Earlier this month Amanda Cutinha and I published a report, entitled “Minding Your Business: A Critical Analysis of the Collection of De-identified Mobility Data and Its Use Under Socially Beneficial and Legitimate Business Exemptions in Canadian Privacy Law.” In it, we examine how the Government of Canada obtained and used mobility data over the course of the COVID-19 pandemic, and use that recent history to analyse and critique the Consumer Privacy Protection Act (CPPA).

The report provides a detailed summary of how mobility information was collected as well as a legal analysis of why the collection and use of this information likely conformed with the Privacy Act as well as the Personal Information Protection and Electronic Documents Act (PIPEDA). We use this conformity to highlight a series of latent governance challenges in PIPEDA, namely:

1. PIPEDA fails to adequately protect the privacy interests at stake with de-identified and aggregated data despite risks that are associated with re-identification.
2. PIPEDA lacks requirements that individuals be informed of how their data is de-identified or used for secondary purposes.
3. PIPEDA does not enable individuals or communities to substantively prevent harmful impacts of data sharing with the government.
4. PIPEDA lacks sufficient checks and balances to ensure that meaningful consent is obtained to collect, use, or disclose de-identified data.
5. PIPEDA does not account for Indigenous data sovereignty nor does it account for Indigenous sovereignty principles in the United Nations Declaration on the Rights of Indigenous Peoples, which has been adopted by Canada.
6. PIPEDA generally lacks sufficient enforcement mechanisms.

We leverage these governance challenges to, subsequently, analyse and suggest amendments to the CPPA. Our report’s 19 amendments would affect:

1. Governance of de-identified data
2. Enhancing knowledge and consent requirements surrounding the socially beneficial purposes exemption and legitimate interest exemption
3. Meaningful consent for secondary uses
4. Indigenous sovereignty
5. Enforcement mechanisms
6. Accessibility and corporate transparency

While we frankly believe that the legislation should be withdrawn and re-drafted with human rights as the guide stone of the legislation we also recognise that this is unlikely to happen. As such, our amendments are meant to round off some of the sharp edges of the legislation, though we also recognise that further amendments to other parts of the legislation are likely required.

Ultimately, if the government of Canada is truly serious about ensuring that individuals and communities are involved in developing policies pursuant to themselves and their communities, ameliorating disadvantages faced by marginalized residents of Canada, and committing to reconciliation with Indigenous populations, it will commit to serious amendments of C-27 and the CPPA. Our recommendations are made in the spirit of addressing the gaps in this new legislation that are laid bare when assessing how it intersects with Health Canada’s historical use of locational information. They are, however, only a start toward the necessary amendments for this legislation.

Executive Summary

The Government of Canada obtained de-identified and aggregated mobility data from private companies for the socially beneficial purpose of trying to understand and combat the spread of COVID-19. This collection began as early as March 2020, and the information was provided by Telus and BlueDot. It wasn’t until December 2021, after the government issued a request for proposals for cellular tower information that would extend the collection of mobility information, that the public became widely aware of the practice. Parliamentary meetings into the government’s collection of mobility data began shortly thereafter, and a key finding was that Canada’s existing privacy legislation is largely ineffective in managing the collection, use, and disclosure of data in a manner that recognizes the privacy rights of individuals. In spite of this finding, the federal government introduced Bill C-27: An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts in June 2022 which, if passed into law, will fail to correct existing deficiencies in Canada’s federal commercial privacy law. In particular, Bill C-27 would make explicit that the government can continue collecting information, including mobility data from private organizations, so long as uses were socially beneficial and without clearly demarcating what will or will not constitute such uses in the future.

This report, “Minding Your Business: A Critical Analysis of the Collection of De-identified Mobility Data and Its Use Under the Socially Beneficial and Legitimate Interest Exemptions in Canadian Privacy Law,” critically assesses the government’s existing practice of collecting mobility information for socially beneficial purposes as well as private organizations’ ability to collect and use personal information without first obtaining consent from individuals or providing them with knowledge of the commercial activities. It uses examples raised during the COVID-19 pandemic to propose 19 legislative amendments to Bill C-27. These amendments would enhance corporate and government accountability for the collection, use, and disclosure of information about Canadian residents and communities, including for so-called de-identified information.

Part 1 provides a background of key privacy issues that were linked to collecting mobility data during the COVID-19 pandemic. We pay specific attention to the implementation of new technologies to collect, use, and disclose data, such as those used for contact-tracing applications and those that foreign governments used to collect mobility information from telecommunications carriers. We also attend to the concerns that are linked to collecting location information and why there is a consequent need to develop robust governance frameworks.

Part 2 focuses on the collection of mobility data in Canada. It outlines what is presently known about how Telus and BlueDot collected the mobility information that was subsequently disclosed to the government in aggregated and de-identified formats, and it discusses the key concerns raised in meetings held by the Standing Committee on Access to Information, Privacy and Ethics. The Committee’s meetings and final report make clear that there was an absence of appropriate public communication from the federal government about its collection of mobility information as well as a failure to meaningfully consult with the Office of the Privacy Commissioner of Canada. The Government of Canada also failed to verify that Telus and BlueDot had obtained meaningful consent prior to receiving data that was used to generate insights into Canadian residents’ activities during the pandemic.

Part 3 explores the lawfulness of the collection of mobility data by BlueDot and Telus and the disclosure of the data to the Public Health Agency of Canada under existing federal privacy law. Overall, we find that BlueDot and Telus likely complied with current privacy legislation. The assessment of the lawfulness of BlueDot and Telus’ activities serves to reveal deficiencies in Canada’s two pieces of federal privacy legislation, the Privacy Actand the Personal Information Protection and Electronic Documents Act (PIPEDA).

In Part 4, we identify six thematic deficiencies in Canada’s commercial privacy legislation:

1. PIPEDA fails to adequately protect the privacy interests at stake with de-identified and aggregated data despite risks that are associated with re-identification.
2. PIPEDA lacks requirements that individuals be informed of how their data is de-identified or used for secondary purposes.
3. PIPEDA does not enable individuals or communities to substantively prevent harmful impacts of data sharing with the government.
4. PIPEDA lacks sufficient checks and balances to ensure that meaningful consent is obtained to collect, use, or disclose de-identified data.
5. PIPEDA does not account for Indigenous data sovereignty nor does it account for Indigenous sovereignty principles in the United Nations Declaration on the Rights of Indigenous Peoples, which has been adopted by Canada.
6. PIPEDA generally lacks sufficient enforcement mechanisms.

The Government of Canada has introduced the Consumer Privacy Protection Act (CPPA) in Bill C-27 to replace PIPEDA. Part 5 demonstrates that Bill C-27 does not adequately ameliorate the deficiencies of PIPEDA as discussed in Part 4. Throughout, Part 5 offers corrective recommendations to the Consumer Privacy Protection Act that would alleviate many of the thematic issues facing PIPEDA and, by extension, the CPPA.

The federal government and private organizations envision the Consumer Privacy Protection Act as permitting private individuals’ and communities’ data to be exploited for the benefit of the economy and society alike. The legislation includes exceptions to consent and sometimes waives the protections that would normally be associated with de-identified data, where such exemptions could advance socially beneficial purposes or legitimate business interests. While neither the government nor private business necessarily intend to use de-identified information to injure, endanger, or negatively affect the persons and communities from whom the data is obtained, the breadth of potential socially beneficial purposes means that future governments will have a wide ambit to define the conceptual and practical meaning of these purposes. Some governments, as an example, might analyze de-identified data to assess how far people must travel to obtain abortion-care services and, subsequently, recognize that more services are required. Other governments could use the same de-identified mobility data and come to the opposite conclusion and selectively adopt policies to impair access to such services. This is but one of many examples. There are similar, though not identical, dangers that may arise should private organizations be able to collect or use an individual’s personal information without their consent under the legitimate interest exemption in the CPPA. Specifically, this exemption would let private organizations determine whether the collection or use of personal information outweighs the adverse effects of doing so, with the individuals and communities affected being left unaware of how personal information was collected or used, and thus unable to oppose collections or uses with which they disagree.

Parliamentary committees, the Office of the Privacy Commissioner of Canada, Canadian academics, and civil society organizations have all called for the federal government to amend federal privacy legislation. As presently drafted, however, the Consumer Privacy Protection Act would reaffirm existing deficiencies that exist in Canadian law while opening the door to expanded data collection, use, and disclosure by private organizations to the federal government without sufficient accountability or transparency safeguards while, simultaneously, empowering private organizations to collect and use personal information without prior consent or knowledge. Such safeguards must be added in legislative amendments or Canada’s new privacy legislation will continue the trend of inadequately protecting individuals and communities from the adverse effects of using de-identified data to advance so-called socially beneficial purposes or using personal information for ostensibly legitimate business purposes.