Industry Committee on May 29th, 2020

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you so much.

Just to build off the questions from my colleague Mr. Patzer and Mr. Lemire, what do you think of enshrining a right or an acknowledgement of personal data ownership? Right now there is a perception that due to onerous terms of service, data, or the productive value of data, is owned by, let's say, big data corporations. If we enshrined the right of personal data ownership as a principle or a starting point to build a new privacy framework in Canada, would that be helpful for Canadians?

[Michael Bryant]

I am not sure. The reason I'm not able to answer yes or no is that it depends on what's done with that information. If somebody can access the information that I supposedly own, that doesn't say much for my ownership rights.

The issue is more about presumptions. The presumption that it is private information should be the starting point, and then it's up to third parties and the state to make the case for access to that information.

That's the best way I can answer the question.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you. That's very helpful.

Mr. Bryant, I've been a parliamentarian for several years now, and it's a learning experience. I've been on both sides of the aisle. What I've noticed in my tenure is that over this period there has been a big centralization of power within the PMO. I question the rights and abilities of parliamentarians under current operating situations, and what has happened in the last several months really concerns me as a parliamentarian and as one who represents over 80,000 electors. I want your thoughts on that.

For example, there are a couple of headlines that really disturbed me. One was in The Globe and Mail: “Health Minister Hajdu stops Dr. Theresa Tam from answering question about Canada’s emergency stockpile”. Also, my understanding is that the federal estimates, which are going to have about $150 billion of new spending, will only have four hours of debate. One of the things your organization does is it protects the right to vote. I have a right to vote on behalf of many of my constituents.

Are you concerned about the state of democracy and civil liberties with regard to how Parliament has been operating throughout this crisis? What are your recommendations to us on that?

[Michael Bryant]

I'll just repeat what I said before about accountability. There should be some clarity and transparency with respect to what the government is doing when it's considering a particular order, what the timeline is for an executive order and what the executive is doing at any given time. When a decision has been made by cabinet, it should release it immediately and be explicit about this, not putting it in the can, getting the communications ready and then making it available to the public. The—

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

I just have a few seconds left.

It's my understanding that the government has used an order in council to put forward a confiscation regime for property of law-abiding Canadians. Do you think that's acceptable during a pandemic?

[Michael Bryant]

I'd need to know more specifics about it, but I'd say it has to be authorized by legislation. If it's not authorized by legislation, it would be without jurisdiction.

[Michelle Rempel, Conservative, Calgary Nose Hill, AB]

Thank you.

[The Chair, Liberal, Sherry Romanado]

Our next round of questions goes to MP Erskine-Smith.

You have the floor for five minutes.

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

Thanks very much.

Professor Scassa, I normally agree with everything you say. In this case, I agree with almost everything you say. I have one challenge. I'm probably speaking into a bit of a void here, because I don't think we're going to get to a place where these applications are as effective as they maybe could be, but one challenge getting in the way of that is the idea of requiring opt-in systems.

You are absolutely right that there are very different tracing applications. We can look to a decentralized system like the DP-3T standard, say, or look to using Bluetooth, which is more accurate than using GPS data. If we have a data governance framework in place that respects every principle on purpose limitation, that ensures that information will be deleted at the end of this pandemic and that has strong oversight from privacy commissioners or privacy advocates like you, and if it is true—and this may not be true, though there is some research out of Oxford that it is—that an adoption rate of 60% or higher is required for this to really have an impact and be successful, and we could save lives as a result, why is an opt-out system so important? Is it not a balance? Are we drawing the lines even before we get to the important question of what is effective overall and where the balance should be struck? Are we just saying, right from the get-go, that we can't even have this conversation because it should be opt-in?

[Prof. Teresa Scassa]

I think that's a really interesting question to unpack. I have trouble separating my own skepticism about the technology from the issue of whether it should be mandatory. For example, a lot of these technologies, depending on the design and depending on which one it is, depend on the effectiveness of COVID-19 testing. If you're in a context where not everybody's being tested and it takes five days to get test results, then these apps are going to be minimally effective. They may be useful in some circumstances.

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

I agree with that, so let's imagine a world where we ramp up testing capacity to such a degree that there is a role for them to play. If there is a role for them to play, and adoption rates of 20% are, as we know, not going to be significantly effective and it's not even worth going down that road, let's double down on human resources. We should do that anyway, I agree, but if we can get to a 60% or 70% threshold by having an opt-out system that still preserves the choice of an individual who truly cares, wouldn't that make more sense, all else being true? I recognize that there are a lot of contingencies here about the data governance framework and the design of the tracing application, but if everything else preserves privacy in every way, is there any give on that particular issue?

[Prof. Teresa Scassa]

I think it's hard because in a sense you almost create a context that is not the realistic context we live in. You have people who don't have phones. You have people who don't have phones that are of the right model or operating system. You have people with perceptual disabilities. Some Canadians may have difficulty with the English- or French-language literacy levels necessary to use the apps. A number of people are going to be excluded, in any event, so I think in that context, mandatory or obligatory is problematic.

The other issue is the civil liberties issue of making a form of data collection about location, context and personal health information mandatory. I think once you set a precedent for saying mandatory—

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

No, I've suggested opt-out, right?

[Prof. Teresa Scassa]

You're saying opt-out, yes.

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

That's different from mandatory.

[Prof. Teresa Scassa]

Yes.

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

It still preserves choice in a significant way. I think it would strike a better balance overall, but it requires a lot of other contingencies to be put into place.

[Prof. Teresa Scassa]

It does, yes.

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

Mr. Bryant, you were speaking to the importance of freedom of speech. Of course, truth is important too. When it comes to social media companies, which are private actors that certainly have every right to downgrade content that is inaccurate and false and to highlight reliable sources, would you take any issue with broadcasting standards councils and other things like that, which would focus on and support truth and standards in the dissemination of information?

[Michael Bryant]

I'm all for truth, if that's what you're asking. Our concern is primarily with censorship.

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

I do note, of course, if you say something false and it harms another person's reputation, of course you are restricted in saying that. So we do have censorship in a significant way in all sorts of contexts. Would you be opposed to the idea of social media councils in terms of the ethics of the information they are effectively pushing forward, as algorithms are replacing editors?

[Michael Bryant]

I would need to know more about it. We're the CCLA, so we have the luxury of being able to be hardline on free speech, which you don't have pragmatically. I think I'd better leave it at that.

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

Thanks very much.

[The Chair, Liberal, Sherry Romanado]

Thank you very much.

I now yield the floor to Mr. Savard-Tremblay, who has two and a half minutes at his disposal.

[Simon-Pierre Savard-Tremblay, Bloc, Saint-Hyacinthe—Bagot, QC]

Thank you, Madam Chair.

Once again, I thank the witnesses for their statements.

I want to ask you the same question I asked the Privacy Commissioner of Canada, but from a different angle.

Couldn't the concept of ownership of data be specifically addressed in the legislation that might be passed? On the one hand, we should be able to decide what we agree to share. On the other hand, in the event of a violation of privacy or use of data against the will of the person concerned, could the notion of ownership trigger the application of severe measures, as is already the case in some European countries?