ETHI Committee Report

Dissenting Opinion of the Liberal Party of Canada

On January 13^th, 2022, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (the “Committee”) unanimously adopted a motion to study the issue of Collection and Use of Mobility Data by the Government of Canada. The motion reads as follows:

That, in light of recent media reports, the committee immediately undertake a study, pursuant to Standing Order 108(3)(h)(vi) and (vii), of the Public Health Agency of Canada collecting, using or possessing Canadians' private cellphone data, without their knowledge or consent, and: a) invite the Chief Public Health Officer of Canada to appear for one hour, including a five-minute opening statement; (b) invite the Minister of Health to appear for one hour, including a five-minute opening statement; and (c) request that the members of the committee provide to the clerk, one day following the adoption of this motion, their preliminary witness lists for this study.

The Liberal members on the Committee recognize the importance of the privacy of Canadians and the government’s responsibility to protect that privacy. While Liberal members applaud the efforts of the Committee to tackle the issue at hand, we note that:

• The motion is based on misleading reports on the scope of the collection and use of mobility data by the Public Health Agency of Canada. Witnesses confirmed that while mobility data was collected, it was not for 33 million people, as was reported and echoed by members of the Committee. Liberal members on the Committee also note that the text of the motion is based on a false premise – that Canadians were not informed of this collection of de-identified and aggregated data when in fact, the government announced in March 2020 of this collection. The work conducted with the collection of mobility data has been made publicly available on the COVIDTrends website as a means to provide Canadians with local information on COVID-19 in their communities with explanations of how this data is used, and the privacy protections currently in place.
• The report, while it highlights important issues relating to privacy concerns and the government’s responsibility to be open and transparent, includes sweeping recommendations that go beyond the scope of the study as proposed by the motion outlined above. The study embarked upon by the Committee was in fact a case-study of a specific contract engaging contractors to collect, de-identify, and aggregate mobility data for the purpose of better informing public health policy decisions during the COVID-19 pandemic. The Request for Tender included provisions that mandated the protection of privacy of Canadians. Witnesses confirmed that, to further protect privacy, the Public Health Agency of Canada also used a multi-barrier approach from the source of the data, along the data pipeline and prior to it being received. In fact, witnesses confirmed that while the risk of data being re-identified is never zero, in this contract, there were no breaches in the privacy of Canadians and strong standards for the protection of privacy were followed.
• The report identifies over 20 recommendations that go beyond the scope of this case study. Liberal members on the Committee note that many recommendations call on the government to do what it already is doing. For example, the Committee heard from witnesses that the Government already engages in substantial and ongoing consultation with the Privacy Commissioner and privacy experts when navigating the collection of data. Another example is that the Privacy Commissioner already has the power to investigate complaints and possible breaches in privacy.
• Liberal members on the Committee also note that several recommendations in this report demand that privacy legislation be amended in various ways. We agree that privacy legislation, including the Personal Information Protection and Electronic Documents Act (PIPEDA) needs to be modernized. However, we are of the view that this modernization must be based on a fulsome review of federal privacy legislation that clearly defines and captures the scope, use, and disclosure of de-identified and aggregated data; such review should include establishing a standard for the de-identification of data. Without a fulsome review, the possible result could be a patchwork of amendments that do not solve the challenges at hand.
• Liberal members on the Committee note that the Minister of Innovation, Science and Industry has committed to digital privacy reform as a top priority, including the reform of the Personal Information Protection and Electronic Documents Act (PIPEDA), and will take these considerations into account.
• We also note that the Minister of Justice and Attorney General of Canada is also committed to reform of the Privacy Act (PA) and will similarly take these considerations into account. In particular, he has been mandated to build on previous public consultations and technical engagements amongst experts and to continue substantive review of the PA including engagement with Indigenous partners to develop specific proposals for amendments.
• Liberal members on the Committee believe that, when it comes to the protection of privacy of Canadians, better is always possible and the government should continue to review policy and legislation and identify gaps in the ever-evolving digital space and its implications on the privacy of Canadians.

The Liberal members of the Committee thank the House of Commons analysts and clerk for their hard work on this important case-study as well as the witnesses who appeared before us and helped inform the substance of this report.