CANADA'S PRIVACY COMMISSIONER ANNOUNCES

UNCLAS SECTION 01 OF 02 OTTAWA 002458 SIPDIS SENSITIVE SIPDIS STATE FOR WHA/CAN, EB/IFD/OIA, EB/CBA, AND S/CT TREASURY FOR IMI:HOEK E.O. 12958: N/A TAGS: EFIN ECPS ECON PTER CA SUBJECT: CANADA'S PRIVACY COMMISSIONER ANNOUNCES INVESTIGATION OF SWIFT BANK TRANSACTION MESSAGING SYSTEM REF: A. OTTAWA 2158 ¶B. OTTAWA 2149 ¶C. OTTAWA 2060 (NOTAL) ¶D. STATE 103650 ¶1. (U) SUMMARY: THE JUNE 23 U.S. PRESS ARTICLES DISCLOSING THE EXISTENCE OF THE USG'S TERRORIST FINANCING TRACKING PROGRAM AND THE COOPERATION IT RECEIVED FROM THE INTERNATIONAL "SWIFT" BANK TRANSACTION MESSAGING SYSTEM HAVE RESULTED IN THE AUGUST 14 ANNOUNCEMENT OF TWO INVESTIGATIONS OF SWIFT BY CANADA'S OFFICE OF THE PRIVACY COMMISSIONER (OPC). ONE INVESTIGATION WAS SELF-INITIATED BY THE PRIVACY COMMISSIONER HERSELF AND THE SECOND WAS REQUESTED BY TWO PRIVACY WATCH DOG GROUPS. THE INVESTIGATIONS WILL SEE WHETHER THE POSSIBLE DISCLOSURE OF PERSONAL BANKING DATA ABOUT CANADIANS TO THE USG OUTSIDE APPROVED PROCESSES FOR SUCH DATA TRANSFERS (I.E., WITH JUDICIAL AUTHORIZATION; VIA FINTRAC, CANADA'S FINANCIAL INTELLIGENCE UNIT; OR VIA A MUTUAL LEGAL ASSISTANCE TREATY (MLAT) WAS APPROPRIATE AND VIOLATED CANADA'S PRIVATE SECTOR PRIVACY LAW. END SUMMARY. ¶2. (U) ON AUGUST 14, CANADA'S OFFICE OF THE PRIVACY COMMISSIONER (OPC) OFFICIALLY LAUNCHED AN INVESTIGATION OF THE SOCIETY FOR WORLDWIDE INTERBANK FINANCIAL TELECOMMUNICATION (SWIFT),THE BELGIAN-BASED COMPANY THAT OPERATES AS A WORLDWIDE MESSAGING SYSTEM FOR TRANSMITTING BANK TRANSACTION INFORMATION IN MORE THAN 200 COUNTRIES, INCLUDING CANADA. THE OPC SAYS THAT THE PURPOSE OF THE INVESTIGATION IS "TO DETERMINE WHETHER PERSONAL INFORMATION RELATING TO CANADIANS' FINANCIAL TRANSACTIONS IS IMPROPERLY DISCLOSED BY SWIFT TO FOREIGN AUTHORITIES." THE OPC HAS NOTIFIED SWIFT OF ITS INVESTIGATION. ¶3. (U) PRIVACY COMMISSIONER JENNIFER STODDART NOTED THAT "THE RISKS RESULTING FROM PERSONAL INFORMATION FLOWING ACROSS BORDERS IS SOMETHING THAT WE HAVE BEEN EXPRESSING CONCERNS ABOUT FOR SOME TIME. THE SWIFT SITUATION CONCERNS PRIVACY COMMISSIONERS WORLD WIDE AND IS SOMETHING WE NEED TO EXAMINE IN MORE DETAIL. ALTHOUGH THERE ARE TIMES WHEN WE ARE UNABLE TO LAWFULLY INVESTIGATE A COMPLAINT ABOUT SOMETHING TAKING PLACE OUTSIDE CANADA WITH CANADIANS' PERSONAL INFORMATION, WE HAVE DETERMINED THAT WE ARE, IN FACT, IN A POSITION TO INVESTIGATE THIS IMPORTANT MATTER." ¶4. (U) BEFORE LAUNCHING ITS OFFICIAL INVESTIGATION, THE OPC LOOKED INTO THE SITUATION TO EXAMINE WHAT WAS TAKING PLACE AND TO DETERMINE THE EXTENT TO WHICH IT COULD GET INVOLVED, GIVEN QUESTIONS OF JURISDICTION AND THE APPLICATION OF CANADA'S PRIVACY LAWS. BASED ON THE INFORMATION HER OFFICE GATHERED, THE PRIVACY COMMISSIONER DECIDED THAT SHE HAS REASONABLE GROUNDS TO SELF-INITIATE A COMPLAINT AGAINST SWIFT TO SEE IF THERE HAS BEEN A VIOLATION OF THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT (PIPEDA), CANADA'S PRIVATE SECTOR PRIVACY LAW. ¶5. (U) MOREOVER, THE OPC HAS RECEIVED A COMPLAINT AGAINST CANADA'S SIX LARGEST BANKS AND THEIR INVOLVEMENT IN THE SWIFT MATTER. THIS WAS TRIGGERED BY A JULY 27 COMPLAINT FILED WITH THE OPC AGAINST THE ROYAL BANK OF CANADA, THE TORONTO-DOMINION BANK, THE BANK OF NOVA SCOTIA, THE CANADIAN IMPERIAL BANK OF COMMERCE, THE BANK OF MONTREAL AND THE NATIONAL BANK OF CANADA. THE CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (CIPPIC) AT THE LAW FACULTY AT THE UNIVERSITY OF OTTAWA, AND PRIVACY INTERNATIONAL, A LONDON-BASED SURVEILLANCE AND PRIVACY WATCH DOG, FILED THE COMPLAINT. NO TIME FRAME FOR THE COMPLETION OF THE SWIFT INVESTIGATIONS WAS DISCLOSED. QINVESTIGATIONS WAS DISCLOSED. ¶6. (U) THE WATCH DOG COMPLAINT ALLEGES THAT CANADIAN BANK DISCLOSURES OF CUSTOMER DATA VIA SWIFT TO THE USG CONSTITUTE A VIOLATION OF PIPEDA, SINCE THEY "ARE MADE A) IN RESPONSE TO ADMINISTRATIVE SUBPOENAS OR OTHER REQUESTS OF QUESTIONABLE VALIDITY, AND B) ENTIRELY OUTSIDE THE LEGAL PROCESSES ESTABLISHED BY CANADA, THE U.S., AND OTHER COUNTRIES OFR THE INTERNATIONAL SHARING OF SUCH DATA." ¶7. (U) EMBASSY COMMENT: WHILE THE PRIVACY COMMISSIONER'S ACTIONS AND REPORTS RECEIVE SIGNIFICANT PRESS ATTENTION IN CANADA, THE COMMISSIONER IS AN OFFICER OF PARLIAMENT, NOT OF THE GOC, AND SHE HAS NO DIRECT ENFORCEMENT POWER. THE OPC'S FUNCTION IS TO ADVISE AND INFORM PARLIAMENT AND ITS VIEWS MAY DIFFER FROM THOSE HELD BY THE HARPER GOVERNMENT. END COMMENT. Visit Canada's Classified Web Site at http://www.state.sgov.gov/p/wha/ottawa OTTAWA 00002458 002 OF 002 WILKINS