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Appearance of Bruce Phillips the Privacy Commissioner of Canada before the Standing Committee on Justice and Human Rights
May 7, 1998
Privacy Commissioner of Canada
(Check Against Delivery)
Since I last appeared, an election has intervened. Thus, some of us are meeting for the first time and the issue, and my office's existence, will be a revelation to you. I thought, with the indulgence of returning committee members, I should explain what privacy is, what it is not, and then how I and my 36 staff attempt to defend it.
Privacy is so taken for granted in a democracy, so self-evident that it has almost ceased to be evident. Think about it. Privacy is the value at the foundation of the secret ballot, doctor-patient confidentiality, solicitor-client privilege, wire-tapping law, the concept that our homes are our castles, and our society's fierce defence of the autonomy of the individual.
In the words of former Supreme Court Justice La Forest, privacy is "at the heart of liberty in the modern state". Respecting one another's privacy means the difference between a life of liberty, autonomy and dignity, and a hollow and intimidating existence under a cloud of constant oppressive surveillance.
Thus, privacy is not an individual right enjoyed at the expense of society as a whole. It is part of the glue of mutual respect which helps hold a free society together. Whether to reveal or conceal the details of our lives are decisions for the individual to make, not the state, except in the most limited and exceptional circumstances.
This is a critical time for this value we take for granted. Nothing but bold steps will save it. Surveillance, that tool of oppressive totalitarian regimes, is now within the reach of virtually everyone with the desire and the few dollars it takes to buy the sophisticated equipment. By surveillance, I don't mean the guys in trench coats or ubiquitous cameras, although the proliferation of cameras is astonishing. I mean the unseen surveillance through the computer databases of governments and businesses both large and small.
The power of new information systems to record, to mine, to match and to manipulate data has grown exponentially since passage of the Privacy Act. Consider my own tiny office. When the Act took effect in 1983, three secretaries had word processors, the Commissioner and one staff member had typewriters. Although our equipment has never been state-of-the-art, we were probably like many government offices. Computing, where it happened at all, was done on mainframes which, despite their then-impressive size, simply stored and retrieved static data.
Today, everyone in the office has personal computers on their desks. The de-facto standard desk-top computer today has 32 megabytes of memory, substantially more powerful than those old mainframes. And in an office setting, they seldom stand alone but are linked into internal networks which enable us to share data. But more critical to our privacy than the memory capacity is the new machines' ability to collect, exchange, manipulate, analyze and store the data.
The more the machines can do, the more we seek new and creative uses for them and the data they store. This is what privacy advocates call "function creep", or "If you build it, they will find new and sometimes dubious uses for it".
There is no debate about modern societies living without electronic information processing. But the quid pro quo is legal protection for the individuals whose personal data can be amassed, mined, manipulated and disclosed, often, one might even argue, usually, without the subjects' knowledge or consent.
Canadians hold this protection dear. As early as the 1960s, they began questioning the relationship between information, privacy and political power; whether our increasing use of computers could lead to loss of individuality or enforce conformity.
As the concerns grew, the Departments of Communications and Justice struck a joint task force in 1971 to examine the issues, culminating in their watershed report, Privacy and Computers. The task force's recommendations contributed to privacy rights being embedded in law in 1978 as Part IV of the Canadian Human Rights Act. The current Privacy Act was built on Part IV and on the OECD's privacy guidelines, adopted in 1980.
The aim of the Privacy Act is to hold the federal government accountable for its handling of Canadians' personal information. It does this in two ways. First, it gives individuals a right of access to their personal records held by government agencies, broadly similar to the right to have access to general records.
But, the second aspect is the most critical; it sets a standard for government collection, use and disclosure of personal information. The Act is an information management code set out in law. It gives the Commissioner the right to investigate compliance with the code. And it provides individual citizens the right to complain about government information practices, not just about how their access request was handled. In fact these privacy complaints comprise about one quarter of our workload but consume about 80 per cent of our effort.
The Act does not cover the Crown corporations (although Parliament unanimously agreed that it should during the last session). It does not cover you, Parliament, or me. It does not cover the Courts. And it does not cover the private sector. There is broadly similar legislation covering most provincial governments and, in Quebec, the private sector. In sum, this patchwork quilt exposes more than it covers and we are beginning to feel the drafts.
The Privacy Commissioner is Parliament's independent ombudsman who oversees government compliance with the federal law. Not only do I investigate complaints, I am, in a sense, your canary in the mine. I am here to sing.
That patchwork of legal protection is no match for current information technology in the hands of those pressuring for administrative efficiency, cost savings, one-stop shopping for government services and safe streets, and damn the social consequences.
I will begin with a positive sign, government proposals to bring at least the federally-regulated private sector under the legal umbrella. In September 1996, then-Minister of Justice Allan Rock assured international data commissioners (as privacy commissioners are known elsewhere) that Canada would have private sector privacy law by the year 2000.
The first step on this thousand-mile journey is the Industry Canada and Department of Justice discussion paper. The paper, entitled Protection of Personal Information: Building Canada's Information Economy and Society, acknowledges that effective privacy protection is no longer possible without binding the commercial world. The paper proposes building privacy law on the Canadian Standards Association Model Privacy Code and it sought public input on industry codes, registry of databases and independent oversight.
The paper focuses on privacy protection as essential to electronic commerce, rather than as a social value. And, it assumes that business has the right to collect whatever personal information it needs. Nevertheless, it is a useful vehicle for stimulating public debate on the issue and for moving it forward with legislative action. That is the essential next step. We need legislation across the country which reflects the best features of an enhanced CSA code and existing privacy law. Voluntary codes simply do not cut it. We also need meaningful and independent oversight.
Another aspect of electronic commerce now being discussed is encryption. Encryption scrambles electronic communications to ensure that only the intended recipients can read them, that we know who sent it, and we know it has not been altered in transit. Our trust in the system is fundamental to our engaging in electronic commerce. Also critical to Canadians' participation will be our freedom to choose and use different encryption tools. The more restrictive the government controls on those tools, and the more the encrypted communications are subject to law enforcement override, the less we will use electronic commerce.
Law and policy makers should weigh carefully the claims that access to encrypted communications is essential for law enforcement. Giving unfettered access by law enforcement agencies to the tools to read encrypted communications will both reduce the trust in the system and make all electronic communications potentially available.
Law enforcement interests must respect the privacy of Canadians, and must not abrogate or encroach on fundamental civil liberties. Broad interception and decryption capabilities may not be the most appropriate solution to the problem of criminal activities, and may violate Canada's Charter of Rights and Freedoms.
Another policy issue of growing concern is the move towards constructing a national health data network. While health is clearly a provincial matter, the funding to establish an integrated health network comes from the federal government. Health Canada is an important player in the process.
Putting health care information into an electronic system has important real life implications for Canadians. Respect for privacy is the essence of the doctor-patient relationship. And while the privacy of that relationship was never iron-clad, there were always the risks in paper records and office gossip, leaks were generally within a small circle.
The circle expanded with conversion to on-line billing and government collection and storage of some health information. Now the cost and efficiency pressures are on, among them delivering health care across the country, assessing why people get sick, and determining who is using (and abusing) the system and why.
These are important issues that affect us all, both as patients and taxpayers. We would all want the doctor to have access to critical medical details if we are wheeled unconscious into an emergency room while away from home. Most of us accept, and indeed support, providing clinical information for legitimate medical research. And most of us can accept that we need to protect the system from abuse. But the quid pro quo for these legitimate aims should not, and need not, be an on-line network that expands that doctor-patient communication to a cast of thousands. We cannot have a trusted relationship with the monolity that is our health care system. I worry that this intimate information, once revealed, may become part of a "womb-to-tomb" medical record.
Loss of privacy should not be the inevitable cost of access to Canada's health care system. Protecting patients' medical information must be central to building health information structures, not an afterthought.
I would like to close with some administrative matters beginning with the latest statistics on our caseload. This past year, we received 2,455 complaints, completed 1,821 investigations and handled 10,330 inquiries. We continue to carry an open caseload of 1780 which is far too high for the complainants and for my investigators' health.
The silver lining to this huge cloud is that more than 900 of these open cases concern HRDC's use of Canada Customs Travellers Declaration Cards to determine who was out of the country while claiming employment insurance. That matter is now before the Court and, for investigators' purposes, effectively reduces the open cases to under 900, a signal improvement over last year's 1467. We also conducted a detailed review of Human Resources Development Canada, analyzed and commented on several pieces of legislation, continued research on the issues I mentioned above and more, made countless public appearances, a few of them before other committees. In all, not a bad bang for $2.5 million, only $100,000 of which is available to spend on running the program.
Which leads me to the perennial question of whether the Information Commissioner's Office should be merged with mine. This notion has more lives than the proverbial cat. The incentive, apart from Mr. Grace's continual urging, seemed, at first, to be cost savings.
Let me explain our structure because it is relevant to the cost argument. The two Commissioners share physical premises, we are on the same floors of the same building so we have one lease and one landlord. We share personnel, financial, informatics, materiel and library services, same reception, same telephones, same computer network, and one Parliamentary vote.
We each have our own program staff, investigators and a lawyer for each. In addition, my office has compliance auditors, an obligation which appears only in the Privacy Act, and a handful of policy and public affairs staff, several of them only part-time on contract.
Treasury Board examined the vaunted "cost savings" and concluded there were none. Mr. Grace says there are $500,000 to be saved. I invite him to state specifically how. While I can anticipate it will mean off with one Commissioner's head, the savings are illusory. In practical terms, no single Commissioner can hope to handle the combined workload of more than 4000 complaints.
Assistant commissioners will be needed (like the provincial model) promptly wiping out any savings. Without assistants, decision making would devolve to staff who are public servants. This is not at all what Parliament intended.
The second justification often cited is that this is how the provinces and other countries do it. First, no other countries do it. In fact, after consulting officials and examining the laws and oversight mechanisms in Canada, the US, Australia and New Zealand, the British White Paper proposes separate commissioners. One important reason for this is the clear delineation of the issues and the long-standing existence of independent data protection (or privacy) commissioners.
In fact, combined commissioners are a feature only of Canadian provincial offices. I will explain the difference between theirs and mine. The federal Commissioner is an ombudsman for an individual right. He or she recommends a course of action to the bureaucrats. That is an important distinction from the provincial commissioners who issue orders, which can be challenged in Court. The classic role of an ombudsman is to require departments and agencies of government to account for their administrative actions and decisions, and to recommend corrective action where necessary.
Appointing a single commissioner to avoid what Mr. Grace described as "the scandal" of senior bureaucrats receiving conflicting advice, effectively means moving the decision making from the head of the agency, where it properly belongs, to the Commissioner. Far from being scandalous, I would argue that it is essential that the head of the institution look at all sides of the matter before he or makes the decision.
The effect of "integration" would be to irrevocably alter the Commissioners' roles and the focus of the acts. In practice, our offices seldom collide and, in the handful of occasions when they have over 15 years, the differences were usually prompted by the imprecise definition of public servants' personal information, or a different view of the "public interest".
Access to personal records is a small part of what we do. If anything, the last seven years has seen the privacy issues move our Office further and further from that of the Information Commissioner. The trend will only continue. And should our Office have any oversight role under private sector privacy law, I would argue that, rather than integration, we will need a neat, clean divorce.
I will close by urging on you two actions. First, I encourage you be alert to the privacy issues which often lurk in much apparently unconnected legislation. Ask yourself whether a new bill requires government to collect and use personal information and, if so, will it be protected by law or, like the NAV CAN example, simply subject to the whims of the marketplace. I encourage you to call us with questions and comments. Since departments are not obliged to consult us when they draft new legislation, your call could be our first alert.
Second, I urge you to adopt as your own the report issued by your colleagues on the Human Rights Committee in the days just before the last election. That report, entitled Privacy: Where do we Draw the Line? said much that needs to be said about the value and how it must be protected. Endorsing that report would establish the proper environment for the upcoming debate on private sector privacy law.
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