US embassy cable - 05OTTAWA229

UNCLAS SECTION 01 OF 02 OTTAWA 000229 
 
SIPDIS 
 
SENSITIVE 
 
STATE FOR WHA, E, WHA/CAN, EB/TPP/BTA/EWH, L/LEI 
 
DHS OFFICE OF INTERNATIONAL AFFAIRS (Boyd) 
 
STATE PASS USTR (Sage Chandler) 
 
USDOC for 4320/ITA/MAC/WH/ONAFTA/RUDMAN/WORD & HERNANDEZ 
 
E.O. 12958: N/A 
TAGS: PREL, ETRD, EINV, PINS, CA, Patriot Act, FAC 
SUBJECT: PATRIOT ACT: CANADA LOOKING FOR LOW-KEY DIALOGUE 
 
REF:  (A) Vancouver 612; (B)OTTAWA 1445; (C) Vancouver 1450 
 
1.  (SBU)Summary and Action Request:  As reported reftels, 
there is growing concern among certain consumer and union 
groups in Canada about the privacy effects of certain 
elements of the Patriot Act, primarily Section 215.  While 
GoC experts believe that Patriot Act procedures are not 
incompatible with Canadian privacy legislation, the 
government feels increasing pressure to address the issue 
formally with the U.S.  They would prefer to keep the issue 
in a non-confrontational channel and have asked us to 
consider some kind of working group to study the issue and 
respond to public concern.  Post recommends that the two 
sides use the multidisciplinary New Partnership process, 
announced during the President's November 30 visit, as an 
umbrella for a low-key working group that could examine 
various aspects of U.S. and Canadian privacy legislation and 
report back to leaders.  The modest investment of time 
required, at the expert level, would potentially prevent the 
issue from gaining political momentum and possibly creating 
substantial costs for US service providers.  End summary and 
action request. 
 
2.  (SBU) On January 21, Pol and Econ officers met with 
Foreign Affairs Canada (FAC) legal staff and Treasury Board 
officials to discuss growing consumer and union concern 
within Canada to certain elements of the Patriot Act, 
primarily Section 215, and consider ways to address the 
issue bilaterally.  Following the British Columbia Privacy 
Commissioner's report in November of 2004 (Ref C.), the 
Federal Privacy Commissioner has undertaken a review of the 
issues raised in B.C.   The Prime Minister also asked the 
Treasury Board to address the potential impact of the 
Patriot Act on Canadian public contracting at the federal 
level.  Treasury Board has asked all Canadian federal 
agencies to review their contracting and report back on any 
potential issues by the end of January, although that 
deadline is likely to slip. 
 
3.  (SBU) FAC and Treasury Board legal experts who have 
examined the issue do not believe that the Patriot Act 
raises any major potential conflicts with respect to 
Canada's federal privacy legislation, which is much more 
operationally flexible than that of the EU.  They commented 
that Canada's and U.S. views on these issues in multilateral 
fora have been closely aligned to date.  At the provincial 
level, privacy commissioners outside of BC have not shown 
much interest in the issue, and seem content to wait for the 
Federal privacy commissioner to pronounce upon it. 
 
4.  (SBU) However, FAC officials predicted that  "this issue 
will not go away" and fear that it has the potential to 
become a new bilateral irritant.  Absent a coherent 
bilateral response, the GoC may feel increasing pressure to 
restrict contracting with U.S. firms subject to Patriot Act 
rules.  (Comment: privacy issues are a hot political topic 
for the NDP and the Government's minority status could 
potentially hamper its efforts to manage the agenda on this 
issue. End comment.) 
 
5.  (SBU) FAC and Treasury Board proposed that we find some 
way to structure a dialogue on this issue, possibly within 
an existing bilateral forum, which will allow the GoC to 
show that it is taking action.   They suggest exchanging 
views and information on a range of privacy-related topics 
in a low-key, non-confrontational manner, rather than 
focusing on the Patriot Act.  GoC officials anticipate that 
they will need to find a channel for addressing the issue 
within the next couple of months, as federal agencies 
complete their reviews.  They had no specific format to 
propose, however, and asked us to consult with Washington 
agencies about possible formats. 
 
6.  (SBU) ACTION REQUEST:  Post believes that this issue 
would fit ideally into the US-Canada side of the emerging 
North American Partnership agenda and working groups, as the 
subject matter covers both law enforcement and substantial 
economic/trade issues (in its implications for procurement). 
Allaying concerns about the Patriot Act would, at least for 
U.S. IT firms, be a practical step toward "keeping borders 
open for business but closed to terrorism" as the President 
and PM promised in their November 30 statement.   The two 
sides could include in the projected March announcements a 
"cross-border privacy" working group at the expert level to 
examine and compare our respective legislation.  Much of the 
work could be conducted by DVC; for example, we would 
propose a DVC with HHS experts to explain U.S. medical 
records privacy legislation to Health Canada, Treasury 
Board, Privacy Commissioner, and other interested officials. 
The outcome could be a joint report that could be used by 
legal and public affairs officials on both sides of the 
border to address the questions raised in Canada.  We should 
be able to counter pressure on this issue by citing numerous 
areas of common legal ground as well as emphasizing the long 
tradition of privacy protection in U.S. constitutional law 
and other statutes.  End Action Request. 
 
7.  (SBU) Treasury Board officials are considering whether 
to follow up our preliminary, informal discussion by 
inviting the Ambassador to meet with Treasury Board 
President Reg Alcock to discuss the issue further.  Ideally, 
we would like to be able to use such a meeting to propose a 
format to continue the bilateral dialogue.  Post would 
therefore appreciate consideration of this request by 
Washington agencies in the near future. 
 
CELLUCCI