B.C. officials to argue that our citizens shouldn't be subject to its provisions. That's because Solicitor General Rich Coleman has already gone public to say that "B.C. Bud" marijuana is indeed part of narco-terrorism worldwide. Back in January, Coleman told the Vancouver Board of Trade that some of the weapons used by Afghan insurgents could be tracked back to money that originated in the sale of B.C. Bud. That's presumably exactly the sort of thing Sen. Hatch is talking about.Soren Bech, of the BCGEU, figures that even before the second act is passed in the U.S., the U.S. authorities would be delighted to have a way to peek at the files of some British Columbians. "The FBI, with their concerns about Vancouver being the centre of the drug trade and a haven for terrorists and so on.under the patriot act they can go on fishing expeditions and nobody would ever know," he told The Tyee.Hansen: Patient privacy 'top priority'Murray Mollard, executive director of the B.C. Civil Liberties Association says that any information obtained by the FBI would inevitably be shared with other agencies. "Once any sort of personal information gets into the hands of any American state agency you can kiss privacy goodbye. There's absolutely no restrictions placed on them in terms of how they will deal with the information," he told The Tyee.Originally, Hansen said there was no way the U.S. could get their hands on Canadian files, provided the files and the work on them remained in Canada. But this month, he and other government officials admitted that the Patriot Act is so wide ranging that this might no longer be true.The office of B.C.'s privacy commissioner is scrambling to try to figure out just how much Canadian data may be at risk, not only from the possible MSP privatization but also from other cases in which Canadian files are in the hands of U.S. companies. The government has brought in extra legal expertise to try to determine the possible magnitude of the problem as well as ways of fixing it.The BCGEU has also launched a B.C. Supreme Court lawsuit to try to prevent the privatization from going ahead, at least until the matter is completely sorted out.And Hansen has committed himself to putting British Columbia citizens' privacy above any government privatization policies. "I will say, unequivocally, we will not compromise the privacy of British Columbians' health care information as we go through this process," Hansen said earlier this month. "We will not go into an arrangement that puts patient information at risk. We will, as a top priority, make sure patientprivacy is protected."It can only be hoped that the newfound concern of B.C. officials isn't too late. Who knows what B.C. files may already be in the FBI's hands? And who's ever going to know under the current U.S. policies?Barbara McLintock is the Victoria-based contributing editor to The Tyee and Jared Ferrie is on staff.  [Tyee]

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