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The Transborder Transfer of Information by Communications and Computer Systems: Issues and Approaches to Guiding Principles

Published online by Cambridge University Press:  28 March 2017

Allan Gotlieb ,
Charles Dalfen  and
Kenneth Katz
Allan Gotlieb
Affiliation:
Government of Canada
Charles Dalfen
Affiliation:
University of Toronto, Faculty of Law
Kenneth Katz
Affiliation:
Department of Communications
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Extract

There has been, in recent years, a growing concern about the international legal implications of the computer storage of data outside the country where the information originated. The purpose of this article is to show that there are grounds for this concern but that these grounds cannot be fully understood, nor the problems properly assessed, without looking into the issues raised by computer data storage in the broader context of the transborder flow of information by electronic means.

Type
Research Article
Information
American Journal of International Law , Volume 68 , Issue 2 , April 1974 , pp. 227 - 257
Copyright
Copyright © American Society of International Law 1974

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References

1 International Telegraph Convention, concluded at Paris, May 17, 1865. 56 British and Foreign State Papers 294 (1870). The present convention, the International Telecommunication Convention, done at Montreux, Nov. 12, 1965, 18 UST 575, TIAS No. 6267, in force as of Jan. 1, 1967, is the ninth version of the original convention. At the Plenipotentiary Conference at Torremolinos, Spain, from September to October 1973, a tenth convention has now been concluded, and is due to come into force on Jan. 1, 1975. Again this latest version differs in only minor respects from the present one.

2 The definition of the broadcasting satellite service, adopted by the World Administrative Radio Conference for Space Telecommunications (Space W.A.R.C.) of the International Telecommunication Union (Geneva, 1971), reads as follows: “A radio-communication service in which signals transmitted or retransmitted by space stations are intended for direct reception by the general public.” Final Acts, No. 84AP.

3 First Report of the Working Group on Direct Broadcast Satellites. UN Doc. A/AC.105/51, Feb. 26, 1969, para. 9.

4 Ibid.

5 Report of United Nations Panel Meeting on the Establishment and Implementation of Research Programmes in Remote Sensing. UN Doc. A/AC. 105/98, Jan. 20, 1972, para. 3.

The methods of remote sensing can be divided into two major groups, active and passive. The former employ operational sensors, capable of generating radiation which, after interaction with objects of interest, return a signal which is measured by onboard receivers. Passive methods are based on registering radiation from the earth’s surface and the atmosphere. They include visual observations and observations yielding photo and TV pictures (within the visual light range as well as within the near infra-red, infra-red, and microwave ranges).

See Background Paper by the Secretary-General Assessing United Nations Documents and Other Pertinent Data Related to the Subject of Remote Sensing of the Earth by Satellites. UN Doc. A/AC.105/C.1/WG.4/CRP.7, Dec. 6. 1972, paras. 5–8. Hereinafter cited as Background Paper.

6 See Background Paper, Chap. II, “Potential Economic and Social Benefits from Space Remote Sensing,” passim.

7 For full list of possible benefits see Background Paper, para. 103. In regard to minerals in particular, see para. 155 where a note from the UN Secretary-General is quoted as follows: “The United Nations mineral survey project in Panama . . . has already utilized side-looking radar imagery . . . in a difficult area of Darien where a belt of potentially important copper mineralization has been located.” Cf. statement of Dr. Norman Fisher, Hearings Before the Committee on Science and Astronautics, U.S. House of Representatives, No. 13, entitled “Remote Sensing of Earth Satellites,” Jan. 25, 26, and 27, 1972, at 231. (Hereinafter cited as House Hearings.)

There have also been a number of recent press reports to the effect that clues from remote sensing satellites have led to the discovery of mineral resources in different parts of the world. See, for example, “U.S. Satellite starts rush for Uranium,” Toronto Globe and Mail, Aug. 27, 1973, at 2, reporting on a supposed discovery in South Africa’s Cape province. It should be emphasized, however, that this and other reports remain unconfirmed to date and, indeed, are rejected by a number of professional geologists consulted by the authors.

8 Exchange of Notes Between the Government of Canada and the Government of the United States of America Constituting an Agreement concerning a Joint Program in the Field of Experimental Remote Sensing from Satellites and Aircraft. Signed at Washington, May 14, 1971 and entered into force on the same day. 22 UST 684, TIAS No. 7125.

8 See, for details, Privacy and Computers, A Report of a Task Force established jointly by Department of Communications/Department of Justice, Ottawa, 1972. (Hereinafter cited as Privacy and Computers.) See also Dalfen, C., International Factors, A Study for the Privacy and Computers Task Force, 1972 Google Scholar, (Hereinafter cited as Dalfen, International Factors.)

10 Privacy and Computers 170.

11 For detailed comparative treatment of the two activities see Dalfen, Charles M., The International Legislative Process: Direct Broadcasting and Remote Earth Sensing by Satellite Compared. X Canadian Y. B. of Int. Law 186 (1972)Google Scholar. (Hereinafter cited as Dalfen, Legislative Process.)

12 See, for example, reference to “privacy of nations” as “the most touchy problem of all,” in statement of Dr. E. E. David Jr., House Hearings, supra note 7, at 263. Cf. reference to a “national right of privacy,” in Taubenfeld, H. J., “Legal Aspects of the Use of Satellites in Discovering and Exploiting Earth Resources,” AIAA Paper No. 68–921, at 94 (1968)Google Scholar.

13 Background Paper, supra note 5, para. 183. Cf. the following statement by the then Canadian Minister of Energy, Mines and Resources: “. . . . I am concerned about future-generation resources satellites; in spite of what any experts tell me, it may be that devices will be developed in the future which can detect mineral deposits from space. If such a situation developed, we would certainly have to review our regulations on exploration permits, to assume the protection of Canadian exploration companies.” Greene, J. J., Implications of Remote Sensing, Canadian Aeronautics and Space Institute J., 172 (1971)Google Scholar.

14 See the section entitled “Extracting Information from Data” in statement by Daniel J. Fink, House Hearings, supra note 7, at 103–04. Cf. Background Paper, supra note 5, para. 74.

15 See Report of the Working Group on Direct Broadcast Satellites at its Third Session, UN Doc. A/AC.105/83, May 25, 1970, para. 69(5).

16 Res. 4.11, 1 Records of the General Conference, UNESCO, 17th Sess., Oct. 17-Nov. 21, 1972, at 67.

17 See Fourth Canada-Sweden Working Paper, UN Doc. A/AC.105/WG.3/L.4, June 1973, Annex Draft Principles, No. V.

18 See Final Acts, supra note 2, No. 428A.

19 See Canada-Sweden Draft Principles, supra note 17, No. VI.

20 See statement by Stuart H. McIntyre, U.S. Representative to Working Group on Direct Broadcast Satellites, U.S. Mission to the United Nations, Press Release US-UN 59(73), June 15, 1973, at 6.

21 On radio paging, see exchange of letters between the Chief Engineer of the F.C.C. and the Director-General, Telecommunications Regulation Branch, D.O.C. of June 25, Aug. 9 and 25, 1971. On Telesat Canada, see exchange of letters between the Deputy Assistant Secretary of State and the Canadian Embassy in Washington of Nov. 6, 7, and 8, 1972.

22 Intervention of Mr. Erik Wang, Alternative Canadian Delegate to Fourth Meeting of the UN Working Group on Direct Broadcast Satellites, June 19, 1973.

23 The UNESCO Declaration (supra note 16), embodying the consent principle, was adopted by a vote of 55–7 with 22 abstentions. At the Working Group on Direct Broadcast Satellites nearly all delegations voiced general support for the principle of consent.

24 USSR draft Convention on Principles Governing the Use by States of Artificial Earth Satellites for Direct Television Broadcasting, UN Doc. A/8771, Aug. 9, 1972, Art. IX.

25 Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite. For the draft text adopted on July 9, 1973, see UNESCO W1PO/SAT.3/23, Annex A.

26 This article reads as follows:

722. The Administrations bind themselves to take the necessary measures to prohibit and prevent:

723(a). the unauthorized interception of radio-communications not intended for the general use of the public;

724(b). the divulgence of the contents, simple disclosure of the existence, publication or any use whatever, without authorization, of information of any nature whatever obtained by the interception of the radio-communications mentioned in No. 723.

27 One difference is that the Remote Sensing Working Group was set up by and reports to the Scientific and Technical Sub-Committee whereas the Direct Broadcast Satellites Working Group was established by and reports to the parent committee. In practice, however, the former has been investigating the same broad range of issues (social, economic, and legal, as well as technical) as the latter.

28 Supra note 5. As a result of recommendations relating to the various chapters made in the Progress Report of the Working Group of Feb. 14, 1973 (UN Doc. A/AC.105/111), a revision of the Background Paper was issued by the Secretariat on June 12, 1972 (UN Doc. A/AC.105/118). However, since chapters IV and V, on legal implications and organizational requirements respectively, remain completely unchanged, and since earlier references in this paper have been made to the earlier version, this practice will continue. The following account is based to a large extent on Dalfen, Legislative Process, supra note 11, at 195–200.

29 Background Paper, supra note 5, para. 167.

30 Ibid., para. 169.

31 Ibid., para. 173.

32 Ibid., paras. 175–76.

33 Ibid., para. 175.

34 Ibid., para. 177.

35 Ibid., para. 184.

36 Id.

37 Ibid., para. 185.

38 Ibid., para. 187.

39 Ibid., para. 189.

40 Dalfen, Legislative Process, supra note 11, at 198–200.

41 See Working Group’s Progress Report, supra note 28, para. 51, for Canadian proposal of such an examination.

42 Ibid., para. 48; 5th principle.

43 Background Paper, supra note 5, para. 218. (Cf. Progress Report, supra note 28, para. 56.)

44 Background Paper, supra note 5, para. 208.

45 Supra note 8.

46 Annex to the Exchange of Notes, paragraph (c).

47 In this regard, U.S. policy has been consistent for over a decade now. See L. C. Meeker (then Deputy Legal Adviser, U.S. State Dept.). Observation in Space in Cohen, Maxwell (ed.), Law and Politics in Space, 82 (1963)Google Scholar. Cf. Packard, R. F., “International Legal and Political Aspects of Earth Resources Surveying by Satellite,” AIAA Paper No. 70–331, at 4 (1970)Google Scholar. Cf. also Junior, Lewis D., “Some Thoughts Concerning International Implications of Satellite Sensing Operations,” June 1972, Senior Seminar in Foreign Policy, 14th Sess., Washington, 1971–72, at 9 Google Scholar.

48 Information provided to authors by officials of the Canadian Department of Energy, Mines and Resources, Ottawa.

49 Annex to the Exchange of Notes, supra note 8, para. (I).

50 Ibid., para. (c).

51 Exchange of Notes, Note from Canadian Ambassador to U.S. Secretary of State, para. 2.

52 See Canadian Statement (by Dr. L. W. Morley) to the Working Group, Jan. 30, 1973, para. 3.

53 See Canadian Statement (by Mr. Erik B. Wang) to the Working Group, Feb. 2, 1973.

54 Russel Pipe, Data Base Development and International Dimension, Organization of Economic Co-operation and Development, Directorate for Scientific Affairs, Computer Utilization Groups, Doc. DAS/SPR/72–20, at 143.

55 Instant World: A report on Telecommunications in Canada, Chap. 5 (1971); International Legal Problems Concerning the Transfer and Storage of Information, Telecommission Study 3(c), (1971); Privacy and Computers, supra note 9.

56 The Montreal Star, Oct. 5, 1973; The Globe & Mail, Oct. 2, 1973. See also New York Times, Dec. 10, 1972, “Canada Disturbed by U.S. ‘Invasion’ with DataBanks.”

57 Carroll, J. M., et al., Personal Records: Procedures, Practices and Problems, A Study for the Privacy and Computers Task Force, at 96 (1972)Google Scholar.

58 Privacy and Computers, supra note 9, at 60.

59 Dalfen, International Factors, supra note 9, at 3–11.

60 Burt Nanus, Michael Weston, Harold Borko, The Social Implications of the Use of Computers Across National Boundaries, 11.

61 The authors know of no case falling in the latter category. Indeed, this is a more likely consideration for enterprises in the United States, where the laws governing data storage and use under the Fair Credit Reporting Act and other legislation are far more demanding than Canadian laws (with perhaps certain exceptions under provincial legislation). In this connection, it is Canada and not the United States that should be concerned with not becoming a “data haven.” See Dalfen, International Factors, supra note 9, at 25.

62 The R.C.M.P. provides to and receives information (at present limited to data on stolen vehicles) from the computerized U.S. National Crime Information Center in Washington. Ibid., 4.

63 Cf. President Nixon’s speech of Nov. 15, 1973 to the National Real Estate Association referring to the “tough guy” oil policy of Canada vis-a-vis the United States.

64 See ibid, for the desire of the United States to achieve independence in respect of energy by 1980.

65 See in this connection the Ontario Business Records Protection Act, R.S.O. 1970, c. 54.

66 See in this connection United States v. First National City Bank, 396 F.2d 897 (2d. Cir. 1968).

67 See Privacy and Computers, supra note 9, at 189–92, for abstracts of studies commissioned by the Task Force.

68 E.g. Westin, Alan F. and Baker, Michael A., Databanks in a Free Society, Computers, Record-Keeping and Privacy: Report of the Project on Computer Databanks of the Computer Science and Engineering Board, National Academy of Sciences (1972)Google Scholar; Records, Computers and the Rights of Citizens: Report of the Secretary’s Advisory Committee on Automated Personal Data Systems, U.S. Department of Health, Education, and Welfare, July 1973; Miller, Arthur, The Assault on Privacy (1971)Google Scholar; Computers and Privacy, supra note 9.

69 Cf. Fair Credit Reporting Act, of the United States, 84 Stat. 1128, 15 USC §1681; The Personal Investigation Act of Manitoba, S.M. 1971, c. 82.

70 See J. M. Carroll et al., supra note 57, at 89.

71 I Branching Out, Report of the Canadian Computer/Communications Task Force, Information Canada, 149.

72 Computer/Communications Policy. A Position Statement by the Government of Canada, Information Canada, 17 (1973).

73 Privacy and Computers, supra note 9, at 171–72.

74 Ibid., 172.

75 Id.

76 Some of the different implications of the bilateral or multilateral approach are discussed, ibid., 173. The former approach would be tailored expressly to deal with the more immediate issues of the Canada-U.S. flow of data. The latter would perhaps have the advantage of greater generalizability, along with the disadvantages that the higher the number of countries involved, the lower the denominator of agreement and the more minimal the minimum standards are likely to be.

77 In this connection, see the principles adopted by the Council of Europe in its resolution on the protection of the privacy of individuals vis-à-vis electronic data banks in the private sector, at the 224th session of the Committee of Ministers, Sept. 20, 1973. (Doc. CCJ (73) 23, Addendum I ).

78 See supra note 21.