Industry Committee on Nov. 2nd, 2023

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Then what do we do to enforce these rules to protect our kids?

[Sharon Polsky]

It might be easier to say what we don't do. We don't leave it to people who don't correctly understand what privacy is and what the technology is, does and can do. We require a broad consultation of the people who really do understand it at a deep level. That, I think, is not the technology companies that are self-interested.

I'm all for companies making profit and shareholders, investors and domestic economic advantages—sure—but our privacy is not their concern, and they've done a poor job until now.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

I'm thinking ahead 15 or 20 years to when there's going to be other privacy legislation in Parliament. In the meantime, with technologies changing so quickly, is there any other alternative other than doing something pretty fundamental here to put forward a bill that goes to the nth degree to make sure that children are protected in every single circumstance—

[Sharon Polsky]

Yes, turn it around.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

—and that their data cannot be used under Canadian law?

[Sharon Polsky]

Turn it around, so that it's no longer up to the companies. Make it so that—thee and me—we have the authority to grant permission to the companies.

When we look at that, I caution that, when it comes to companies or legislation, it will require age verification. We already have companies saying that in order to make sure that the children aren't looking at this content, provide photo ID—government-issued photo ID of mom, dad and the kids.

All they're doing is collecting that information. Why should we trust that they're going to protect that any better than the information they already don't protect well? It's so complex. That's why, please, involve our organization, my colleagues' organizations and the people who actually understand this from an operational level.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Jim Balsillie said in our meeting that, in a previous time, kids could go back to their room at the end of a hard day at school and lick their wounds.

Can we get back to that in Canada where kids truly have freedom from technology once again? Can we as legislators help them get there?

[Sharon Polsky]

I'm very pleased to see recently kids in my neighbourhood, seven-, eight- or 10-year-olds, walking without a parent at arm's length, without an adult. From some psychology experts in the States, there was a report recently that children have suffered because they have not been allowed to play outside. Go climb a tree. Go fall. You won't do it again. They learn their limits. We need that.

That is I think a public policy decision from governments across the country at every level. It's not just a matter of teaching kids in school digital citizenship, feeding them and handing them digital devices. Take the digital devices away and make the kids think again. Tell them to go and play. Run and play and be kids. Don't make digital everything the be all and end all, as if you're going to be the odd man out if you don't use these technologies. Let them be kids. Do you know what? Go back to pen and paper. It's a whole lot more private. Old fashioned is—

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you for your time.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

Mr. Hatfield, I'll give you the last comment for this round.

[Matthew Hatfield]

Can I just suggest the best way to protect the data of young people is to provide a very high level of data protection as an option to everyone?

If someone indicates that they are a minor when they sign up, default everything to the highest level of protection and don't change that until they're not a minor.

[The Chair, Liberal, Joël Lightbound]

Thank you.

Mr. Gaheer.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you, Chair.

Thank you to all the witnesses for making time for this committee. My first questions are to Mr. Lawford.

I was listening to your opening testimony. I was just a little bit thrown off by it.

I'll just ask one question because I do have questions for the other witnesses as well.

You had mentioned something about business activities, that the exception is there. Information can be used without the knowledge or consent of the individual if the information is used for a business purpose. You said this information could be used against individuals. Is that correct, from your opening testimony?

[John Lawford]

Yes. This is where you get into disputes with businesses about whether what they are collecting is necessary for the purchase. If you go into Tim Hortons and you want to order your coffee when you're waiting in line, so when you get to the window it's ready, do they need to track me all across town afterwards because that's the default in the software?

It's that kind of thing. There's a difference in opinion from Tim Hortons to me about whether that's necessary.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

I'm sorry to interrupt.

I'm looking at the actual legislation itself, the bill. There are clear safeguards. It says that the information can be collected without their knowledge and consent if it's used for the purpose of a business activity, but proposed paragraph 18(1)(a) says that there are conditions. One is that “a reasonable person would expect the collection or use”—of that information—“for such an activity”. More importantly is proposed paragraph (b), that “the personal information is not collected or used for the purpose of influencing the individual’s behaviour or decisions.”

It's very clear there's a safeguard in the bill itself that the information that's collected can't be used against that individual.

[John Lawford]

Right.

I think the business answer would be that we're not going to use that personal information to disadvantage you. We're going to offer you benefits. There's a new pumpkin spice latte. We're going to give you a coupon while you're waiting in line. Some people might accept that. Other people might think that's creepy. The trouble is that the first standard you mentioned in 18(1) is an objective standard. If it bothers me personally, I don't have the choice to say, “No, that bugs me personally. I don't want your coupons.” Right now, under PIPEDA the decision is more subjective and it's personal to me. I just don't give you my consent.

This flips it around backwards is what I was trying to say.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

What's the alternative then?

Would you just remove this clause altogether?

[John Lawford]

Section 18 is gone, yes.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

What about the fact of stifling innovation, stifling business, and that fine line you have to walk?

[John Lawford]

I don't buy that, because businesses are functioning very well right now. I don't know of any innovation that's being stifled by the present law. Perhaps the Business Council said something different the other day.

If you take proposed section 18 out.... Now consider that proposed section 18 wasn't in Bill C-11. Apparently the department didn't need all these exceptions in the first version. Now, it's in. I'm just saying to take it out because businesses can function at the present time. I think to remove the general right of subjective consent from all Canadians is a pretty big lift. I want to see a lot of innovation being stifled before that gets taken away.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

This bill has gone through so much consultation over four years across companies, civil society and academics as well. We are radically improving enforcement powers, and we're increasing the requirements on businesses.

My other question is for Mr. Konikoff.

Regarding the tribunal, we heard from Michael Geist that the tribunal could accelerate and improve access to justice if it was “properly constituted”. It's mandated that it requires at least three experts in privacy law, and it could offer more specialized and faster resolution than our traditional court system. As a lawyer, that means a lot to me.

In your opening brief, you said you wanted to remove the power of the minister to recommend tribunal members. Does that mean you will support the tribunal?

How would you want the tribunal to be constituted?

[Daniel Konikoff]

I think the question of whether I support the tribunal is contested.

It seems as though it has a fundamental problem with that independence component. The capacity for the minister to appoint what would essentially amount to, as I wrote here, part bureaucrat and not independent judges or officers at arms length of Parliament, would pose a tremendous challenge to any sort of claim that can be made of the tribunal's independence, should it exist.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

I'm cognizant of the time.

How would you do it differently then?

[Daniel Konikoff]

It's on me to point out these concerns. It's not necessarily on me to entirely reconstitute a legislative body.

Thank you.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you.