“The intent and principles of PIPEDA line up almost perfectly with genealogical emphasis about privacy protection and the ethics surrounding that, but the genealogical societies do not seem to be aware that it could be a fantastic tool in ensuring those ethics are followed and are caught up instead in determining whether or not they are bound by the legislation. In my opinion PIPEDA needs to be embraced and it's principles entrenched into genealogical societies' policies and practices.”

September 7, 2013
G. Alvin Murray, Certified Saskatchewan Instructor, CCSG

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The following was taken from R. v. Dyment, [1988] 2 SCR 417, as reproduced at http://canlii.ca/t/1ftc6:

“22. Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111.

23. One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. . . . Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated.” (Emphasis added)

From http://www.canlii.org/en/ca/scc/doc/1997/1997canlii358/1997canlii358.html, at paragraph 67, in the case of Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403, we learn that the Supreme Court of Canada also invites us to consider R. v. Duarte, 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, at p. 46 (“privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself”); (and) R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at pp. 613-15 (per L’Heureux-Dubé J., dissenting); Westin, supra, at p. 7 (“[p]rivacy is the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others”); (and) Charles Fried, “Privacy” (1968), 77 Yale L.J. 475, at p. 483 (“[p]rivacy . . . is control over knowledge about oneself”).

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The design of this site is to readily afford access to ‘research tools’ that may be used to answer the question which asks if the Saskatchewan Genealogical Society (SGS), and certain other genealogical societies, are or are not limited by the terms and provisions of The Personal Information Protection and Electronic Documents Act (PIPEDA) when indiscriminately collecting and selling personal information about those “in the land of the living.”

Wednesday, September 4, 2013

Could this argument challenge the view that, properly applied, PIPEDA limits collection, use and distribution of personal information by genealogical societies?


The purpose of Part 1 (of PIPEDA) is to establish "rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances." (See Section 3)

I want this page to be balanced and fair with respect to all matters, especially that of answering the question which asks if, technically and lawfully, PIPEDA applies or does not apply to genealogical societies in provinces that have not passed similar legislation.  I’m afraid that, at the moment, it will be up to others to provide ‘the balance’ with respect to that matter, however, given my firmly held view that Parliament intended that PIPEDA would apply, in every respect, to our genealogical organizations. But do know that I will be very able and very willing to change my mind about that, ‘if and when I’m persuaded otherwise.’  In fact, I’m able and willing to invent and publish the following as one argument that, when perfected, just might lay my heartfelt and certain opinion to rest.

What of that argument having it that, while the Act admittedly does apply, it ought not to and does not limit genealogical societies with respect to the collection, use and disclosure of personal information.  What’s that all about?  Section 5(3) brings to mind the argument that, although PIPEDA does apply to genealogical societies in Saskatchewan, Manitoba and Ontario, for examples, it was not intended to and does not forbid the collection and use of personal information by them, as has always been done, without the consent of people affected by the doing of that.  Doing so has always been considered reasonable and not inappropriate, some might say.

PIPEDA records the somewhat curious, vague and potentially contentious provision that “(a)n organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances.”

At first blush, using a subjective test to define a law seems like a very questionable practice, indeed.  At the least, it is one that most certainly invites debate and argument.  However, with respect to the matter at hand, this “reasonable person” prescription may be desirable, given that it may afford some needed flexibility in the law during ‘these times of rapid changes.’ Are they the views and opinions of a reasonable person in 2001, when PIPEDA partially came into force and effect, or in 2004, when it came into full force and effect, or the views and opinions of a reasonable person given technological and societal changes that have transpired during the past ten or twelve years, or so, that matter?  Because protecting personal information is a stated goal of PIPEDA, by controlling the collection, use and distribution of it, I would suggest it must be the latter.

However, as I’ve said, some may well argue that twelve years ago, and before then, unfettered collection, use and republication of personal information by genealogical societies, for gain, was a reasonable and permissible thing to do.  They had certainly done that on the prairies, without any challenge that I know about, for twenty or twenty-five years, or so, before then.  So, they might argue, it is the reasonable person’s view, as of 2001 and before then, that matters.

I’m not convinced that I could ever make that argument in good conscience (actually, I’m pretty sure that I never could), given that most of us now have computers, and have learned, to some greater or lesser extent, to aggregate massive amounts of personal information found ‘here, there and everywhere,’ on the net, given innumerable incidents of impersonation and fraud, and given that the continued unfettered activity in question will most certainly compound those very serious problems, and others. 

I most certainly do think that today’s “reasonable Canadian person” does agree with me in this regard.  But who knows for sure!

Sorry, folks!  That’s the very best “devil’s advocacy” that I’m capable of.  Meagre as it may be, I hope it helps advance and extend our discussion.

M. Lewis Lockhart

Post Script:    May I respectfully say to the various genealogical societies in the United States and the countless number of Americans who champion full public disclosure of the vital statistics of all, including those in the land of the living, “let us establish our rules, and we won’t question yours.”

Thank you very much!

PPS: May I also suggest that the word “need,” as recorded by the first paragraph of this comment, may be the most important word recorded by PIPEDA.  Is it not fair to challenge the notion that genealogical societies “need” to be collecting, using and republishing personal information about those in the land of the living?
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