Thank you for the opportunity to speak about this statute, which is one of the most important statutes we have to regulate the interaction between individual citizens and their government.
The Privacy Act was great for the 1980s, but much has changed since then. This committee has heard a lot about changes in technology, but I think one overarching consideration is changes in people's expectations. We have seen developed, in a number of different jurisdictions across Canada, much more modern privacy laws. We have the Personal Information Protection and Electronic Documents Act, which regulates the private sector and is based on fair information practices. I believe this committee has also heard a lot about the new ATIPPA statute in Newfoundland. You had the benefit of speaking to the committee responsible for the report that led to its complete revamp.
One thing worth noting, when you are looking at this statute compared with other more modern privacy statutes, is that consent generally does not work in the government context. Individual citizens don't choose, for example, the government with which they deal, compared with choosing which bank they go to, and things like that.
One thing I want to emphasize, first and foremost, is that I have had the opportunity to review and actually contribute to the Canadian Bar Association's submissions over the years. Although I am speaking in my own capacity, I generally agree with everything that's in there. Also, I am in general agreement with what has been noted and asked for in the Privacy Commissioner's submissions to this committee over the course of a number of years. There are a couple of things I would like to specifically highlight that I think are important to look at.
One is what could be a basic technical fix, which is to remove the requirement that personal information be recorded in order to be subject to the statute. Information that is just stated orally, that is handed over.... The statute can be interpreted such that the disclosure of information orally is not captured within the statute, and that is a significant gap.
I also think that there should be a provision in the statute to clarify that the work product of public servants should not be considered to be personal information of those public servants. This statute should work hand in hand with the Access to Information Act to encourage transparency of government operations. Unwarranted calls for privacy standing up in the face of government transparency are problematic and something that can be quite easily addressed.
The rest of my recommendations or suggestions would probably be lumped in under three different categories: accountability, transparency, and overall making the statute effective.
Under the accountability banner, I would think that we need more clarity, as citizens, about how government manages the personal information of its citizens. We have the personal information banks and info source systems, which I don't think are entirely effective. There needs to be more proactive disclosure to citizens about how their information is used, who is responsible for it, and which government department is using it.
There should also be a necessity test, which is something this committee has heard about, with respect to the collection of personal information. The government institution should collect only information that is necessary for its functioning activities.
I think there should also be an element of personal accountability within the statute, which is missing. Many more modern privacy laws, particularly health privacy laws but also others across the country, have an offence provision that if an individual or even an institution, unlawfully and usually with knowledge, is in violation of the statute, they can be charged under that. We have seen a large number of privacy breaches across the country related to individuals just browsing through large databases for their own entertainment, and charges being brought against those individuals in various provinces. I think that's something that should be introduced into the Privacy Act.
Under the heading of transparency, fair information practices are generally based on notice and consent. As I said, consent isn't something that generally works in the public sector context, but I do think that there needs to be more proactive communication to citizens about what the information is going to be used for in order to justify its collection. Other jurisdictions regularly include privacy notices on the forms that they require citizens to complete, letting them know and setting their expectations with respect to why the information is necessary, how it is going to be used, who is going to be the custodian of that information, and how they can get access to it and have it corrected, if necessary, to exercise their other rights under the statute.
Also in connection with transparency, I think that the Privacy Act should specifically give the commissioner an education mandate, but along with that it should also give the commissioner the ability to publish reports of findings of investigations under the Privacy Act.
Currently the commissioner publishes such findings for private sector investigations, but we need more guidance. Transparency about what the government is doing with respect to personal information would be significantly served if there were such an obligation, or at least the mandate and the ability for the commissioner to report findings. In the annual report that the commissioner issues each year, there are summaries of some notable cases, but I think we would all benefit from understanding what government departments are doing with people's personal information. Having that information out there, particularly if it's found that the government department has not acted properly, would serve a significant education mandate for all government departments, but also for citizens generally.
I do think we need to have breach notification if there's a breach of security safeguards, similar to what was added to PIPEDA in the , an obligation on the part of the government institution to notify both the Privacy Commissioner and notify affected individuals if a proper threshold has been met. I think the one in the Digital Privacy Act is a reasonable one.
Then ultimately, there's making it effective. I'm not a fan of order-making powers. I think the ombuds model works, but I have come around to see the wisdom of the Newfoundland hybrid model, where if a government department is not going to follow a recommendation with respect to any obligation under the Privacy Act—collection, use, disclosure, or other safeguards—the department should have to stand up in front of a court and justify it and explain why it doesn't have to. In effect, that puts the onus on the government department, and we would end up with a body of case law that would be more clear. That could be by an expedited application process, which is already the procedure under PIPEDA, so that these don't turn into significant, huge federal cases.
Those are the highlights of my recommendations for the statute. It is really outdated, really antiquated, and I don't think it accords with the evolved expectations of individuals about how their information is going to be collected, used, and disclosed. We shouldn't tolerate a quasi-constitutional statute that's at least two generations out of date.
Thank you very much.
Good morning, everyone. As you heard, my name is Michael Geist. I am a law professor at the University of Ottawa, where I hold the Canada research chair in Internet and e-commerce law.
My areas of specialty are digital policy, intellectual property, and privacy. I served for many years on the Privacy Commissioner of Canada's external advisory board, and I have been privileged to appear before many committees on privacy issues, including things such as PIPEDA, Bill , Bill , the Privacy Act, and this committee's earlier review a number of years ago on social media and privacy.
I appear today though, as always, in a personal capacity representing only my own views. As you know, there is a sense of déjà vu when it comes to Privacy Act reviews. We have had many studies and successive federal privacy commissioners who have tried to sound the alarm on legislation that is viewed, as you just heard, as outdated and inadequate. I think that Canadians rightly expect that the privacy rules that govern the collection, use, and disclosure of information by and within the federal government will meet the highest standards, and for decades we have failed to meet that standard.
I would like to quickly touch on some Privacy Act concerns, but with your indulgence I'll talk a bit about some of the other broader privacy law environment issues in Canada that I think are really directly related to the Privacy Act.
First though, on the Privacy Act—and this is going to sound familiar as I have flagged some of the same issues that David did—I think the Privacy Commissioner of Canada has provided this committee with many very good recommendations, and I endorse the submission. As you know, most of those recommendations are not new. Successive commissioners have asked for largely the same changes, and successive governments of all parties have failed to act.
I want to highlight four issues in particular with respect to the current law, and as I say, David has flagged some of them already. The first is education and the ability to respond. The failure to engage in meaningful Privacy Act reform may be attributable, at least in part, to the lack of public awareness of the law and its importance. I think the Privacy Commissioner plays an important role in educating the public, and has done so on PIPEDA and broader privacy issues. The Privacy Act really needs a similar mandate for public education and research. Moreover—and you just heard this—the notion of limited reporting through an annual report, I think, reflects a bygone era. In our current 24-hour, social-media-driven news cycle, restrictions on the ability to disseminate information, particularly information that can touch on the privacy of millions of Canadians, can't be permitted to remain outside of the public eye and left for annual reports when they are tabled. Where the commissioner deems doing so to be in the public interest, the office must surely have the power to disclose in a timely manner.
I also think we need to think about strengthening protections. As you've heard, the Privacy Act falls woefully short of meeting the standards of a modern privacy act. Indeed, at a time when government is expected to be a model, it instead requires far less of itself than it does of the private sector. A key reform, in my view, is the principle of limiting collection, a hallmark of private sector privacy law. The government should similarly be subject to collecting only that information that is strictly necessary for its programs and activities.
I'd also flag, as David did, breach disclosure, which has been commonplace in the private sector privacy world, and it has long been clear that similar disclosure requirements are needed within the Privacy Act. The Treasury Board guidelines are a start, but legal rules, in my view, are essential. In fact, the need for reform is even stronger given the absence of clear security standards within the act. Provisions that establish such standards and mandate disclosure in the event of a breach are crucial to establishing an appropriate level of accountability and ensuring that Canadians can guard against potential identity theft and other harms.
The final issue is privacy impact assessments. As you all know, privacy touches us in many ways, and it similarly is implicated in many pieces of legislation. I recall that during the last session of Parliament, the Privacy Commissioner regularly appeared before committees to provide a privacy perspective on many different pieces of legislation. This approach of coming in after the legislation has been drafted at the committee, I think, runs the risk of rendering privacy as little more than just an afterthought. It's more appropriate to conduct a privacy impact assessment before legislation is tabled, or, at a minimum, at least before it's implemented.
Those are some of the issues on the Privacy Act side, but as I said, I wanted to talk about three bigger picture issues that I think are some of the moving parts in the federal privacy world.
The first has to do with Bill 's information-sharing provisions. I realize the government is currently consulting on national security policy, and there's, as you know, a particular emphasis on Bill C-51. From my perspective, one of the biggest problems was the information-sharing provisions. The privacy-related concerns stem from an act within the act in Bill C-51's Security of Canada Information Sharing Act. As you may know, the sharing of information went far beyond information related to terrorist activity.
It permits information sharing across government for an incredibly wide range of purposes, most of which have little to do with terrorism. The previous government tried to justify the provisions on the grounds that Canadians would support sharing of information for national security purposes, but the law now allows sharing for reasons that I think would surprise and disturb many Canadians, given how broadly those provisions can be interpreted.
Further, the scope of sharing is very broad, covering 17 government institutions, many of which are only tangentially related, if at all, to national security. The background paper on the national security consultation raises the issue, but in my view appears to largely defend the status quo, raising only the possibility, it seems to me, of tinkering with some clarifying language. If we don't address the information-sharing issue, I fear that many of the potential Privacy Act improvements will be undermined. I think this requires a wholesale re-examination of information sharing within government and the safeguards that are there to prevent misuse.
Second, I want to talk about transparency and reporting from a slightly different perspective. As many of you may know, in recent years, there have been stunning revelations about requests and disclosure of personal information of millions of Canadians, millions of requests, the majority of which are without court oversight or warrant, which I think points to a real weakness within Canada's privacy laws. Most Canadians have no awareness of these disclosures and have been shocked to learn how frequently they are used.
Recent emphasis has been on private sector transparency reporting. Large Internet companies such as Google and Twitter have released transparency reports, and they have been joined by some of Canada's leading communications companies such as Rogers and Telus. There are still some holdouts, notably Bell, but we have a better picture of requests and disclosures than we did before. However, these reports represent just one side of the picture. Public awareness of requests and disclosures would be far more informed if government also released transparency reports. These need not implicate active investigations, but there is little reason for government to not be subject to the same expectations on transparency as we expect of the private sector. Indeed, the Liberal Party focused on transparency in its election platform. Improvements to access to information are absolutely critical, but transparency is about more than just opening the doors to requests for information. Proactive disclosure of requests for Canadians' information should be part of the same equation.
Third and finally, I want to talk briefly about government-mandated interception capabilities and decryption. The public safety consultation that I referenced, which was launched earlier this month, has been largely characterized as a consultation, but it's much more. The return of lawful access issues threatens to scrap the 2014 lawful access compromise, and I think raises some really serious privacy concerns.
For instance, the consultation implies that “lack of consistent and reliable technical intercept capability on domestic telecommunication networks” represents a risk to law enforcement investigations. Yet left unsaid is that the prior proposed solutions in the form of government-mandated interception capabilities for telecommunications companies were rejected due to the enormous cost, inconsistent implementation, and likely ineffectiveness of standards that would exempt many smaller providers. Creating government-mandated interception capabilities for all providers represents an enormous privacy risk that I think runs roughshod over both PIPEDA and the Privacy Act.
Further, the consultation places another controversial policy issue on the table, noting that encryption technologies are “vital to cybersecurity, e-commerce, data and intellectual property protection, and the commercial interests of the communications industry”, but lamenting that some of those same technologies can be used by criminals and terrorists.
Given its widespread use and commercial importance, few countries have imposed decryption requirements. This year's controversy involving access to data on an Apple iPhone that was owned by the San Bernardino, California, shooter revived debate over access to encrypted communications. The consultation asks Canadians to comment on circumstances under which law enforcement should be permitted to compel decryption. A move toward compelling decryption, in my view, would place more than just our privacy at risk. It would also place our innovation strategy and personal security in the balance.
In conclusion, fixing the Privacy Act is long overdue. There is little mystery about what needs to be done. Indeed, there have been numerous studies and a steady stream of privacy commissioners who have identified the problems and called for reform. What has been missing is not a lack of information, but rather, with all respect, a lack of political will to hold government to the same standard that it holds others.
I look forward to your questions.
The Access to Information Act mandates transparency, but it has exceptions for unreasonable invasions of privacy, and it has some clarification language about what the thresholds are. Of course, it uses the same definition of “personal information” as in the Privacy Act.
One thing that has been developed in the private sector is a recognition that there's a work product exception, and that a document you produce in the course of your work as part of your job is not your personal information. It's not about you, so you can't use a privacy argument pulled out of thin air to try to stand in the way of disclosing that. George Radwanski was, I think, the first commissioner to bring this up. He had to almost make it up within the statute.
In regard to information about where a particular public servant was posted at a particular time, for example, sometimes I've heard, “That's a privacy issue. We can't let you know that.” Information about their role, their position, and even about their salary is information about government operations that should be transparent.
Information about a deputy minister's calendar, other than doctors' appointments obviously, can be usefully used in order to keep government on their toes and keep them accountable. Too often I've heard, “We can't do that because of the privacy law.” I think there needs to be some real clarification, not just in policy but in the statute, to make it clear that is not an excuse to stand in the way of government accountability.
I think the starting point is to not send your work emails through your own server at home.
It feels a bit more like an access to information issue in many respects. The question of emails has been challenging, because of course we want government, the bureaucracy, and others to adopt efficient means of communication. I have launched the occasional access to information request, and if you ask for all records, you get emails as well. There was a time when those revealed a lot, of course subject to all the various exceptions, and those exceptions also removed a lot. Nevertheless, you could often read between the lines on quite a lot because they revealed a fair amount.
Once certain departments, in my experience, found that people were asking for that data, one of the things that started happening was that people stopped communicating via email and started finding other ways that fell outside of that. Part of the discussion on Clinton has been revelations about her discussions with, I think, Colin Powell, and there has been talk about how you can structure a communication system that falls outside of the act.
I think in some ways we've had some of the same kinds of things take place here with people either engaging in discussions that they ensure don't take place by email—the so-called PIN discussions through BlackBerry—or sometimes even doing direct messaging through Twitter. They are finding mechanisms that may fall outside of that system.
My response is that, by and large, where the discussions fall within the discussions of government and policy and the like, and the act applies, the solution isn't to try to find ways to get around those rules. The solution is to try to ensure that the legislation is sufficiently robust to cover them.