[IP] more on US Patriot Act and Charities

[David Farber <dave@farber.net>]

Begin forwarded message:

From: "Synthesis: Law and Technology"  
<synthesis.law.and.technology@gmail.com>
Date: July 13, 2006 8:29:18 AM EDT
To: dave@farber.net
Cc: Sharron Batsch <sharron@batschgroup.com>
Subject: Re: [IP] US Patriot Act and Charities

Dave,

There is a simple answer to Sharron's question.  And there is a  
complicated legal one.
The simple answer is this: if it is a concern then her firm should  
move the data to a different company where there is less obvious  
risk. There may or may not prove to be a fiduciary duty to inform.
There may or may not be a duty for the Batsch Group or the charities  
themselves do something stronger (like move the data).  But that is a  
question for courts to decide, not for someone on this list.  We  
don't hold the power to judge, only give opinions.

The EU Privacy directive caused similar questions.  In Sharron's  
case, since the company housing the data is an arms-length supplier  
and not a subsidiary or owner of the charities or the Batsch Group,  
the choice becomes clearer.  There is no conflict of laws because a  
solution is possible.  Should the charity choose to stay with the US  
company there  'could' be problems.  Or....there might not.  They  
need to consult their counsel to get an answer that will still not be  
a guarantee but an opinion. In law there are no guanratees and the  
difference between losing and getting-away-with-it doesnt necessarily  
prove that there was or was not a fiduciary duty in the first place.

Hope  this helps.

Dan Steinberg

SYNTHESIS:Law & Technology
35, du Ravin phone: (613) 794-5356
Chelsea, Quebec
J9B 1N1
On 7/12/06, David Farber <dave@farber.net> wrote:

Begin forwarded message:

From: Sharron Batsch < sharron@batschgroup.com>
Date: July 12, 2006 11:57:19 AM EDT
To: dave@farber.net
Subject: US Patriot Act and Charities

Hi Dave,

I was reading the article you had posted by Karen Jackson ... and I
was wondering if you can give me some input on a particular question.

We work with Charities ... we have privacy laws or requirements in
Canada ....  What is the impact of Charities that house their data
with a US company that resides on US soil?  We understand through a
client of ours that any data that resides in the US is subject to
scrutiny at the whim of the US government and they feel no obligation
to inform the organization who's data is being reviewed.

This is my question:

If a charity houses its data in the US using a US provider, is it the
fiduciary duty of the charity to inform their donors that they can no
longer give a 100% guarantee of confidentiality?

Thank you for consideration in responding to my question.

Sharron Batsch



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