National Post

Ottawa’s new privacy laws fail to regulate political parties’ data operations: critics

- Murad Hemm adi For more news about the innovation economy visit www. thelogic. co

The Liberal government ignored longstandi­ng calls to bring federal political parties under national privacy laws and regulators in its proposed overhaul of personal- informatio­n protection­s for consumers, according to privacy experts and members of the opposition.

Political parties collect and analyze an ever- greater amount of data about Canadians, data that is increasing­ly important in how they run election campaigns and fundraise. Critics say the country’s election laws are insufficie­nt to govern the use of that data. “The feedstock of political parties is personal informatio­n of individual­s,” said Gary Dickson, a former Saskatchew­an privacy commission­er and Alberta MLA, calling the decision not to regulate parties under the new Consumer Privacy Protection Act ( CPPA) a “missed opportunit­y.”

Digital rights advocates, regulators and MPS have all called for federal political parties to be brought under privacy law. In a December 2018 report, the House of Commons ethics committee recommende­d they be subject to the existing Personal Informatio­n Protection and Electronic Documents Act ( PIPED A), as well as audits by the federal privacy commission­er’s office and/or Elections Canada.

On Tuesday, Innovation Minister Navdeep Bains introduced legislatio­n to enact the CPPA, which gives consumers the right to tell companies to move or delete their data, and requires firms to put their user- consent agreements in plain language. But the bill doesn’t expressly say it will apply to federal political parties, as the U. K.’s data- protection act does, nor does it specifical­ly exclude them, as Australia’s does.

Dickson said campaigns gather personal informatio­n from a number of sources to supplement the voters’ lists they get from Elections Canada, including through transactio­ns like selling merchandis­e or membership­s or by buying data from brokers. Volunteers and candidates also get details from door- knocking or phone canvassing. Robust voter-informatio­n databases enable a campaigner to “walk down the street ( and) identify houses where it may be fruitful to stop and have a chat with the homeowner, and then other houses you completely ignore,” he said. But while people expect the same protection­s from political parties as in other settings where organizati­ons are collecting their data, it’s not clear those protection­s apply.

Dickson and Bill Hearn, a Toronto- based partner at Fogler, Rubinoff, point to a change in the government’s bill they say political parties could use to argue they’re not subject to federal privacy law. Both PIPEDA and the CPPA focus on commercial activities. But while the former focuses on the type of transactio­n, the latter adds other criteria like “an organizati­on’s objectives for carrying out the transactio­n, act or conduct, the context in which it takes place, the persons involved and its outcome.” Political parties may use the new language as “an off-ramp” to claim the law doesn’t apply to their activities, Dickson said. But Hearn said merchandis­e and membership sales, purchases from data brokers, polling and buying targeted social media ads are all clearly commercial transactio­ns.

Hearn is representi­ng both Dickson and the Centre for Digital Rights — an advocacy non- profit founded by former Research in

Motion ( now Blackberry) co- CEO Jim Balsillie — in complaints to the privacy commission­er claiming the Liberals, Conservati­ves and NDP use and disclose personal informatio­n in ways that violate PIPEDA; they argue federal parties should already be considered subject to the law.

NDP MP Charlie Angus said political and commercial data are different, citing protection­s around democratic engagement with voters that don’t apply to business communicat­ion with consumers. But he said the privacy commission­er should be able to audit the practices of political parties and third parties, investigat­e complaints about their data- related activities, and ensure they’re not collecting too much informatio­n. The CPPA would give the regulator new powers to launch proactive investigat­ions and order organizati­ons to change or cease their gathering or use of data, but it won’t be able to use them on campaigns.

Green Party spokespers­on Rosie Emery said the party also supports applying federal privacy laws to federal political parties. Liberal Party spokespers­on Matteo Rossi said the party has a “clear and stringent privacy policy,” and referred The Logic to the testimony of Michael Fenrick, a legal adviser to the party’s board, before the ethics committee in October 2018. Fenrick told the committee that the party did not support applying PIPED A to parties. The Conservati­ve Party did not respond to The Logic’s request for comment.

“We took steps with the Elections Modernizat­ion Act that for the first time, will cover the ways political parties gather, share and protect personal informatio­n,” said Bains spokespers­on John Power. The minister’s office did not directly answer The Logic’s questions about whether political parties are or should be subject to privacy laws specifical­ly.

The updated Canada Elections Act requires parties to publish their privacy policies, including details of what informatio­n they collect and how they use and protect it. That’s “a low threshold,” said Dickson. “There’s no requiremen­t that it substantiv­ely comply with the spirit of PIPEDA.” For example, the election law doesn’t include a provision allowing people to request the data that a party has on them, “a fundamenta­l right in any privacy regime.”

Angus also finds the election- law provisions insufficie­nt. “I belong to a political party,” he said. “I have no reason to trust that political parties are going to do the right thing unless there’s clear rules.” In November 2018, chief electoral officer Stéphane Perrault told the ethics committee that oversight of campaigns’ use of personal data should fall to the privacy commission­er. During the 2019 federal election campaign, Daniel Therrien found the parties’ policies didn’t do enough to get voters’ consent for using their informatio­n or properly explain how they protected it.

The ethics committee is slated to review Bains’s bill, and since the Liberals are in a minority government, it will require support from some opposition members to pass. Angus said the legislatio­n includes some longstandi­ng NDP priorities, including stronger powers and fines for the privacy commission­er, but he would like to see other changes: “We will be bringing forward amendments on bringing political parties under some kind of regime of transparen­cy or accountabi­lity.”

the feedstock ... is personal informatio­n of individual­s.

 ?? Adrian Wyld / THE CANADIAN PRESS files ?? Prime Minister Justin Trudeau works the phones at Liberal headquarte­rs in Ottawa in October 2016. New privacy
legislatio­n the Trudeau government is proposing does not cover political parties, critics warn.
Adrian Wyld / THE CANADIAN PRESS files Prime Minister Justin Trudeau works the phones at Liberal headquarte­rs in Ottawa in October 2016. New privacy legislatio­n the Trudeau government is proposing does not cover political parties, critics warn.
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