ETHI Committee Report

House of Commons Standing Committee on Access to Information, Privacy and Ethics (the “Committee”)

Statutory Review of the Personal Information Protection and Electronic Documents Act (2000, c. 5) (“PIPEDA”):

DISSENTING OPINION

            The Conservative members of Committee acknowledge the thoughtful participation of the many individuals and groups who appeared as witnesses and/or presented submissions during the review.  The majority report includes many constructive recommendations for technical changes, however, the Conservative members of the Committee dissent with recommendation 14 to repeal section 7(1)(e) of PIPEDA.

1.0 Listening to Small Business

As noted in the majority report, PIPEDA only fully came into effect on January 1, 2004.   The Conservative members wish to emphasize the majority report’s focus on fine-tuning PIPEDA, rather than prescribing wholesale changes.  The business community, privacy stakeholders and officials, including the Office of Privacy Commissioner of Canada, are facilitating PIPEDA’s adoption.  The Conservative members of the Committee support those efforts.  The Conservative members do not support efforts that would unduly increase the compliance burden on the small business community through, for example, changes that would make PIPEDA unnecessarily prescriptive.  The Conservative members applaud the work of those business groups, including the Canadian Federation of Independent Business, helping small and medium-sized businesses comply with PIPEDA and protect Canadians’ personal information.

2.0 Dissent

            The Conservative members respectfully dissent from recommendation 14 of the majority report, and the reasons given at paragraphs 79 through 85 of the majority report.

            Section 7(1)(e) allows organizations to collect and use information related to national security, defence, or international affairs.   The previous Liberal government included this section in PIPEDA for the express purpose of closing legislative gaps relating to transportation and national security, specifically air travel.  The Conservative members of Committee believe the removal of section 7(1)(e) could threaten the safety of Canada’s civil aviation system.  

3.0 Inappropriate Timing

The majority’s reconsideration of section 7(1)(e) is premature.  The section was adopted as part of the Public Safety Act, 2002 (2004, c. 15), and only came into force in May 2004.   Arguably, section 7(1)(e) is not properly within the ambit of this statutory review.  By mandating a five (5) year review, the drafters of PIPEDA determined stakeholders ought to actually benefit from five (5) years of experience before reflecting the efficacy of the legislation.  Section 7(1)(e) was not part of the original legislation, so affected stakeholders have not benefited from five (5) years of experience with the provision. 

4.0 No Stakeholder Input Before the Committee

The Public Safety Act was the product of an attempt to balance public safety and individual privacy.   In contrast, the majority report recommends repealing part of the Public Safety Act without any input from the affected stakeholders, including airlines, airports, air passenger groups or security agencies.  Recommendation 14 and paragraphs 79-85 of the majority report are completely devoid of input from the stakeholders most affected by the recommendation.

            The Conservative members of the Committee note that, notwithstanding any comments in the majority report, the Honourable Stockwell Day, Minister of Public Safety and Emergency Preparedness, replied to the Committee in a letter dated April 19, 2007.   The Conservative members of the Committee appreciate the input of the Minister on sections 7(1)(e) and 9.   The Conservative members of the Committee also welcome the Minister’s interest in clarifying section 7(3)(c.1).  Minister Day’s letter is attached as an annex to this dissenting opinion.

4.0 Conclusion

            The Conservative members vigorously dissent from the majority’s recommendation to weaken Canada’s national security laws; a recommendation made by the Liberal and New Democrat members without any input or representation from the security or air transportation communities.

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Minister of Public Safety and Emergency Preparedness

Ministre de la Securite publique et de la Protection civile

Ottawa, Canada K1A OP8

Mr. Tom Wappel, M.P. Chairman

Standing Committee on

Access to Information, Privacy and Ethics House of Commons

Ottawa, Ontario KIA OA6

Re: Statutory Review of the Personal Information Protection and Electronic Documents Act (PIPEDA)

Dear Mr. Wappel

Thank you for your letter of March 20, 2007. I appreciate the opportunity to contribute to the House of Commons Standing Committee on Access to Information, Privacy and Ethics' important work in conducting a statutory review of the Personal Information Protection and Electronic Documents Act (PIPEDA).

You requested my views on s. 7(1) (e) of PIPED A, which was added to PIPEDA by the Public Safety Act.

Subsection 7(1)(e) provides that an organization may collect personal information without the knowledge or consent of the individual if the collection is made for the purposes of a disclosure required by law or a disclosure to the government, where the information relates to national security, defence, or international affairs and is either requested by a government institution that has lawful authority to obtain it, or on the organization's own initiative.

Part of the objective of subsection 7(1)(e), as part of the Public Safety Act (which received Royal Assent on May 6,2004), is to improve Canada's capacity to provide a secure environment, in particular for transportation and air travel. The Act closes legislative gaps relating to transportation and national security by amending existing laws, such as the Aeronautics Act, the Criminal Code, the Canadian Air Transport Security Authority Act, and others, as well as PIPEDA.

Canada

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The amendments to the Aeronautics Act in particular were designed to grant the authority to request, and use, passenger information to protect the security of the country and its aviation system. The amendments to PIPEDA s.7 (1) (e) and 7(2) (d) were consequential amendments needed to ensure that the provisions of PIPEDA did not conflict with the Public Safety Act.

It should also be noted that an important goal of the Public Safety Act is to balance the interest of public safety and individual privacy, and a number of safeguards were included in the law to achieve this, while ensuring transparency and accountability. The proposals were the subject of extensive consultations, and a lengthy review in Parliament. Many changes were made throughout this process to address comments and concerns expressed by various stakeholders, including the Office of the Privacy Commissioner and, as a result, the amendments to PIPEDA provided for under s. 98 of the Public Safety Act are limited in scope and narrowly targeted to achieve their goals.

Given the above, I am concerned about the impact that changes suggested by witnesses to the previous PIPEDA amendments, enacted pursuant to the Public Safety Act, could have on achieving the goals of the Public Safety Act and, as a consequence, on public safety.

Strong safeguards in relation to law enforcement activities are already enshrined in legislation such as Police Acts and the Criminal Code, to review the actions of the police when collecting and using personal information. In addition, the court system oversees the results of police work and ensures, in applying the laws of evidence, as well as the Charter of Rights and Freedoms, that police collection of information is done appropriately.

As you know, PIPEDA was enacted to protect the privacy of information being held by private companies and was never intended to impede police work. However, the current wording of section 7 and section 9 of PIPEDA has led to confusion among the private sector as to how and whether they can cooperate with the police, which should be remedied.

Section 7:

Subsection 7(3)(c.1) states that an organization may disclose personal information without the knowledge or consent of the individual if the government institution has lawful authority to obtain the requested information. Unfortunately, the phrase "lawful authority" has been misinterpreted by some private sector organizations as an obligation to obtain judicial authorization before releasing any information to police and security agencies.

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While the language of s. 7(3)( c), which refers to subpoenas and warrants, can clearly be considered to preclude such an interpretation oflawful authority under s.7(3)( c.!), the reality is that the lack of a definition of lawful authority has resulted in an ambiguity, which is in many instances posing a problem for police.

A requirement to obtain a warrant was never intended, nor would it be practical, given the broad definition of personal information. This misinterpretation can result in an inability for police to obtain even basic information needed for general policing functions to assist the public. A troubling example of the potential negative impact of a misinterpretation of this provision is seen in the context of an Internet Service Provider refusing to provide urgently necessary contact information on a subscriber to the police in a situation where a child is being lured in real-time in a chat room by an online predator.

Given the above challenges resulting from the lack of clarity as to what constitutes "lawful authority", I believe that this section, in particular the term "lawful authority", would benefit from clarification.

Section 9:

Section 9 of PIPEDA is also causing law enforcement agencies some concern, due to a possible loophole in the provision designed to protect police investigations. PIPEDA provides that an individual shall be given access to personal information about themselves and have a right to be informed about the disclosure of any of their personal information. To protect investigations, section 9 of PIPED A provides an exception whereby law enforcement agencies can object and thereby prohibit an organization from revealing to an individual that a request has been received from or disclosure of information has been provided to a law enforcement agency.

Section 9, however, does not address the situation where an organization chooses voluntarily to disclose to an individual a police request for information. Significant harm can result to ongoing police investigations if an organization voluntarily discloses to an individual that he or she is under investigation. For example, this individual or group could then proceed to destroy evidence before the police could intercede.

It is therefore important to police investigations that section 9 be clarified to ensure that organizations are prohibited from disclosing the existence of an investigation or the fact that the police had made any inquiries regardless of

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whether an individual has made a request for this information or the organization wishes to voluntarily notify the individual.

I recently wrote to my colleague, the Honourable Maxime Bernier, Minister of Industry, to advise him of the challenges the police have experienced with respect to PIPEDA. I have attached a copy of my letter to him for your reference.

Thank you again for the opportunity to contribute to the Committee's work in reviewing this important piece of legislation.

Yours sincerely,