Tag: Privacy Commissioner

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Emerging Trends from Canadian Privacy Regulators and Cybersecurity Legislation?

Earlier this evening, the Office of the Privacy Commissioner of Canada (OPC) appeared before the Standing Senate Committee on National Security, Defence and Veterans Affairs on the topic of Bill C-26: An Act respecting cyber security, amending the Telecommunications Act and making consequential amendments to other Acts.

While at Committee, Commissioner Dufresne recognized the value of making explicit the OPC’s oversight role concerning the legislation. He, also, reaffirmed the importance of requiring any collection, use, or disclosure of personal information to be both necessary and proportionate. And should the Standing Committee decline to adopt this amendment they were advised to, at a minimum, include a requirement that data only be retained for as long as necessary. Government institutions should also be required to undertake privacy impact assessments and consult with the OPC.

Finally, in cases of cyber incidents that may result in a material breach, his office should be notified; this could entail the OPC being notified by the Communications Security Establishment based on a real risk of significant harm standard. Information sharing agreements should also be put in place that provide minimum privacy safeguards while also strengthening governance and accountability processes.

The safeguards the OPC are calling for are important and, also, overlap with many of the Information and Privacy Commissioner of Ontario’s (written submission, Commissioner Kosseim’s oral remarks) concerning the provincial government’s Bill 194, Strengthening Cyber Security and Building Trust in the Public Sector Act, 2024.

Should other Canadian jurisdictions propose their own cybersecurity legislation to protect critical infrastructure and regulated bodies it will be interesting to monitor for the consistency in the amendments called for by Canada’s privacy regulators.

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RCMP Found to Unlawfully Collect Publicly Available Information

The recent report from Office of the Privacy Commissioner of Canada, entitled “Investigation of the RCMP’s collection of open-source information under Project Wide Awake,” is an important read for those interested in the restrictions that apply to federal government agencies’ collection of this information.

The OPC found that the RCMP:

  • had sought to outsource its own legal accountabilities to a third-party vendor that aggregated information,
  • was unable to demonstrate that their vendor was lawfully collecting Canadian residents’ personal information,
  • operated in contravention to prior guarantees or agreements between the OPC and the RCMP,
  • was relying on a deficient privacy impact assessment, and
  • failed to adequately disclose to Canadian residents how information was being collected, with the effect of preventing them from understanding the activities that the RCMP was undertaking.

It is a breathtaking condemnation of the method by which the RCMP collected open source intelligence, and includes assertions that the agency is involved in activities that stand in contravention of PIPEDA and the Privacy Act, as well as its own internal processes and procedures. The findings in this investigation build from past investigations into how Clearview AI collected facial images to build biometric templates, guidance on publicly available information, and joint cross-national guidance concerning data scraping and the protection of privacy.

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Privacy Enhancing Technologies – A Review of Tools and Techniques

From the Office of the Privacy Commissioner of Canada:

PETs are a category of technologies that have not previously been systematically studied by the Office of the Privacy Commissioner of Canada (OPC). As a result, there were some gaps in our knowledge of these tools and techniques. In order to begin to address these gaps, a more systematic study of these tools and techniques was undertaken, starting with a (non-exhaustive) review of the general types of privacy enhancing technologies available. This paper presents the results of that review.

While Privacy Enhancing Technologies (PETs) have been around for a long time there are only some which have really taken hold over time, and usually only as a result of there being a commercial incentive for companies to integrate the enhancements.

Some of the failures of PETs to be widely adopted have stemmed from the reasons specific PETs were created (to effectively forestall formal regulatory or legislative action), others because of their complexity (you shouldn’t need a graduate degree to configure your tools properly!), and yet others because the PETs in question were built by researchers and not intended for commercialization.

The OPC’s review of dominant types of PETs is good and probably represents the most current of reviews. But the specific categories of tools, types of risks, and reasons PETs have failed to really take hold have largely been the same for a decade. We need to move beyond research and theory and actually do something soon given that data is leaking faster and further than ever before, and the rate of leakage and dispersal is only increasing.

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Limits of Data Access Requests

Last week I wrote about the limits of data access requests, as they related to car sharing applications like Uber. A data access request involves you contacting a private company and requesting a copy of your personal information, as well as the ways in which that data is processed, disclosed, and the periods of time for which data is retained.

Research has repeatedly shown that companies are very poor at comprehensively responding to data access requests. Sometimes this is because of divides between technical teams that collect and use the data, policy teams that determine what is and isn’t appropriate to do with data, and legal teams that ascertain whether collections and uses of data comport with the law. In other situations companies simply refuse to respond because they adopt a confused-nationalist understanding of law: if the company doesn’t have an office somewhere then that jurisdiction’s laws aren’t seen as applying to the company, even if the company does business in the jurisdiction.

Automated Data Export As Solution?

Some companies, such as Facebook and Google, have developed automated data download services. Ostensibly these services are designed so that you can download the data you’ve input into the companies, thus revealing precisely what is collected about you. In reality, these services don’t let you export all of the information that these respective companies collect. As a result when people tend to use these download services they end up with a false impression of just what information the companies collect and how its used.

A shining example of the kinds of information that are not revealed to users of these services has come to light. A recently leaked document from Facebook Australia revealed that:

Facebook’s algorithms can determine, and allow advertisers to pinpoint, "moments when young people need a confidence boost." If that phrase isn’t clear enough, Facebook’s document offers a litany of teen emotional states that the company claims it can estimate based on how teens use the service, including "worthless," "insecure," "defeated," "anxious," "silly," "useless," "stupid," "overwhelmed," "stressed," and "a failure."

This targeting of emotions isn’t necessarily surprising: in a past exposé we learned that Facebook conducted experiments during an American presidential election to see if they could sway voters. Indeed, the company’s raison d’être is figure out how to pitch ads to customers, and figuring out when Facebook users are more or less likely to be affected by advertisements is just good business. If you use the self-download service provided by Facebook, or any other data broker, you will not receive data on how and why your data is exploited: without understanding how their algorithms act on the data they collect from you, you can never really understand how your personal information is processed.

But that raison d’être of pitching ads to people — which is why Facebook could internally justify the deliberate targeting of vulnerable youth — ignores baseline ethics of whether it is appropriate to exploit our psychology to sell us products. To be clear, this isn’t a company stalking you around the Internet with ads for a car or couch or jewelry that you were browsing about. This is a deliberate effort to mine your communications to sell products at times of psychological vulnerability. The difference is between somewhat stupid tracking versus deliberate exploitation of our emotional state.1

Solving for Bad Actors

There are laws around what you can do with the information provided by children. Whether Facebook’s actions run afoul of such law may never actually be tested in a court or privacy commissioner’s decision. In part, this is because actually mounting legal challenges is extremely challenging, expensive, and time consuming. These hurdles automatically tilt the balance towards activities such as this continuing, even if Facebook stops this particular activity. But, also, part of the problem is Australia’s historically weak privacy commissioner as well as the limitations of such offices around the world: Privacy Commissioners Offices are often understaffed, under resourced, and unable to chase every legally and ethically questionable practice undertaken by private companies. Companies know about these limitations and, as such, know they can get away with unethical and frankly illegal activities unless someone talks to the press about the activities in question.

So what’s the solution? The rote advice is to stop using Facebook. While that might be good advice for some, for a lot of other people leaving Facebook is very, very challenging. You might use it to sign into a lot of other services and so don’t think you can easily abandon Facebook. You might have stored years of photos or conversations and Facebook doesn’t give you a nice way to pull them out. It might be a place where all of your friends and family congregate to share information and so leaving would amount to being excised from your core communities. And depending on where you live you might rely on Facebook for finding jobs, community events, or other activities that are essential to your life.

In essence, solving for Facebook, Google, Uber, and all the other large data broker problems is a collective action problem. It’s not a problem that is best solved on an individualistic basis.

A more realistic kind of advice would be this: file complaints to your local politicians. File complaints to your domestic privacy commissioners. File complaints to every conference, academic association, and industry event that takes Facebook money.2 Make it very public and very clear that you and groups you are associated with are offended by the company in question that is profiting off the psychological exploitation of children and adults alike.3 Now, will your efforts to raise attention to the issue and draw negative attention to companies and groups profiting from Facebook and other data brokers stop unethical data exploitation tomorrow? No. But by consistently raising our concerns about how large data brokers collect and use personal information, and attributing some degree of negative publicity to all those who benefit from such practices, we can decrease the public stock of a company.

History is dotted with individuals who are seen as standing up to end bad practices by governments and private companies alike. But behind them tend to be a mass of citizens who are supportive of those individuals: while standing up en masse may mean that we don’t each get individual praise for stopping some tasteless and unethical practices, our collective standing up will make it more likely that such practices will be stopped. By each working a little we can do something that, individually, we’d be hard pressed to change as individuals.

NOTE: This blog was first published on Medium on May 1, 2017.

  1. 1 Other advertising companies adopt the same practices as Facebook. So I’m not suggesting that Facebook is worst-of-class and letting the others off the hook. ↩︎
  2. 2 Replace ‘Facebook’ with whatever company you think is behaving inappropriately, unethically, or perhaps illegally. ↩︎
  3. 3 Surely you don’t think that Facebook is only targeting kids, right? ↩︎