Information & Ethics Committee on Sept. 29th, 2016

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks very much. I want to pick up on what Mr. Calkins was pursuing.

In the private sector, we talk consent; in the public sector, presumably we're going to talk necessity of collection. But when it comes to secondary use, in the private sector we talk consistent use with that initial consent; in the public sector, there are a number of different ways to think about this now.

So you can talk consistent use, you can talk compatibility, requiring some direct connection, and you can talk about necessity and imposing some sort of proportionality requirement. I would be interested in your thoughts as to which of these standards we should be looking at on secondary use.

[David Fraser]

It's difficult to come up with a one-size-fits-all, but I do like the necessity approach. It has to be reasonably necessary for a legitimate operating program of the government institution to collect it in the first instance, and obviously that's the purpose that informs the use to which it can be put. You don't necessarily want to bake it in too much, but you do for the private sector. The private sector has to identify the purposes to the individuals, obtain their informed consent, and if they want to use it for any other purpose than the one that they've informed the person about, they have to go back and get consent.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Do you think it would be too broad then to say, after the initial collection of information, that a department could share that information provided it was for an important government objective for another department, it was necessary for that use, and it was proportionate to that use?

[David Fraser]

There may be another way of thinking about it, because when you have one institution disclosing and you have another institution collecting, you might frame it so that for the institution that's obtaining it, it needs to be necessary for their legitimate operating program. There should be enough of a connection between the two.

There may be other mechanisms, for example through an order in council or something else like that, if it's out there, but be mindful of the fact that some things that have been seen to be relatively innocuous have had significant privacy consequences. I don't remember how many years ago it was now, but I recall that HRSDC wanted to bring together a number of databases related to programs that it operated. One could easily say it was all collected by the same department for the same general purpose of providing benefits, but there was in fact an advantage, a privacy advantage, of keeping CPP stuff over here, and EI stuff over there. All of sudden, you create what they call a longitudinal database. It would be from cradle to grave in one database. You could say that those are directly connected, but overall the privacy impact of that is that you've created a Big Brother database.

You want to be very careful, to make sure that the decision-making takes those sorts of things into account and there's visibility and transparency, because these things shouldn't be happening in the shadows.

[Dr. Michael Geist]

David's answer is an excellent one. I think there's been a bit of a theme about the need for some amount of flexibility here. We've had it on a number of the kinds of issues where, once you start coming up with real-world examples or potential real-world examples, it starts getting more and more difficult to come down with a specific response.

Flexibility sometimes can be a bit of a feature, not necessarily a bug. There is value in that flexibility. What then becomes essential, though, if we recognize that there is going to be that flexibility, is how you ensure that you have appropriate oversight and review as part of that process, and transparency more broadly, so that at least we understand how some of these things are being interpreted, and can better understand whether or not it's consistent with what many people would think is reasonable.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

To put it another way then, because I think PIPEDA, with a principle-based approach, is a good one, if we talk about the necessity principle, and you're both advocating that be included, would a proportionality principle also be an important principle to add with respect to, especially, secondary use, and maybe even initial collection?

[David Fraser]

I would, in terms of it. I think it's difficult. I don't envy the legislative drafters' task of trying to articulate that. Courts have consistently talked about proportionality, and it's far more nuanced than what lends itself to black-letter law, but I do think that is in fact what needs to be taken into account.

Is the benefit to government operation or the country as a whole proportional to any trade-off in privacy? I think those are questions that should be asked on a regular basis.

A privacy impact assessment provides a really good framework for asking all those questions, surfacing unintended privacy consequences, and forcing the decision-maker within government to think this might be something we can mitigate this way, or maybe we don't need all that sort of detail. But without that methodology to systematically address it, very easily those nuances can get lost and you're not making the best-informed decisions.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thank you very much.

[The Chair, Conservative, Blaine Calkins]

Colleagues, that brings to a close our questions.

To our witnesses, as we continue on with this discussion, we see why it's been so long since somebody's been able to come up with some legislation that we'd be comfortable putting in front of Parliament. We thank you. We hope that continued efforts on everyone's part here results in an updated piece of legislation. I know that you probably both stand ready to assist the committee should we ask for further assistance on this matter. Thank you very much.

Colleagues, seeing that there's no other business, this meeting is adjourned.