The Canadian Privacy Controversy

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I have grown fond of Canada over the years. Through my privacy work, I have come to know a fair number of Canadian privacy officials, academics, activists and others. I generally find Canadians to be pleasant, low-key, knowledgeable and cooperative. I don't mean to suggest that political and personal differences have disappeared, but Canadian culture seems calmer and less confrontational than in the United States.

Here are just a few examples to make my point. Not too many years ago, American marketers responded to all privacy proposals with: "WHAT ARE YOU TRYING TO DO? PUT US OUT OF BUSINESS?" At the same time, the Canadian Direct Marketing Association endorsed the concept of federal privacy legislation before it had even been proposed.

In the mid-1990s, the Canadian Standards Association convened a committee to develop a privacy code. All relevant interest groups were represented, including government, business and consumers. They reached a consensus on a model privacy code, and that code eventually became the law of Canada. I can't imagine the same thing happening in the United States.

Last example: A Canadian colleague was reputed to have written a scathing article about privacy in Canada. When I read it, I found only mild criticism. I asked the author about his relatively gentle words. He responded: "What can I say? I am a Canadian."

This brings me to Canadian privacy commissioner George Radwanski, who was appointed two years ago. He followed Bruce Phillips, who began his career as privacy commissioner in controversy. Some objected strongly to the appointment of Phillips because he was a journalist and former political press secretary with no privacy background.

Phillips got the job anyway and grew into the office, representing his privacy portfolio well. He assisted greatly in the passage of Canada's private sector privacy bill. Operating firmly within the Canadian system, Phillips won some and lost some, and he earned the respect of people on all sides.

Radwanski's background is as a journalist and author. He had no privacy profile, but he did have some experience in public policy and politics. His appointment did not generate much controversy. People may have learned from Phillips that privacy experience was not essential.

Ever since Radwanski took office, I began to hear rumblings from my Canadian colleagues. An early controversy offers a telling example. Radwanski disagreed with the Canadian information commissioner (Radwanski's equivalent on information access issues) on a long-standing access dispute. It wasn't just the disagreement that was noteworthy. The newly appointed Radwanski said the position of his more experienced colleague was "totally unacceptable." Radwanski's blunt language attracted more attention than his arguments.

The substance of his decisions is mixed. This is to be expected in an area as diverse and controversial as privacy. He strongly objected to video surveillance in public places by the Royal Canadian Mounted Police. Privacy advocates cheered that decision. Another decision involving the gathering and selling of data on physicians' prescribing patterns without their consent drew serious objections from inside and outside his own office.

He successfully took on Air Canada's frequent-flier program for multiple privacy shortcomings. In doing so, he stated his "low opinion" of opt-out consent, calling it a violation of "basic human decency." That's a strong statement, especially when Canadian law expressly allows use of opt-out consent in some circumstances.

The gravamen of the objections to Radwanski is not the substance of his rulings, but his style and language. Some say he doesn't play fair with companies that seek his advice.

He refused to meet with members of Parliament, provoking sharp responses. In response, MPs called Radwanski a "bully," a "classic little guy," a "media hound" and an "idiot." For his part, Radwanski rejects some criticism as "absolute nonsense."

Radwanski's approach is so far out of the mainstream that he attracts opposition from people who should be his allies. He seems to be having a feud of sorts with privacy activists in Canada who should be his strongest supporters. They question whether he has the right approach and the right message for his position. Radwanski complains that advocates should spend less time attacking him and more time advocating privacy.

Provincial Canadian privacy officials are reportedly unhappy with him, as are some of his international colleagues. His staff, while silent, is also displeased. It isn't clear where Radwanski is finding support right now. He appears to have burned many bridges, and that could be a problem for him eventually.

If I could summarize the objections to Radwanski in my own words, it is that his approach is more American than Canadian. The harsh language, the polarizing comments and the personal attacks would be much less noticeable here in the States. Even here, however, most government officials know better than to start public catfights with elected officials. From my perspective, these developments are both surprising and entertaining. I am not sure that the results will be positive in the long term for Radwanski or his office, but I remain amused at present.

It may be too early to draw any firm conclusions about Canada's current privacy commissioner. He has years left in his seven-year term, and it is hard to guess what will happen next. If nothing else, Radwanski is certainly getting privacy its share of attention.

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