Extraterritorial Enforcement of Pipeda: A Multi-Tiered Analysis

I. INTRODUCTION In April of 2000, the Canadian House of Commons passed Bill C-6, the Personal Information and Electronic Documents Act (PIPEDA or the Act).1 The passage of PIPEDA marked a huge milestone in the development of Canadian privacy law because previous laws only regulated the public sector.2 This federal statute, pursuant to ten provisions contained in the Canadian Standards Association Model Code for the of Personal Information,3 seeks to protect privacy by requiring individual's consent before her personal data is used, collected, transferred, or released.4 Criminal or civil penalties may be imposed on organizations that violate PIPEDA provisions.5 PIPEDA was enacted partially in reaction to a similar European Union (E.U.) policy directive.6 Another impetus for the enactment of PIPEDA was the Canadian population's concern about the security of its personal given the prevalence of internet transactions and e-commerce.7 Numerous questions exist concerning PIPEDA's applicability to foreign entities. This presents a novel question because, until recently, only Canadian federally-regulated businesses and organizations disclosing personal extra-provincially had to comply with PIPEDA.8 All other organizations had until January of 2004 to comply.9 For businesses to undertake appropriate compliance measures, they must know whether or not they are subject to PIPEDA's provisions. Additionally, because PIPEDA does not contain a grand-fathering provision, organizations cannot avoid compliance with PIPEDA by simply not transferring personal currently in its possession; PIPEDA bars them from using already in their possession without obtaining individual consent.10 PIPEDA's reach thus extends retroactively, making the compliance question a weightier one. Further complicating the situation, PIPEDA's plain language does not clearly delineate which entities must comply with its provisions. The Act states that it applies to organizations that fit certain criteria. The criteria, however, do not limit the application of PIPEDA to Canadian entities or specify what degree of physical presence in Canada subjects a foreign entity to PIPEDA.11 PIPEDA's potential to regulate e-commerce and Cyberspace transactions adds to the applicability problem because it remains unclear where such transactions occur. Finally, the scope of PIPEDA's applicability presents important question because many organizations and individuals are preparing to use [it] for personal gains or disruptive purposes.12 This Note evaluates which organizations must comply with PIPEDA by examining three areas: the purpose behind the legislation, Canadian law on extra-territorial jurisdiction, and principles of international law governing extra-territorial jurisdiction. Part II focuses on PIPEDA's structure and provisions, its jurisdictional vagueness, and methods of statutory interpretation. Part III predicts the manner in which PIPEDA will apply to foreign entities. II. DISCUSSION A. PIPEDA 's Structure and Provisions PIPEDA is divided into two main parts. Part I, entitled Protection of Personal Information in the Private sector, regulates the use and transfer of personal information.13 Part II deals solely with electronic documents.14 This Note will focus only on Part I. B. Key Provisions of Part I 1. Definitions PIPEDA applies to every organization in respect of personal that . . . collects, uses or discloses [personal information] in the course of commercial activity.15 The Act contains interpretation section that defines key terms.16 The term, Organization encompasses an association, a partnership, a person and a trade union.17 Personal is defined as information about identifiable individual but does not include name, title, business address or telephone number of employee of organization. …

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