Ann Cavoukian, Ph.D, Information and Privacy Commissioner of Ontario
On August 30, 2007, the Virginia Tech Review Panel issued its report on the devastating Virginia Tech University massacre that left 33 students dead.
In its struggle to make sense of a senseless tragedy, the panel considered many issues. One was communication, and how university officials failed to communicate both with each other and with the parents of the killer prior to the massacre. Officials attributed this failure to their interpretation of the privacy laws they are bound by; they felt that those laws prohibited them from sharing much-needed information.
Newspapers, perhaps not surprisingly, seized upon this point and sensationalized it. On August 31, 2007, Canada's National Post ran an editorial provocatively titled, "Privacy Turns Deadly." It suggested that institutions had become caught up in a "fad of privacy protection" and that privacy laws ultimately served to protect public officials rather than public safety. On September 2, 2007, The Washington Post went one step further. In an article titled, "When Privacy Laws Do More Harm Than Good," the Post implied that privacy laws and a "culture of privacy" were to blame for the deaths of 33 students at Virginia Tech. I wrote letters to the editors of both newspapers, objecting to the folly contained in their editorials.
I have been a privacy professional for 20 years. While I am less than shocked at the rough ride that privacy was given in the press following the massacre, I am certainly disappointed. Unfortunately, both columns failed to mention the summary of the panel's report where the following was said of privacy laws: "In reality, federal laws and their state counterparts afford ample leeway to share information in potentially dangerous situations."
As Ontario's Information and Privacy Commissioner, I know that privacy laws are an important part of the social fabric of our democracy. Privacy forms the basis of our freedoms - it is the necessary underpinning of liberty. Privacy is an enabling right upon which other rights and freedoms are built.
The issue in the case of the Virginia Tech University massacre is not the existence of privacy laws. It is the fact that they are often misinterpreted and poorly understood by those responsible for implementing them.
Privacy laws allow for the disclosure of information in cases involving the health and safety of individuals or the risk of serious harm. However, as the panel noted in Chapter 5 of its report, the incorrect interpretation of privacy laws "â€¦ may cause holders of such information to default to the nondisclosure option - even when laws permit the option to disclose."
Privacy laws give government agencies wide latitude when it comes to protecting public safety. It is up to those agencies to exercise that latitude appropriately. It may certainly be the case that officials have a tendency to default to non-disclosure in times of doubt, but they need to understand that privacy laws, like most things, are not black and white. There are times, and mitigating circumstances, as provided in all privacy laws, where information is permitted to be disclosed in the interests of public safety.
The issue lies not with privacy laws but with those who fail to disclose information when it is appropriate - even necessary - to do so. In July 2005, I issued a Fact Sheet titled, Disclosure of Information Permitted in Emergency or other Urgent Circumstances (See www.ipc.on.ca), to clarify this point and identify circumstances when personal information could be disclosed under Ontario's privacy laws. The rules are similar in other Canadian jurisdictions.
In the United States, the Health Insurance Portability and Accountability Act and the Family Educational Rights and Privacy Act also permit the sharing of information in situations involving imminent threats to health or safety. For students, this could include suicide or other threats or unsafe conduct. The Privacy Act also includes a provision allowing for disclosure in compelling circumstances.
To imply that privacy laws - rather than the poor judgment shown in the application of those laws - are to blame for what happened at Virginia Tech is, in my view, completely irresponsible. As a society, it is important that we understand the world we live in. That understanding forms the foundation of our path of actions, our social contract, and the choices that policy makers make on our behalf. A nuanced understanding and careful analysis of the facts are essential.
Misrepresenting the facts about privacy laws may titillate readers or fire controversy that helps sell newspapers. But ultimately, it focuses public attention - and the attention of our elected officials and public servants - away from the real issue at hand, which is that laws must be thoughtfully, carefully, and intelligently applied, especially where public safety is concerned.