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.