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Displaying items by tag: open data

A recent court decision (Assn. for Reformed Political Action Canada v. Ontario) raises some interesting questions about the relationship between the Charter right to freedom of expression and access to information rights.

On June 9, 2017, Justice Labrosse of the Ontario Superior Court of Justice ruled that a statutory exemption to Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) violated s. 2(b) of the Canadian Charter of Rights and Freedoms, and could not be justified under s. 1. He issued a suspended declaration of invalidity, giving the province 12 months to repair the offending legislation.

Like other access to information regimes in Canada, Ontario’s FIPPA sets a default rule that citizens have a right of access to information in the hands of government and its agencies and departments. This default rule is subject to a number of exceptions that allow government institutions to refuse to disclose information that would, among other things, violate solicitor client privilege, reveal third party confidential commercial information, or adversely impact privacy rights. When a government institution refuses to release all or some of the requested information on one of these statutory grounds, the requesting party can complain to the Office of the Information and Privacy Commissioner (OIPC), which is authorized to resolve such disputes. That, in a nutshell, is the regime established under FIPPA.

In this case, the applicants challenged a provision of FIPPA that was added to the statute in 2012. Section 65(5.7) provides that “This Act does not apply to records relating to the provision of abortion services.” The Applicants argued that this exception violated their right to freedom of expression under s. 2(b) of the Charter by limiting their right of access to information. In a 2010 decision, the Supreme Court of Canada held that there was no constitutional right of access to information; rather, access was a “derivative” right related to the freedom of expression. A denial of access to information could violate the freedom of expression where access “is a necessary precondition of meaningful expression on the functioning of government.” (at para 30) Justice Labrosse’s decision therefore turns on a conclusion that the denial of access to the statistical data at issue in this case prevents “meaningful expression on the functioning of government.” In this case, Justice Labrosse characterizes the information currently available as “less than 50% of some of the statistical information on a matter of important public interest.”(at para 6).

To be clear, the effect of s. 65(5.7) is not to prohibit the disclosure of information relating to the provision of abortion services. Rather, it simply removes decisions about the disclosure of such information from the statutory scheme. The Ontario government argued that freedom of expression rights were not affected by s. 65(5.7) because hospitals and/or the government could still release such information outside of the statutory scheme. Indeed, the government of Ontario had disclosed statistical information about abortion services to the applicant, and had even argued that because this information had been provided, the application was moot.

Prior to 2012, requests for data relating to the provision of abortion services could be made to government departments or agencies that were in possession of such data. For example, the Ministry of Health would have data about the number of abortions billed to OHIP, and those data could be sought through an access to information request. In responding to requests, the department or agency would ensure that the release of data was not subject to any of the exceptions in the legislation. Any disputes would be dealt with by the OIPC. In 2012, FIPPA was amended so as to include hospitals under the legislative scheme. This meant that the public would be able to make freedom of information requests to hospitals for data about their services. It was at this time that the legislation was amended to add s. 65(5.7). Justice Labrosse noted that the government’s justification for the addition of this exception was “to address the concern that disclosure of records relating to the provision of abortion services could pose risks to the safety and security of [hospital] patients, health care providers and other staff.” (at para 59). He characterized this as a pressing and substantial objective. He expressed skepticism, however, about the government’s stated secondary objective which was to “allow hospitals to decide if they wish to voluntarily disclose records relating to the provision of abortion services.” (at para 59). He noted that there was no policy framework put in place for such disclosures, and that no voluntary disclosures had ever been made.

Justice Labrosse essentially found that the exemption of the application of FIPPA to information about abortion services, which, as argued by the government, leaves hospitals and other government bodies free to disclose this information outside the FIPPA scheme, violates the freedom of expression. It is therefore the failure to ensure a framework for access to information, with all of its balancing exceptions and limitations that presents the constitutional problem. In rejecting the sufficiency of assurances by government that information can be provided outside of FIPPA on a voluntary basis, he noted that “Ontario has not pointed to any policy or legislative provision which would allow interested parties to rely on voluntary disclosure by Ontario.” (at para 40)

Justice Labrosse also rejected Ontario’s claims that Charter rights were not affected since statistical data was already available from other sources such as the Canadian Institutes for Health Information (CIHI), billing information voluntarily disclosed by the government, and statistical information available in some scholarly research. The government argued that this information was sufficient to allow for an informed public debate. In his view, significant discrepancies between the government data and the CIHI data meant that the CIHI data was not an adequate substitute. He also added that “requiring interested parties to project forward from dated statistical information published in journals” (at para 42) was also not sufficient to allow for meaningful public discussion.

Although Justice Labrosse accepted that the government had a pressing and substantial concern in protecting the safety and security of patients and health care providers, he found that the s. 65(5.7) went too far. He noted that the exception “includes no criteria to allow for disclosure of records which do not impact the objective of protecting the privacy and safety of patients seeking abortion services” (at para 66). The suspended declaration of invalidity means that the government now has 12 months in which to try to craft an exception that better balances their objectives with the public right of access to information.

It is worth comparing the provision struck down in this case with the new exemption in FIPPA for information relating to medically assisted dying. Medically assisted dying is also controversial and the government was clearly concerned about possible privacy and security implications for individuals and institutions. Yet the solution they crafted is much narrower than the broad exemption for information relating to abortion services. A new section 65(11) provides that: “This Act does not apply to identifying information in a record relating to medical assistance in dying.” This exception is only with respect to “identifying information”, rather than with respect to “records” more generally. Section 65(12) defines “identifying information as information “(a) that relates to medical assistance in dying, and (b) that identifies an individual or facility, or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual or facility”. This provision may well serve as a model for the government as it crafts a new exception to replace s. 65(5.7).

 

 

Published in Privacy
Monday, 19 December 2016 08:52

Open licensing of real time data

Municipalities are under growing pressure to become “smart”. In other words, they will reap the benefits of sophisticated data analytics carried out on more and better data collected via sensors embedded throughout the urban environment. As municipalities embrace smart cities technology, a growing number of the new sensors will capture data in real time. Municipalities are also increasingly making their data open to developers and civil society alike. If municipal governments decide to make real-time data available as open data, what should an open real-time data license look like? This is a question Alexandra Diebel and I explore in a new paper just published in the Journal of e-Democracy.

Our paper looks at how ten North American public transit authorities (6 in the U.S. and 4 in Canada) currently make real-time GPS public transit data available as open data. We examine the licenses used by these municipalities both for static transit data (timetables, route data) and for real-time GPS data (for example data about where transit vehicles are along their routes in real-time). Our research reveals differences in how these types of data are licensed, even when both types of data are referred to as “open” data.

There is no complete consensus on the essential characteristics of open data. Nevertheless, most definitions require that to be open, data must be: (1) made available in a reusable format; (2) prepared according to certain standards; and (3) available under an open license with minimal restrictions or conditions imposed on reuse. In our paper, we focus on the third element – open licensing. To date, most of what has been written about open licensing in general and the licensing of open data in particular, has focused on the licensing of static data. Static data sets are typically downloaded through an open data portal in a one-time operation (although static data sets may still be periodically updated). By contrast, real-time data must be accessed on an ongoing basis and often at fairly short intervals such as every few seconds.

The need to access data from a host server at frequent intervals places a greater demand on the resources of the data custodian – in this case often cash-strapped municipalities or public agencies. The frequent access required may also present security challenges, as servers may be vulnerable to distributed denial-of-service attacks. In addition, where municipal governments or their agencies have negotiated with private sector companies for the hardware and software to collect and process real-time data, the contracts with those companies may require certain terms and conditions to find their way into open licenses. Each of these factors may have implications for how real-time data is made available as open data. The greater commercial value of real-time data may also motivate some public agencies to alter how they make such data available to the public.

While our paper focuses on real-time GPS public transit data, similar issues will likely arise in a variety of other contexts where ‘open’ real-time data are at issue. We consider how real-time data is licensed, and we identify additional terms and conditions that are imposed on users of ‘open’ real-time data. While some of these terms and conditions might be explained by the particular exigencies of real-time data (such as requirements to register for the API to access the data), others are more difficult to explain. Our paper concludes with some recommendations for the development of a standard for open real-time data licensing.

This paper is part of ongoing research carried out as part of Geothink, a partnership grant project funded by the Social Sciences and Humanities Research Council of Canada.

 

Note: I was invited by Canada’s Information Commissioner and the Schools of Journalism and Communication, and Public Policy and Administration at Carleton University to participate in a workshop to launch Right to Know Week 2016. This was a full afternoon workshop featuring many interesting speakers and discussions. This blog post is based on my remarks at this event.

For the last 5 years or so, governments at all levels across Canada have been embracing the open government agenda. In doing so, they have expressed, in various ways, new commitments to open data, to the proactive disclosure of government information, and to new forms of citizen engagement. Given that the core goals of the open government movement are to increase government transparency and accountability in the broader public interest, these developments are positive ones.

There is a risk, however, that public commitments to open government have become a bit of a ‘feel good’ thing for governments. After all, what government doesn’t want to publicly commit to being open, transparent and accountable? As a result, it is important to look behind the rhetoric and to examine the nature of the commitments made to open government in Canada and to question how meaningful and enduring they really are.

For the most part, commitments to open government in Canada have been manifested in declarations, policy documents, and directives. These documents express government policy and provide direction to government actors and institutions. Yet they are “soft law” at best. They are not enacted through a process of legislative debate, they are not expressed in laws that would have to be formally repealed or amended in order to be altered, there are no enforcement or compliance mechanisms, and they remain subject to change at the whim of the government in power. Directives and policies, of course, can provide rapid and responsive mechanisms for operationalizing changes in government direction, and so I am not criticizing decisions to set open government in motion through these various means. But I am suggesting that a longer term commitment to open government might require some of these measures to be expressed in and supported by legislation in order to become properly entrenched.

For example, much effort has been invested by the federal government in creating an open licence to facilitate reuse of government data and information. After a slow and sometimes painful process, we now have a pretty good open government licence. It is based on the UK OGL and is very user friendly compared to earlier iterations. It is bilingual and it can be customized to be used by governments at all levels in Canada (for example, a version of this licence was just adopted by city of Ottawa). This reduces the burden on provincial and municipal governments contemplating open government and it creates the potential for greater legal interoperability (when users combine data or information from a number of different governments in Canada).

But let us not forget why we need an open government licence in Canada. An open licence permits the public to make use of works that are protected by copyright without the need to ask permission or pay royalties, and with the fewest restrictions on re-use as possible. Government works in Canada – and this includes court decisions, statutes, Hansard, government reports, studies, to name just a few – are protected by copyright under section 12 of the Copyright Act. One might well ask why, instead of toiling for years to come up with the current open licence, the government has not shown its commitment to openness by abolishing Crown copyright. It’s not as radical as it might sound. In the U.S., s. 105 of the Copyright Act expressly denies protection to works of the U.S. government without any obvious negative consequences. In the U.S., these works are automatically in the public domain. This legislated, hard law solution makes the commitment real and relatively permanent. Yet as things stand in Canada, government works are protected by copyright by default, and governments choose which works to make available under the open licence and which they wish to provide under more onerous licence terms. They can also decide at some point to tear up the open licence and go back to the way things used to be. Crown copyright in its current incarnation sets the default at ‘closed’.

It is true that some aspects of open government are already part of our legislative framework. We have had freedom of information/access to information laws for decades now in Canada, and these laws enshrine the principle of the public’s right to access information in the hands of government. However, the access to information laws that we have are ‘first generation’ when it comes to open government. The federal Act is currently being reviewed by Parliament, and we might see some legislative change, though how much and how significant remains to be seen. As Mary Francoli has pointed out, there wasn’t really a need for further review – the new government had plenty of material on which to take action in proposing amendments to the Act.

The many deficiencies in the Access to Information Act have been well documented. For example, in 2015 the Information Commissioner set out 85 proposed reforms to the statute to modernize and improve it. The June 2016 Report by the Standing Committee on Access to Information, Privacy and Ethics on its Review of the Access to Information Act takes up many of these proposals in its own recommendations for extensive reforms to the Act. We are now awaiting the government’s response to this report. Rather than review the many recommendations already made, I will highlight those that relate to my broader point about enshrining open government principles in legislation

The Access to Information Act as it currently stands is premised on a model of individuals asking for information from government, waiting patiently while government puts together the requested information, and then complaining to the Commissioner when too much information is redacted or withheld. Open government promises both information and data proactively, in reusable formats, and without significant restrictions on reuse. While proactive disclosure of information and open data cannot replace the access to information model (which is, itself, capable of considerable improvement), they will provide quicker, cheaper and more effective access in many areas. Yet the Access to Information Act does not currently contain any statement about proactive disclosure. Proactive disclosure – also referred to as “open by default” is not really “open by default” unless the law says it is. Until then, it is just an aspirational statement and not a legal requirement. We see a proliferation of policies and directives at all levels of government that talk about proactive disclosure, but there are not firm legal commitments to this practice, or to open data. And, although I have been focussing predominantly on the federal regime, these issues are relevant across all levels of government in Canada.

A core principle of open data is that the data sets provided by governments should be made available in open, accessible and reusable formats. Proactive disclosure of information should also be in reusable formats. Access under the conventional regime is also enhanced when the information disclosed is in formats that facilitate analysis and reuse. Yet even under the existing access model, there is no default requirement to provide requested information in open, accessible and reusable formats. It is important to remember that it is not enough just to provide ‘access’ – the nature and quality of the access provided is relevant. The format in which information is provided in a digital age can create a barrier to the processing or analysis of information once accessed.

I would like, also, to venture onto territory that is not addressed in the calls for reform to access to information laws. Another challenge that I see for open data (and open information) in Canada relates to the sources of government data. I am concerned about the lack of controls over the use of taxpayer dollars to create closed data. As we move into the big data era, governments will be increasingly tempted to source their data for decision-making from private sector suppliers rather than to generate it in-house. We are seeing this already; an example is found in recent decisions of some municipal governments to source data about urban cycling patterns from cycling app companies. There will also be instances where governments contract with the private sector to install sensors to collect data, or to process it, and then pay licence fees for access to the resulting proprietary data in the hands of the private sector companies. In these cases, the terms of the license agreements may limit public access to the data or may place significant restrictions on its reuse. This is a big issue. All the talk about open government data will not do much good if the data on which the government relies is not characterized as “government data”. It is important that governments develop transparent policies around contracts for the collection, supply or processing of data that ensure that our rights as members of the public to access and reuse this data – paid for with our tax dollars – are preserved. Even better, it might be worth seeing some principle to this effect enshrined in the law.

Municipal police services in North America now commonly make digital crime maps available to the public online. These interactive maps allow individuals to choose a particular part of their city, as well as a window of time (crimes in the last 7, 14 or 21 days, for example). They can search for all mapped crimes in this time frame or can limit their search to particular types of crime. The results are returned in the form of icons on a map of the selected area. The icons represent different categories of criminal activity, and clicking on each icon will reveal basic information about the incident. The maps can be used for many purposes. For example, someone who is thinking of parking their vehicle overnight in a particular part of the city might search to see if there are many thefts of vehicles or thefts from vehicles in that area. Prospective home buyers or renters might also use the maps to assess the incidence of crime in neighborhoods they are considering. Most crime maps of this kind allow users to sign up for email alerts about crime in their neighborhood, and the maps also provide a means for individuals to send in tips about mapped crimes.

A police service that decides to offer an interactive crime map to the public can choose to create their own crime map (usually by hiring a tech services company to build one) (for examples of this option see the maps from Winnipeg or Halifax) or they can contract with one of a number of leading crime mapping companies in North America. These companies typically offer a range of data analytics services to police. Often the crime maps are offered for free, with the hope that the police service will purchase other analytics services. The 3 leading companies are all based in the United States, but they offer hosting on their platform to police services across North America.

In a new paper that has just been published in the International Journal of e-Planning Research, I look at the practice of crime-mapping in 3 Canadian municipalities – Ottawa, London and Saint John. The police services in each of these cities have contracted with a different one of the 3 leading U.S.-based crime mapping companies. In my paper I consider how these crime maps present particular narratives of crime in the city. These narratives may be influenced in subtle or not so subtle ways by the fact that the mapping platform is U.S.-based. These influences may show up in the rhetoric around the crime maps used by the host company, the crimes or other types of data chosen (or not chosen) for mapping, and the descriptions on the host platforms of the type of data featured on the maps. I also evaluate the quality of the mapped data, and explore how laws shape and constrain the use and reuse of crime data.

While the crime maps are superficially attractive and easy to use, there is reason to be concerned about their use. In my research for this paper, I learned that it is possible to access the maps either through the host company’s site or through the police service’s website. Depending on the route chosen, the messaging (including a description of the mapped data, the purpose of the map, and its limitations) is different. While disclaimers on the police services’ sites may warn of the limitations of the data provided, those who access through the host platform are unware of these deficiencies. The mapped data provide a very partial account of crime in the city, and critics of this type of crime mapping have raised concern both about the potentially misleading nature of the maps, and the particular narrative of urban crime they convey.

My paper also explores issues of control and ownership of the mapped data and the impact that this has on the ability of civil society groups either to critically assess the data or to create other tools and analytics that might combine crime data with other urban data. While the crime mapping platforms do not claim ownership of the data that they map (according to the sites, ownership rests with the police services), they do prohibit the scraping of data from their sites – and there is evidence of legal action taken to pursue data scrapers. In most cases, police services do not make the same data provided to the crime mapping companies available as open data. This allows the police service (in conjunction with the limitations built into the crime mapping platforms) to largely control how the data is presented to the public. At the same time, the presence of a publicly accessible crime map might itself be used by a police service as a justification for not making the same crime data available as open data. (I note that Vancouver, which hired a company to create its own crime map, also makes the mapped data available as open data (although it updates it with less frequency than the mapped data).

Ultimately, the paper asks whether this model of crime mapping advances or limits goals of transparency and accountability, and what lessons it offers about the use of private sector civic technologies to serve public sector purposes.

Note: The research behind this paper was recently featured by H.G. Watson in her article in J-Source titled “Reporters need to dig deeper into crime maps to tell the whole story”. The article also discusses April Lindgren’s interesting article on the relationship between police information and journalism titled “Covering Canadian Crime: What Journalists Should Know and the Public Should Question”.

 

The federal government has just released for public comment its open government plan for 2016-2018. This is the third such plan since Canada joined the Open Government Partnership in 2012. The two previous plans were released by the Conservative government, and were called Canada’s Action Plan on Open Government 2012-2014 and Canada’s Action Plan on Open Government 2014-2016. This most recent plan is titled Canada’s New Plan on Open Government (“New Plan”). The change in title signals a change in approach.

The previous government structured its commitments around three broad themes: Open Data, Open Information and Open Dialogue. It is fair to say that it was the first of these themes that received the greatest attention. Under the Conservatives there were a number of important open data initiatives: the government developed an open data portal, an open government licence (modeled on the UK Open Government Licence), and a Directive on Open Government. It also committed to funding the Open Data Exchange (ODX) (a kind of incubator hub for open data businesses in Canada), and supported a couple of national open data hackathons. Commitments under Open Information were considerably less ambitious. While important improvements were made to online interfaces for making access to information requests, and while more information was provided about already filled ATIP requests, it is fair to say that improving substantive access to government information was not a priority. Open dialogue commitments were also relatively modest.

Canada’s “New Plan” is considerably different in style and substance from its predecessors. This plan is structured around 4 broad themes: open by default; fiscal transparency; innovation, prosperity and sustainable development; and engaging Canadians and the world. Each theme comes with a number of commitments and milestones, and each speaks to an aspirational goal for open government, better articulating why this is an initiative worth an investment of time and resources.

Perhaps because there was so great a backlash against the previous government’s perceived lack of openness, the Liberals ran on an election platform that stressed openness and transparency. The New Plan reflects many of these election commitments. As such, it is notably more ambitious than the previous two action plans. The commitments are both deeper (for example, the 2014-2016 action plan committed to a public database disclosing details of all government contracts over $10,000; the New Plan commits to revealing details of all contracts over $1), and more expansive (with the government committing to new openness initiatives not found in earlier plans).

One area where the previous government faced considerable criticism (see, for example Mary Francoli’s second review of Canada’s open government commitments) was in respect of the access to information regime. That government’s commitments under “open information” aimed to improve access to information processes without addressing substantive flaws in the outdated Access to Information Act. The new government’s promise to improve the legislation is up front in the New Plan. Its first commitment is to enhance access to information through reforms to the legislation. According to the New Plan, these include order-making powers for the Commissioner, extending the application of the Access to Information Act to the Prime Minister and his Ministers’ Offices, and mandatory 5-year reviews of the legislation. Although these amendments would be a positive step, they fall short of those recommended by the Commissioner. It will also be interesting to see whether everything on this short list comes to pass. (Order-making powers in particular are something to watch here.) The House of Commons Standing Committee on Access to Information, Privacy and Ethics has recently completed hearings on this legislation. It will be very interesting to see what actually comes of this process. As many cynics (realists?) have observed, it is much easier for opposition parties to be in favour of open and transparent government than it is for parties in power. Whether the Act gets the makeover it requires remains to be seen.

One of the interesting features of this New Plan is that many of the commitments are ones that go to supporting the enormous cultural shift that is required for a government to operate in a more open fashion. Bureaucracies develop strong cultures, often influenced by long-cherished policies and practices. Significant change often requires more than just a new policy or directive; the New Plan contains commitments for the development of clear guidelines and standards for making data and information open by default, as well as commitments to training and education within the civil service, performance metrics, and new management frameworks. While not particularly ‘exciting’, these commitments are important and they signal a desire to take the steps needed to effect a genuine cultural shift within government.

The New Plan identifies fiscal transparency as an overarching theme. It contains several commitments to improve fiscal transparency, including more extensive and granular reporting of information on departmental spending, greater transparency of budget data and of fiscal analysis, and improved openness of information around government grants and other contributions. The government also commits to creating a single portal for Canadians who wish to search for information on Canadian businesses, whether they are incorporated federally or in one of the provinces or territories.

On the theme of Innovation, Prosperity and Sustainable Development, the New Plan also reflects commitments to greater openness in relation to federal science activities (a sore point with the previous government). It also builds upon a range of commitments that were present in previous action plans, including the use of the ODX to stimulate innovation, the development of open geospatial data, the alignment of open data at all levels of government in Canada, and the implementation of the Extractive Sector Transparency Measures Act. The New Plan also makes commitments to show leadership in supporting openness and transparency around the world.

The government’s final theme is “Engaging Canadians and the World”. This is the part where the government addresses how it plans to engage civil society. It plans to disband the Advisory Panel established by the previous government (of which I was a member). While the panel constituted a broad pool of expertise on which the government could draw, it was significantly under-utilized, and clearly this government plans to try something new. They state that they will “develop and maintain a renewed mechanism for ongoing, meaningful dialogue” between the government and civil society organizations – whatever that means. Clearly, the government is still trying to come up with a format or framework that will be most effective.

The government also commits in rather vague terms to fostering citizen participation and engagement with government on open government initiatives. It would seem that the government will attempt to “enable the use of new methods for consulting and engaging Canadians”, and will provide support and resources to government departments and agencies that require assistance in doing so. The commitments in this area are inward-looking – the government seems to acknowledge that it needs to figure out how to encourage and enhance citizen engagement, but at the same time is not sure how to do so effectively.

In this respect, the New Plan offers perhaps a case in point. This is a detailed and interesting plan that covers a great deal of territory and that addresses many issues that should be of significant concern to Canadians. It was released on June 16, with a call for comments by June 30. Such a narrow window of time in which to comment on such a lengthy document does not encourage engagement or dialogue. While the time constraints may be externally driven (by virtue of OGP targets and deadlines), and while there has been consultation in the lead up to the drafting of this document, it is disappointing that the public is not given more time to engage and respond.

For those who are interested in commenting, it should be noted that the government is open to comments/feedback in different forms. Comments may be made by email, or they can be entered into a comment box at the bottom of the page where the report is found. These latter comments tend to be fairly short and, once they pass through moderation, are visible to the public.

A recent news story from the Ottawa area raises interesting questions about big data, smart cities, and citizen engagement. The CBC reported that Ottawa and Gatineau have contracted with Strava, a private sector company to purchase data on cycling activity in their municipal boundaries. Strava makes a fitness app that can be downloaded for free onto a smart phone or other GPS-enabled device. The app uses the device’s GPS capabilities to gather data about the users’ routes travelled. Users then upload their data to Strava to view the data about their activities. Interested municipalities can contract with Strava Metro for aggregate de-identified data regarding users’ cycling patterns over a period of time (Ottawa and Gatineau have apparently contracted for 2 years’ worth of data). According to the news story, their goal is to use this data in planning for more bike-friendly cities.

On the face of it, this sounds like an interesting idea with a good objective in mind. And arguably, while the cities might create their own cycling apps to gather similar data, it might be cheaper in the end for them to contract for the Strava data rather than to design and then promote the use of theirs own apps. But before cities jump on board with such projects, there are a number of issues that need to be taken into account.

One of the most important issues, of course, is the quality of the data that will be provided to the city, and its suitability for planning purposes. The data sold to the city will only be gathered from those cyclists who carry GPS-enabled devices, and who use the Strava app. This raises the question of whether some cyclists – those, for example, who use bikes to get around to work, school or to run errands and who aren’t interested in fitness apps – will not be included in planning exercises aimed at determining where to add bike paths or bike lanes. Is the data most likely to come from spandex-wearing, affluent, hard core recreational cyclists than from other members of the cycling community? The cycling advocacy group Citizens for Safe Cycling in Ottawa is encouraging the public to use the app to help the data-gathering exercise. Interestingly, this group acknowledges that the typical Strava user is not necessarily representative of the average Ottawa cyclist. This is in part why they are encouraging a broader public use of the app. They express the view that some data is better than no data. Nevertheless, it is fair to ask whether this is an appropriate data set to use in urban planning. What other data will be needed to correct for its incompleteness, and are there plans in place to gather this data? What will the city really know about who is using the app and who is not? The purchased data will be deidentified and aggregated. Will the city have any idea of the demographic it represents? Still on the issue of data quality, it should be noted that some Strava users make use of the apps’ features to ride routes that create amusing map pictures (just Google “strava funny routes” to see some examples). How much of the city’s data will reflect this playful spirit rather than actual data about real riding routes is a question also worth asking.

Some ethical issues arise when planning data is gathered in this way. Obviously, the more people in Ottawa and Gatineau who use this app, the more data there will be. Does this mean that the cities have implicitly endorsed the use of one fitness app over another? Users of these apps necessarily enable tracking of their daily activities – should the city be encouraging this? While it is true that smart phones and apps of all variety are already harvesting tracking data for all sorts of known and unknown purposes, there may still be privacy implications for the user. Strava seems to have given good consideration to user privacy in its privacy policy, which is encouraging. Further, the only data sold to customers by Strava is deidentified and aggregated – this protects the privacy of app users in relation to Strava’s clients. Nevertheless, it would be interesting to know if the degree of user privacy protection provided was a factor for either city in choosing to use Strava’s services.

Another important issue – and this is a big one in the emerging smart cities context – relates to data ownership. Because the data is collected by Strava and then sold to the cities for use in their planning activities, it is not the cities’ own data. The CBC report makes it clear that the contract between Strava and its urban clients leaves ownership of the data in Strava’s hands. As a result, this data on cycling patterns in Ottawa cannot be made available as open data, nor can it be otherwise published or shared. It will also not be possible to obtain the data through an access to information request. This will surely reduce the transparency of planning decisions made in relation to cycling.

Smart cities and big data analytics are very hot right now, and we can expect to see all manner of public-private collaborations in the gathering and analysis of data about urban life. Much of this data may come from citizen-sensors as is the case with the Strava data. As citizens opt or are co-opted into providing the data that fuels analytics, there are many important legal, ethical and public policy questions which need to be asked.

Tuesday, 09 February 2016 10:19

Evaluating Canada's Open Government Progress

Carleton University’s Mary Francoli has just released her second report on Canada’s progress towards its Open Government commitments as part of its membership in the Open Government Partnership. The report is currently open for public comment.

The report offers a detailed and thorough assessment of the commitments made by the Canadian government in its second Action Plan on Open Government and the extent to which these commitments have been met. For those interested in open government, it makes interesting reading, and it also sets out a number of recommendations for moving the open government agenda forward in Canada.

Because the report is a review of Canada’s progress on meeting its commitments, it is shaped by those commitments rather than by, for example, a list of open government priorities as identified by multiple stakeholders. Indeed, problems with stakeholder consultation and engagement are themes that run through this report. Although Francoli notes that there have been improvements over time, there is clearly still work to be done in this regard.

Francoli’s detailed review shows that progress has certainly been made in moving forward the open government agenda. She notes that “significant progress” has been made with respect to many of the government’s commitments in the second Action Plan, and that in some cases the government’s progress has exceed its commitments. Not surprisingly, however, much remains to be done. Francoli identifies a number of shortcomings flagged by stakeholders that form the basis for her recommendations.

Foremost among the shortcomings is the woeful state of Canada’s Access to Information Act. Although this legislation has been the subject of criticism and calls for reform for decades – and by a broad range of stakeholders – the previous government remained impervious to these demands. That an open government agenda could be advanced with much fanfare without tackling access to information in any substantive way should undermine confidence in Canada’s commitment to open government. Top among Francoli’s recommendations, therefore, is reform of the legislation, and she has written a separate opinion piece on this topic in the Hill Times. In this article she notes with frustration that although the new Liberal government expressed a commitment to reform the access to information regime in its election platform, that commitment is now being expressed in terms of a “review” of the legislation. Francoli justifiably questions whether we really need further review given the many studies already conducted and the ink already spilled about the deficiencies in the legislation. A commitment to meaningful reform might just require swifter action.

Other issues flagged by Francoli include what she refers to as a “data deficit” – the apparent stalling of progress in the release of open data and the lack of diversity in the available data at the federal level. The concerns over a data deficit extend to the cancellation of government-led data collection; the axing of the long-form census being perhaps the most notorious (though not the only) example of this. Although the census has been revived, Francoli notes that other cancelled studies have not. Further, Francoli cautions that the government’s web renewal strategy is having the effect of pushing departments and agencies to reduce digital content available over the web, with the resultant loss of content available to the public. This latter concern ties in as well to Francoli’s recommendation that the government develop and publicize a clear policy on the preservation of digital material.

In addition to recommendations related to these issues, Francoli also recommends that the government overhaul the Advisory Panel on Open Government. This Panel (on which I served) met only very rarely, and opportunities to provide feedback became very limited by tight time constraints imposed on the few meetings that did take place. Francoli is concerned about a disjunction between stakeholders’ perspectives on open government and those of the government, and she sees an Advisory Panel with a new mandate and a new mode of operation as being one way to ensure more open lines of communication.

There may be a common misperception that open data and proactive disclosure are inexpensive and resource-light endeavors (after all, the government is just publishing online information already gathered, right?). Yet, this is far from the case. Open data in particular is resource-intensive, and Francoli notes that the two Action Plans had identified no additional resources for open government (apart from the $3 million dollars set aside for the mysterious Open Data Exchange (ODX)). She therefore also recommends that the government commit the necessary resources to open government in future action plans.

Francoli’s report can be found here, and comments on the report can be made here. The comments are public, and it is also possible to read comments by other stakeholders and to engage in dialogue about the report. With a new government in the process of setting its open government agenda, this is an opportunity to help shape its direction.

A new paper by uOttawa Common Law student Niki Singh and myself, and published in the Journal of e-Democracy, explores the issue of how to unroll open data programs in officially bi- or multi-lingual jurisdictions. Our focus is on Canada, although similar issues may arise in other jurisdictions with more than one official language.

The issue of linguistic equality in open data initiatives is particularly important if one takes into account the civic engagement dimensions of open government as well as the potential for use of open data by civil society organizations to meet their diverse goals. To date, at least at the federal level in Canada, there has been a strong emphasis on using open data to stimulate innovation. Much less emphasis has been placed, at least at the policy level, on using open government data to promote transparency or to support the work of civil society groups. The capacity of many civil society groups in Canada to work effectively with open data is even open to question. The necessary skills and expertise to work with open data may not yet be available to all such groups. In this context, then, compliance with the letter and spirt of official language policies requires a focus not just on bilingual data and bilingual tools to access the data (although these are certainly important), it also requires support for digital and data literacy that effectively reaches the different linguistic communities.

A few years ago, Jo Bates wrote an interesting article that explored whether and to what extent open government data initiatives within a neo-liberal frame may seek to offload responsibility for the delivery of some information-based government services to the private sector. In other words, rather than have the government develop and deliver information-based services to the public, the government might make its data available as open data and let the private sector develop useful apps involving that data. Evidence of this neo-liberal approach to information policy is present in Canada. For example, the decision of the last federal government in Canada to abolish the long form census was in part justified on the (controversial) view that equivalent data could be sourced from the private sector. If open data regimes operate within this neo-liberal frame, it is important also to consider the fate of minority language communities (among others) as data-related analysis and services are offloaded to the private sector.

Using the efforts and obligations of the Canadian federal government as a case study, our paper identifies some of the challenges posed by developing and implementing an open data agenda within an officially bilingual state. We consider two main issues. The first is whether open data initiatives might be used as a means to outsource some information analysis and information services to an unregulated private sector, thus directly or indirectly avoiding obligations to provide these services in both official languages. The second is whether the Canadian government’s embrace of the innovation agenda of open data leaves minority language communities underserved and under-included in the development and use of open data. Although ultimately the evidence at this early stage is inconclusive, the questions are important ones to be asking, particularly as a new federal government takes charge of the open data agenda in Canada.

The rise of big data analytics, combined with a movement at all levels of government in Canada towards open data and the proactive disclosure of government information have created a context in which privacy interests are increasingly likely to conflict with the goals of transparency and accountability. In some cases these conflicts may be small and easily reconciled, but in other cases they may be more substantial. In addition, some means of reconciling the conflict must be found; where privacy and transparency conflict, for example, which value should prevail and under what conditions?

Conflicts between transparency and privacy have been seen recently in, for example, concerns expressed over the amount of personal information that might be found in court and tribunal decisions that are published online. Sunshine lists – lists of salaries of public employees that are over a certain amount – also raise issues. Provinces that publish such lists have tended to do so using file formats that do not lend themselves to easy digital manipulation. But of course these modest technological barriers are routinely overcome, and individual name and salary information is absorbed into the big data universe for purposes quite distinct from meeting a government’s transparency objectives. Open municipal data files may include information about specific individuals: for example, a database of all home renovation permit applications would have privacy implications for those individuals who applied for such permits. Even with names were redacted, it is easy enough to identify the owners of any homes for which renovation permits were obtained. In some cases, the level of connection may be less direct. For example, a public restaurant inspection record that cited kitchen staff at a small local restaurant for failure to wash their hands on a specific inspection date might indirectly reveal the identity of the persons who did not wash their hands, particularly if the staff of the restaurant is quite small. And, of course, in the big data context, even anonymized data, or data that is not personal information on its face, can be matched with other available data to identify specific individuals.

The point is not that the disclosure of such information must be avoided at all costs – rather, the issue is how to determine where to draw the line between privacy and transparency, and what steps might be taken to protect privacy while still ensuring transparency. No new legislative framework has been created to specifically guide the move towards open government in Canada, notwithstanding the fact that government data is fuel for the engines of big data.

In a paper that has just been published by the Alberta Law Review, my co-author Amy Conroy and I explore these issues, using a recent Supreme Court of Canada decision as a departure point for our analysis. Although the Court’s decision in Ministry of Community Safety and Correctional Services v Information and Privacy Commissioner (Ontario) (Ministry of Community Safety) does not specifically address either open data or proactive disclosure, the case nevertheless offers important insights into the gaps in both legislation and case law in this area.

In our paper we consider the challenges inherent in the release of government data and information either through pro-active disclosure or as open data. A key factor in striking the balance between transparency and privacy is the definition of personal information – information that is not personal information has no privacy implications. Another factor is, of course, the meaning given to the concept of transparency. Our paper considers how courts and adjudicators understand transparency in the face of competing claims to privacy. We challenge the simple equation of the release of information with transparency and argue that the coincidence of open government with big data requires new approaches that are informed by the developing relationship between privacy and transparency.

“Promoting Transparency While Protecting Privacy in Open Government in Canada” by Amy Conroy and Teresa Scassa is published in (2015) 53:1 Alberta Law Review 175-206. A pre-print version is available here.

Published in Privacy

It is not every day that courts are asked to interpret Creative Commons licenses, which is what makes the recent U.S. decision in Drauglis v. Kappa Map Group, LLC of particular interest.

Creative Commons offers a suite of licenses that can be used by those seeking to license their copyright-protected works under terms that facilitate different levels of sharing and use. Some licenses are virtually without restriction; others restrict uses of the work to non-commercial uses; contain requirements to give attribution to the author of the work; or require that any derivative works made using the licensed work by made available under similar license terms (Share-Alike). The licenses are available in multiple languages and have been adapted to the laws of a variety of different countries. They are even used for open government licensing of works in countries like Australia and New Zealand.

In this case, the plaintiff Art Drauglis was a photographer who had posted a photograph on Flickr under a Creative Commons Attribution-ShareAlike 2.0 license (CC BY-SA 2.0). The defendant was a company that published maps and map-related products. It downloaded a copy of the plaintiff’s photograph from Flickr, and used it on the cover of an atlas it published titled “Montgomery co., Maryland Street Atlas”. The atlas was sold commercially, and the defendant claimed copyright in it. The copyright notice for the atlas appeared its first page, along with its table of contents. On the rear cover of the atlas, the title of the plaintiff’s photograph was provided as well as the information about the name of the photographer and the fact that it was used under a CC-BY-SA-2.0 license.

The plaintiff’s first claim – that the defendant had breached his copyright in the photograph – was quickly rejected by the Court. The District Court (District of Columbia) found that the defendant had used the image under license. Further, the license specifically permitted commercial uses of the image. Thus the plaintiff was limited to arguing that the defendant’s use of the photograph was not in compliance with the terms of the license. There were 3 main arguments regarding non-compliance. These were that: 1) the Share-Alike condition of the license was breached by the defendant’s commercial sale of the atlas; 2) the defendant did not include a proper Uniform Resource Identifier for the CC license as required by the license terms; and 3) the defendant did not provide the proper attribution for the photograph as required by the license.

The CC BY-SA 2.0 license requires that derivative works made using the licensed works also be made available under the same or comparable license terms. The plaintiff therefore argued that the defendant breached this term by publishing the atlas commercially and not under an equivalent license. The court disagreed. It found that the CC license contemplated two categories of re-use of the licensed work – in a “collective work” (defined in the license as a “periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form” is included with other contributions into a collective whole), or as a “derivative work” (defined in the license as a “work based upon the Work. . . in which the Work may be recast, transformed, or adapted”.) It is only derivative works that must be licensed under comparable license terms. The court found that the use of the photograph in this case was as part of a collective work. That collective work was the atlas, consisting of a series of separate works (maps) compiled together with other elements, including the plaintiff’s photograph, in a book. The court rejected arguments that the photograph had been cropped, and was thus “recast, transformed or adapted” rather than incorporated “in its entirety in unmodified form”. It was not persuaded that any cropping had taken place; if it had it was so minor in nature that it was inconsequential.

The CC BY-SA 2.0 license also requires that the licensee “must include a copy of, or the Uniform Resource Identifier for, this License with every copy . . . of the Work”. The plaintiff argued that this clause had been violated by the defendant because it only referred to the license as a CC-BY-SA 2.0 license and did not provide a URL for the license. The court distinguished between a Uniform Resource Identifier (URI) and a URL, noting that ‘URI’ is a term with a broader meaning than URL. While providing a URL might meet this requirement, providing the abbreviated name and version of the license met the requirement for a URI. The court noted that anyone searching the internet for “CC BY-SA 2.0” would easily arrive at the proper license.

The plaintiff also argued that the defendant did not properly attribute authorship of the photograph to the plaintiff in accordance with the terms of the license. The license required that any credit given to the author of a work in a derivative or collective work must, at a minimum, “appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.” (Section 4(c)). Because the copyright information for the atlas as a whole appeared on the inside front page and the credit for the cover photo appeared on the back of the atlas, the plaintiff argued that this condition was not met. However, the court found that copyright information was provided for each map on each page of the atlas, and that this type of credit was comparable to that provided for the cover photograph. The court found that “the Photograph is more akin to each of the individual maps contained with the Atlas than to the Atlas itself; the maps are discrete, stand-alone pictorial or graphic works, whereas the Atlas is a compilation of many elements, arranged in a specific and proprietary fashion, and constituting a separate and original work.” (at p. 18) As a result, the attribution provided for the cover photo was comparable to that provided for other works in the collective work.

This would appear to be a case where the plaintiff’s expectations as to what the CC license he used for his work would achieve for him were not met. It is perhaps a cautionary tale for those who use template licenses – the simplicity and user-friendliness of the human readable version of the license does not mean that the detail in the legal code should be ignored – particularly where the licensor seeks to place specific limits on how the work might be used.

Published in Copyright Law
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