Evidence of meeting #30 for Access to Information, Privacy and Ethics in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rcmp.
A video is available from Parliament.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
Thank you very much, Chair.
Through you, I'd like to thank the Privacy Commissioner and Mr. Smolynec for being here to answer our questions today.
I would like to take you back through a little bit of the timeline. I think you said that you understood about the RCMP's use of technology in June, and then you got an update from the RCMP just this month. Have you gotten some information already from the RCMP about their use of technology that can be used to spy on people's cellphones?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Not at this time; we were made aware of its use through the media and the question on the Order Paper at the end of June. We reached out to the RCMP. They are aiming to provide us with information at the end of August. It will be coming this month, but it hasn't come yet.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
Okay.
From what you know of the RCMP's limited use of technology in some investigations, do you have concerns about how it was being used? Can you explain any privacy concerns or other concerns you have about a violation of people's rights under the charter?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Well, we have not received detailed information in terms of the context and the use. That's what we look forward to receiving and to providing advice on with the facts. I think what I could say at a high level is that, on the one hand, these tools appear to be potentially highly intrusive in terms of their capabilities to gather information. On the other hand, they are also subject to an extensive regime in terms of judicial authorization and conditions. We will look at those two aspects to see the intrusiveness of the tools but also the safeguards, including the fact that they are, if they are, and the extent to which they are subject to judicial authorization and the criteria and notification—the elements in terms of the Criminal Code. We're going to look to see if, given the evolution of the technology and the capabilities, there should be more in terms of safeguards, whether it be with respect to retention policies or otherwise.
These are the things we're going to be looking at once we have the briefing and the more detailed information, as we would have done and as we would do in the context of any program where a PIA would be done.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
Thank you.
You mentioned that there should be some updates to the Privacy Act that should include this under its purview. I'm wondering if you can give us a little bit more detail about how that legal framework should look.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Sure. Currently, there's no legal obligation on departments or the RCMP for doing this. There is a policy from the Treasury Board and there's a directive. Those policy instruments require that PIAs be done when there's a new program or new use that could potentially be having an impact on the privacy of Canadians. There's a requirement that my office be notified early enough so that we can provide meaningful input. The idea, again, is to reassure Canadians, and also to ensure that the information and advice is there.
But we see situations like this one, where this is done very late, after the tools have been used for some time, so we're not in a position where we can address or prevent. We're in a reactive mode. Our advice and recommendation, or my hope, is that this be made a legal obligation in the Privacy Act, because then there hopefully would be more timely compliance with this requirement.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
Is the RCMP required to consult with you before starting the use of technology like this, given that there are several layers of judicial authorization needed for them to use the technology?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Under not a legal obligation but under the policy documents of the Treasury Board; this is something that's not legally required but is more internal. The sanctions could be imposed by the Treasury Board itself...or removal of delegation or these types of things, but there is certainly in this policy the sense that my office should be notified and that a PIA should be done in high-risk situations where the tools can have an impact on privacy.
The fact that there's a judicial authorization regime doesn't remove the need to do a PIA, but it's an important element that would certainly be looked at and considered in a PIA as a mitigation measure.
Liberal
Lisa Hepfner Liberal Hamilton Mountain, ON
And you would like to see it become a legal requirement that your office be consulted.
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
That the PIA be done would be the legal requirement and that my office be consulted in appropriate cases; again, there may be situations where you have to manage the risk at play. There's also the sensitivity of the information. Situations have to be looked at on their facts.
Our recommendation is that if it were a legal obligation, there would be more compliance. Maybe it would help organizations ensure that they do it, that they have the resources to do it and that they're coordinated enough to do it. I understand that organizations have a lot of pressure and have a lot of things they have to bear in mind. I'm very sympathetic to that. I think having it as a legal obligation is sometimes helpful, because it focuses the attention on that.
Conservative
The Chair Conservative Pat Kelly
Thank you.
With that, Ms. Hepfner, you are out of time.
Mr. Villemure, we now go to you for six minutes.
René Villemure Bloc Trois-Rivières, QC
Thank you, Mr. Chair.
Commissioner, like my fellow members, I want to congratulate you on your recent appointment.
Let me say, from the outset, that the purpose of this study is not to carry out a witch hunt but, rather, to see whether improvements are needed, whether a legislative framework or public policy is needed to protect Canadians. Respect for fundamental rights, public trust and the public good are all things we are trying to achieve here.
Thank you for being with us this morning.
There is no denying how quickly technology moves, sometimes faster than legislation. Nevertheless, other countries, or the European Community, has begun looking into spyware.
What can you tell us about a government entity's decision to use or not use spyware?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
A government entity's use of spyware raises privacy concerns right off the bat. That doesn't mean that it won't be allowed in situations where it's appropriate. As I said earlier, privacy is not an obstacle to the public interest, but it always has to be taken into account. Privacy is a fundamental right and needs to be taken into account. It's a matter of human dignity.
You're right about how quickly technology is moving, and tools are becoming more and more sophisticated. This isn't the same as just intercepting a conversation on a landline; smart phones hold a wealth of information.
The approach we advocate is taking privacy into account from the get‑go, especially given the potential for technologies to be more and more privacy-intrusive. Also important is the ability to properly weigh the risks and the necessity of using the tool.
My office and this committee recommended necessity and proportionality as criteria. That is not to say that the tool can't be used. Perhaps it can. Perhaps, in this case, that balance was achieved, but it's important to make sure. Those checks and balances not only protect privacy, but they also reassure Canadians that privacy is being respected.
Bloc
René Villemure Bloc Trois-Rivières, QC
A sense of security is indeed very important in this situation.
On its own, a tool isn't moral or immoral. The problem really has to do with how it's used. Admittedly, these tools are extremely intrusive. They can be installed on people's phones unbeknownst to them.
I think it's your office's job to review and verify assessments that may be done upfront.
Do you think the RCMP or similar organizations need oversight when it comes to assessing their practices?
Currently, they do their own assessments. If they tell us that it's appropriate to use this or that tool, I'm willing to believe it, but self-assessment has its limits.
What do you think?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
This afternoon, you'll be hearing from RCMP representatives. I think they will highlight the fact that these tools are subject to oversight under part VI of the Criminal Code. In its response, the RCMP said that the use of these types of tools was subject to judicial authorization. That's an important aspect.
That oversight comes down to criteria set out in a section of the Criminal Code for the purpose of protecting privacy while allowing criminal investigations to take place.
What we are saying is that, when these tools are new, very powerful and potentially intrusive, it's important to carry out privacy impact assessments, even if judicial review mechanisms are in place. There is a system that has that requirement, but it's not a legal one. It's the system that was put in place pursuant to the Treasury Board policy. My office asks departments to ask these questions and to document the information.
At the end of the day, the results may show that, while these tools are certainly intrusive, they are necessary given the difficulty of conducting the investigation and the lack of alternatives. It's not about choosing between the public interest and privacy; it's about ensuring respect for both, but it has to be done in a way that builds trust. It's better to carry out assessments at the front end so that the use of these tools doesn't come to light in a news report or in response to a parliamentarian's question. This kind of situation can be avoided by conducting assessments first and by consulting my office when appropriate.
Bloc
René Villemure Bloc Trois-Rivières, QC
Now it feels as though there's been a breach of trust.
Currently, a number of bills relate to privacy, including Canada's digital charter.
I worry that all these bills have gaps. Do you have a recommendation that might help?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Parliamentarians, my office and stakeholders need to ask questions and examine the possible repercussions these tools have on privacy.
You're right: there are a number of bills and initiatives. Organizations need to address privacy considerations in their plans and activities, and parliamentarians need to do the same when it comes to bills. My office is here to provide the committee with advice on legislative measures.
Bloc
René Villemure Bloc Trois-Rivières, QC
Do you think we need a moratorium on spyware right now, so we can take the time to really examine things?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
We said the same thing in relation to facial recognition technology: it's important to consider the safeguards in place. That includes the requirement to obtain judicial authorization before using spyware.
My priority is to determine what the repercussions and implications of using the tools are, and to make recommendations based on the information provided by the RCMP. We hope the RCMP will follow through on our recommendations, and that's what we expect.
Conservative
NDP
Matthew Green NDP Hamilton Centre, ON
Thank you very much.
Already, some very important points have been raised. Hopefully, they will help guide us in future discussions on balancing Moore's law and the advancement of technology with legislation and, quite frankly, a workforce that may not be as up to date on the technology, to be able to provide adequate insight on its proportionality.
Mr. Dufresne, you mentioned that you're looking to see the privacy impact assessment as a legal requirement. Can you take a brief moment to expand on why it would be important for your office to provide oversight on the basic functions of this rapidly increasing and expanding use of technology?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
Absolutely.
Privacy impact assessments, in my mind, are an important tool for a culture of privacy, for a culture where privacy is top of mind. We are designing tools for organizations that are meeting many obligations and facing pressures. Time is limited for decision-makers and I understand that, but having that framework is about getting into this habit of asking questions: What is the impact on privacy? How large is it? How necessary is it? What is my purpose? Why do I need this information? Do I need as much? What are the safeguards we're putting in? All of this risk assessment, the identification of mitigation tools and the identification of proportionality create a culture of privacy and a culture of privacy by design, and in the ideal scenario, it means that my office doesn't need to be involved—or very little—because we're informed of it; we're notified. We then look at it and we're satisfied, or we provide some advice. It doesn't give rise to situations where there is a complaint, a concern or a sense of mistrust, or where questions are being asked.
This is good, in my mind, for everyone. It ensures the protection of privacy for Canadians, ensures organizations can achieve their goals and ensures there's trust in society so Canadians can feel they can use these tools and participate as digital citizens.
NDP
Matthew Green NDP Hamilton Centre, ON
When you talked about strengthening the language of privacy as a culture, you mentioned strengthening fundamental rights in the language of the preamble. Just so that I'm clear, is a preamble legally binding in legislation?
Privacy Commissioner of Canada, Office of the Privacy Commissioner of Canada
It's not legally binding to the extent that a section of the act is, but it would be looked at in identifying the purpose of the act and in identifying sections of the act. The preamble is very helpful, so we would look to—