Nova Scotia begins consultation on Personal Health Information legislation

The Province of Nova Scotia has for some time been consulting with inside stakeholders on the development of health information legislation. It has just launched a consultation, seeking input from interested parties. I haven't had a chance to look at the discussion paper yet, but I understand they've been using Ontario's PHIPA as the model:

Personal Health Information Legislation for Nova Scotia Department of Health Government of Nova Scotia

For the past several years the Department of Health has been working with health sector partners on initiatives related to the protection and use of personal health information. As part of the evolution of standards, policy and law on these issues, .the Department is developing a Personal Health Information Act for the province.

The Department is pleased to present the Discussion Paper Personal Health Information Legislation for Nova Scotia (PDF: 70p). Throughout the Discussion Paper, key issues related to the collection, use, disclosure, retention and destruction of personal health information are discussed, and legislative provisions for a Personal Health Information Act are proposed.

Public and stakeholder input to this legislation is critical to its success. Any feedback on the issues raised in the paper, and on any issues related to the management of personal health information in Nova Scotia can be submitted through the online questionnaire, by e-mail to mailto:phia@gov.ns.caor by regular mail to the Personal Health Information Project, Department of Health, 1690 Hollis Street, P.O. Box 488 , Halifax , Nova Scotia , B3J 2R8

The deadline for comments is November 1, 2008.

• Personal Health Information Legislation for Nova Scotia Discussion Paper (PDF:70p)
  
• Frequently Asked Questions - Foire aux questions (PDF)
  
• Questionnaire (MS Word) Questionnaire French (MS Word)
  
• Personal Health Information Legislation Online Questionnaire

Privacy and Access Rights in the Age of Technology: The State of Canadians’ Information Rights in 2010 and Beyond

The Canadian Bar Association's National Privacy and Access Law Section has organized what I expect will be one of the premier continuing education events in Canada for privacy and access specialists on September 19/20 in Ottawa.

The program is awesome, covering both access to information and privacy.

Speakers include Federal Privacy Commissioner Jennifer Stoddart, Federal Information Commissioner Suzanne Legault, Alberta Commissioner Frank Work, BC Commissioner Liz Denham, Nova Scotia's Dulcie McCallum, Saskatchewan's Gary Dickson, Quebec's Jacques Saint-Laurent. Private sector speakers are a who's who of privacy law.

More info here: CBA - Privacy and Access Rights in the Age of Technology: The State of Canadians’ Information Rights in 2010 and Beyond.

Privacy dilemma illustrated in Vermont library

The local Halifax paper is running an AP story about the tough choices that custodians of personal information are sometimes called upon to make. After a young girl went missing, the police showed up at the public library demanding to take the public access computers that the girl had apparently used to communicate on MySpace. The librarian stood her ground and demanded that the police get a warrant. They did. Here's the full story:

Nova Scotia News - TheChronicleHerald.ca

Police raid on library offers privacy dilemma

By JOHN CURRAN The Associated Press

Sun. Jul 20 - 5:19 AM

RANDOLPH, Vt. — Children’s librarian Judith Flint was getting ready for the monthly book discussion group for eight and nine-year-olds on Love That Dog when police showed up.

They weren’t kidding around: Five state police detectives wanted to seize Kimball Public Library’s public access computers as they frantically searched for a 12-year-old girl, acting on a tip that she sometimes used the terminals.

Flint demanded a search warrant, touching off a confrontation that pitted the privacy rights of library patrons against the rights of police on official business.

"It’s one of the most difficult situations a library can face," said Deborah Caldwell-Stone, deputy director of intellectual freedom issues for the American Library Association.

Investigators obtained a warrant about eight hours later, but the June 26 standoff in the 105-year-old, red brick library on Main Street frustrated police and had fellow librarians cheering Flint.

"What I observed when I came in were a bunch of very tall men encircling a very small woman," said the library’s director, Amy Grasmick, who held fast to the need for a warrant after coming to the rescue of the 4-foot-10 Flint.

Library records and patron privacy have been hot topics since the passage of the U.S. Patriot Act after the Sept. 11, 2001, terror attacks.

Library advocates have accused the government of using the anti-terrorism law to find out, without proper judicial oversight or after-the-fact reviews, what people research in libraries.

But the investigation of Brooke Bennett’s disappearance wasn’t a Patriot Act case.

"We had to balance out the fact that we had information that we thought was true that Brooke Bennett used those computers to communicate on her MySpace account," said Col. James Baker, director of the Vermont State Police.

"We had to balance that out with protecting the civil liberties of everybody else, and this was not an easy decision to make."

Brooke, from Braintree, vanished the day before the June 26 confrontation in the children’s section of the tiny library.

Investigators went to the library chasing a lead that she had used the computers there to arrange a rendezvous.

Brooke was found dead July 2.

An uncle, convicted sex offender Michael Jacques, has since been charged with kidnapping her.

Authorities say Jacques had gotten into her MySpace account and altered postings to make investigators believe she had run off with someone she met online.

Flint was firm in her confrontation with the police.

"The lead detective said to me that they need to take the public computers and I said ‘OK, show me your warrant and that will be that,’ " said Flint, 56. "He did say he didn’t need any paper.

"I said ‘You do.’ He said ‘I’m just trying to save a 12-year-old girl,’ and I told him ‘Show me the paper.’"

Cybersecurity expert Fred H. Cate, a law professor at Indiana University, said the librarians acted appropriately.

"If you’ve told all your patrons ‘We won’t hand over your records unless we’re ordered to by a court,’ and then you turn them over voluntarily, you’re liable for anything that goes wrong," he said.

Ask the privacy lawyer: Data in transit outside of Canada

I received the following question the other day:

In terms of personal data that was captured by a healthcare company while
a patient in Canada, and relayed to another city in Canada for analysis, further
use, etc., does that patient data have to remain in Canada ? or is it allowed to
traverse the US border at any time during its journey across the continent ?
My concern is that communication networks don't seem to be restricted to
intra-Canada operation or due to congestion or failure, most have to use large
data highways that may cross over into the United States.

Under PIPEDA, is patient or personal data limited to just traverse within Canada ?

In Canada, there are no restrictions on the export of personal information except for personal information that is subject to the Freedom of Information and Protection of Privacy Acts of Alberta, British Columbia and Nova Scotia, and the equivalent in Quebec. Each of those provinces have enacted laws in response to the USA Patriot Act. The Patriot Act gives American law enforcement with much easier access to information, including personal information. The laws in these provinces don't deal with information in transit, but talk about the storage and access to that information. For example, from Nova Scotia's PIIDPA:

5 (1) A public body shall ensure that personal information in its custody or under its control and a service provider or associate of a service provider shall ensure that personal information in its custody or under its control is stored only in Canada and accessed only in Canada, unless...

While there is no caselaw on this issue, I doubt that any of the privacy regulators of those provinces or the courts would find a contravention of this law if data packets containing personal information were routed through the United States on their way between two points in Canada. The information may be intercepted while in transit, but there users have little control over how this data travels. For example, a traceroute function from my home computer to ubc.ca shows that most of the data travels through the US:

Tracing route to ubc.ca [64.40.111.228] over a maximum of 30 hops:

1 2 ms 1 ms 1 ms [REDACTED]

2 20 ms 9 ms 9 ms [REDACTED]

3 17 ms 12 ms 10 ms [REDACTED]

4 11 ms 8 ms 8 ms hlfx-br1.eastlink.ca [24.222.79.205]

5 18 ms 28 ms 18 ms te-3-1.car2.Boston1.Level3.net [4.79.2.89]

6 22 ms 19 ms 18 ms ae-2-5.bar2.Boston1.Level3.net [4.69.132.250]

7 19 ms 19 ms 22 ms ae-0-11.bar1.Boston1.Level3.net [4.69.140.89]

8 46 ms 54 ms 49 ms ae-5-5.ebr1.Chicago1.Level3.net [4.69.140.94]

9 44 ms 52 ms 39 ms ae-68.ebr3.Chicago1.Level3.net [4.69.134.58]

10 73 ms 72 ms 70 ms ae-3.ebr2.Denver1.Level3.net [4.69.132.61]

11 99 ms 90 ms 90 ms ae-2.ebr2.Seattle1.Level3.net [4.69.132.53]

12 90 ms 89 ms 89 ms ae-22-52.car2.Seattle1.Level3.net [4.68.105.35]

13 90 ms 89 ms 88 ms unknown.Level3.net [64.154.178.134]

14 93 ms 91 ms 102 ms p2-1.pr0.yvrx.hgtn.net [66.113.197.5]

15 93 ms 93 ms 91 ms r1-hgtn.netnation.com [64.40.127.254]

16 102 ms 95 ms 93 ms itservices.ubc.ca [64.40.111.228]

Trace complete.

This leads to the question of whether your information is safe from interception during transit through the US. It's really not safe from interception at any point on the internet. At each point above, the signals can be intercepted. There was recent speculation that a collaboration between AT&T the National Security Agency allowed national security organs of the US to vacuum international internet and telco traffic from at least one AT&T facility. (See: EFF's class action against AT&T.) Do they have the tools to single out particular traffic? Probably.

So what to do? If sensitive information is being transferred between two points on the internet, it should be encrypted and sent through a secure "tunnel".

Update: Added reference to Quebec statute. Thanks, commenter.

Cross-border movement of personal health information

Earlier this week, I co-chaired Insight Information's conference on electronic health records here in Halifax. I was very pleased to see a lot of expertise in privacy developing in Atlantic Canada, which is necessary as Nova Scotia, New Brunswick and Newfoundland move towards developing and implementing health privacy laws and as electronic health record projects are driving forward.

I gave a presentation on the mess and uncertainty related to the cross-border movement of personal health information in Canada. The complicated overlap of laws that we see in provinces such as Nova Scotia is compounded when the information is disclosed out of the province.

If you're interested, the presentation is here and can be flipped through below:

Press freedom trumps privacy in case of wayward tape

I can't comment on this as I represented a party to the proceeding, but this is highly relevant to readers of this blog:

Judge dismisses bid for injunction - Nova Scotia News - TheChronicleHerald.ca

A judge refused to grant an injunction against The Chronicle Herald on Monday, clearing the way for the newspaper to publish a story on the contents of a digital recorder that a former federal political aide left in an Ottawa washroom this winter.

... Ms. MacDonnell’s lawyers argued that allowing the Herald to run the story by Stephen Maher, chief of the newspaper’s Ottawa bureau, would be an invasion of her privacy and would cause the 26-year-old irreparable harm.

But Justice Gerald Moir, after deliberating through the supper hour, dismissed the application Monday evening.

"I allow that the harms of publication to Ms. MacDonnell are difficult to define and may be significant, however I would have to weigh that against the public interest in reporting on government and the specific public interest in the story Mr. Maher is following," Justice Moir said.

The judge said he agreed with the Herald’s submission that the taped conversation between Ms. MacDonnell and Ms. Raitt on Jan. 30 was not private because a third person — the driver of the government vehicle in which they were riding — would have heard it.

"I have difficulty seeing Mr. Maher’s June 2009 use of the recording as an intentional invasion of privacy," Justice Moir said.

"Privacy was invaded when a conversation was recorded, when a record was left in a press washroom and when it was not retrieved. Ms. MacDonnell’s lack of knowledge that her recording device contained a record of the conversation cannot, to my mind, put Mr. Maher in the position of an intentional invader.

"It is wrong to deprive the press and the public it serves of remarks made privately but not confidentially, in the sense of trade secrets or privileged communication, after those remarks became available because of poor record keeping or management," the judge said.

"Mr. Maher owes no duty of confidentiality to Ms. MacDonnell."

See also: The radioactive tape - Nova Scotia News - TheChronicleHerald.ca

Halifax police plan to use covert cameras in public places

Halifax Police plan to augment their network of surveillance cameras with hidden cameras in public places. Law abiding citizens have nothing to fear, according to the Mayor. Besides, the Mayor says, people are used to being surveilled on private property. What he doesn't seem to get is that private property is "private" property that you enter on the terms set out by the property owner. Public places do not have those stipuations. Or at least they shouldn't.

From the Halifax Chronicle Herald:

Police plan more camera surveillance - Nova Scotia News - TheChronicleHerald.ca

Halifax police intend to step up camera surveillance in public places, the city’s police chief said Tuesday.

Chief Frank Beazley said Halifax Regional Police officers will be using portable digital equipment in the near future to record images at "hot spots" in the municipality and public gatherings like rock concerts.

He told a city hall budget meeting the new gear won’t need to be installed — the police department already has fixed cameras at several locations — because police personnel will simply arrive at a potential trouble spot with cameras and leave with the pictures they’ve collected.

Mayor Peter Kelly supports more secret camera use at different sites. He said cameras tracking public goings-on are already a fact of life here and in other cities.

Asked if extra police snooping is an invasion of privacy, Mr. Kelly said law-abiding citizens have nothing to fear.

"For those who cause concern for others, you’ll have things to worry about," the mayor said, adding, additional surreptitious camera work will hopefully lead to crime prevention and the arrests of lawbreakers.

Mr. Kelly said people are routinely photographed on private property, such as banks, stores, parking lots and elsewhere, and the police plan to beef up surveillance at common areas used by many people makes sense.

Chief Beazley acknowledged the enhanced camera gear will be used at various locations throughout the city.

"If we have a hot spot — there’s crime going on in certain areas — we’re going to be able to take these mobile cameras and surreptitiously (use) them" without the knowledge of those being photographed, he told regional council’s committee of the whole.

Metro has seen a month of violent crime, including three murders. The most recent shootings in the city occurred Friday night and Saturday afternoon. Nobody was killed in either attack.

Saturday’s shooting took place at a house in a residential neighbourhood in Fall River, prompting RCMP to say police are concerned an innocent bystander could get hurt, or worse.

Upcoming dot-ca whois privacy irks law enforcement

Upcoming changes to the Dot-CA domain name directory, which are designed to protect the privacy of registrants, are causing concerns among police and IP lawyers who have used the directory as a very easy way to track down the owners of dot-ca domain names:

Nova Scotia News - TheChronicleHerald.ca

Move to protect Canadians’ Internet privacy irks police

By SEAN PATRICK SULLIVAN

The Canadian PressSun. May 25 - 4:31 AM

VANCOUVER — Sweeping changes to Canada’s home on the World Wide Web will put the country on the vanguard of Internet privacy.

But while law enforcement isn’t happy about potentially losing an important investigative tool, the half-million Canadians whose personal information is currently publicly available on the Internet shouldn’t rest easy that they are safe from wired snoops....

Social networking for lawyers seminar

Some readers of this blog may be interested in this seminar that I'm giving for the Nova Scotia Barristers Society next week. Those who aren't lucky enough to be in Halifax can attend by webinar:

NSBS - Development

Lunch & Law: Social Networking in a Global Market

Lunch & Law -



Social Networking in a Global Market: Marketing Strategies for Lawyers



Nova Scotia Barristers' Society - Continuing Professional Development



Wednesday, May 5, 2010 12:00 - 1:30 pm



CPD Center, Suite 408, 1645 Granville Street, Halifax



The Program: New technologies provide a plethora of unique opportunities for lawyers to raise their profiles and reach new clients.



Join David T.S. Fraser of McInnes Cooper for a repeat performance! David will provide an overview of blogs, social networking websites and other innovative means of marketing your law practice.



Even if blogs, Facebook, LinkedIn and Twitter leave you scratching your head and wondering what it's all about, this seminar will provide practical insight into these dynamic marketing channels.



David will also explore the issues of associated ethics challenges based on the CBA's new Guidelines for Ethical Marketing Practices Using New Information Technologies.



Don't miss this unique opportunity to learn the latest and greatest trends for marketing your legal practice.



Originally delivered to Society membership in December. Join us for a repeat performance!



Register online - If you do not already have a username and password (or to activate your account), please contact Pierre Benoit at pierreb@nsbs.org.



Fee: $40 per person plus tax (lunch included)



Can't travel to Halifax? Why not join us from the comfort of your office!

Webinar/Teleconference option is available. Fee is $40 plus tax (includes long-distance charges). Instructions will be emailed one day in advance.

Patriot Act reality check and Canadian authorities' similar powers

I had the honour of being invited to speak to the Canadian Bar Association's Alberta branch earlier this week about cross-border privacy issues.


We have had to deal with them rather acutely in Nova Scotia since the passage of the Personal Information International Disclosure Protection Act (PIIDPA), which prompted me to take a closer look at the different regimes for access to personal information by law enforcement and national security types on both sides of the border.


Most people are surprised to learn that some of the most "problematic" provisions of the USA Patriot Act are replicated in Canadian law in the Anti-Terrorism Act. We just don't hear about it as much. People are also surprised to learn of huge amount of information sharing that takes place between agencies in Canada and their counterparts in the US.


For example, we have our equivalent of the FISA secret court in the form of designated judges of the Federal Court of Canada acting under the CSIS Act, who issue secret orders. Our National Defence Act allows for warrantless interception, for the purpose foreign intelligence, of private communications directed at foreign entities located outside of Canada. This is very similar to authorizations by the Attorney General of the United States under the Foreign Intelligence Surveillance Act.


Here's the presentation I gave:

Nova Scotia startup seeks to build on privacy law advantage

A client company, Bastionhost Ltd., held a mini-summit earlier this week seeking to expand its vision of building data centres in Nova Scotia. A key part of its value proposition is the regulatory climate in Canada, paticularly its privacy laws that are deemed adequate under European Data Protection law and alow millisecond access to American markets without having the data accessible under laws like the USA Patriot Act.

Here's the press release for the event

PRESS RELEASE: FOR IMMEDIATE RELEASE
Monday, December 1st, 2008

IT start-up Bastionhost announces initiative to attract business to Atlantic Canada
Dataville, Canada

This economic downturn could provide an unprecedented opportunity for the Nova Scotia information technology sector, a technology entrepreneur told a Leadership and Innovation Mini-Summit held at the Halifax Club last week. The current economic crisis presents the Atlantic region with a unique business advantage, said Anton E. Self, founder and CEO of Halifax-based IT startup Bastionhost.

Self unveiled an ambitious strategy he calls "Creating Dataville" to develop a data centre industry in the province. Data centres are a fast-growing sector as corporations and governments struggle to store the massive amounts of information that underlie much of the economy.

"Massive losses stemming from the mortgage loan crisis have driven major financial institutions and enterprises with offices in both New York and London to look for ways to slash operating costs," said Self. "Their losses can be Nova Scotia's gain. Why pay millions to operate two backup data centres in North America and Europe, when one in Dataville will do?"

Self, announced his company's project to put Nova Scotia on the technological map by establishing a system of data centres and digital media storage facilities in the province.

"We can build a new billion dollar industry right here in Nova Scotia,"
he said, highlighting the region's dense and established infrastructure and relative affordability. "But we need to invest in improving and integrating our critical infrastructure here, now, if we are to seize the moment and realize our tremendous potential as a leading global data haven."

He said that Nova Scotia's location directly in-between New York City and London, England makes it an ideal location for catering to businesses on both continents from a single site, while taking advantage of multiple high speed fiber-optic cables already in place beneath the Atlantic Ocean.

The costs to build, maintain, and staff data centres in Nova Scotia are a fraction of those in most places in North America where this high-margin sector has taken hold, he said.

Nova Scotia's share of global ICT is about 0.3%, Jason Powell, Chairman of the Information Technology Association of Nova Scotia, told the gathering. He suggested that with more co-operation among companies, Nova Scotia could increase its share to 0.5% or even 1%, which would make a huge impact on the province's economy. "I know we've got the talent here," he said "Why can't our goal be to have IT be to Nova Scotia what energy is to Alberta?"

The province has all the tools to make this happen, he said, despite the fierce competition from low-cost countries such as India. "Innovation isn't about technology but about creativity mixed with business thinking," he said.

Privacy law expert David Fraser argued that Canada's and Nova Scotia's strong privacy laws offer another inherent advantage to the data centre sector, especially since the United States passed the USA Patriot Act in the wake of 9/11. He said, "we can become an information Switzerland."

Self also said that as the local financial services and IT sectors grow, companies are having trouble finding up-to-date data centres in this region. "There's a backlog of demand for adequate facilities, which is necessary infrastructure for attracting and retaining world-class companies. When our policymakers talk about the need to invest in Atlantic Gateway infrastructure, they mean transportation and shipping. But our most valuable commodity is data. To become a more significant global player we must integrate our technology assets and human resources and get the word out to our markets."

////////////////////////////////////////////////////////

Also speaking as part of the mini-summit was April MacLeod, a student employment and placement expert. All four spoke of the advantages of doing business in the Atlantic region, and highlighting niche technology skills, a large student population and potential workforce, and top-notch privacy laws not available in the US, vital to international data storage.

The crowd of more than 60 people who gathered for the talk included prominent business people from the Butterfield Fulcrum Group, Flagstone, Nova Scotia Business Inc, Halifax Finance, The Greater Halifax Partnership, Eastlink, Aliant, Armour Group, McInnes Cooper and Nicom IT Solutions, among many others. Allan Shaw, of The Shaw Group and former Premier, now Senator, John Buchanan were also in the audience.

Self invited attendees to "create Dataville with us" by joining forces to develop business in cities like New York and London. "Working together as partners, allies and friends we can win some serious business," he said. "As one Anton, I can only do so much heavy-lifting. But collaboratively, like 50 ants carrying a coconut, we can raise Nova Scotia to new heights."

Media contacts:

Anton E. Self

Founder and Chief Executive, Bastionhost Ltd.

(902) 482-6466

Anton.self (at) bastionhost.com

http://www.bastionhost.com/

Jason Powell

Chairman, Information Technology Association of Nova Scotia

(902) 221-1973

jkpowell (at) usa.net

http://www.itans.ns.ca/

David T. S. Fraser

Chair, Privacy Law Practice Group, McInnes Cooper

(902) 444-8535

David.fraser (at) mcinnescooper.com

http://www.privacylawyer.ca/

David Holt

Secretary of the Board, Bastionhost, Ltd.

(902) 401-5226

David.holt (at) bastionhost.com

Privacy in the cloud for Canadian universities

This past week, I was invited to speak at the annual get-together of The Canadian University Council of CIOs (CUCCIO) in Toronto on the topic of cloud computing. Many universities in Canada are struggling with the legal and privacy issues of adopting cloud computing, particularly when Google and Microsoft are both offering very attractive (and free!) offerings that would relieve universities of the costs and burdens of administering student and alumni e-mail.

Universities in Alberta, British Columbia and Nova Scotia are particularly hampered by legislation that was designed to thwart the boogeyman represented by the USA Patriot Act.

BC and Nova Scotia have each adopted legislation that either categorically prohibits the "export" of personal information by public bodies, or put in place administrative hurdles. Alberta joins this pack by making it an offense under their public sector privacy law to disclose personal information in response to a "foreign demand for disclosure".

Part of the problem is that the legal framework is not particularly nuanced, as each decision about whether to outsource a service should be guided by a detailed risk assessment and privacy impact assessment instead of ham-fisted categorical rules that don't take particular circumstances into account.

Here is my presentation, which was well received.

If the embedded slideshow isn't showing you the love, click here: https://docs.google.com/present/view?id=ddpx56cg_320fx7rkbhh&interval=30

Social networking for lawyers seminar

Some readers of this blog may be interested in this seminar that I'm giving for the Nova Scotia Barristers Society in a couple of weeks. Those who aren't lucky enough to be in Halifax can attend by webinar:

NSBS - Development

Lunch & Law: Social Networking in a Global Market

Wednesday, December 9, 2009

Lunch & Law - Social Networking in a Global Market: Marketing Strategies for Lawyers

Nova Scotia Barristers' Society - Continuing Professional Development
Wednesday, December 9, 2009, 12:00 - 1:30 pm

Location: CPD Center, Suite 408, 1645 Granville Street, Halifax

View PDF

The Program: New technologies provide a plethora of unique opportunities for lawyers to raise their profiles and reach new clients.

Join David T.S. Fraser of McInnes Cooper who will provide an overview of blogs, social networking websites and other innovative means of marketing your law practice.

Even if blogs, Facebook, LinkedIn, and Twitter leave you scratching your head and wondering what it's all about, this seminar will provide practical insight into these dynamic marketing channels.

David will also explore the issues of associated ethics challenges based on the CBA's new Guidelines for Ethical Marketing Practices Using New Information Technologies.

Don't miss this unique opportunity to learn the latest and greatest trends in marketing your legal practice.

Register online - If you do not already have a username and password, (or to activate your account), please contact Pierre Benoit at (902) 422-1491. Outside of Metro? Please register and join us via conference call. There are no cancellations for this program; substitutions are welcome.

Fee: $40 per person plus tax (lunch included)

Can't travel to Halifax? Why not join us from the comfort of your office!

Webinar/Teleconference option is available. Fee is $40 plus tax (includes long-distance charges). Instructions will be emailed one day in advance.

Feel free to pass this along to anyone who may be interested. You can share the invitation on Facebook via the event page, which is here.

Pre-employment polygraph screening

While my blog was down, I wrote on slaw.ca about an interesting story from Nova Scotia that made national news. For those who missed it on slaw, here it is:

Slaw: Pre-employment screening

A recent story from Nova Scotia has focused a lot of attention on pre-employment screening and the use of polygraphs. Hopefully, it will encourage a larger discussion on both sides of the issue.

According to media reports, anybody applying for a job that falls within the purview of the Halifax Police Service and Fire Service is required to pay for a polygraph examination that includes a range of questions, some of which have been considered to be objectionable. (See the full questionnaire here (pdf).)

Others have objected to the use of a polygraph, as many assert it is not a reliable indicator of truthiness truthfulness. (If you want a refresher on how Canadian courts are to treat polygraphs, check out R. v. Béland, 1987 CanLII 27 (S.C.C.)).

The media coverage has been plentiful, from the local papers to CBC's The National (Quicktime).
The former FOIPOP Review Officer has made his thoughts known (Ex-watchdog: Ditch polygraphs) as has his successor Dulcie McCallum (Nova Scotians deserve same privacy protection as others).

Any debate and discussion is a good thing. It should, hopefully, focus the mind on one of the principes of privacy best practices that appears in almost every public and private sector privacy law: only collect information that's reasonably necessary for the (reasonable) purposes. If it's not necessary or not reasonable, don't collect it. Other important principles to consider: who has access to the information, how is it used and how long is it kept around?

And now for something completely different somewhat relevant, yet inadmissible:

Here's CBC The National's report:

A look at video surveillance in Halifax

The Sunday Chronicle Herald has two articles on the increasing use of video surveillance by police and private organizations in Halifax. They are interesting reading, but what I find most interesting is that this is the first time that I've seen any dicussion of how the police manage the feeds and access to recordings. Check them out:

• Eyes in the sky - Nova Scotia News - TheChronicleHerald.ca
  
• Wireless cameras add to police toolbox - Nova Scotia News - TheChronicleHerald.ca
  

  The cameras in place now are not monitored all day long, although they are recording, Supt. Moore said. The images are automatically deleted if there’s no request to see them within 14 days.
  
  

  The department used guidelines from the province’s Freedom of Information office as well as the federal Office of the Privacy Commissioner to develop its guidelines for using the images, he said.
  
  

  All viewing requests are made to him and only he and his technical staff have access to the recordings.
  
  

  "They’re very much locked down and once they’re collected, there’s a formalized process for someone looking to go in and find these images," he said.
  
  

  Supt. Moore said police haven’t used video from those downtown cameras to solve "big" crimes – yet.
  
  

  "We are still optimistic that it will, but to date it has not been pivotal," he said.

  
  
  

Any discussion of the policies regulating the use of video surveillance is a good thing, and better late than never.

Nova Scotia to table health information legislation today

The Nova Scotia Minister of Health is expected to table the latest iteration of the Personal Health Information Act in the Nova Scotia legislature this afternoon. Expect to see the text of the bill here as soon as it's tabled.

See: Health minister expected to table personal information bill today - NovaScotia - TheChronicleHerald.ca.

---

Update: The text of Bill 89 is available here.

Nova Scotia to probe juror vetting

From today's National Post:

Nova Scotia launches probe into jury vetting

Shannon Kari, National Post

Published: Thursday, November 05, 2009

The Public Prosecution Service in Nova Scotia is conducting an internal review into whether or not its Crown attorneys have been conducting improper background checks of potential jurors.

The review was prompted by a request for information from the Nova Scotia Criminal Lawyers' Association following a National Post story last month that suggested jury vetting was taking place in the province.

A report issued about the scope of the practice in Ontario by the provincial Privacy Commissioner also cited a senior Crown official in Nova Scotia who said it was common for jury lists to be given to police to do background checks. The information was "generally not shared with the defence," the Nova Scotia official told the Ontario agency. The Public Prosecution Service in Nova Scotia initially suggested the Ontario report was inaccurate. But in a written response to the lawyers' association, the director of public prosecutions in Nova Scotia announced that he had initiated an internal review.

"I anticipate that our review will ultimately result in a policy statement or practice advice being prepared which will be distributed to our Crown attorneys. A copy of that advice piece will be provided to you," wrote Martin Herschorn in the letter dated Oct. 20.

Mr. Herschorn also imposed an interim directive. It states that if a background check is requested, it should only be to see if an individual has been previously sentenced to more than two years in prison, which would make the person ineligible to serve as a juror in Nova Scotia.

A spokeswoman for the prosecution service confirmed yesterday that it is asking its 20 Crown offices whether confidential databases were used to probe potential jurors and if the data was disclosed to the defence. "We hope to have a policy in place by the end of the calendar year," Chris Hansen said.

While he welcomes the review, the president of the Criminal Lawyers' Association said he wants to know more about what happened previously. "Our membership certainly has many more questions," Josh Arnold said. "So far, all the talk has been on a go forward basis."

Dulcie McCallum, the Nova Scotia Freedom of Information and Protection of Privacy review officer, said yesterday that she will wait for the internal review to be completed before deciding whether to launch her own investigation.

The Ontario Privacy Commissioner's report revealed that one in three Crown offices in the province engaged in improper jury vetting in just the past three years.

The Ontario Court of Appeal is hearing its first case on this issue this fall, in which three defendants convicted of murder are seeking a new trial. The Ontario government announced on Oct. 27 that it is amending the Juries Act so that any checks for eligibility will be done by an independent agency and the information will be kept confidential. Mr. Arnold urged the Nova Scotia government to consider similar changes to its Juries Act.

Read more: http://www.nationalpost.com/news/canada/story.html?id=2187075#ixzz0VzXDWvNI

Text of Bill 64, Personal Health Information Act (Nova Scotia) now available

The text of Bill 64, the Personal Health Information Act has now been posted on the Nova Scotia Legislature website.

Nova Scotia Court of Appeal favours open courts over youth privacy in Facebook defamation case

Yesterday, the Nova Scotia Court of Appeal issued a decision (AB v Bragg Communications Inc, 2011 NSCA 26) denying a child-plaintiff's application to proceed in a defamation action under a pseudonym and to impose a publication ban on the defamatory materials. The case involves a fake Facebook profile created by an unknown person and the dissemination of defamatory messages via that profile. The plaintiff sought the court's assistance in tracking town the intended defendant based on the IP address. At the original hearing, the judge denied the application to proceed under a pseudonym, which was upheld by the Court of Appeal. In short, the open courts principle trumps her concerns.

Since I was one of the lawyers working for the young girl who sought the application, you should read Dan Michaluk's summary for an unbiased view: Nova Scotia CA Favours Open Courts Over Youth Privacy in Facebook Defamation Case « All About Information.

Personal Health Information Act introduced in Nova Scotia

The Minister of Health for Nova Scotia has today introduced the Personal Health Information Act in the legislature. I'll have a link to the text of the bill tomorrow, but in the meantime you can read the release:

Personal Health Information Legislation Introduced News Releases Government of Nova Scotia

Personal Health Information Legislation Introduced

Department of Health

November 4, 2009 2:46 PM

Nova Scotian's personal health information would be better managed under proposed legislation introduced today, Nov. 4.

The Personal Health Information Act would provide consistent provincial rules for the management of personal information in health care.

"Patient privacy is a fundamental principle in delivering health care. At the same time, it is important that health care professionals can share information in ways that can improve care," said Health Minister Maureen MacDonald. "This legislation balances these important objectives."

The proposed legislation sets out rules for how health information is collected, used, disclosed, retained and destroyed by the health-care sector in Nova Scotia. It better supports a system that uses electronic as well as paper health records and helps provide a more seamless flow of information.

Specific rules include provisions for privacy breach notification audit reports to track who has had access to electronic health records, and requests for people to access to their health information.

Nova Scotia does not have clear health information legislation. It is governed by a mix of federal and provincial laws, health profession codes, and organizational policies and procedures. Nova Scotia joins eight other provinces who have comprehensive legislation to manage personal health information.

I understand that the legislature session ends shortly, so the Bill will not be debated until the new year. It's also reported that the Department plans to have the Bill come into force in January 2011.