Liberty and justice for all United States persons abroad

The Isaac Brock Society

CCLA Registers Concerns on FATCA

Posted on by Posted in Issues regarding US persons abroad 43 Comments

As some of you know, I have been trying to work through Canadian Civil Liberties Association on FATCA.  They have finally registered concerns with Ministry of Finance.
The Open Letter From CCLA is posted at Maple Sandbox along with a link to CCLA website.

43 thoughts on “CCLA Registers Concerns on FATCA”

  2. @Blaze

    My sincere thanks to you and those who worked to bring FATCA to the attention of the CCLA. 

  4. Pingback: My letter to Liberty | A Gentleman's Rapier

  7. @Blaze,

    Thanks for your continuing effort on this.  It is good to see CCLA address privacy issues. Perhaps human rights, equality, Charter issues, will come.  One step at a time. 

    (My main concern to Abby Deshman was for “human rights” in regard to my son and others like him, their Parent, Guardian, Trustee denied the right to renounce US citizenship on their behalf, without a “compelling reason” like life or death.  If I remember correctly, Abby Deshman is a USP — or was that someone else at CCLU?)

    Thanks again, Blaze!  Awesome.

  8. *@Jim Jatras:  I have passed you invitation on to Abby Deshman, who has been handling this for CCLA.

    @Calgary:  Yes, Abby Deshman is a “US person.” Not sure if she was born in US or born in Canada to US parents.

    @Gentleman:  Glad to hear this has given you impetus to reach out to Liberty.  I hope it has some results for you.

    @All:  When Abby e-mailed me the letter and the e-bulletin, I responded that I was surprised (and disappointed) that the major focus seemed to be on privacy, with less emphasis on human rights, equality, charter. Here is Abby’s reply to me on that:

    “What personal information banks can/can’t ask for from their customers is a
    privacy issue, and I do view privacy as absolutely central to individual dignity
    and human rights.”

    Abby has assured me any response they may receive from Ministry of Finance will be made public.

  11. *Blaze

    Good Work

    At this point I think the key thing is still quantity vs quality. No one really knows what domestic legal changes would possibly be required to Canadian law so focusing on Privacy is probably still the most reasonable course of action.

  13. Hi Blaze,

    This is super!  Thanks for your work making the CCLA aware of the serious dangers FACTA poses to civil liberties and encouraging them to take a stand against it!

  16. @Blaze

    Any idea why it was addressed “To Whom It May Concern”, rather than the Minister of Finance? From your communication, I gather it was indeed sent to him.

    Related to this, I think there is a case to be made to the American Civil Liberties Union (ACLU) for the right to expatriate, meaning to shed one citizenship while taking another. The US is signatory to the Universal Declaration of Human Rights, which includes the right to change nationality (Article 15(2)). Although the Declaration is non-binding, it is now the standard by which to measure human rights performance by national states. In the best of all worlds, there would be an orderly, non-punitive procedure, so everybody knows where they stand. The fact that there have been some notorious cases of individuals who have changed nationality in order to preserve enormous wealth earned in the US doesn’t change the fact that most people expatriate for the most ordinary of reasons — marriage, work, etc. — or that the US stance has been predatory.

  17. Yet the Universal Declaration of Human Rights itself is not a document that is legally binding. Countries that have signed the Universal Declaration of Human Rights cannot be held legally responsible if they break their promise to protect and preserve human rights and freedoms. The Declaration is a standard for countries to follow. It expresses the basic principles and ideals that the world holds for human rights.

    Source(s):

    http://www.unac.org/rights/actguide/udhr…

    http://www.unhchr.ch/udhr/

    http://www.udhr.org/history/question.htm#_Toc397930440

    Is the United States a party to any international human rights treaties?
    The United States has signed and ratified the “International Covenant on Civil and Political Rights” (but not the Covenant’s Optional Protocol, which would allow Americans to seek remedy through the UN for alleged rights violations by the US government). And President Carter has signed the “International Covenant on Economic, Social and Cultural Rights” for the U.S., but the U.S. government and the people of the United States have not yet generated the political will necessary to ratify this Covenant. While Americans generally recognize civil and political rights as human rights, they have not always shared the same understanding with regard to economic, social and cultural rights (such as the rights to food, clothing, housing and health care).

    The U.S. has ratified a number of other human rights treaties including the “Convention on the Prevention and Punishment of the Crime of Genocide,” the “International Convention on the Elimination of Racial Discrimination,” and the “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” The first of these (the Genocide Convention) was signed only in 1988, putting the U.S. well behind most other countries in ratifying human rights treaties. In addition, the U.S. has consistently attached reservations to the human rights treaties that it has ratified. These reservations have evoked criticism from many non-governmental organizations that argue they limit the legal impact of the treaties in the United States.

    Still other important treaties remain unsigned or un-ratified. For instance, every country in the world — except the U.S. and Somalia — has ratified the “Convention on the Rights of the Child.” And, President Clinton has recently joined millions of women and men throughout the country in calling on the U.S. Senate to give its “advice and consent” to ratify the “Convention to Eliminate Discrimination against Women” – an important international treaty which sets forth the rights of women to equality with men.

    http://www.thecommonwealth.org/Internal/190707/190891/218476/ratifications/

    Ratifications of International Human Rights Treaties
    The ratification table focuses on the eight core international human rights treaties in force that set out international human rights standards and provide a comprehensive legal framework for states to meet their commitment to the promotion and protection of human rights.
    ■International Covenant on Civil and Political Rights (ICCPR)
    ■International Covenant on Economic, Social, and Cultural Rights (ICESCR)
    ■International Convention on the Elimination of All Forms of DiscriminationAgainst Women (CEDAW)
    ■International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
    ■Convention on the Rights of the Child (CRC)
    ■International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
    ■International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (MWC)
    ■Convention on the Rights of Persons with Disabilities (CRPD)

    Note: There is a link to a downloadable table.

  18. *The US Senate (more accurately the Republicans in the Senate) just refused to ratify the UN convention on the rights of persons with disabilities. This is spite of the fact that the convention was based on the US human rights act.  The tea party nut bars in the Republican Senate worry that the UN may somehow tell the US how to behave.

    http://www.nytimes.com/2012/12/05/us/despite-doles-wish-gop-rejects-disabilities-treaty.html?ref=politics&_r=0

    And some of you think the GOP are more reasonable than the Dems!!!!

  19. I am, of course, a prejudiced person on this subject. I think this is injust, insane, doesn’t make sense. The US Republicans fear it will infrange on American sovereignty. And, on and on it goes.

    A majority of Republicans who voted against the treaty, which was modeled on the Americans With Disabilities Act, said they feared that it would infringe on American sovereignty.

    Among their fears about the disabilities convention were that it would codify standards enumerated in the United Nations Convention on the Rights of the Child — and therefore United Nations bureaucrats would be empowered to make decisions about the needs of disabled children — and that it could trump state laws concerning people with disabilities. Proponents of the bill said these concerns were unfounded.

  20. Re: CCLA letter to the Finance Department, the question is, how to get this to the CBC, and other Canadian new agencies in order to shine the light on FATCA (and the current IRS crusade against those it deems double taxable abroad)? And, readers here from other countries should forward the letter to their governments. It may give heart to those abroad to resist the IGAs, seeing this happening from within Canada.

    There must be equivalents of the CCLA in the UK for instance? And in the countries of the EU?

    Would the ACLU agree to assist from within the US too now that this problem is raised publicly by the CCLA? I would help to have pressure from within and from without. The ACLU can also pursue it on the basis of the massive identity theft breaches that both the IRS, and agencies it shares with have suffered.

    http://www.federalnewsradio.com/534/3139043/IRS-struggling-to-tackle-massive-surge-in-identity-theft

    http://www.usatoday.com/story/tech/2012/10/26/south-carolina-data-breach-36-million-ssns-stolen/1661541/

    http://www.treasury.gov/tigta/press/press_tigta-2012-52.htm

    http://www.treasury.gov/tigta/press/press_tigta-2012-36.htm

    http://www.treasury.gov/tigta/auditreports/2012reports/201240050fr.html

    The TIGTA reports may be very useful evidence when writing to our MPs and others here, like the Canadian and provincial Privacy Commissioners. Clearly, not only is providing the information in conflict with Canadian privacy laws, but the US cannot and will not ensure the safety of the data – plus, Homeland Security laws don’t compel them to notify the owners of the information if the US chooses to seize the data and share it with other federal US agencies. In terms of official sharing of tax return data, there are supposed to be some (?) restrictions on sharing the information, but the FATCA and FBAR information is not actually part of the tax returns.

    There is no compelling Canadian social good or aim that would be served by trying to exempt this information from the Charter, or the Constitution, etc.

    Also, underscore that we are being compelled by US domestic laws to already breach the privacy of others – non-US employers, business partners, voluntary and professional organizations, churches, estates, and family members wherever and whenever we have any co/signatory powers on their non-US accounts. We therefore are being compelled – under threat of draconian and confiscatory penalties, to disclose the personal and account information of many other people who are NOT US persons, and who themselves have NO reporting or other obligation to the US. Thus, in order to comply with US extraterritorial application of a US domestic law, we are compelled to break Canadian law. The FBAR information on the IRS site clearly states that legal objections to providing the information required on an FBAR – based on the privacy considerations or rights of other people, or of other countries’ laws  is not a compelling or acceptable reason not to comply. The IRS clearly states that US law trumps any local law.

  21. A global non-profit human rights organization that may be worth looking at is Privacy International based in the UK. It claims to be operating in 47 countries and may be interested in FATCA. 

    https://www.privacyinternational.org/about-us

    They put a lot of effort into blocking the transfer of data from SWIFT transactions. I don’t know if they succeeded but here is an article on their efforts.   

    http://www.nytimes.com/2006/06/27/world/27cnd-secure.html?ex=1309060800&en=5a89c5108098a0c0&ei=5090&partner=rssuserland&emc=rss&_r=0

  22. Do you think it would be a good idea to bring FATCA awareness to the Center for Global Development (http://www.cgdev.org/section/experts).

    A search for FATCA on their website returns nothing. It seems that it might be of interest to some of the Experts listed there (EXPERTS tab at the top of the page). I wonder if they would be pro FATCA like the OECD. I almost choked when I went to the OECD website: http://www.oecd.org

    “OECD: BETTER POLICIES FOR BETTER LIVES”

  24. @Christophe, @From the Wilderness, and @all, saw this list of international privacy organizations on our Canadian Privacy Commissioner’s site:

    International data protection authorities

    http://www.priv.gc.ca/resource/int/index_e.asp

    and I liked this:

    http://www.priv.gc.ca/resource/fs-fi/02_05_d_23_e.as

    Fact Sheets

    What Canadians Can Do to Protect Their Personal Information Transferred Across Borders

    “Canadians benefit from a reasonable standard of protection of their
    personal information. They do not want to see that protection vanish
    when personal information about them is transferred across borders, and
    they do not want to see governments or organizations in Canada transfer
    their information across borders if it will be put at risk of
    inappropriate disclosure, whether for security or for commercial
    purposes.


    The extent to which personal information about Canadians should be
    made available to foreign governments is a complex issue of continuing
    concern. Nonetheless, Canadians can take some measures to protect their
    personal information from inappropriate disclosure to foreign
    governments….”

    and,
    http://www.priv.gc.ca/information/guide/2009/gl_dab_090127_e.asp
    “Guidelines for Processing Personal Data Across Borders”

    and, closest I could find for a US issue is:
    http://www.priv.gc.ca/media/nr-c/2012/nr-c_120402_e.asp


    Perimeter security: Privacy commissioners urge transparency and respect of Canadian privacy standards

    Ottawa, Ontario, April 2, 2012 – Canada’s federal
    government should take all steps necessary to ensure the standards and
    values behind Canadian privacy laws are not diminished as programs to
    fulfill the Canada-US perimeter security action plan are developed, say
    Canada’s privacy guardians.

    On December 7, 2011, Prime Minister Harper and President Obama
    announced a new perimeter security action plan, setting forth a series
    of initiatives that will result in unprecedented cross-border
    information sharing. Following detailed analysis of the plan from a
    privacy standpoint    , and as Prime Minister Harper and President Obama
    meet with Mexican President Felipe Calderon in Washington D.C., privacy
    commissioners and ombudspersons from across Canada issued a joint
    resolution    , which includes the following recommendations:

    • Any initiatives under the plan that collect personal information
      should also include appropriate redress and remedy mechanisms to review
      files for accuracy, correct inaccuracies and restrict disclosures to
      other countries;
    • Parliament, provincial Privacy Commissioners and civil society should be engaged as initiatives under the plan take shape;
    • Information about Canadians should be stored on Canadian soil
      whenever feasible or at least be subject to Canadian protection; and…………….

    ….”

    The resolution follows a detailed submission provided by the Office
    of the Privacy Commissioner of Canada to the Beyond the Border Working
    group in June 2011. In the analysis of the Action Plan following its
    December release, it was found that the recommendations contained remain
    outstanding.

    “My provincial-territorial colleagues and I recognize that the
    perimeter work plan is in its early stages of being realized, and we
    maintain that it is important to address privacy up front as a
    foundational piece of its development    ,” says Jennifer Stoddart, the
    Privacy Commissioner of Canada.

    The joint resolution provides some important guidance as the
    government continues work to develop initiatives as well as meet the
    commitment of finalizing joint privacy principles by May 30, 2012.”

    http://www.priv.gc.ca/media/nr-c/2012/res_120402_e.asp

    Fundamental privacy protections and cross-border transfer of personal information

    Resolution of Canada’s Privacy Commissioners and Privacy Enforcement
    Officials on the Canada-US Perimeter Security and Economic
    Competitiveness Action Plan

    April 2, 2012

    ….”
    The recent declaration, while acknowledging the importance of privacy,
    does not detail how either government intends to reconcile the very
    different privacy regimes and policy goals that exist in the United
    States and Canada;”

    …”

    • Recommendations made by the OPC
      in its June submission to government are not addressed in the Action
      Plan nor have the governments specifically addressed privacy concerns
      related to this initiative;
    • Canada’s privacy commissioners, as part of their role in reviewing
      programs that have an impact on individual privacy rights, are concerned
      that certain perimeter security programs could have significant effects
      on the privacy of Canadian citizens.

    WHEREAS:

    • Privacy is a defining value for Canada,
    • Privacy underlies other democratic rights and freedoms;
    • Rigorous safeguards for personal information are vital in maintaining trust between citizens and their government;
    • A perimeter security model must take into account the high value
      that Canadians place on protecting their personal information and
      privacy rights, and must not abrogate these values and rights;
    • Integrated security measures must not weaken Canadian checks and controls for safeguarding citizens’ privacy rights.”

    ………”Ensure that legal standards, values and rights established in Canadian
    privacy law for treatment of personal information are not eroded    “

    ……”Actively involve Parliament, provincial Privacy Commissioners, academics
    and civil society in discussions and options for new security
    initiatives, engage and inform all citizens in the policy debate    ;”……….

    Problem is, that if you read all of this page above http://www.priv.gc.ca/media/nr-c/2012/res_120402_e.asp ,  after all the strong statements, it hedges further down re implementation, and comes across as somewhat toothless, allowing foreign governments to assure this and that, which in the case of the US means absolutely nothing. The strongest angle is that as the US is totally unable to guarantee any security for the data, because it has failed spectacularly in protecting it’s own IRS data – which several TIGTA reports document, and also the reports by the TAS. Another angle is that even if the US assured data protection, the Patriot Act, and Homeland Security allows for the information to be seized and shared without notice or recourse. So, there would be no way to monitor the use and sharing and security of the data, Homeland Security isn’t accountable or transparent, and there is no recourse.

    I suspect that the federal government plan via the IGA would be to suggest that it will ensure safeguards (whether it can or not), and pretend that it satisfies the Privacy Commissioner. Probably only a challenge of the federal government would then force them to back up their claims that they will take all precautions, etc…..blah blah

  25. @Badger, treasury has reassured Senators that reciprocity would be considered only with trusted foreign governements to ensure safeguards. Don’t remember exactly when I read that.

    @Tim, I though I read somewhere that the OECD did not have a thing to say, that FATCA was a deal between the US and Foreign Governements.

    However, on their website, yes, they issued a statement saying they’re happy to see more governements cooperating on the issue of tax evasion.

Leave a comment

Your email address will not be published. Required fields are marked *