As was mentioned earlier, online privacy issues are really nested in broader concerns about marketing, citizenship, human rights, social interaction, democracy, democratic dialogue, and those types of things. If you go back to the history of data protection, it was always assumed that it would be the last step. That's the floor, not the ceiling, approach. It was assumed that there would be mechanisms whereby governments would interrogate uses of information and ask if the public interest were served by these practices. If it were, only then will we go ahead with that kind of thing. We'll use fair information practices once the horse is out of the barn, to provide some redress in case something happens.
I think the reliance on fair information practices perhaps reflects a naivety that it will be enough. It might be a necessary but insufficient condition.
I would suggest that the jurisdictions that have approached these issues from a broader perspective and come up with solutions that better capture these broader human rights interests are places in Europe, for example, which have a human rights approach to privacy and where there are strong human rights protections for privacy, for the inviolability of the personality. There are a number of situations in Iceland and Germany where courts have been able to come up with creative solutions, interrogate those purposes, and call those purposes to some form of public judgment through broader understandings.
I agree with what Professor Geist said about consent. Consent is never going to be your solution. I think it's an important piece of the puzzle, but it's a small piece. We need another mechanism to interrogate these broader purposes. That's why I pointed you to section 3 of PIPEDA.
It was argued before in your predecessor committee that we needed section 3 because that way, you could look at purposes and say that it's not something a reasonable person would consider appropriate under the circumstances. And if it's not, then you shouldn't be doing it. There's quite a power on your part because of that provision to think more carefully about restricting certain uses of information.