Teresa Scassa - Blog

Displaying items by tag: deindexing

 

 

 

I was invited to appear before the Standing Committee on Access to Information, Privacy and Ethics (ETHIC) on February 10, 2022. The Committee was conducting hearings into the use of de-identified, aggregate mobility data by the Public Health Agency of Canada. My opening statement to the committee is below. The recording of this meeting (as well as all of the other meetings on this topic) can be found here: https://www.ourcommons.ca/Committees/en/ETHI/Meetings

Thank you for the invitation to address this Committee on this important issue.

The matter under study by this Committee involves a decision by the Public Health Agency of Canada (PHAC) to use de-identified aggregate mobility data sourced from the private sector to inform public health decision-making during a pandemic.

This use of mobility data – and the reaction to it – highlight some of the particular challenges of our digital and data society:

· It confirms that people are genuinely concerned about how their data are used. It also shows that they struggle to keep abreast of the volume of collection, the multiple actors engaged in collection and processing, and the ways in which their data are shared with and used by others. In this context, consent alone is insufficient to protect individuals.

· The situation also makes clear that data are collected and curated for purposes that go well beyond maintaining customer relationships. Data are the fuel of analytics, profiling, and AI. Some of these uses are desirable and socially beneficial; others are harmful or deeply exploitative. The challenge is to facilitate the positive uses and to stop the harmful and exploitative ones.

· The situation also illustrates how easily data now flow from the private sector to the public sector in Canada. Our current legal framework governs public and private sector uses of personal data separately. Our laws need to be better adapted to address the flow of data across sectors.

Governments have always collected data and used it to inform decision-making. Today they have access to some of the same tools for big data analytics and AI as the private sector, and they have access to vast quantities of data to feed those analytics.

We want governments to make informed decisions based on the best available data, but we want to prevent excessive intrusions upon privacy.

Both PIPEDA and the Privacy Act must be modernized so that they can provide appropriate rules and principles to govern the use of data in a transformed and transforming digital environment. The work of this Committee on the mobility data issue could inform this modernization process.

As you have heard already from other witnesses, PIPEDA and the Privacy Act currently apply only to data about identifiable individuals. This creates an uncomfortable grey zone for de-identified data. The Privacy Commissioner must have some capacity to oversee the use of de-identified data, at the very least to ensure that re-identification does not take place. For example, the province of Ontario addressed this issue in 2019 amendments to its public sector data protection law. Amendments defined de-identified information for the purposes of use by government, required the development of data standards for de-identified data, and provided specific penalties for the re-identification of de-identified personal data.

The Discussion Paper on the Modernization of the Privacy Act speaks of the need for a new framework to facilitate the use of de-identified personal information by government, but we await a Bill to know what form that might take.

The former Bill C-11 – the bill to amend the Personal Information Protection and Electronic Documents Act that died on the Order Paper last fall, specifically defined de-identified personal information. It also created exceptions to the requirements of knowledge and consent to enable organizations to de-identify personal information in their possession; and to use or disclose it in some circumstances – also without knowledge and consent. It would have required de-identification measures proportional to the sensitivity of the information, and would have prohibited the re-identification of de-identified personal information – with stiff penalties.

The former Bill C-11 would also have allowed private sector organizations to share de-identified data without knowledge or consent, with certain entities (particularly government actors), for socially beneficial purposes. This provision would have applied to the specific situation before this committee right now – it would have permitted this kind of data sharing – and without the knowledge or consent of the individuals whose data were de-identified and shared.

This same provision or a revised version of it will likely be in the next bill to reform PIPEDA that is introduced into Parliament. When this happens, important questions to consider will be the scope of this provision (how should socially beneficial purposes be defined?); what degree of transparency should be required on the part of organizations who share our de-identified information?; and how will the sharing of information for socially beneficial purposes by private sector organizations with the government dovetail with any new obligations for the public sector -- including whether there should be any prior review or approval of plans to acquire and/or use the data, and what degree of transparency is required. I hope that the work of this Committee on the mobility data issue will help to inform these important discussions.

Published in Privacy

A recent decision on a motion before the Federal Court marks the progress of the Privacy Commissioner’s reference case on whether the Personal Information Protection and Electronic Documents Act (PIPEDA) includes a right to be forgotten. In an earlier report following the OPC’s consultation on digital reputation, the Privacy Commissioner had indicated that he was of the view that PIPEDA, in its unamended form, provided for a right to be forgotten that could be exercised against search engines.

The reference, launched on October 10, 2018, is linked to a complaint filed with the Office of the Privacy Commissioner (OPC) by an individual against Google. The Complainant is concerned that Google searches of his name produce links to news articles that he alleges “are outdated and inaccurate and disclose sensitive information such as his sexual orientation and a serious medical condition” (at para 6). The complainant’s view is that by providing prominent links to these articles, Google is breaching the PIPEDA. He is seeking to have these results de-indexed. This means that they would no longer appear in Google search results. De-indexing does not involve the removal of content from the source websites. Basically, the articles would still be out there, but they would not appear in Google search results. Unless similar orders were made against other search engines such as Bing, they content would be findable using those engines.

The Commissioner has referred two questions to the Federal Court. First, he seeks to know whether Google’s search engine activities constitute the “commercial activity” necessary to bring these activities within the scope of PIPEDA, which applies to the collection, use or disclosure of personal information in the course of commercial activity. The second question is whether Google’s search engine activities, even if commercial, fall within the exception to PIPEDA’s application where personal information is collected, used or disclosed “for journalistic, artistic or literary purposes and for no other purpose” (s. 4(2)(c)). Google and the Attorney General of Canada were given notice of the reference and are entitled to become parties to the reference. Google has challenged the scope of the reference. It seeks to add the question of whether, if PIPEDA does apply to the search engine’s activities, and if there is a deindexing order, such an order would violate s. 2(b) of the Canadian Charter of Rights and Freedoms. This motion to expand the scope of the reference had not yet been heard.

The CBC, along with a coalition of other Canadian media organizations brought motions seeking to be added as parties to the original reference. Their concern is that the Commissioner’s interpretation of the scope of PIPEDA as including a right to be forgotten is a violation of the freedom of expression guaranteed by s. 2(b) of the Charter. Their argument is based on the principle that the right of expression includes the right to receive information, and that measures taken to limit access to information in the news media thus breach the Charter. By bringing their motion, the media outlets sought to be added as parties, with the right to introduce evidence and make argument before the Court.

The motion was heard by Prothonotary Tabib, who rendered her decision on March 1. She began by noting that since the motion was being heard prior to any decision on Google’s motion to expand the scope of proceedings, party status would be considered only with respect to the original reference questions. She was critical of the motion on the basis that it proceeded “from the fundamental assumption that the Court’s determination of the jurisdictional questions in a way that confers jurisdiction on the OPC to investigate the underlying complaint will inevitably result in deindexing lawful news media content from Internet search results” (at para 17). She noted that in fact the reference questions were directed towards the issue of whether the Commissioner had jurisdiction in the matter. If the outcome of the reference was a finding that there was jurisdiction, the Commissioner would still have to investigate, would have to find the complaint well-founded, and would have to determine whether de-indexing was an appropriate remedy. The Commissioner can only make non-binding orders, so no Charter rights would be violated unless the matter proceeded to a recommendation to de-index with which Google voluntarily complied. If Google refused to comply the complainant or the Commissioner could bring the matter to Federal Court seeking a binding order, but the Court would hold a hearing de novo and might reach different conclusions. Basically, the prothonotary was of the view that the matter was a long way from breaching anyone’s Charter rights. She noted that “The media parties’ reliance on assumptions as to the ultimate result to form the cornerstone of their argument conflates all subsequent steps and determinations into the preliminary issue” (at para 18).

Prothonotary Tabib considered Rule 104(1)(b) of the Federal Courts Rules, which empowers the Court to order a person to be joined as a party. She focused on the issue of whether the presence of the media parties was necessary “for a full and effectual determination” of all of the issues in the reference. The media companies argued that their presence was necessary since the results of the reference would be binding on them. Prothonotary Tabib noted:

 

The media parties’ arguments thus essentially rest on the underlying assumption that what is truly at issue in this reference is the constitutionality of the Privacy Commissioner "“intended”" institution of a deindexing process in respect of lawful news content from Internet search results. However, as determined above, that is not what is truly at issue in this reference. What is at issue here is only whether Google is subject to or exempt from the application of Part 1 of PIPEDA in respect of how it collects, uses or discloses personal information in the operation of its search engine service when it presents search results in response to an individual’s name. (at para 36)

 

She observed that the only direct effect of the outcome of the reference would be the Commissioner’s decision to proceed with the investigation of the complaint against Google. She also noted that any freedom of expression impact that might ultimately flow from this matter would be shared by all internet content providers, as well as all those who used Google’s search engines. If the Charter interests of the media entitled them to be parties, then there was virtually no limit to who could be a party – which would be an absurd and unmanageable result. In her view it would be more appropriate for the media companies to seek intervenor status. However, she found that their motion did not address the issues they would need to establish for intervenor status. In brief, they failed to show how their contributions to the argument would be distinct from what Google would provide as party to the reference case. The motions were dismissed, with leave provided for the companies to reapply for leave to intervene once Google’s motion to vary the scope of the reference is decided.

 

 

Published in Privacy

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