Teresa Scassa - Blog

Wednesday, 31 October 2018 07:50

Statistics Canada faces backlash over collection of personal financial information (or: Teaching an old law new tricks)

Written by  Teresa Scassa
Rate this item
(1 Vote)

A Global News story about Statistics Canada’s collection of detailed financial data of a half million Canadians has understandably raised concerns about privacy and data security. It also raises interesting questions about how governments can or should meet their obligations to produce quality national statistics in an age of big data.

According to Andrew Russell’s follow-up story, Stats Canada plans to collect detailed customer information from Canada’s nine largest banks. The information sought includes financial information including account balances, transaction data, credit card and bill payments. It is unclear whether the collection has started.

As a national statistical agency, Statistics Canada is charged with the task of collecting and producing data that “ensures Canadians have the key information on Canada's economy, society and environment that they require to function effectively as citizens and decision makers.” Canadians are perhaps most familiar with providing census data to Statistics Canada, including more detailed data through the long form census. However, the agency’s data collection is not limited to the census.

Statistics Canada’s role is important, and the agency has considerable expertise in carrying out its mission and in protecting privacy in the data it collects. This is not to say, however, that Statistics Canada never makes mistakes and never experiences privacy breaches. One of the concerns, therefore, with this large-scale collection of frankly sensitive data is the increased risk of privacy breaches.

The controversial collection of detailed financial data finds its legislative basis in this provision of the Statistics Act:

13 A person having the custody or charge of any documents or records that are maintained in any department or in any municipal office, corporation, business or organization, from which information sought in respect of the objects of this Act can be obtained or that would aid in the completion or correction of that information, shall grant access thereto for those purposes to a person authorized by the Chief Statistician to obtain that information or aid in the completion or correction of that information. [My emphasis]

Essentially, it conveys enormous power on Stats Canada to request “documents or records” from third parties. Non-compliance with a request is an offence under s. 32 of the Act, which carries a penalty on conviction of a fine of up to $1000. A 2017 amendment to the legislation removed the possibility of imprisonment for this offence.

In case you were wondering whether Canada’s private sector data protection legislation offers any protection when it comes to companies sharing customer data with Statistics Canada, rest assured that it does not. Paragraph 7(3)(c.1) of the Personal Information Protection and Electronic Documents Act provides that an organization may disclose personal information without the knowledge or consent of an individual where the disclosure is:

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

[. . .]

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province

According to the Global News story, Statistics Canada notified the Office of the Privacy Commissioner about its data collection plan and obtained the Commissioner’s advice. In his recent Annual Report to Parliament the Commissioner reported on Statistic’s Canada’s growing practice of seeking private sector data:

We have consulted with Statistics Canada (StatCan) on a number of occasions over the past several years to discuss the privacy implications of its collection of administrative data – such as individuals’ mobile phone records, credit bureau reports, electricity bills, and so on. We spoke with the agency about this again in the past year, after a number of companies contacted us with concerns about StatCan requests for customer data.

The Commissioner suggested that Stats Canada might consider the collection of only data that has been deidentified at source rather than detailed personal information. He also recommended an ongoing assessment of the necessity and effectiveness of such programs.

The Commissioner also indicated that one of the problems with the controversial data collection by Statistics Canada is its lack of openness. He stated: “many Canadians might be surprised to learn the government is collecting their information in this way and for this purpose.” While part of this lack of transparency lies in the decision not to be more upfront about the data collection, part of it lies in the fact that the legislation itself – while capable of being read to permit this type of collection – clearly does not expressly contemplate it. Section 13 was drafted in a pre-digital, pre-big data era. It speaks of “documents or records”, and not “data”. While it is possible to interpret it so as to include massive quantities of data, the original drafters no doubt contemplated a collection activity on a much more modest scale. If Section 13 really does include the power to ask any organization to share its data with Stats Canada, then it has become potentially limitless in scope. At the time it was drafted, the limits were inherent in the analogue environment. There was only so much paper Stats Canada could ask for, and only so much paper it had the staff to process. In addition, there was only so much data that entities and organizations collected because they experienced the same limitations. The digital era means not only that there is a vast and increasing amount of detailed data collected by private sector organizations, but that this data can be transferred in large volumes with relative ease, and can be processed and analyzed with equal facility.

Statistics Canada is not the only national statistics organization to be using big data to supplement and enhance its data collection and generation. In some countries where statistical agencies struggle with a lack of human resources and funding, big data from the private sector offer opportunities to meet the data needs of their governments and economies. Statistical agencies everywhere recognize the potential of big data to produce more detailed, fine-grained and reliable data about many aspects of the economy. For example, the United Nations maintains a big data project inventory that catalogues experiments by national statistical agencies around the world with big data analytics. Remember the cancellation of the long form census by the Harper government? This was not a measure to protect Canadians’ privacy by collecting less information; it was motivated by a belief that better and more detailed data could be sought using other means – including reliance on private sector data.

It may well be that Statistics Canada needs the power to collect digital data to assist in data collection programs that serve national interests. However, the legislation that authorizes such collection must be up-to-date with our digital realities. Transparency requires an amendment to the legislation that would specifically enable the collection and use of digital and big data from the private sector tor statistical purposes. Debate over the scope and wording of such a provision would give both the public and the potential third party data sources an opportunity to identify their concerns. It would also permit the shaping of limits and conditions that are specific to the nature and risks of this form of data collection.

Login to post comments

Canadian Trademark Law

Published in 2015 by Lexis Nexis

Canadian Trademark Law 2d Edition

Buy on LexisNexis

Electronic Commerce and Internet Law in Canada, 2nd Edition

Published in 2012 by CCH Canadian Ltd.

Electronic Commerce and Internet Law in Canada

Buy on CCH Canadian

Intellectual Property for the 21st Century

Intellectual Property Law for the 21st Century:

Interdisciplinary Approaches

Purchase from Irwin Law