44th Parl. 1st Sess.
February 7, 2022 11:00AM
- Feb/7/22 3:33:33 p.m.
- Watch
Mr. Speaker, I move that the first report of the Standing Committee on Access to Information, Privacy and Ethics, presented on Wednesday, February 2, 2022, be concurred in.
Last week, the committee tabled its report, which included a motion that was unanimously adopted by all committee members, including four Liberals, four Conservatives, one New Democrat and one Bloc Québécois member, me. I will read the motion for everyone to hear:
That the committee call upon the government to suspend the Public Health Agency of Canada's cellular data tender upon adoption of this motion, and that the tender shall not be re-offered until it the committee reports to the House that it is satisfied that the privacy of Canadians will not be affected, and that the committee report the adoption of this motion to the House at the earliest opportunity.
Let me repeat that this motion passed unanimously. This is important, because protecting Canadians' personal information and data is an issue that crosses partisan divides.
Last Tuesday, February 1, I walked across the floor of this House and handed the Minister of Health a letter asking him to comply with the motion adopted unanimously, I repeat, by the committee.
On Thursday, during question period here in the House, I twice asked the Minister of Health if he was prepared to suspend the RFP or at least comply with the motion put forward by the committee. Twice, the Minister of Health avoided responding.
A little later that day, I put the same question to him during his appearance before the Standing Committee on Access to Information, Privacy and Ethics, which met an hour later, and he once again avoided answering. As we all know, no answer is an answer.
On that occasion, the Minister of Health told us that the data he was using had been de-identified and was acceptable from a privacy protection point of view. When we asked him questions about where the data were from, things were less clear. The Minister of Health just repeated that the data were properly de-identified.
This morning, the Privacy Commissioner of Canada, Daniel Therrien, appeared before the committee. Members asked him if the Public Health Agency of Canada had consulted him. He said the agency informed him of its plans. The agency did not seek his advice; it informed him. The commissioner offered to provide advisory services to the Public Health Agency, but his services were not retained. As is the agency's prerogative, it chose to use external legal advice. It was the agency's choice not to get involved, but the commissioner did seem a little rankled this morning. Given that the Privacy Commissioner represents an institution created by the government, one might think his advice would be welcomed by government entities. Not in this case.
For the purposes of the discussion, let us look at the facts. In March 2020, a private contract was concluded between the Public Health Agency of Canada and Telus, more specifically with its Data for Good program, a part of the organization that manages Telus data and offers that data to such entities as the Government of Canada. A private contract was signed—without a tendering process to be clear—to obtain tracked data.
In 2020, 33 million cell phones were monitored. That represents 87% of Canadians' cell phones in this case. No one knew about it. This was done with a total lack of transparency. On December 17, 2021, the Public Health Agency of Canada issued a request for proposals to select a data tracking provider. That RFP was brought to our attention by the National Post and Radio-Canada between December 18 and 22, with both news outlets questioning the ethics of this endeavour.
We took the time to do our homework, do some reading and take a look at what was happening. On December 23, the Bloc Québécois issued a press release to express its concerns about the RFP to renew an existing three-year contract allowing the data to be used beyond the pandemic.
It is funny, because last week I asked Canada's Chief Public Health Officer, Dr. Theresa Tam, when the pandemic would end. She obviously did not have an answer. I also asked her who would decide when the pandemic was over. She also did not have an answer to that and was surprised by the question.
Given this lack of answers, we realized that the tender could allow the data to be used indefinitely, since no one knew when the pandemic would end. Obviously I am still concerned. I want to note that I have no preconceived notions on the matter, but I really wanted to continue with this work.
During the Christmas break, the Bloc Québécois members of the Standing Committee on Access to Information, Privacy and Ethics requested that a meeting be held, and our request was agreed to. In the new year, the committee met to evaluate the use of data and unanimously agreed to undertake a study. This study began last week with a view to determining whether there was a privacy breach. The Minister of Health and Dr. Tam appeared before the committee, and the study continued this morning with the appearance of the Privacy Commissioner of Canada, Daniel Therrien, and a renowned researcher in this field. The work will continue until April.
The committee also adopted a motion, which I read out earlier, calling for the suspension of the RFP until the committee can examine the situation. I should note that the RFP deadline was January 22. As soon as the committee began its study, this deadline was extended to February 2. After another meeting to determine the committee's future business, it was extended to February 4. Last week, the minister announced that the RFP deadline would be extended to February 18.
The health crisis was often invoked as as a reason the the RFP cannot be suspended, but Dr. Tam nevertheless told the committee that the delay had little effect on the information obtained from the data in question, since the data would be retrospectively looked at. She did not seem concerned about the possibility of suspending the RFP, and she was not against it. We therefore moved a motion to suspend the RFP and this motion was passed unanimously so that the committee could get to the bottom of this matter.
That brings us to the meetings with the minister. I remind members that the only response to the committee members' many questions was that the data had been de-identified. When members asked questions about where the data had been obtained and who had had access to it, the only answers we got were vague and evasive, which I find demonstrates the minister's lack of accountability.
There is an old saying in philosophy that what cannot be done directly cannot be done indirectly. If the data used by the Public Health Agency of Canada was de-identified, we had to wonder who had access to the data and what kinds of protocols were used, if any. The committee did not get an answer.
Dr. Tam said that the data being used would not be very useful and that it would not be the end of the world if the RFP were suspended while the study is carried out.
Privacy is basically a question of ethics. Ethics is essentially about trying to figure out what to do in difficult circumstances, what the right thing to do is, what to do when you do not have all the information and you are not quite sure where you stand. The precautionary principle applies, obviously.
In its hearings so far, the committee has noted that the government is avoiding the issue, as it would prefer not to deal with it.
Facts are facts. The motion, which was adopted unanimously, called for the RFP to be suspended while the committee conducts its study. Here I am in the House a week later, seeking the House's consent to implement the motion.
I might be a little naive on this subject, but it seems to me that governments should set an example. I know the interpreters hate it when I do this, but when we look at the Latin roots of the word “example”, it translates as “being able to do as I do”. In other words, the government should be able to do what all of us would do, namely make a reasonable decision.
Opaqueness, non-transparency, and layers of secrecy hiding behind every detail are the antithesis of transparency. The Privacy Commissioner told us this morning that there were best practices in this area. There is no reason to believe that they were violated. Beyond best practices, however, there was also transparency and the desire to do the right thing. These two aspects should have been demonstrated but are still missing here.
I have asked various experts, including the Privacy Commissioner, about this, and what really bothers me is that we all know it is impossible to obtain consent from 33 million people in this kind of situation. The government says this condition is fulfilled when people click on the “I agree” button, yet everyone knows as well as I do that it pretty much takes a master of laws degree to understand what we are actually agreeing to. It is also reasonable to believe that cellphone users did not consent to their data being used for purposes other than those required by the cellphone company to provide a service. It is impossible to conclude that presumed consent is the same as consent. Presumed consent is not consent.
This morning, the commissioner told us about the concept of “meaningful consent”. Meaningful consent is impossible to obtain. It may be impossible to obtain, but there is a spectrum between doing nothing and doing something impossible. All kinds of elements can be put into play so that at least things are out in the open. The government did not implement or put forward any of those elements.
What is the crux of this matter? When we talk about privacy, we expect that people will be able to provide information in good faith, believing in good faith that it will be used for the stated purposes. We are talking about trust. We are talking about a person's ability to trust their cellular service provider, let alone their government.
Properly defined, trust is the action of delegating one's future to someone else. When we delegate our future to the government, we expect it to act responsibly. We do not expect the government to potentially hide behind some obscure legal provision stating that, once the data is disaggregated, anonymized or any other such term that is incomprehensible to lay people, it can wash its hands of it. That is not right.
In such cases, opaqueness leads not to trust, but to distrust. Members know as well as I do that, in the end, distrust leads to defiance, the kind of defiance we can see outside Parliament.
I believe that the government is not being transparent, and that is the reason for our request. I believe that opacity reigns and that if we want to make sense of the government's actions, we have to be able to go further. Making sense of it means clearing the air, throwing light on the matter, but right now, we are lost in the fog.
Failing to suspend the RFP is to maintain all this opaqueness. Failing to suspend the RFP would be to perpetuate the mistake, or at the very least, the appearance of a mistake. Failing to suspend the RFP is, above all, to show contempt for the committee's work. Failing to suspend the RFP is to disregard the unanimity of the committee. The government cannot simply wash its hands of such a situation by ignoring questions or trying to do indirectly what it cannot do directly.
It was disturbing to hear the Privacy Commissioner say this morning that he was informed but not consulted. He did not provide his opinion. In fact, he is investigating the matter now.
It is troubling that one of the most powerful officers of Parliament is not being asked to contribute. On the contrary, he has been sidelined. I therefore ask hon. members to support the committee's motion.
Let me reveal another small detail. A member of the committee asked me the other day, when I moved the motion, whether it was meant to undermine this. The answer is obviously no. It is not to undermine anything. Are we asking to suspend the RFP forever? The answer is no, it is not forever either.
The RFP needs to be suspended until the committee can shed light on the situation and bring the matter out of obscurity. What we are asking for is not malicious. On the contrary, it is to allow the government to demonstrate its good faith, if necessary, or to correct the situation, if necessary.
Ultimately, I will ask my colleagues to please support the motion at the end of the debate.
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- Feb/7/22 3:50:51 p.m.
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Madam Speaker, I thank my hon. colleague for the question. Those are very valid points, and my concerns are twofold. I am referring to the source and the end of the process.
First, at the source, there is not a modicum of user consent. Then, the point my colleague raises is very important. A number of experts have told us that once data has been de-identified, which is a new word I learned recently that means anonymized, the de-identified data can easily be re-identified, emphasis on the word easily. I am not making this up, it comes from a witness who will be testifying at committee shortly. If de-identified data can be re-identified, then honestly, we are in trouble when it comes to privacy, because there is no longer any protection.
Of course we want to ensure that the process has been done properly and that if it has, the data cannot be used for other purposes. For example, we want to ensure that it cannot be used after the pandemic.
I am not feeling at all reassured at this time. In fact, I am concerned. The origin of the data, the processing of the data and the manner in which the data will be used have me concerned.
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- Feb/7/22 3:53:54 p.m.
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Madam Speaker, outside of being consulted, the commissioner was uncomfortable.
He obviously could not comment on a large part of how the data was handled because of an ongoing investigation. However, I will say that he showed concern throughout his testimony. I asked him whether other countries had more effective protections than Canada does, and his answer was a sharp “yes”. I knew this already, having worked on these types of protections with the European community in the past.
The commissioner was concerned about how the data was disaggregated and reaggregated. A lot of technical terms were used, but in essence, he was saying that he was concerned and could not comment on some things because of the ongoing investigation.
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- Feb/7/22 3:55:37 p.m.
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Madam Speaker, I thank my hon. colleague for his question.
As he said, just because something is legal does not necessarily make it right. What may be considered legal is not always ethical. I tend to say that legality is the bare minimum. In this case, is the bare minimum enough?
Since there are many other places with harsher and more comprehensive privacy regulations, I felt concerned in light of the commissioner's response and the use of this data. I think this is a real problem. Data use is something that happens; it is not a major crime. However, we do need to reflect on this because this issue will come up again.
In previous reports, like his latest annual report, the commissioner said that the federal legislation was inadequate and called for it to be updated to reflect the new reality of big data, for example.
For these reasons, I remain concerned, since it seems as though the bare minimum is being done here.
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- Feb/7/22 3:57:49 p.m.
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Madam Speaker, I thank my colleague for her comments.
Like her, I am not presuming that a mistake has been made. I am simply saying that it is important to shed some light on this issue.
What happened is that the government had to make a very tough decision and find a balance between two difficult situations: protecting public health, which is very important, and protecting people's privacy. Those are both very important things. What we want to know is how the government reconciled these two needs.
Like my hon. colleague, I am definitely not presuming that a mistake was made, but we need to ask these questions. We are here to shed some light on the situation.
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- Feb/7/22 3:59:20 p.m.
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Madam Speaker, I thank my colleague for her question.
Opaqueness and transparency are two things that we talk a lot about in ethics. It is said that if something has to be opaque to succeed, it is probably less ethical than something that can stand up to transparency and light.
I do not know why the government is dragging things out because, honestly, in its place, I would follow the unanimous recommendation of the committee and shed some light on the situation and, if necessary, prove that everything was done properly. I want to reiterate that I am not presuming that a mistake was made. I would just like confirmation that everything was done properly.
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- Feb/7/22 4:00:26 p.m.
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Madam Speaker, I thank my colleague for his question.
Once again, I am not presuming that the government would misuse the data, but it is showing a lack of transparency and a desire to maintain that lack of transparency. As an ethicist, that concerns me.
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- Feb/7/22 4:10:29 p.m.
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Madam Speaker, the parliamentary secretary has listed all the benefits of using data, and I have to admit that they are compelling. However, even if the end goal is commendable, part of the problem is that the parliamentary secretary is trivializing the issue. The committee members were unanimous in expressing concerns, and they are now confused. Why did the government not want to work with the Privacy Commissioner of Canada?
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- Feb/7/22 4:17:26 p.m.
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Madam Speaker, I spent 25 years advising governments around the world, and this is the first time I have been called a conspiracy theorist. That is unacceptable.
The parliamentary secretary keeps telling us there is no problem, but denying the existence of a problem does not make it go away. Earlier, he said that all the information gathered was obtained on the basis of consent.
This morning, the commissioner told us it was impossible to obtain consent from 33 million people. Being impossible, it is actually not even desirable.
Was this information obtained on the basis of consent or not?
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- Feb/7/22 4:41:17 p.m.
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Madam Speaker, I thank my colleague for his enlightening remarks. Two problems have been identified. The first is related to consent, the second to data anonymization. I will focus on the first.
We have been told over and over that anyone could consult the data on COVIDTrends. Telus users could opt out anytime because there was an opt-out function. Did users know they were supposed to check COVIDTrends, and did they know they could opt out?
Is it reasonable to believe that COVIDTrends was known to the public given that the Prime Minister mentioned its existence just one single time, back in March 2020?
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- Feb/7/22 4:57:58 p.m.
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Madam Speaker, I thank my colleague for demonstrating that our work at the Standing Committee on Access to Information, Privacy and Ethics is about much more than just this matter in connection with the Public Health Agency of Canada.
We need to establish exemplary standards, as other countries have done, so that Canadians are well protected. Does my colleague believe that we could draw on the General Data Protection Regulation currently in effect in the European Union to quickly implement certain provisions on consent?
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- Feb/7/22 5:28:52 p.m.
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Madam Speaker, I thank the member for Winnipeg North for treating us to the pizza story. As an aside, I would like to acknowledge his unwavering loyalty to the Liberal Party.
I am half sorry. I know the member would have preferred to discuss Bill C-8, but the motion was moved and, like it or not, privacy is an important concern. Public and private companies should indeed be subject to the Privacy Commissioner of Canada. That much is certain.
I am not sure whether my colleague has had the chance to see the film The Social Dilemma on Netflix. The film explains a bit about the ins and outs of possible perversions of privacy. Shoshana Zuboff, the main subject in the film, is going to appear before the committee to talk about this. If the member for Winnipeg North has not seen the film, I invite him to attend the meeting. With Nobel Prize-worthy experts testifying, I think it is worth listening.
Is my hon. colleague asking whether Telus and the Public Health Agency of Canada are too big to fail?
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- Feb/7/22 5:48:14 p.m.
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Mr. Speaker, I thank my colleague, the chair of the Standing Committee on Access to Information, Privacy and Ethics, for raising very important points.
Indeed, this was done unanimously. Again, unanimity is not a flower worn on a lapel. It is a clear message that is sent to the House to say that all the parties agreed. The House should pay attention to that, especially when we say that it is very important and there can be no delay.
Dr. Tam told us that so far, the information that has been extracted from the data in question has not been spectacular, and she also said that delaying the RFP would not be so bad. That is Canada's expert telling us that.
Could my colleague remind us of some of Dr. Tam's messages?
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- Feb/7/22 6:06:39 p.m.
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Mr. Speaker, dialogue, in which two parties discuss an issue to find a way forward, is a fundamental tool when considering ethics. Based on what I have heard today from the other side of the House, this is unfortunately a one-sided conversation in response to the committee members' attempt to reach out.
We reached out and have gotten nothing in return. Does my colleague think that our colleagues on the other side will vote in favour of this motion?
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