Never Heard Of FATCA? You Should

Until recently, I had never heard of FATCA, in fact it was a program on CBC that brought it to my attention.

FATCA is seriously troubling for Canadians.  In theory, it should only affect people who have American citizenship.  But, the law itself has enormous implications for countries outside of the United States.

FATCA is so intrusive it often needs to be somehow incorporated into foreign countries’ legislation in order for the banks to be able to comply with it without breaking domestic laws (such as the ones that govern the release of confidential information). It isn’t clear yet how Canada plans to do this. 

The “how” here matters, because it might determine whether Parliament gets a say in all this or not. Ottawa might, for example, decide to re-interpret the existing U.S.-Canada tax treaty to allow financial institutions to abide by FATCA provisions. This would shut out lawmakers. 

Another way to by-pass the Hill could be to draft a document that looks like an intergovernmental agreement and then call it by another name–say, “memorandum of understanding,” which does not require parliamentary action.  

Wondering why we haven't heard anything about this?  Yeah, so am I.  The Harper Government seems loathe to discuss anything publicly, and just as the TPP negotiations are so deeply secret that we learn more from foreign sources about them than from our own government.  This appears to be another one of those situations.

I have several problems with FATCA from a philosophical perspective.  First is the extra-territorial nature of the legislation itself.  I object on a fundamental level with governments writing legislation which ultimately places the obligations for that legislation's implementation on foreign powers.  US law is not a universal law, and it should not be imposed upon other nations.

The second aspect of this law is that it essentially obliges Canadian banks and the CRA to act as agents for the IRS.  Not only do Canadians end up paying the direct costs of this attempt to ensnare American expats who aren't meeting their US tax obligations.  I have a huge problem with this - if the US wants to catch tax evaders, then they should bear the costs of doing so.  Taxpayers in foreign jurisdictions should not be generally responsible for implementing laws written in the US, much less the costs of implementing those laws.

One aspect of this law which is particularly offensive is the fact that the US law imposes penalties on foreign companies doing business in the United States who fail to comply with the terms of this law.  From a tactical perspective, I can appreciate the carrot-and-stick nature of this feature of FATCA, but that doesn't make it right.  However, it creates an environment where banks may well choose to violate Canadian laws to avoid the penalties.

Lastly, there is a fundamental point about FATCA - the US government has absolutely no right whatsoever to Canadian personal data - much less our banking data.  This is a criminal abuse of power and an unreasonable invasion of privacy. 

Stelmach Needs To Take A Long Walk Off A Short Pier

What is it with Alberta's governments and their incessant idiotic approach to anything resembling human rights issues?

The most recent outrage comes in the form of collecting and analyzing all prisoner communications.

Superficially, one might think "what's so bad about that?", after all they're in prison which means they are convicted of something, right?

The proposed changes to Alberta's Corrections Act broaden what provincial prisons can monitor, allowing for any technology inmates might access in the future, such as video or computer communications. Databases will be created, and, given "reasonable grounds," prison directors can search what inmates have said or written.

Well - there's a bit of a problem here. Someone being held in a remand facility is not necessarily convicted of anything - they may be facing serious charges, but they have not yet been convicted of them. Last I checked, this violates the fundamental principle of our justice system - the presumption of innocence.

Second, it arguably violates a key tenet of Canada's Charter of Rights:

8. Everyone has the right to be secure against unreasonable search or seizure.

Please note the lack of exclusions in S. 8 and the surrounding areas regarding someone who has been incarcerated, so presumably S8. applies just as much behind bars as it does on the outside. Around the clock surveillance and recording of all communications arguably constitutes an unreasonable search.

I just love how the bureaucrats are going to invent their own rules for "reasonable grounds" to use this accumulated information. This isn't going to be written in law - it's going to be at the whim of politicians and bureaucrats. I just can't imagine how that could go wrong, can you?

But, this isn't just about what can happen to you behind bars. It's about what the Conservatives from Alberta actually understand about human and civil rights. To them, it's all conditional. Are you conforming to their ideal little worldview? If not, then you don't deserve to have any rights, and they think they can arbitrarily revoke your rights at their whim.

Alberta's doing it, and make no mistake about it, Harper would do the same and worse if ever granted a majority.

Fingerprinting The Homeless

It's taken me a few days to absorb the implications of Calgary's DropIn Center scanning client fingerprints.

Superficially, the motives are all fine and reasonable - increased safety for the clients and staff of the center, and so on. But, something about it kept on niggling away at me as troublesome.

First, I'll raise the obvious problems of any organization having this kind of data.

The security of the data itself is an enormous problem. The DropIn Center is not an organization that is going to have a great deal of experience with data security. We don't know what steps they have taken to ensure that the actual data is not accessible to unauthorized users; nor do we have any sense if they have taken steps to ensure that the machines hosting the physical data are not readily accessible to anyone. (It takes about five minutes with a screwdriver to yank a hard drive out of most machines these days). What is the DropIn Center's plan for handling backups, for securing that backup media, and eventually for disposing of data? Perhaps they have dealt with these issues adequately, perhaps not.

This is a very real concern that we have to think about. Of all our personal information, our fingerprints, next to DNA, are among the most absolute markers of identity. To date, we have only allowed government organizations to have that data, and we routinely castigate them when someone makes an error in handling our personal data. (How many times have we heard of a computer with the records of thousands of citizens being stolen or lost? - plenty) In today's era of identity theft, this is a huge risk, and having databases of biometric data floating out there that are unsecured, or only minimally secured should give all of us pause for concern.

The second concern we have to think about is the isolation of that data. To the best of my knowledge, there are no mechanisms in law which would prevent the DropIn Center from sharing that data with various law enforcement agencies. While such sharing of data would no doubt be a gross violation of trust, I doubt that there is much to prevent the Center from granting law enforcement requests for access. I'm sure that the DropIn Center has good intentions of not doing this, but all it will take is one "emergency" where the Police apply to the courts for access to that data, and suddenly they have access to a large body of fingerprints that were gathered outside of legitimate law enforcement activity.

Now, you might look at that and say "well, if you haven't done anything wrong, you have nothing to fear". With the capriciousness with which governments can act (especially here in Alberta where the governing party has minimal opposition), it takes very little for something that wasn't criminal before to suddenly become a criminal act. It wasn't so long ago in this country that we jailed people on the basis of falling in love with someone of the same gender, and there are those who would quite happily recriminalize that. For that matter, some of Calgary's Aldermen have essentially tried to criminalize being homeless.

Lastly, we should not lose sight of the fact that fingerprints are generally seen by the public as something used as part of criminal investigation and law enforcement. The clients of the DropIn Center would rightly be upset at being treated like criminals, even though they may have done absolutely nothing illegal.

Conservatives and Civil Rights

If you think back to a not so distant future, Income Tax filings were held to be strictly confidential - to the extent that the CRA (formerly Revenue Canada) couldn't even share name and address information with either the census or elections departments without explicit permission on the part of the individual.

This is as it should be - income taxes contain some of the most important data that we expose to the government, data that we submit with a certain expectation of respect for the confidentiality of it.

Then there's the HarperCon$, and their particularly vile way of doing things. During salary negotiations with federal judges, the Government used the income tax filings of sitting judges to reinforce its position.

Income taxes contain a great deal of information, including clues to past income, and possibly surprising amounts of information about a person's investments as well as employment income. The Federal Government grossly abused its position as employer by using tax filings data to make its position:

To buttress its position that salaries for federal judges are generally higher than the income they earned as lawyers in private and public practice, the Justice Department took the unprecedented step of giving the Canada Revenue Agency a list of the names of 627 judges the federal cabinet appointed to the bench between 1995 and 2007.

The agency was able to match 567 of those judges to their tax records as lawyers, and provided the Justice Department with an aggregated version of the information, with no names attached. A consultant used the data to calculate what the department claimed was an indication of the average increases in salaries and benefits lawyers received after they became judges.

Think about that for a moment - you are negotiating with your employer over matters of salary, and he turns around and slaps a stack of statistics on the desk which are derived from your last ten years' income tax filings - some of which contain the results of investments which were surprisingly successful for you. Whether it weakens your negotiating position is irrelevant - your employer has just shown you that he is willing to violate your personal privacy in order to "win" in the negotiations.

PMSH - violating people's privacy for his own political ends. How trustworthy of him.