How the federal government can really defend privacy

OttawaCitizen.com/news
July 23, 2010.   By Dan Gardner

On Monday, Industry minister Tony Clement took to Twitter’s ramparts and resumed the Battle of the Census. “Data is valuable to many,” he tweeted. “But personal questions you would like to force Cdns to answer on pain of jail is just plain wrong.” Bad grammar, but the point was clear: The mandatory long-form census must go.

Conservative MP Maxime Bernier, who has increasingly been taking the lead in defending the government, was even more explicit. “Fundamentally, my position is that whatever the presumed usefulness of these data, I don’t believe it justifies forcing people to answer intrusive questions about their lives, under threat from a fine or jail time if they don’t.”

So it’s agreed, then. The mandatory long-form census has no place in a free and democratic society that respects the privacy of its citizens. This is a matter of the highest principle to these principled politicians and the principled government they serve.

Which is why I am sure they will be alarmed at what I am about to reveal.

Imagine you are an ordinary Canadian. Like most ordinary Canadians, you have a bank account. Sometimes you go into the bank. And conduct various financial transactions.

And the whole time, you are being monitored. By the government. Didn’t know that? Of course not. It’s secret. The law specifically says you must not be told when a report about you is filed.

The monitoring is conducted by the employees of the bank, not government officials. They have no choice. If they find your behaviour in any way “suspicious” — a term deliberately left vague — they must file a “suspicious transactions report” with a government agency, and they must not tell you they did so. If they fail to comply, they can be punished with up to $2 million in fines and/or five years in prison.

And it’s not only banks. It’s casinos. Race tracks. Currency exchanges. Life insurance companies, real estate agents, insurance dealers, post offices, and cheque-cashing services. Alan Gold, former president of the Criminal Lawyers’ Association, called it “a giant system of snitches Stalin would be proud of.”

The government agency at the centre of this web, the Financial Transactions and Reports Analysis Centre, or FINTRAC, likes to talk about its role in fighting terrorist financing, but that’s not what it was created for. During the Reagan-era war on drugs, American officials decided the best way to suppress the drug trade was to make the trade unprofitable by spotting and seizing drug money. The U.S. strong-armed other nations to adopt their methods and in 1989 Canada agreed to make money laundering a crime — and create a system for spying on Canadians’ financial transactions.

Needless to say, the drug trade is still profitable. In fact, there isn’t any compelling evidence that the system does any good at all.

But it is costly, both to the government and to those forced to report — who have to pay for compliance officers, training, and a lot of paperwork. And it does invade privacy. FINTRAC “has more personal information in its database than it needs, uses, or has the legislative authority to receive,” the privacy commissioner concluded last year. A random sampling of FINTRAC’s files turned up some shocking examples of abuse. “It is clear that such reports, containing not a shred of evidence of money laundering and terrorist financing, should not be making their way into the FINTRAC database.”

As far as I can make out, the Conservatives said nothing about the privacy commissioner’s report on FINTRAC. In fact, I’ve only been able to find one major statement by the government about the agency. “Canada’s new government will be relentless in its efforts to combat money-laundering and terrorism financing,” finance minister Jim Flaherty said in October, 2006, as he promised to spend $5 billion over five years to beef up the system.

The privacy commissioner hasn’t expressed concern about the census. In fact, Jennifer Stoddart’s office emphasized it works closely with Statistics Canada and the safeguards on census data seem to be quite effective. There has been a grand total of two complaints to the privacy commissioner about the long form over the last decade; one was resolved before an investigation was launched and the other was not upheld.

So let’s compare and contrast:

One mandatory reporting system is extremely intrusive and burdensome. The privacy commissioner has expressed serious concerns about this system. And there is no evidence it delivers significant social benefit.

Another mandatory reporting system requires some people to spend a few minutes filling out a form once every five years at no cost to them. The privacy commissioner has not expressed concern about this system. And there is voluminous evidence that it delivers enormous social benefit — indeed, that it is essential to public policy, social science, and business.

The government is scrapping the second system. But it fully supports the first.

Isn’t that odd? I can only see two possible explanations.

One, those highly principled Conservatives had no idea what the financial reporting system actually entails. This column will shock them into action and the whole thing will be junked forthwith. Expect an announcement by Friday.

If there is no such announcement, we will be left with Explanation Two: The government’s highly principled stand against mandatory reporting is nothing but a post-facto rationalization of a decision made for a different reason.

And what might that be? Hard-core conservatives have long seen the census as the foundation of left-wing social engineering. And not without some justification. Programs like employment equity couldn’t function without census data.

Stephen Harper would love to scrap such programs but he wouldn’t dare under current circumstances. And so, as he did with the gun registry, he is making an administrative change that he hopes will cripple the program. And slowly strengthen the case for doing away with it entirely.

This is, I fully admit, merely speculation. But still, it makes a lot more sense than Tony’s tweets.

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