Teresa Scassa - Blog

Monday, 11 July 2022 06:54

Data Sharing for Public Good: Does Bill C-27 Reflect Lessons Learned from Past Public Outcry?

Written by  Teresa Scassa
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[Note: This is my third in a series of posts on the new Bill C-27 which will reform private sector data protection law in Canada and which will add a new Artificial Intelligence and Data Act. The previous two posts addressed consent and de-identification/anonymization.]

In 2018 a furore erupted over media reports that Statistics Canada (StatCan) sought to collect the financial data of a half a million Canadians from Canadian banks to generate statistical data. Reports also revealed that it had already collected a substantial volume of personal financial data from credit agencies. The revelations led to complaints to the Privacy Commissioner, who carried out an investigation and issued an interim and a final report. One outcome was that StatCan worked with the Office of the Privacy Commissioner of Canada to develop a new approach to the collection of such data. Much more recently, there were expressions of public outrage when media reported that the Public Health Agency of Canada (PHAC) had acquired de-identified mobility data about Canadians from Telus in order to inform their response to the COVID-19 pandemic. This led to hearings before the ETHI Standing Committee of the House of Commons, and resulted in a report with a series of recommendations.

Both of these instances involved attempts by government institutions or agencies to make use of existing private sector data to enhance their analyses or decision-making. Good policy is built on good data; we should support and encourage the responsible use of data by government in its decision-making. At the same time, however, there is clearly a deep vein of public distrust in government – particularly when it comes to personal data – that cannot be ignored. Addressing this distrust requires both transparency and strong protection for privacy.

Bill C-27, introduced in Parliament in June 2022, proposes a new Consumer Privacy Protection Act to replace the aging Personal Information Protection and Electronic Documents Act (PIPEDA). As part of the reform, this private sector data protection bill contains provisions that are tailored to address the need of government – as well as the commercial data industry – to access personal data in the hands of the private sector.

Two provisions in C-27 are particularly relevant here: sections 35 and 39. Section 35 deals specifically with the sharing of private sector data for the purposes of statistics and research. Section 7(3)(f) of PIPEDA contains an exception that is similar to s. 35. Section 39 is entirely new. Section 39 deals with the use of data for “socially beneficial purposes”. Both s. 35 and s. 39 were in the predecessor to C-27, Bill C-11. Only section 35 has been changed since C-11 – a small change significantly broadens its scope.

Section 35 of Bill C-27 provides:

35 An organization may disclose an individual’s personal information without their knowledge or consent if

(a) the disclosure is made for statistical purposes or for study or research purposes and those purposes cannot be achieved without disclosing the information;

(b) it is impracticable to obtain consent; and

(c) the organization informs the Commissioner of the disclosure before the information is disclosed.

This provision would enable the kind of data sharing by the private sector that was involved in the StatCan example mentioned above, and that was previously enabled by s. 7(3)(f) of PIPEDA. As currently the case under PIPEDA, s. 35 would allow for the sharing of personal information without an individual’s knowledge or consent. It is important to note that there is no requirement that the personal information be de-identified or anonymized in any way (see my earlier post on de-identification and anonymization here). The remainder of s. 35 imposes the only limitations on such sharing. One of these relates to purpose. The sharing must be for “statistical purposes” (but note that StatCan is not the only organization that engages in statistical activities, and such sharing is not limited to StatCan). It can also be for “study or research purposes”. Bill C-11, like PIPEDA, had referred to “scholarly study or research purposes”. The removal of ‘scholarly’ substantially enlarges the scope of this provision (for example, market research and voter profile research would no doubt count). There is a further qualifier – the statistical, study, or research purposes have to be ones that “cannot be achieved without disclosing the information”. However, they do not have to be ‘socially beneficial’ (although there is an overarching provision in s. 5 that requires that the purposes for collecting, using or disclosing personal information be ones that a ‘reasonable person would consider appropriate in the circumstances’). Section 35(b) (as is the case under PIPEDA’s s. 7(3)(f)) also requires that it be impracticable to obtain consent. This is not really much of a barrier. If you want to use the data of a half a million individuals, for example, it is really not practical to seek their consent. Finally, the organization must inform the Commissioner of the disclosure prior to it taking place. This provides a thin film of transparency. Another nod and a wink to transparency is found in s. 62(2)(b), which requires organizations to provide a ‘general account’ of how they apply “the exceptions to the requirement to obtain an individual’s consent under this Act”.

Quebec’s Loi 25 also addresses the use of personal information in the hands of the private sector for statistical and research purposes without individual consent. Unlike Bill C-27, it contains more substantive guardrails:

21. A person carrying on an enterprise may communicate personal information without the consent of the persons concerned to a person or body wishing to use the information for study or research purposes or for the production of statistics.

The information may be communicated if a privacy impact assessment concludes that

(1) the objective of the study or research or of the production of statistics can be achieved only if the information is communicated in a form allowing the persons concerned to be identified;

(2) it is unreasonable to require the person or body to obtain the consent of the persons concerned;

(3) the objective of the study or research or of the production of statistics outweighs, with regard to the public interest, the impact of communicating and using the information on the privacy of the persons concerned;

(4) the personal information is used in such a manner as to ensure confidentiality; and

(5) only the necessary information is communicated.

The requirement of a privacy impact assessment (PIA) in Loi 25 is important, as is the condition that this assessment consider the goals of the research or statistical activity in relation to the public interest and to the impact on individuals. Loi 25 also contains important limitations on how much information is shared. Bill C-27 addresses none of these issues. At the very least, as is the case under Quebec law, there should be a requirement to conduct a PIA with similar considerations – and to share it with the Privacy Commissioner. Since this is data sharing without knowledge or consent, there could even be a requirement that the PIAs be made publicly available, with appropriate redactions if necessary.

Some might object that there is no need to incorporate these safeguards in the new private sector data protection law since those entities (such as StatCan) who receive the data have their own secure policies and practices in place to protect data. However, under s. 35 there is no restriction on who may receive data for statistical, study or research purposes, and no reason to assume that they have appropriate safeguards in place. If they do, then the PIA can reflect this.

Section 39 addresses the sharing of de-identified personal information for socially beneficial purposes. Presumably, this would be the provision under which, in the future, mobility data might be shared with an agency such as PHAC. Under s. 39:

39 (1) An organization may disclose an individual’s personal information without their knowledge or consent if

(a) the personal information is de-identified before the disclosure is made;

(b) the disclosure is made to

(i) a government institution or part of a government institution in Canada,

(ii) a health care institution, post-secondary educational institution or public library in Canada,

(iii) any organization that is mandated, under a federal or provincial law or by contract with a government institution or part of a government institution in Canada, to carry out a socially beneficial purpose, or

(iv) any other prescribed entity; and

(c) the disclosure is made for a socially beneficial purpose.

(2) For the purpose of this section, socially beneficial purpose means a purpose related to health, the provision or improvement of public amenities or infrastructure, the protection of the environment or any other prescribed purpose.

This provision requires that shared information must be de-identified, although as noted in my earlier post, de-identification in Bill C-27 no longer means what it did in C-11. The data shared may have only direct identifiers removed leaving individuals easily identifiable. The disclosure must be for socially beneficial purposes, and it must be to a specified or prescribed entity. I commented on the identical provision in C-11 here, so I will not repeat in detail those earlier concerns from that post. They remain unaddressed in Bill C-27. The most significant gap is the lack of a requirement for a data governance agreement to be in place between the parties based upon the kinds of considerations that would be relevant in a privacy impact assessment.

Where the sharing is to be with a federal government institution, the Privacy Act should provide additional protection. However, the Privacy Act is itself an antediluvian statute that has long been in need of reform. It is worth noting that while the doors to data sharing are opened in Bill C-27, many of the necessary safeguards – at least where government is concerned – are left for another statute in the hands of another department, and that lies who-knows-where in the government’s legislative agenda (although rumours are that we might see a Bill this fall [Warning: holding your breath could be harmful to your health.]). In its report on the sharing of mobility data with PHAC, ETHI calls for much greater transparency about data use on the part of the Government of Canada, and also calls for enhanced consultation with the Privacy Commissioner prior to engaging in this form of data collection. Apart from the fact that these pieces will not be in place – if at all – until the Privacy Act is reformed, the exceptions in sections 35 and 39 of C-27 apply to organizations and institutions outside the federal government, and thus, can involve institutions and entities not subject to the Privacy Act. Guardrails should be included in C-27 (as they are, for example, in Loi 25); yet, they are absent.

As noted earlier, there are sound reasons to facilitate the use of personal data to aid in data-driven decision-making that serves the public interest. However, any such use must protect individual privacy. Beyond this, there is also a collective privacy dimension to the sharing of even anonymized human-derived data. This should also not be ignored. It requires greater transparency and public engagement, along with appropriate oversight by the Privacy Commissioner. Bill C-27 facilitates use without adequately protecting privacy – collective or individual. Given the already evident lack of trust in government, this seems either tone-deaf or deeply cynical.

 

 

 

 

 

 

 

Last modified on Monday, 11 July 2022 07:03
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