Thursday, 22 March 2018 09:39

Open Season on Social Media Data (ETHI's Report on PIPEDA Reform - Part II)

Written by  Teresa Scassa
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The post is the second in a series that looks at the recommendations contained in the report on the Personal Information Protection and Electronic Documents Act (PIPEDA) issued by the House of Commons Standing Committee on Access to Information and Privacy Ethics (ETHI). My first post considered ETHI’s recommendation to retain consent at the heart of PIPEDA with some enhancements. At the same time, ETHI recommended some new exceptions to consent. This post looks at one of these – the exception relating to publicly available information.

Although individual consent is at the heart of the PIPEDA model – and ETHI would keep it there – the growing number of exceptions to consent in PIPEDA is reason for concern. In fact, the last round of amendments to PIPEDA in the 2015 Digital Privacy Act, saw the addition of ten new exceptions to consent. While some of these were relatively uncontroversial (e.g. making it clear that consent was not needed to communicate with the next of kin of an injured, ill or deceased person) others were much more substantial in nature. In its 2018 report ETHI has made several recommendations that continue this trend – creating new contexts in which individual consent will no longer be required for the collection, use or disclosure of personal information. In this post, I focus on one of these – the recommendation that the exception to consent for the use of “publicly available information” be dramatically expanded to include content shared by individuals on social media. In light of the recent Facebook/Cambridge Analytica scandal, this recommended change deserves some serious resistance.

PIPEDA already contains a carefully limited exception to consent to the collection, use or disclosure of personal information where it is “publicly available” as defined in the Regulations Specifying Publicly Available Information. These regulations identify five narrowly construed categories of publicly available information. The first is telephone directory information (but only where the subscriber has the option to opt out of being included in the directory). The second is name and contact information that is included in a professional business directory listing that is available to the public; nevertheless, such information can only be collected, used or disclosed without consent where it relates “directly to the purpose for which the information appears in the registry” (i.e. contacting the individual for business purposes). There is a similar exception for information in a public registry established by law (for example, a land titles registry); this information can similarly only be collected, used or disclosed for purposes related to those for which it appears in the record or document. Thus, consent is not required to collect land registry information for the purposes of concluding a real estate transaction. However, it is not permitted to extract personal information from such a registry, without consent, to use for marketing. A fourth category of publicly available personal information is information appearing in court or tribunal records or documents. This respects the open courts principle, but the exception is limited to collection, use or disclosure that relates directly to the purpose for which the information appears in the record or document. This means that online repositories of court and tribunal decisions cannot be mined for personal information; however, personal information can be used without consent to further the open courts principle (for example, a reporter gathering information to use in a newspaper story).

This brings us to the fifth category of publicly available information – the one ETHI would explode to include vast quantities of personal information. Currently, this category reads:

e) personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information.

ETHI’s recommendation is to make this “technologically neutral” by having it include content shared by individuals over social media. According to ETHI, a “number of witnesses considered this provision to be “obsolete.” (at p. 27) Perhaps not surprisingly, these witnesses represented organizations and associations whose members would love to have unrestricted access to the contents of Canadians’ social media feeds and pages. The Privacy Commissioner was less impressed with the arguments for change. He stated: “we caution against the common misconception that simply because personal information happens to be generally accessible online, there is no privacy interest attached to it.” (at p. 28) The Commissioner recommended careful study with a view to balancing “fundamental individual and societal rights.” This cautious approach seems to have been ignored. The scope of ETHI’s proposed change is particularly disturbing given the very carefully constrained exceptions that currently exist for publicly available information. A review of the Regulations should tell any reader that this was always intended to be a very narrow exception with tightly drawn boundaries; it was never meant to create a free-for-all open season on the personal information of Canadians.

The Cambridge Analytica scandal reveals the harms that can flow from unrestrained access to the sensitive and wide-ranging types and volumes of personal information that are found on social media sites. Yet even as that scandal unfolds, it is important to note that everyone (including Facebook) seems to agree that user consent was both required and abused. What ETHI recommends is an exception that would obviate the need for consent to the collection, use and disclosure of the personal information of Canadians shared on social media platforms. This could not be more unwelcome and inappropriate.

Counsel for the Canadian Life and Health Insurance Association, in addressing ETHI, indicated that the current exception “no longer reflects reality or the expectations of the individuals it is intended to protect.” (at p. 27) A number of industry representatives also spoke of the need to make the exception “technologically neutral”, a line that ETHI clearly bought when it repeated this catch phrase in its recommendation. The facile rhetoric of technological neutrality should always be approached with enormous caution. The ‘old tech’ of books and magazines involved: a) relatively little exposure of personal information; b) carefully mediated exposure (through editorial review, fact-checking, ethical policies, etc.); c) and time and space limitations that tended to focus publication on the public interest. Social media is something completely different. It is a means of peer-to-peer communication and interaction which is entirely different in character and purpose from a magazine or newspaper. To treat it as the digital equivalent is not technological neutrality, it is technological nonsensicality.

It is important to remember that while the exception to consent for publicly available information exists in PIPEDA; the definition of its parameters is found in a regulation. Amendments to legislation require a long and public process; however, changes to regulations can happen much more quickly and with less room for public input. This recommendation by ETHI is therefore doubly disturbing – it could have a dramatic impact on the privacy rights of Canadians, and could do so more quickly and quietly than through the regular legislative process. The Privacy Commissioner was entirely correct in stating that there should be no change to these regulations without careful consideration and a balancing of interests, and perhaps no change at all.

Teresa Scassa

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