The Cost of Privacy

Many of us have legitimate concerns about the privacy of our personal information. For me, I am concerned how the social media giants use this information and the impact the use of this information can have on the decisions people make in their lives. Decisions like who to vote for, for example. And just generally, I don’t want Google creeping around my life. So governments, I say go to town on those big bad boys!

But there is also a cost to privacy. Two major things come to mind. First large organizations tend to hide behind privacy laws and are unwilling to disclose information even when it’s in the public interest to do so, and even when providing such information is not a breach of privacy laws. Often privacy laws are cited an excuse not to provide information even when this is not the case.

Often the invocation or privacy rights by these organizations are arbitrary and not consistently applied and not necessary under the law. For example accident reports that I have routinely obtained from Police Services for many years are occasionally withheld due to privacy restrictions. In some cases these organizations choose to withhold information not because they would be breaching the law by disclosing certain information, but because they want to err on the side of caution. Often though they refuse information because it is not necessarily in their interest to provide it or it is politically embarrassing. The information around the We scandal comes to mind.

Privacy is often used to protect the rights of corporations at the expense of individuals. Insurance companies and banks come to mind.

Secondly, at least in my business, the information is actually needed to further a legitimate investigation. Take a fraud for example. Imagine a small business is defrauded of $100,000.00. Now this may not seem like a great deal in the overall scheme of things, but to that small business, it could be the difference between survival and the closure of the business. Your investigator determined that the money was deposited in a particular bank account. What are the next steps? Well first, determine who owns that bank account. Then determine if the is the money still there, and if not where did it go to?

You may say to yourself, well surely the police can find that out. And, that is true if they are inclined to do so. However, it is at the discretion of the police whether or not they choose to investigate a fraud. They will often tell you they don’t have the resources, or that it is a “civil “ matter or if the fraud has crossed international borders that it is the problem of some other police force. In addition, it is not the responsibility of the police to get your money back. If they do choose to investigate, their priority is to determine who is criminally responsible and charge them, if they have the evidence to do so.

If the police tell you they are not going to bother, what can be done? In some jurisdictions around the world, private investigators and private fraud investigators can go before a court and present evidence to the court of a fraud and associated accounts etc.  If the court deems it appropriate, they will issue an order to the financial institution to disclose the necessary information. Financial Institutions in Canada are allowed to share this information amongst themselves, but not with representatives of the victim. In Canada, the only person that can go before the court to get such an order, known here as a production order, is a Peace Officer. Usually, that is a Police Officer. So private investigator and fraud investigators are unable to do so. This places the victim of a fraud in a no win situation. If the police wont bother with it, and the courts won’t assist, then basically they are saying to the victim, sorry about your luck.

People believe from American television, that the investigator need only “follow the money” well I suppose that’s true if your are allowed to so. 

In my view, what should happen in Canada is that those involved in the investigation of fraud should either be designated as peace officers for this specific purpose, or the rule requiring you to be a peace officer to get a production order should be changed to protect the victims of fraud.

With respect to allowing investigators to be Peace Officers it is not really as big a deal as one might think. Municipal By-Law Officers are peace officers, Animal Control people, corrections officers, and many different government investigators, Traffic Control Personnel, Railway Police. If you were the victim of a fraud, I would hazard to guess that in your mind you would be more comfortable with an investigator being a Peace Officer than the Animal Control Officer. In addition, many Peace Officers are restricted to their own area in the exercise of their rights as peace officers. The Animal Control Officer can’t go to court to get a warrant in a case not related to what he or she does. These restrictions, and required training could be put in place for private and fraud investigators in Canada.

Alternatively change the law to allow any person licensed as a private investigator or designated as a fraud investigator to obtain a production order from the court. Provided that the investigation is legitimate and not some fishing expedition and that they present to the court the appropriate evidence to support that contention, and that if they mislead the court, there are strict penalties in place.

In any case, privacy comes at a cost.

Apart from the above theoretical example here are some real life situations:

Locating Persons:

When a deadbeat father, or mother, eschews their responsibilities to their children, the spouse often turns to the government for assistance. The first questions these agencies ask is where does you former spouse live? If the spouse does not know, they are often advised to hire a private investigator to locate that person.

But how does a PI do that? One of the most common ways in the past was to determine the persons registered address associated with their driver’s licence. Now that is verboten. In many provinces, PI’s no longer have access to Ministry records. In the provinces that do allow access, they restrict PI’s from accessing it for family law matters. So in order to locate that person, other more costly measures must be undertaken, often at a cost a victim of a deadbeat parent can ill afford.

Safety Undercover Criminal Records:

Private investigators often undertake undercover operations, often in circumstance that pose personal danger. When the police conduct similar investigations, they have at their fingertips all the intelligence they need to ensure the safety of their officers. One thing the police will most certainly do is conduct background investigations on the person they expect their undercover officers to interact with. As part of that they will run a background check through the Canadian Police Information Centre (CPIC). Access to CPIC is limited to law enforcement agencies. No such protection is offered to professional investigators. Contrary to popular opinion, private investigators are never armed in Canada. The police are.

Why is this information so restricted? Criminal record histories are publicly available in many countries. My associates in many other countries are amazed that we do not have access to it here. It seems reasonable that when the information is needed for a legitimate purpose, that access should be granted.

The Public’s Safety:

Recently where I live, in Durham Region, some residents were found to have contracted the new UK variant of the Corona Virus. The health authority refused to advise co-workers citing privacy concerns.

CCTV Evidence:

In many cases, we are called upon to obtain CCTV video evidence of an event. There are many reasons to do so. In some cases to substantiate a persons alibi, in others to document the events and to contest a version that may have been improperly presented by the opposing side in the course of a litigation, either criminal or civil. But in all cases, true legitimate reasons.

I can’t tell you how many times I have gone to a property management company or corporate store or mall and have been told that their privacy policy is that they are only allowed to provide this information to the police. What bunk!

There is no law whatsoever that requires this from a company. And while many such companies do not do this, and conduct themselves in accordance with real privacy laws, and in an equitable manner, many hide behind a privacy policy that is biased and has no basis in the law.

Hypocrisy

The Federal Government has allowed Statistics Canada to go into the banks accounts of 100’s of thousands of Canadians and scoop all their banking information, including bank and credit card transactions, without the permission of the account holder and without their knowledge. It may have already happened to you. For a government who appears to be concerned about privacy rights this is at the very least hypocritical.

So while people are enraged at the way Google and Facebook use their data, were ok with this one. Go figure!

There is a cost to privacy especially when organizations, whether businesses or government use or misuse these rules to protect their own interests at the expense of individuals. 

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