Bi-Weekly Briefing- 4-23 November, 2020

A “Digital Charter”: Federal government introduces bill regarding consumer privacy and data protection

The Liberals tabled legislation that would bring changes to Canada’s digital privacy laws. Bill C-11, entitled the Digital Charter Implementation Act, was given first reading on November 17. If passed, it will enact the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act.

The current federal laws on privacy stem from the Privacy Act, the Access to Information Act, and the Personal Information Protection and Electronic Documents Act. These laws regulate the collection, use, and disclosure of personal information in the public sector and by private companies. Established between 1983 and 2000, the tripartite framework has largely remained the same for the last few decades, despite significant changes in technology, digital service use, and cyber security threats.

If implemented, the legislation would bring changes for both consumers and corporations. In particular, it provides the groundwork for “Canada’s Digital Charter,” which would establish a new set of online rights for consumers and regulations for digital corporations. These rights include the ability to remove personal data from a platform; the ability to withdraw consent for the sharing or sale of data; and the right to “appropriate compensation” when personal data is breached. Under the proposed legislation, corporations could face significant fines (up to 5% of gross global revenue) if they violate the privacy of Canadians. Corporations would also be held to higher standards to obtain personal data consent and should use “plain language” in contracts rather than legalese. This could change how Canadian courts interpret and uphold electronic and standard form contracts.  

Recent inquiries have found deficiencies in the current privacy laws. For example an October 2020 joint investigation report by federal, Alberta, and BC privacy commissioners into Cadillac Fairview shopping malls, where cameras were using facial recognition technology on customers without their knowledge or consent, underscored issues particularly around access to effective remedy.

The move to revamp Canada’s privacy laws follows recent trends in the global community. Between 2014 and 2016, the European Union put in place “right to erasure” laws granting citizens the right to seek the removal of certain web hits with their personal information.

Cyber security agency releases threat assessment report, naming four countries as “greatest strategic threats” to Canada

In its second-ever National Cyber Threat Assessment, the Communications Security Establishment (CSE) claims that “China, Russia, Iran, and North Korea pose the greatest state-sponsored cyber threats to Canadian individuals and organizations.” To call out these four countries marks a more assertive approach to threat assessment compared to the agency’s 2018 report. For CSE to be so forthcoming in public is unprecedented.

The 2020 report details the particular threats Canadians face—including extortion, invasions of privacy, and malicious online influence. While this list is largely the same as the 2018 report, the biggest change, according to head of the Centre for Cyber Security Scott Jones, is in “the intensity and level of sophistication” of the threats.

The report also highlights two key effects COVID-19 had on security threats. For one, with Canadians working from home and increasingly relying on the Internet, cybercriminals have more opportunities to target Canadians. Home Wi-Fi networks are often not as secure, compared to corporate IT infrastructure. Second, during the pandemic allegedly state-sponsored cyber threat actors have targeted a number of large Canadian medical and biopharmaceutical companies. Intellectual property related to COVID-19 tests, treatments, and vaccines are key targets for cyber-theft.

Along with intellectual property, the 2020 report identifies political events such as elections as potential targets of attacks. That being said, CSE notes that “Canadians are lower-priority targets for online foreign influence activity” compared to countries such as the United States.

The report addresses new threats to security such as “deepfake” technology, which is not mentioned in the 2018 report. “Deepfake” technology allows individuals to create realistic videos of events and public figures. The technology has developed rapidly in the last few years and plays a growing role in the spread of disinformation.

In some circumstances, countries such as Russia and China have endorsed or provided instructions to disrupt Canadian security. State-sponsored attacks by Russia include the targeting of Canada’s electricity supply, commercial espionage, and fuelling false claims online about divisive political issues.

Redress system for no-fly list false flags comes into effect

Minister of Public Safety and Emergency Preparedness Bill Blair has introduced the Canadian Travel Number (CTN), a tracking system based on unique identifiers that replaces the name-based model used for Canada’s no-fly list.

Under s 8(1) of the Secure Air Travel Act (SATA), if an individual is suspected on reasonable grounds of engaging in an act that threatens transportation security, or is travelling for the purpose of committing an offence under the Canadian Criminal Code, the Minister of Public Safety may place them on a no-fly list using, among other possible identifiers, their “surname, first name and middle names, [or] any alias.” This system has caused travel delays and restrictions for individuals with names that match or are similar to those that pose legitimate threats to Canada’s security interests. It has caused particular trauma for children falsely flagged as security threats. A number of families affected by false flags established the No Fly List Kids advocacy group to monitor and consult with government about a redress system.

Bill C-59 which later became the National Security Act amended SATA and made the CTN system possible. Citizens may apply for CTN if they believe they are experiencing airport delays due to false flags related to the SATA list.

Hongkongers seeking asylum will not be denied for “taking part in peaceful protests,” says Immigration Minister

Immigration Minister Marco Mendicino testified before the House of Commons Special Committee on Canada-China Relations that Hongkongers will not be barred entry to Canada simply for being arrested and charged under Beijing’s new national security law.

Generally, the Canadian government may deny entry to migrants and asylum seekers if they committed a crime recognized by Canadian law. Rioting and unlawful assembly—two charges commonly laid against Hong Kong protesters—are at face value violations of ss 63 and 64 of the Canadian Criminal Code. However, Mr. Mendicino claims that “Canada is unlikely to view Hong Kong charges as being equivalent to Canadian criminal charges.”

On June 30, 2020 Beijing enacted the Law of the People’s Republic of China on Safeguarding National Security, which was widely criticized by western countries for being overly broad in granting police powers and its qualifications of unlawful protest. As a result, the national security law infringed on the human and civil rights of Hong Kong citizens. In asserting control over Hong Kong, Beijing is also accused of not respecting the autonomy of the metropolitan area, violating its treaty obligations with Britain. Pro-democracy protests in Hong Kong began in July 2019 and have resulted in over 10,000 arrests and 2,400 charges based on figures from The Globe and Mail.

Review of RCMP response to New Brunswick anti-fracking protests concludes some surveillance practices and physical searches breached Charter rights

The Civilian Review and Complaints Commission released its final report regarding the actions of the RCMP in response to anti-fracking protests in 2013 near Elsipogtog First Nation in Kent County, New Brunswick. The report raised concerns over the police service’s intelligence gathering tactics and restrictions placed on civilian movement. More specifically, the report questioned the reasonableness and, at times, legality of RCMP practices including roadblocks and stop checks.

The RCMP randomly stopped vehicles for purposes beyond the scope of New Brunswick highway traffic legislation, despite not having judicial authorization or conducting an emergency investigation of a serious crime. Additionally, although there may have been legitimate concerns for public safety based on suspicions that some protesters had weapons, the Commission found that entering the protesters’ campsite may have been inconsistent with the right to be secure against unreasonable search and seizure under s 8 of the Charter of Rights and Freedoms.

To come to these findings, the Commission drew from a wide variety of sources: thousands of video files from the RCMP and civilian witnesses; nearly two terabytes of documentation including police records; as well as witness statements.

The Commission offered recommendations to the RCMP, in part highlighting the need for RCMP members to have knowledge of and sensitivity to Indigenous cultural practices. Officers assigned to the protest policing operation lacked training that allowed them to adequately engage with Indigenous communities. For example, the RCMP did not have satisfactory procedures in place for the seizure and handling of sacred items. The report states that the RCMP should establish a system of practical guidance in this field.