Canada’s Digital Charter: Trying to Put the Data Genie Back in the Bottle

May 28, 2019

On May 21, 2019 (happy belated birthday to the author), Canada’s Minister of Innovation, Science and Economic Development (“Minister”) announced Canada’s new Digital Charter, a set of 10 principles aimed at Canada’s increasingly digital and data-driven economy.  The Digital Charter is the result of extensive consultations through the National Digital and Data Consultations launched in June of 2018, and driven by the increasing role that the digital realm and data play in the everyday lives of Canadians and Canada’s economy.  The announcement provides details around the Government of Canada’s plans to tackle some of the issues head on, including proposed changes to the Personal Information Protection and Electronic Documents Act, a Canadian Data Governance Standardization Collaborative, and a letter from the Minister to the Commission of Competition requesting the Competition Bureau work with the Minister to ensure competition law, policy and practice keep up with the effects of digital transformation on Canada’s economy.

Three Wishes… in Exchange for Your Information

As private enterprise and government hoover up individuals’ data at alarming rates (often for purposes that are beyond the comprehension of individuals who provide their implicit or explicit consent in exchange for access to applications and services in the digital world), increasing concern from privacy and data law experts have begun to seep into the public sphere.  Surveillance and data capitalism are well entrenched in Canada and throughout the world, with so called “FAANG” (Facebook, Alphabet, Amazon, Netflix, Google) and other similar companies monetizing the troves of data created through our personal devices (often called “digital exhaust”) and the applications on such devices that make our lives increasingly efficient and connected.  Data merchants purchase and sell massive sets of anonymized data for various purposes, including statistical algorithms that inform advertising and insurance providers, and machine learning and artificial intelligence efforts.

If you have any doubt as to the value of data, consider companies like Uber, AirBnB, Amazon, etc. which have billion dollar valuations while holding relatively no physical assets and losing incredible amounts of money every year.  The value of data and the ways in which it can be exploited are just beginning.  The major concerns that arise from this digital economy have to do with privacy of individuals and possible discrimination that arises through statistical algorithmic based decision making in the marketplace.  The data genie is out of the bottle, and private enterprises are the ones making the wishes – not consumers.

Click Here and All Your Dreams Will Come True

Although Canada has privacy legislation in place to protect individuals’ privacy and information in various circumstances (PIPEDA, Privacy Act), the rub is that most of the legislations’ protections rely on the idea of consent.  The idea being that individuals should only have information on them collected with their consent and should be informed about the uses to which the information will be put.  However, issues arise due to the fact that meaningful consent is being eroded in the digital realm with consumer “click-wrap fatigue”.  Ask yourself this question: When was the last time you actually read the Terms of Use and Privacy Policy of a website, app, or device that you’ve purchased?  Most people don’t, and blindly click “Accept” providing their explicit consent to companies to collect, use, and sell their data for increasingly troubling purposes.  Companies may argue that although they collect massive amounts of information, the information is “anonymized” protecting individuals’ privacy and complying with applicable laws.  There are serious risks to privacy due to what is called “data fusion”.  Disparate data sets, when combined can be incredibly accurate in re-identifying individuals, and often the individuals who require the most protection of their privacy (think of individuals with medical conditions for example) are the most easily re-identified using increasingly sophisticated techniques.

What’s in the Charter, anyway?! (“It’s the law that’s the problem.”)

So with this Orwellian backdrop in mind, let’s take a look at the Charter’s 10 principles:

  1. Universal Access: All Canadians will have equal opportunity to participate in the digital world and the necessary tools to do so, including access, connectivity, literacy and skills.
  2. Safety and Security: Canadians will be able to rely on the integrity, authenticity and security of the services they use and should feel safe online.
  3. Control and Consent: Canadians will have control over what data they are sharing, who is using their personal data and for what purposes, and know that their privacy is protected.
  4. Transparency, Portability and Interoperability: Canadians will have clear and manageable access to their personal data and should be free to share or transfer it without undue burden.
  5. Open and Modern Digital Government: Canadians will be able to access modern digital services from the Government of Canada, which are secure and simple to use.
  6. A Level Playing Field: The Government of Canada will ensure fair competition in the online marketplace to facilitate the growth of Canadian businesses and affirm Canada’s leadership on digital and data innovation, while protecting Canadian consumers from market abuses.
  7. Digital and Digital for Good: The Government of Canada will ensure the ethical use of data to create value, promote openness and improve the lives of people—at home and around the world.
  8. Strong Democracy: The Government of Canada will defend freedom of expression and protect against online threats and disinformation designed to undermine the integrity of elections and democratic institutions.
  9. Free from Hate and Violent Extremism: Canadians can expect that digital platforms will not foster or disseminate hate, violent extremism or criminal content.
  10. Strong Enforcement and Real Accountability: There will be clear, meaningful penalties for violations of the laws and regulations that support these principles.

Beyond Data

Just as Lieutenant Commander Data, in Gene Roddenberry’s Star Trek: The Next Generation, had an evil twin named Lore, the digital world we now live in has an evil side (beyond just the exploitation of data for economic gain).  As we’ve seen in recent years in the United States, China, Russia, Iran, and the Middle East and Europe generally, data and the digital realm have been increasingly used for nefarious purposes by state and non-state actors (including influencing foreign elections, cyberwarfare, censorship and state oppression, disseminating false information or “fake news”, recruiting to hate groups, broadcasting violent acts, etc.).  Canada’s Digital Charter provides some insight into the government’s potential answers to some of these challenges.  Specifically, principles 7 to 9 provide for the ethical use of data, promotion of democracy, and freedom from hate and violent extremism.  How Canada will fulfill these commitments isn’t entirely clear, but the sentiment and statements are encouraging.

The Future is Now

Data exploitation is currently far beyond what most individuals would imagine but it doesn’t stop here.  So called “big data” enabled by mobile computing is only just beginning.  With the advent of sensor technology and the Internet of Things, along with increasingly powerful computing, as well as other novel forms of data collection, aggregation, and use, our lives become increasingly digital and data driven.  Strides in artificial intelligence, robotics, autonomous vehicles and genomics will lead to further digital transformation and data capitalism.  Already, we see “smart cities” being developed (see Sidewalk Labs in Toronto for example) which will imbed sensors and data collection from the ground up, increasing the opportunities for data collection in public and private spaces.  Canada’s Digital Charter can’t come soon enough, and hopefully the changes it brings will inform the actions of individuals and companies in Canada towards more transparent, fair, democratic, safe and secure digital interactions.  One thing is clear, although the Digital Charter is attempting to put the genie back in the bottle, it’s free and has no master now.

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