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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. 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".

Full post as published by The Canadian Privacy Law Blog on July 15, 2008 (boomark / email).