Information & Ethics Committee on Nov. 22nd, 2006

[Richard Rosenberg]

If they move to order-making power, that would be a significant and major change.

[Mike Wallace, Conservative, Burlington, ON]

I want to ask you about order-making power.

[The Chair, Liberal, Tom Wappel]

You'll have to do that in the next round, Mr. Wallace.

[Mike Wallace, Conservative, Burlington, ON]

Thank you very much. Maybe the next time you come here—

[The Chair, Liberal, Tom Wappel]

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Should I be kind to Mr. Wallace? I'll give you a minute to answer Mr. Wallace's question.

[Mike Wallace, Conservative, Burlington, ON]

No, we're here until 5:30. Don't worry.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

How much time do I have?

[The Chair, Liberal, Tom Wappel]

Five minutes, including the answers.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Chair.

The question of the new move to electronic medical documents raises a lot of questions. You mentioned that B.C.'s model deals with it but that there are still a number of questions that have not been answered. You talked about medical researchers, for instance.

I'd like you to expand a little more on this issue, because I believe that PIPEDA will have to be strengthened in that particular area, and why not benefit from legislative experiences that already exist to perhaps try to answer some questions that the existing legislation doesn't answer in other jurisdictions?

[Richard Rosenberg]

Of course, there's a federal institution, which I think is the Canada Health Infoway, which has been providing money and advice, and they've taken the benefits of work in different parts of the country.

It's clearly an area that should have a uniform system so they can talk to each other. Obviously, one of the benefits of an electronic health record is that it could be accessible anywhere. If your record is sitting in B.C., but you're injured in Ontario or something happens and you need the record, it's really important that it's accessible. That would be one of the major benefits.

If you're trying to understand how well certain kinds of medications are working, what the costs really are, and where there are areas of higher cost, there are an enormous number of questions you can answer with an electronic medical record.

The questions that are still of concern have to do with rules of access. In a lot of cases, the simple rules of access will be straightforward. If you're a doctor and you are of a certain category, you can access things at a certain level.

It means information will have to be structured in terms of different levels of sensitivity. It will therefore require different levels of access by physicians, government bureaucrats, ministers, associate ministers, and deputy ministers of health on the kind of information they can get and the permission level they will be at.

As I said, these things are currently being discussed.

I think this is really important. It will obviously affect PIPEDA, because it will regulate these things for the provinces without any other privacy legislation.

I think it goes back to the question on whether we should wait. I don't think we're going to wait. There is such urgency with medical records that we're not going to wait.

For whatever measures are taken in the provinces, I assume provinces that don't have their own legislation will look very carefully at what's going on elsewhere in Canada as they formulate policies of use.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Do you have anything to add on this?

[Prof. Colin Bennett]

Very briefly, I come back to the very first point I made, which is that it's obvious the rules need to be harmonized in this area and in other areas. The way our laws have been developed has been to a large extent with a view to harmonization and understanding the principles.

I've demonstrated it in my writing and I can certainly give further evidence to this committee that those principles are in fact extremely uniform. Therefore, what looks like an enormous practical problem of implementation is sometimes less difficult when you actually work through it.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I have another question on the whole issue of consent.

I'm aware of a study that was done at an institute. I forget the full name of the institute, but the University of Ottawa looked at a certain number of company practices on the issue of consent, implied consent, express consent, and the kind of privacy protection for personal information and policies that these companies have in place.

I was appalled at the results, in part because there was a debate at the industry committee when the legislation was first brought to us at second reading. I think it needs to be strengthened, and I think it needs to be clarified.

The whole issue of giving consent, even when it's express consent to a company to be able to use personal information in a very clearly defined way, involves the whole issue of a company with its affiliates, for instance, that may not be working in the same domain, offering the same service or product and the sharing of that information. It then goes completely beyond that to third parties that are not part of the company “family”.

I had a personal experience with a credit card company, which I did to see what would happen. You get them in the mail, and I filled one out. When it came to the section for consent, I crossed everything out and wrote that they could only use my personal information within their company. They could not share it with any affiliates that had no direct relationship to the issue of my credit and credit rating. The company literally sent the same form back three times, saying they had a problem and needed me to fill it out again.

For me, it was clear that if I filled it out, my personal information, my shopping habits, and my leisure habits would be stripped out. Maybe my name wouldn't be given, but it would be stripped out and sold to third parties for advertising or whatever. I don't think most people realize that.

I'd like to hear whatever suggestions you have, either today or, if you need further reflection, in the future, in writing to the committee through the chair, on how the definition of consent and its different forms can be tightened up to ensure that when people give consent, it's actual consent.

In my view, there should be virtually no implied consent. It should be express consent.

[The Chair, Liberal, Tom Wappel]

Thank you, Ms. Jennings.

Do you gentlemen have any comments on the issue of consent?

Go ahead, Mr. Rosenberg.

[Richard Rosenberg]

The parallel of that is the opt-in or opt-out boxes. When you sign on to something, and you don't look carefully, they have already filled in what they would like you to agree to. There are x's appearing in boxes, and I've always objected. This is really something that does require a lot of energy to change. It's clearly an advantage to companies that people don't know this, that they're giving implied consent to various things because the option that the company wants you to choose is filled out already. And I think it has to be mandatory that if they want to use information, you have to give consent explicitly; it's not implicit, for their point of view, that they get it.

[Prof. Colin Bennett]

Yes. It's not only consent, it's knowledge--knowledge and consent--and often, I think, the problem is with the first one, actually knowing and giving individuals clear, unambiguous information, not in legalistic language, about how their information is going to be used.

I actually think that the consent rules in the CSA standard are relatively clear, but I've been around this business for a long time, and the problem is really with education and implementation, and as I say, getting some clear jurisprudence on all these issues. But I'll certainly give your ideas some careful reflection.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Liberal, Tom Wappel]

Mr. Tilson.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Thank you, Mr. Chairman.

I have a question for Mr. Rosenberg. Is it Professor or Mr.?

[Richard Rosenberg]

Professor Emeritus, actually.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Indeed. All right.

You raised the issue of transborder information--the Patriot Act, Canadian companies dealing in the United States going off to the FBI and other agencies, international companies operating in Canada--and where that information goes. Do you have any specific recommendations for the committee as to what the Canadian act should have on that topic?

[Richard Rosenberg]

That's both an important and difficult question. First of all, most people don't know that a lot of information is going off to the States. We got some publicity when the Office of the Privacy Commissioner pointed out that some of this was happening, and as I mentioned, in the B.C. context, there was lots of discussion on this when the possibilities existed that Americans could get access to the health records of British Columbians because we were outsourcing them to a subsidiary.

So they tried to put in the B.C. legislation dealing with this something to try to control to some degree the outflow. That is, if they contract out to a company, the company has to keep its records in British Columbia. At the end of the day, it wasn't clear, from either the Office of the Privacy Commissioner or the legislators, whether or not that was a foolproof way of preventing the U.S. parent company from getting access. The company within B.C., if they were going to do this thing, would have to sign agreements that they would not allow access to the Americans, they would not do this and they would not do that.

It's not clear, when you have control over information sitting in a database, whether or not it's been restricted so that the parent company can't get access. But that's the best you can do, unless you don't allow any outsourcing and it's all maintained by the government in Canada, assuming that the government doesn't outsource to companies for that purpose.

But it is a difficult process, and it will be one that's increasingly difficult, because more and more information by Canadians will go to the States by default. You'll have a credit card company; you'll make purchases. Who knows where they keep it?

[David Tilson, Conservative, Dufferin—Caledon, ON]

It ended up in a dump somewhere down in the States, didn't it?

[Richard Rosenberg]

That also happens, yes.