A need for privacy

It may be awhile before it's possible to determine all the areas where the TILMA would impede on current government policy, let alone areas in which governments might want to act in the future. But on some reflection, it's worth adding one more major area to the list where the TILMA could create a serious shift against the public interest.

To my knowledge, most (if not all) provinces have legislation governing what may be done with personal health information; in Saskatchewan's case, it's the Health Information Protection Act. In addition, many provinces also have legislation governing the use of other personal information by businesses; for example, see Alberta's Personal Information Protection Act.

Given that such laws are entirely common among Canadian provinces, one would think that the TILMA would at least have taken them into account. But instead, nothing under the agreement appears to speak directly to the protection of privacy: on a quick review I don't see the term used either in the exceptions section (Part V), or the list of legitimate objectives.

For an example of what this could mean, consider what could happen where a business is able to show that it could make money selling personal health information, such that privacy legislation impedes on its ability to make a profit.

Under the TILMA, it's not even clear that a province challenged over a health privacy law would have an argument available to defend the statute. At best, the province would have to argue that the protection of personal health information constitutes either consumer protection, or part of providing health care in the province. And even then, the province would have to prove that its manner of dealing with the information was precisely the least restrictive possible from a profit standpoint - which would seem very difficult to prove with respect to statutes whose entire raison d'etre is the protection of privacy.

On losing any challenge, a province would then be left with three choices: it could essentially pay a regular tithe to private operators for the privilege of refusing them permission to sell off sensitive information; it could try to rewrite its privacy laws every time they're challenged in hopes of winning in front of a tribunal; or it could give in and make personal health information available to be sold freely.

Needless to say, such an end result would be disastrous from the standpoint of any patient who doesn't want to see their health information available for purchase by anyone interested - particularly since the choice to open up personal health information for sale would seem to be the path of least resistance for the government involved. But the TILMA seems entirely likely to make that a reality before long in the provinces reckless enough to sign on.

When it comes to information other than health information, the picture seems rather murkier. Generally, businesses are bound by the federal PIPEDA if there's no provincial counterpart legislation. But it seems entirely possible that the TILMA could be used to argue that each province should have precisely the weakest legislation which can possibly be accepted as an alternative to PIPEDA, thereby watering down existing privacy protections as far as possible.

Again, I'm sure there are many other areas where the TILMA may have equally dangerous potential effects - and I'll keep an eye for any more that can be pointed out. But it's safe to say that with each example, it becomes more and more clear that the TILMA falls far short of taking into account the legitimate needs of the general public.

Update: In the comments, Declan rightly points out that Article 7.4 of the TILMA does appear to offer some substantial protection for privacy laws. I'm not sure that the provision is bulletproof, as it could plausibly be read to apply only to information in the immediate control or possession of a province rather than the general content of privacy laws; however, the section does indicate that privacy is somewhat better protected than most other areas of public interest.