Today, CIPPIC presented its intervention in a hearing before the Federal Court as part of a reference launched by the Office of the Privacy Commissioner of Canada. At issue is the degree to which PIPEDA - Canada's federal privacy law - applies to activities of commercial search engines.

As noted in our written submissions:

1. PIPEDA applies to commercial search engines.

2. In order to determine whether personal information is collected, used or disclosed in the course of commercial activities under s. 4(1)(a) of PIPEDA, the Court must evaluate the relationship between that information and the organization’s business model. The commercial value of most Internet companies and social media platforms is derived by providing a free service to attract user’s time, attention and personal information, which is then monetized through advertising, tracking and profiling. A restrictive definition of “commercial activity” which includes nothing but discrete, revenue-generating interactions ignores precisely the kinds of business models that drive the digital economy and that PIPEDA was intended to regulate.

3. Whether the collection, use or disclosure of personal information is undertaken for exclusively “journalistic” purposes must be determined with reference to Parliament’s intent and the constitutional rationale for the exclusion set out in s. 4(2)(c) of PIPEDA. This analysis must account for the particular role played by a free, adversarial and independent press in a democratic society—through newsgathering, source protection, the exercise of professional discipline and editorial judgement, and a commitment to communication on matters of public interest. The fact that an organization happens to permit the dissemination or discovery of journalistic content through its platform is not sufficient to immunize its activities from scrutiny under PIPEDA as a whole. The Act and the Charter provide other safeguards in this respect.

4. The remedy sought by the Complainant has obvious implications for section 2(b) Charter rights and a conclusion that PIPEDA applies to commercial search engines may eventually raise other constitutional and policy questions. However, the rules of statutory interpretation do not permit the Court to preempt these debates by distorting the meaning of the Act’s application clause to exclude certain organizations from Canadian privacy regulation altogether. Appropriate and properly tailored constitutional remedies are available in the event that these concerns are well-founded in law and actually materialize.

The reference is currently scheduled to be heard January 26-27. CIPPIC is being represented by M^e Lex Gill from Trudel, Johnstone & Lespérance.

Image Source: Learntek, "big-data-analytics", April 23, 2018, Flickr, CC-0 1.0

Facial recognition is a highly controversial technology that is transforming border crossings around the world by fuelling an unprecedented level of surveillance & too-often racially biased automated processing of travellers. In a report released today [overview], CIPPIC documents the rapid adoption of facial recognition technologies at borders while outlining its intrusive potential and propensity for being repurposed. Facial recognition can surreptitiously identify individuals from a distance and from any live or historical image, posing a serious threat to real-world and online anonymity. Facial recognition is becoming embedded in all aspects of border crossings driven by an attempt to process travellers more efficiently and securely. But members of marginalized communities are often most heavily impacted when the technology goes awry, as some demographic groups experience far higher error rates than the general population due to lingering biases. Around the world, facial recognition systems whose creation was justified in the border control context have been repurposed for law enforcement, national security agencies, traffic safety officials, administrative agencies and even the private sector.

Our current legal framework is simply too outdated and lacking in clear safeguards to mitigate the more problematic elements of facial recognition systems. The report therefore recommends a moratorium on the adoption of facial recognition systems at our borders, and a publicly transparent reassessment of existing systems in Canada.

The report, entitled "Facial Recognition at a Crossroads: Transformation at our Borders & Beyond", was finalized with assistance from Rachel Kuchma, William Burke, Ryan Mosoff and Emily Kim. An accompanying Overview document excerpts key aspects of the core report.

Image credit: Josef Čapek, Hlava (1913), Wikimedia Commons.