Information & Ethics Committee on Dec. 2nd, 2010

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

The fact is, you are a key figure around the world. With respect to Facebook, you took a considerable number of initiatives that advanced privacy rights.

I would like to move on now to Bill C-42. You appeared before the Standing Committee on Transport, Infrastructure and Communities on November 18. On November 16, Mr. Vic Toews, Minister of Public Safety, also testified before the committee. Talking about this bill and the Secure Flight Program, he stated that he had no objection to providing information about passengers who are only flying over a country. However, when we're talking about international territory, we know that the airspace belongs to the country where one happens to be. So, on November 18, you expressed certain reservations in that regard.

I believe you proposed restrictions, saying that there should perhaps be some control over the information that is passed on. The information is passed on to air transportation authorities, but there is no guarantee that it will stay there. I think you mentioned that to the committee. We don't know whether it might be given to the police or other agencies. Once the information has been provided, we have no assurance that it will not be disclosed to all kinds of different parties or used in all kinds of ways. That seemed to be a concern for you at the time.

So, you made recommendations, and I am just wondering if they are being acted on.

[Jennifer Stoddart]

Those are very recent recommendations. I don't know whether the Minister of Transport, Infrastructure and Communities is considering changing regulations under the Canada Transportation Act. I believe the bill you referred to is still being reviewed by Parliament, but I am not certain of that.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I don't think so. That is what we are trying to find out, because it must be referred to a committee for consideration.

Coming back to your specific concerns, your fear was that too much information would be passed on.

I understand that the United States needs to protect its air space. That's why they have an anti-terrorist law. That's very important, but Canada must also have an obligation to protect individual privacy. Given the concern about too much information being passed on and a lack of control over how that information will be used, what potential solutions could be suggested to ensure there is better control?

[Jennifer Stoddart]

We proposed that Canada continue to talk to U.S. authorities and that it maintain a diplomatic position. This deeply concerns Canadians.

But I would just like to come back to the regulatory power that already exists. For the Canadian government, the U.S. rule represents a demand for a great deal of information, if it is available. We think the Canadian government, acting under the Canada Transportation Act and Regulations, could limit the information that would be made available. Possibly half of the available information could be provided.

Also, Canadians should be told that this program is in place and that there is a possibility they will be caught up in it. One idea might be a telephone service that you could reach from the airport. I don't know, since I'm no expert in that area, but the fact is that Canadians somewhere in Canada may suddenly not be allowed to get on an airplane destined for Mexico, even though that plane is only flying over the United States without stopping.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I am also deeply concerned about this. It seems to me that since 9/11, increasingly restrictive security measures have been put in place and, year after year, we're still trying to watch the same film that has been playing for the last ten years. They seem to be trying to con us into believing that all of this is normal.

In fact, when you appeared the last time, I raised the problem of airport scanners with you. I said that this was an invasive, intrusive and abusive procedure. There was talk of iris and fingerprint scanners. In the United States, they are already starting to take fingerprints. This is getting out of hand. It's gone too far.

People are starting to find it normal for us to do everything they do in the United States. What do you think? Personally, I'm concerned about this. I'm sure you remember that I raised this.

[Jennifer Stoddart]

Yes. Furthermore, I also said at the time that no evidence has been offered to us, from any of the countries that use lists of suspects, to prove that passing on this information had enabled authorities to make arrests or that it had had any impact whatsoever. No security service has ever praised this procedure as being a useful one. So, there is a big question mark in that regard.

In my opinion, if Canadians are following the U.S. example, it is because of their geographic position, and not because of their values. When they get on an airplane, they very often have to fly over the United States. The only good news in all of this is that the United States will not be requesting this information for flights between Montreal and Toronto, even if there is a chance the plane may fly over Lake Ontario on the U.S. side of the border.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Is that the only good news?

[Jennifer Stoddart]

Yes, that's the good news. I know that the government spent a long time protesting and that it is introducing this bill reluctantly. But it's also because of our economic, strategic and other ties with the United States.

I have followed the issue, and I believe that people in the United States, who are subject to other types of scanners than those used in Canada, are also rebelling against these intrusions. I see that democratic reaction as a very good sign.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

I have a lot of other questions, but my time is up now.

Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you, Ms. Freeman.

Just before we go to Mr. Siksay, I want to remind members that the purpose of the meeting is to inquire about the certificate referred to us by the government and to inquire as to the qualifications, the suitability, and the capacity of Ms. Stoddart.

The chair will be entertaining the motion of support shortly. That is really the purpose of the meeting. I did allow quite a bit of leeway in the last question.

Mr. Siksay.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you, Chair.

I did plan some questions related to that, but I hope you'll allow me the same leeway later in my time.

Madam Stoddart, thank you for being here yet again, and thank you for agreeing to remain in the position or seek reappointment. I certainly appreciate the work that you and your staff have done and the help that you've given the committee, Parliament, and Canadians.

I know that the reappointment projected is for three years, not seven years. Can you just say something about why we have that change and that difference? I tried to convince you that an extra four years wouldn't be bad when you're having fun, but anyway, you decided on three years or made that part of the requirement for your reappointment.

[Jennifer Stoddart]

Yes. Thank you for the question.

First of all, I believe that I have a lot of things to do, in spite of the very kind words of the honourable member, Madame Freeman, and a certain media profile that came to the office without our really trying to obtain it. There are a lot of very practical things to do, particularly in improving our service delivery to Canadians, in keeping up on trends, and in trying to be strategic about our interventions. There were these two I think very, very big cases that involved a lot of people and so on, but we have a lot of homework to do still.

The three years come from the fact that I thought it was about three years between the time I was appointed in late 2003, to 2006, when we finally got back something called our “staffing delegation”. Without that delegation, we couldn't hire our own employees without public service approval. If you're under that kind of cloud for two and a half years, you can't do very much. You're basically under a cloud of suspicion and, as a result, a lot of people perhaps don't come to work for you.

Once we got out of that cloud of suspicion, then we could tackle the second thing, which was getting a budget that was appropriate. Our budget had been frozen at its 2000 level, and then, because of all the things had happened, Treasury Board just said to get our house in order and they would look at our budget, which made sense again. I'll pass on the other inquiries we were subject to and so on.

So basically in that time.... As you know, it is very unusual in the public sector to have an agency that is in such a state. So because of the time I spent personally on all of those issues, which are not really part of an ongoing privacy commissioner's mandate, I didn't get around to some other substantive issues. I'd like to do that. I'd like to take back the equivalent of the time I spent on housekeeping and benefit from some of the wonderful people we now have, given that we're in better shape.

We're now able to attract a whole group of extraordinary and mostly younger employees who are increasingly doing an amazing job. I'd like to be able to leverage their talents in many areas, particularly in what's happening on the Internet and the interface between the Internet and society and information technologies of all kinds and to help Canadians with those problems.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I think one of the places where we've appreciated your leadership is in the work that you've done internationally with colleagues in other countries. I'm just wondering if you can give us some sense of how you see that progressing in the next period of your appointment.

[Jennifer Stoddart]

I think that work has to continue to progress. It may look like we spent a lot of time on international issues, which may perhaps seem glamorous and so on, but it wasn't that kind of choice. Because of the way the Internet functions, because of Canada's economic position, with so much on the Internet.... First of all, we're big users of the Internet and we're big users of the social network. A lot of our content comes from the United States or from France—even the United States for French-speaking Canadians. We have no choice but to engage internationally.

If you want to enforce our law against somebody who's sitting on the other side of the world, you need to have the ties with the enforcement agency on the other side, and you must have the credibility and have built up a relationship ahead of time. That's why another bill that is currently before the House of Commons.... Well, actually it is in Bill C-29, which went to the Senate, that I have extended power to share information and to enter into working relationships with other agencies and other organizations that do similar work in order to further Canadian law.

That's basically what we're trying to do, ideally: to better global protection for Canadians as their personal information circles around the globe.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

I'd like to come back to one specific example of that, which is the download of payload data by Google, which they say was done unknowingly. We know the data were collected, but it wasn't part of the plan, and we know the data were sent outside of Canada and stored outside Canada.

You recommended that it be deleted “immediately“, I think the word was, but you also put a caveat on that about it being done as soon as possible under U.S. and Canadian law. I don't think it has been deleted yet—unless you've heard that. The other day, Google didn't seem to indicate that it had.

But is that one of those situations where Canadians' personal information is now subject to U.S. law and where something that was collected improperly or wrongly can't be deleted because we now have to figure out American law? How do you approach that situation?

[Jennifer Stoddart]

Well, it's like everywhere else, as you do depend on cooperation. In the specific case of American law, because we are so attached and affected by American law, I have, for example, sent one of our lawyers to the Federal Trade Commission for a summer to learn about their trade commission, which is kind of like my vis-à-vis in the United States. We have some American lawyers on retainer. I don't think we give them a lot of business, but they're there and work for us when we need them.

The American law in the Google Wi-Fi conclusion doesn't relate to a contradiction in American law with ours on that point, but to the fact there are pending lawsuits in the United States against Google Wi-Fi. Some of that information, which is also taken from American citizens and consumers, may have to be frozen for the court procedures.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Thank you.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Mr. Siksay.

Ms. Davidson, for seven minutes.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Thanks very much, Mr. Chair.

Commissioner, thank you once again for being here with us. From the questions you're getting around the table, I think you can hear how much interest there is in your office. I think that has been brought forth every time you've been here. I, too, want to commend you for the job you've done and thank you very much for coming, particularly when we ask you on such short notice.

I was pleased to see that you're being recommended for reappointment for the three years. When you were here before, I know that we discussed briefly why it would be for three years. You've elaborated on that today and I'm glad it's something that was agreed to by both sides.

I did want to ask you a couple of things on your opening remarks to us. You talked about some of the areas that you could focus on if you were reappointed and certainly the online world being one of them. One of the things was: “Looking ahead, we need to continue to develop a deeper understanding of privacy issues in a digital world”. How do you plan to do that?

[Jennifer Stoddart]

We do it in many ways. Perhaps I could talk about our four priority privacy issues, all of which now touch the online world. They're in no particular order.

The first one is genetic information. With the proliferation of genetic websites, genetic testing, and medical advances related to our genetic composition, and the ethical issues around them, our genetic information is of course the ultimate personal information. This is clearly a huge issue that is coming up for society. We see it being commercialized already. It comes under both of our acts. We're continuing to follow those issues. We would like to investigate a genetic website. We haven't received a complaint yet, and there are many challenges in doing this. That is one issue.

A second one, of course, is national security. However serious personal information issues have become since 9/11, it's not clear at this point that they're going to radically improve in the near future. In fact, they may get significantly worse, as we talk about drones surveilling borders and increasing database exchange and so on. Continuing to look at national security issues is very important for my office. Increasingly, this involves online transfers. I think that's your particular issue.

Questions of identity integrity are another priority. This involves the consequences of having multiple online identities and the extent to which you have to share your information online as you browse from site to site, and also the extent to which advertisers or website hosts can scrape your personal information as you pass by and then perhaps sell it and so on. This was the subject of our ongoing consultation on behavioural advertising this year.

Finally, information technology is a general priority, an attempt to follow all technological developments in their implication on personal information privacy. Perhaps the most obvious these days is facial recognition technology, which again is based on transmission over the Internet. There's the smart grid, on which the Supreme Court brought out a decision just a few days ago. It was a very divided decision, but finally the majority said it was all right for the I think Alberta police to use information from the Alberta hydroelectric system about the consumption of electricity in the house of someone who was using electricity to grow marijuana.

Those are some of the ways that we are looking into Internet applications.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

One of the things that you had said in your opening remarks is something that I find an extremely simple statement but one that would be mind-boggling, I think, to many Canadians. You said, “Privacy is not an absolute right”.

I think that's something Canadians don't think about and I think it's something they should think about. If there's a way in which we can get that message out to people, I think it would help. They need to think about that. I think Canadians take for granted that our privacy is an absolute right. I just point that out as a comment. When you read that out, that was the first thing I thought of: most Canadians would not think of that.

[Jennifer Stoddart]

It has certainly been a long-standing legal tradition that our privacy is a constitutional right, but it does have limits. For example, if you have reasonable cause to persuade a judge that the forces of security should go into your home, well, your home is private except for that.

[Patricia Davidson, Conservative, Sarnia—Lambton, ON]

Yes.

You said you recently opened an office in Toronto. Do you plan to open other offices? Is a physical presence a necessity in today's electronic world?

[Jennifer Stoddart]

That's a very good question, and one with which I have grappled for years, obviously, because it has just opened now. A physical presence is clearly less and less important, but it still is important.

Ideally, if we had the resources, we would be present I would say in every province, because human interaction still counts for a lot. Human presence counts for a lot. Just being able to be where other people are in a more spontaneous and informal situation, rather than setting up video conferencing or trading e-mails and so on, I think is still preferable.

Why did we choose Toronto? It was because three-quarters of the respondent organizations under our private sector law, PIPEDA, are in Toronto. There are no plans to have a brick-and-mortar establishment elsewhere in Canada, but who knows? I'll see what this brings for the moment.

We have had regional presences. We hired a person full-time for two years in the Maritimes. He worked out of his home and went around the Maritimes making links, representing us, talking to high schools, and so on. We have an ongoing relationship with the Alberta Information and Privacy Commissioner and used his office at some point. They're informal links, depending on the region, what resources we can have, and how we can stay within our budget and so on. It's a creative kind of thing.

[The Chair, Liberal, Shawn Murphy]

Thank you very much, Ms. Davidson.

We'll go to Mr. Albrecht for four minutes and that will be it.