Why is the Canadian Government So Indifferent to Privacy? | Unpublished

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Unpublished Opinions

Michael Geist's picture
Ottawa, Ontario
About the author

Dr. Michael Geist is a law professor at the University of Ottawa where he holds the Canada Research Chair in Internet and E-commerce Law. He has obtained a Bachelor of Laws (LL.B.) degree from Osgoode Hall Law School in Toronto, Master of Laws (LL.M.) degrees from Cambridge University in the UK and Columbia Law School in New York, and a Doctorate in Law (J.S.D.) from Columbia Law School.  Dr. Geist is a syndicated columnist on technology law issues with his regular column appearing in the Toronto Star, the Hill Times, and the Tyee.  Dr. Geist is the editor of several copyright books including The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (2013, University of Ottawa Press), From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (2010, Irwin Law) and In the Public Interest:  The Future of Canadian Copyright Law (2005, Irwin Law), the editor of several monthly technology law publications, and the author of a popular blog on Internet and intellectual property law issues.

Dr. Geist serves on many boards, including the CANARIE Board of Directors, the Canadian Legal Information Institute Board of Directors, the Canadian Internet Registration Authority, and the Electronic Frontier Foundation Advisory Board. He has received numerous awards for his work including the Kroeger Award for Policy Leadership and the Public Knowledge IP3 Award in 2010, the Les Fowlie Award for Intellectual Freedom from the Ontario Library Association in 2009, the Electronic Frontier Foundation’s Pioneer Award in 2008, Canarie’s IWAY Public Leadership Award for his contribution to the development of the Internet in Canada and he was named one of Canada’s Top 40 Under 40 in 2003.  In 2010, Managing Intellectual Property named him on the 50 most influential people on intellectual property in the world and Canadian Lawyer named him one of the 25 most influential lawyers in Canada in 2011, 2012 and 2013.

Click here to view Dr. Geist’s full CV.


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Why is the Canadian Government So Indifferent to Privacy?

June 14, 2022

Over the past several weeks, there have been several important privacy developments in Canada including troubling privacy practices at well-known organizations such as the CBC and Tim Hortons, a call from business organizations for privacy reform, the nomination of a new privacy commissioner with little privacy experience, and a decision by a Senate committee to effectively overrule the government on border privacy rules. These developments raise the puzzling question of why the federal government – led by Innovation, Science and Industry Minister François-Philippe Champagne, Public Safety Minister Marco Mendicino, and Canadian Heritage Minister Pablo Rodriguez – are so indifferent to privacy, at best treating it as a low priority issue and at worst proposing dangerous measures or seemingly hoping to cash in on weak privacy laws in order to fund other policy priorities.

The privacy alarm bells have been ringing for weeks. For example, the Globe and Mail recently featured an important story on children’s privacy, working with Human Rights Watch and other media organizations to examine the privacy practices of dozens of online education platforms. The preliminary data suggests some major concerns in Canada, most notably with the CBC, whose CBC Kids platform is said to be “one of the most egregious cases in Canada and really all around the world.” The CBC responded that it “complies with relevant Canadian laws and regulations with regard to online privacy, and follows industry practices in audience analytics and privacy protection.” Yet that is the problem: Canada’s privacy laws are universally regarded as outdated and weak, thereby enabling privacy invasive practices with no consequences. Soon after, the Privacy Commissioner of Canada released findings in an investigation involving the Tim Hortons app tracking location data. First identified by then-National Post reporter James McLeod, the commissioner found privacy violations, yet Canadian privacy law does not include penalties for these violations.

Despite the obvious need for privacy reform – outgoing Privacy Commissioner of Canada Daniel Therrien reiterated the necessity for reform in his final speech as commissioner and business groups have made a similar call for privacy reform – the government seems indifferent to the issue. The nomination of Philippe Dufresne as the new privacy commissioner is a case in point. I don’t know Mr. Dufresne and I’m hoping that he proves to be a great commissioner. He certainly said many of the right things in his appearance before committee yesterday. However, the government’s choice is instructive. In choosing someone with no obvious privacy experience, the government sided instead with government managerial experience. Good managerial experience is valuable, but a career spent within government is not a training ground for pushing the policy envelope, pressuring governments to reform the law, and demanding that the private sector comply with it. The Dufresne choice signals that the government may be more comfortable with a well-managed agent of Parliament than with an agent of change.

The government’s dangerous approach to border privacy is indicative of its indifference or even hostility to privacy. Yesterday a Senate committee reviewing Bill S-7 rejected the government’s proposed standard for border searches of electronic devices over the objection of Minister Marco Mendicino and Senator Marc Gold, the government’s representative in the Senate (who, incidentally, was the sponsor of the unnecessary pre-study of Bill C-11). As Senator Mobina Jaffer noted, “We did not have one witness except the minister and the officials say that the new standard ‘was a good idea’.”

Mendecino has company when it comes to weak privacy. The failure of the government to prioritize privacy reform remains one of the more discouraging aspects of its digital policy approach. A big reason behind the failure surely rests with Minister Champagne. Now nearly a year and a half into the job, Champagne is increasingly regarded as one of the least effective and consequential Industry Ministers of the past two decades, particularly with respect to digital policies. His department has been absent on issue after issue: Internet regulation, news media, copyright term extension, and privacy among them. Over the past 25 years of digital policy, few Industry Ministers have demonstrated less interest, engagement or commitment to the issue.

The problems with the government’s approach extends beyond Mendicino’s hostility and Champagne’s indifference, however. Canadian Heritage Minister Pablo Rodriguez has effectively linked his digital cultural policy to the ongoing commercial success of the Internet platforms, viewing the companies as the source of funding for film and television production, music, and local news. Moreover, his plans envision the companies also paying for the regulatory frameworks themselves, including for news and online harms. The irony that the government prioritizes “getting money from web giants” over safeguarding Canadians from those companies should not be lost anyone. In fact, the incentive structure for Heritage is to keep the data taps flowing: more data to tech companies means more revenues which means more money for the cultural sector. Rather than seeking to regulate privacy and data governance, Rodriguez wants to profit from it by funding his policy objectives.

For years, the challenge associated with privacy reform in Canada was the likely opposition from business groups, who viewed privacy as costly regulation that might limit their business plans. Today, the Canadian business community is actively calling for privacy reform. So what is the hold up? The unfortunate answer appears to be government ministers such as Champagne, Mendicino, and Rodriguez, who are either indifferent, hostile, or beneficiaries of weak privacy.