Data Privacy Design Jam: What is meaningful consent in an age of connected devices?

BC FIPA, in partnership with the Vancouver Design Nerds, held a two-day design jam in Ottawa March 5th and 6th. The purpose of this event was to explore issues around meaningful consent in the context of everyday life ranging from personal wearable technologies to smart homes and smart cities and their relationship to big data. With these different scales in mind, we sought to create new models of generating meaningful consent to mitigate the negative impact these technologies have on privacy. The two-day event brought together a diverse group of experts from academia and industry to advocates and activists working in this space to find creative solutions through a collaborative and inter-disciplinary approach.

Data Privacy Design Jam report title page

The final ‘prototypes’ that emerged after the second day varied in terms of how they approached meaningful consent, but an underlying theme that intersected all four groups was a focus on empowering individuals to take control over their personal information through various methods .

It is important to note that this project in itself is not the final stage in our work on meaningful consent and connected societies. Rather, this project has become a ‘jumping-off point’ that will launch future research and events to further address these issues. More specifically, we have begun to explore the feasibility of hosting another design jam with everyday consumers from various backgrounds rather than expert participants. The process we used could be adapted for either a representative sample of the general public or a predefined select target audience. By providing a similar initial problem and thought processes, the results would provide useful insights to how the public views issues of consent in a modern context.

Download the full report here.

BC FIPA would like to thank the Office of the Privacy Commissioner of Canada for the opportunity to explore this important issue through the Contributions Program.

The Right to Erasure

The right to erasure

This is the third in our series on the privacy promises we can expect from a Liberal minority government.

Information about the Right to Erasure is from Innovation, Science and Economic Development Canada’s ‘Digital Charter: Trust in a digital world’, and the Liberal Party of Canada’s election 2019 platform document, ‘Forward: A real plan for the middle class’ (40).

The Promise

In the Liberal Party’s election platform, they committed to a new online right to “withdraw, remove, and erase basic personal data from a platform” (40). This seems to build and expand upon the third principle contained within Canada’s Digital Charter:

Control and Consent: Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.”

– Canada’s Digital Charter

Unclear within this promise are two major things: what is defined as a platform; and how this new right will be different from what is currently contained within Canada’s private sector privacy legislation, the Personal Information and Protection of Electronic Documents Act.

And, on the surface, it would appear that this new right does not go as far as the European Union’s ‘Right to be Forgotten’, which is found within the General Data Protection Regulations, and allows citizens to request that personal data be erased for a host of reasons and from entities not limited to “platforms”. Notably, this includes making requests to delist website pages in search results.

The Office of the Privacy Commissioner of Canada is currently seeking a determination from the Federal Court in order to clarify whether Google’s search engine is subject to PIPEDA. Thus, it may turn out that Canadians already have the ability to request that search engine’s de-index web pages that are responsive to a person’s name should they present unwarranted reputational harm.

The Reality

So far it’s unclear how this new right to erasure goes further than the access and correction rights that currently exist within Canada’s federal privacy legislation, the Privacy Act and PIPEDA, and B.C.’s provincial privacy legislation, FIPPA and PIPA.

Currently, PIPEDA does provide Canadians with some measure of control over their personal information. It does this by allowing individuals to correct the accuracy of their personal information in the control of a private organization, to withdraw their consent for the use of personal information, and to file a complaint with the Office of the Privacy Commissioner of Canada in order to create a record of dispute.

While these are not equivalent measures to the European Union’s ‘Right to be Forgotten’, they do allow Canadians some measure of control over their personal information and at the very least present a mechanism for addressing issues related to online reputational harm. In addition, PIPEDA also contains provisions that limit the amount of time that personal information can be retained, which in turn helps to ensure that personal information is disposed of when it is no longer required.

The Future

Important questions remain though about how effective these measures are in a digital environment. PIPEDA was created in 2000, as the internet and digital technologies were only emerging. Today, the internet is being used in ways, and on devices, that could not have been predicted 20 years ago.

With private organizations becoming increasingly reliant on personal information as a fundamental component of their business model, and the storage of personal information no longer experiencing the same physical and financial constraints, more needs to be done to protect consumers and to rebuild trust.

If Canada’s federal privacy legislation is amended to contain this new right to erasure, it may create the need to amend provincial privacy legislation to also include this new right in order to retain its equivalency. As well, new powers will need to be ascribed to provincial and federal information and privacy commissioners in order for them to be able to enforce new digital rights, like the Right to Erasure.

The Right to Data Portability

This is the second in our series on the privacy promises we can expect from a Liberal minority government.

From Innovation, Science and Economic Development Canada’s ‘Digital Charter: Trust in a digital world’, and the Liberal Party of Canada’s election 2019 platform document, ‘Forward: A real plan for the middle class’ (40).

In Canada’s Digital Charter, data portability fits within the fourth principle:

‘Transparency, Portability and Interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.’

Clear and manageable access

Theoretically, Canadians already have “clear and manageable access” to their personal data.

For federal government institutions, Canadians have a right of access contained within section 12 of the Privacy Act. For private sector businesses, Canadians can submit requests to access personal information under the Personal Information Protection and Electronic Documents Act (PIPEDA).

In British Columbia, access to personal information held by provincial public bodies is realized through section 5 of the Freedom of Information and Protection of Privacy Act (FIPPA). For private businesses within the province, section 23 of the Personal Information Protection Act (PIPA) gives residents this ability.

In theory, the information rights enshrined within these four Acts already gives Canadians “clear and manageable access to personal data”. What’s new then is the ability to “share or transfer it without undue burden.”

What this means, exactly, is not quite as clear.

Sharing and transferring data without undue burden

In their 2019 election platform, the Liberal Party describes data portability as the ability for people to “take their data from platform to platform” (40).

From this, we might assume that someone would have the right to extract all of their data from a platform like Facebook, Twitter, or Snapchat, and transfer it to a new platform that offers a similar service.

Why would someone want to do this? One reason might be that an alternative service provider offers greater privacy protections, which in turn would create greater competition among monopolistic platforms.

This also gives Canadians the opportunity to make meaningful choices about how they share their personal information with platforms.

International models

In the European Union, Article 20 of the General Data Protection Regulations (GDPR) gives residents a right to data portability. This right allows data subjects to receive personal data about themselves from data controllers and transmit that data to other controllers.

The GDPR also ensures that the data is provided “in a structured, commonly used and machine-readable format” and provides the right to have the personal data transmitted directly from one data controller to another.

A major difference between the European Union’s GDPR and Canada’s PIPEDA is that Canada’s private sector privacy legislation frames privacy as data protection and not as a fundamental human right.

What does a humans rights based approach to privacy look like in legislation? Article 4 of the GDPR lists the fundamental rights the Regulation respects, which include:

“[T]he respect for private and family life, home and communications, the protection of personal data, freedom of thought, conscience and religion, freedom of expression and information, freedom to conduct a business, the right to an effective remedy and a fair trial, and cultural, religious and linguistic diversity.’

The proposed right to data portability is a significant step towards creating a human rights based approach to privacy in Canada. While it is not as comprehensive as the GDPR, it will give individuals greater autonomy in their ability to control their own personal data.

Election 2019: Comparing Party Platforms

How Canada’s major federal political parties compare on issues related to privacy and access to information

The table below uses publicly available information contained within the platforms of Canada’s four major political parties: the Liberal Party, the Conservative Party, the New Democratic Party, and the Green Party.

FIPA is a non-partisan organization and this chart is only intended to be an easily accessible guide on how the parties are addressing issues related to privacy and access to information. It is not an endorsement of any particular party.

For more information about the specific statements issued by each party leading to these determinations, please see the information below the chart.

 Liberal PartyConservative PartyNew Democratic PartyGreen Party
Totals6329
Increase the powers of the Privacy Commissioner of CanadaYesUnclearYesYes
Increase the powers of the Information Commissioner of CanadaNothing stated Nothing statedNothing statedYes
Improve Access to InformationNothing statedNothing statedNothing statedYes
Ensure Political Parties fall under Canada's federal privacy legislation Nothing stated Nothing statedNothing stated Yes
Mandatory breach notifications YesUnclearNothing statedYes
Give citizens the ability to erase basic personal information from platforms YesUnclearNothing statedYes
Give citizens data portability YesNothing statedNothing stated Yes
Create stronger cyberbullying protectionsYesYesYesNothing stated
Create mandatory plain language consent agreementsNothing statedYesNothing stated Nothing stated
Give citizens ability to review and challenge amount of personal information being collected by governmentYesNoNothing stated Yes
Create regulations related to Artificial IntelligenceNothing stated YesNothing statedYes

Each of these determinations are based on the platform documents released by the major four political parties in 2019:

Liberal Party of Canada Platform 2019

Conservative Party of Canada Platform 2019

New Democratic Party of Canada Platform 2019

Green Party of Canada Platform 2019

Below are the quotes and page numbers where each of these determinations can be corroborated.

We encourage all political parties to provide us with additional details about their commitments, or to provide us with clarification on their positions, by writing to us (fipa@fipa.bc.ca).

Increase the powers of the Privacy Commissioner of Canada

Liberal Party: Yes. Included in Canada’s Digital Charter (40-41).

Conservative Party: Unclear. “We will employ sensible regulation, rigorous standards, and strong oversight over the personal information, data, and privacy of Canadians” (74).

New Democratic Party: Yes. The “New Democrats will work to strengthen privacy protections for Canadians by boosting the power of the Privacy Commissioner to make and enforce orders” (102).

Green Party: Yes. “Significantly increase the powers of the Privacy Commissioner, in particular to protect identity and personal data, and to enforce privacy laws” (75).

Increase the powers of the Information Commissioner of Canada

Liberal Party: Nothing stated.

Conservative Party: Nothing stated.

New Democratic Party: Nothing stated.

Green Party: Yes. Will “[s]trengthen the role and protect the independence of parliamentary officers including … the Information Commissioner” (73). They will also “[a]uthorize the Information Commissioner to order the release of information” (74)

Improve Access to Information

Liberal Party: Nothing stated.

Conservative Party: Nothing stated.

New Democratic Party: Nothing stated.

Green Party: Yes. They will do this by: removing all fees except filing fee; creating enforceable deadlines; put parliament, the PMO’s office, and all minister’s offices, within scope of ATI; ensure public interest comes before secrecy; allow Information Commissioner to review and determine if cabinet confidence applies; create a duty to document regarding ATI decisions (74).

Ensure Political Parties fall under Canada’s federal privacy legislation

Liberal Party: Nothing stated.

Conservative Party: Nothing stated.

New Democratic Party: Nothing stated.

Green Party: Yes. “Require political parties to follow the Privacy Act, without exceptions” (75).

Mandatory breach notifications

Liberal Party: Yes. Included in Canada’s Digital Charter. Also includes compensation (40-41).

Conservative Party: Unclear. Will establish “binding cyber security standards for critical infrastructure sectors and penalties for non-compliance” to protect Canadians from “largescale data breaches” (75).

New Democratic Party: Nothing stated.

Green Party: Yes. Will “[c]reate mandatory data breach reporting for all government departments, companies, banks and political parties” (75).

Give citizens the ability to erase basic personal information from platforms

Liberal Party: Yes. Included in Canada’s Digital Charter (40-41).

Conservative Party: Unclear. “We will employ sensible regulation, rigorous standards, and strong oversight over the personal information, data, and privacy of Canadians” (74).

New Democratic Party: Nothing stated.

Green Party: Yes. “Require companies to … to delete personal information from company databases when requested by that person. Individuals would have the ‘right to be forgotten.’” (75).

Give citizens data portability

Liberal Party: Yes. Included in Canada’s Digital Charter (40-41).

Conservative Party: Nothing stated.

New Democratic Party: Nothing stated.

Green Party: Yes. “Require companies to grant access to all information they hold on an individual” (75).

Create stronger cyberbullying protections

Liberal Party: Yes. Included in Canada’s Digital Charter (40-41) Will also “move forward with new regulations for social media platforms, starting with a requirement that all platforms remove illegal content, including hate speech, within 24 hours or face significant financial penalties. This will also include other online harms, such as radicalization, incitement to violence, exploitation of children, or creation or distribution of terrorist propaganda. Because hate speech continues to harm people offline as well, we will also look at options for civil remedies for victims of hate speech” (47-48).

Conservative Party: Yes. Will introduce the Cyberbullying Accountability Act, legislation that “prohibits the use of a phone or the internet to threaten or advocate self-harm”, create civil liability so that “the parents, guardians, or account holders of cyberbullies can be held liable” (74).

New Democratic Party: Yes. Will convene a “national working group to counter online hate and protect public safety, and make sure that social media platforms are responsible for remove [sic] hateful and extremist content before it can do harm” (96).

Green Party: Nothing stated.

Create mandatory plain language consent agreements

Liberal Party: Nothing stated.

Conservative Party: Yes. Will also only allow “data that is necessary to provide the service” to be collected (74).

New Democratic Party: Nothing stated.

Green Party: Nothing stated.

Give citizens ability to review and challenge amount of personal information being collected by government

Liberal Party: Yes. Included in Canada’s Digital Charter (40-41).

Conservative Party: No. Will increase funding to police infrastructure: “To better support local law enforcement, a new Conservative government will commit $30 million over five years to purchase new equipment. This would benefit mid-sized communities the most, since they do not have the same budget as larger police programs to access technology. We will create a grant program so that our law enforcement has access to every tool and technology available. This will empower law enforcement to keep our communities and neighbourhoods safe” (64).

New Democratic Party: Nothing stated.

Green Party: Yes. “Change the law to require the Communications Security Establishment and CSIS to get a warrant before intruding on Canadians’ communications”; “Prohibit the routine surveillance of Canadians who protest against the government and the sharing of protesters and NGO staff information with the National Energy Board, and others”; and “Prohibit cyber surveillance and bulk collection of data by intelligence and police agencies” (75).

Create regulations related to Artificial Intelligence

Liberal Party: Nothing stated.

Conservative Party: Yes. Will establish “regulatory standards for ethical and secure use” of Artificial Intelligence (74).

New Democratic Party: Nothing stated.

Green Party: Yes. Will create parliamentary committee to examine issues that include Artificial Intelligence (46).