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Canada Colby Cosh: StatCan's sneaky demand for bank info looked bad last year. But now ...

21:40  11 december  2019
21:40  11 december  2019 Source:   nationalpost.com

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a tall building: Statistics Canada offices in Ottawa are seen in a file photo from May 1, 2013.© Sean Kilpatrick/The Canadian Press Statistics Canada offices in Ottawa are seen in a file photo from May 1, 2013.

The federal privacy commissioner handed his annual report to Parliament yesterday. His headline finding was, spoiler alert, that the privacy commissioner should have tremendously enlarged powers. This is my own jaundiced interpretation, of course, but then, you shouldn’t read my columns expecting anyone else’s. There is undoubted and widespread agreement that Canadian privacy law, which was once in the global vanguard, needs some updating and probably some toughening.

The commissioner, Daniel Therrien, believes this should take the form of upgrading the relevant statutes from a narrow set of data-protection rules, largely self-policed by government and corporations, to a more ambitious “rights-based” regime. As the report explains it, this would involve incorporating “a broad definition of privacy” into statute law, imposing more positive obligations on institutions, and basically making the whole apparatus more enforceable and more justiciable. And the privacy commissioner, according to the privacy commissioner, needs the power to “conduct proactive inspections” rather than waiting to act on the few hundred complaints he now receives in a year.

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I am not suggesting that Therrien is necessarily wrong. Maybe we do need to turn about a quarter of our regular street cops into a federal privacy patrol that cracks skulls at Apple stores and Facebook offices from time to time. But I also don’t think it can be denied that this is first-class bureaucratic empire-building.

What really got my attention in the report was the appendix in which Therrien discusses his commission’s investigation into the shenanigans that Statistics Canada was caught in by Global News late last year. To quote directly: “In October 2018, a news outlet reported that Statistics Canada had plans to collect the banking information of 500,000 households without their knowledge or consent.” StatCan had sought detailed, line-by-line information, not in any way anonymized, on customer banking transactions from nine different financial institutions. The agency initially told the privacy commissioner that this statistical project was merely being “conceptualized,” but the language of the letters sent to the banks, which rightly scared the daylights out of them, was that of an immediate demand for information.

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At the time I wrote about how national statistical agencies dream of replacing their awkward 19th-century surveying methods with direct access to “administrative data” for a sample of citizens.

“Administrative data,” here, means “stuff like what time of day you swing by Booster Juice and how large your bills are at Hooters.” The commissioner’s annual report discusses that issue at some length, too.

a man wearing a suit and tie:  Privacy Commissioner Daniel Therrien presents his annual report in Ottawa on Dec. 10, 2019.© Adrian Wyld/The Canadian Press Privacy Commissioner Daniel Therrien presents his annual report in Ottawa on Dec. 10, 2019.

But the column I wrote at the time took for granted that Statcan’s order to the banks was lawful . Objectionable, sure, but presumably within the agency’s powers, which are enormous. The new report contains a careful analysis of the demand in the light of existing law and the safeguards therein. Since Statcan realized that its actions were endangering the esteem in which it is held by the public, it backed off from its peremptory letters — though not before receiving some support on the floor of the House of Commons from the prime minister — and so the issue will never go before a court for a definitive resolution.

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But the commissioner argues that the letters were themselves almost certainly unlawful. Section 13 of the Statistics Act requires anyone having “custody or charge of any documents or records that are maintained” in a business office to cough them up — “grant access” — to Statcan if the Chief Statistician thinks they might be of some use. No one doubts that financial transaction data would be valuable to Statistics Canada, or thinks that it is in principle unlike other types of information that the agency compels officials and businesses to surrender all the time.

The commissioner, however, draws attention to the words “access” and “maintained.” The history of Statistics Canada seems to imply that Statcan can obligate businesses to produce an existing record; it cannot require them to create one that is not already “maintained.”

The bankers’ position in this is that they are all extremely careful not to leave aggregated transaction data for individuals lying around the shop. “Specifically,” says the report, “institutions explained that although they may have some of the data that Statistics Canada is looking for, it is maintained in separate databases, which, for various reasons, including security, privacy, and confidentiality, are compartmentalized and disconnected.”

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For banks to create the kind of record Statcan wanted, they would have to assemble it at some cost, possibly in defiance of other federal regulations to which they are subject. And Statcan can’t force them to do this. This may strike you as having the flavour of a technicality, but it’s a technicality that bought the banks time to figure out how they could protect information about our sex toy purchases. Don’t scoff.

The letters were more flagrantly unlawful in other respects, anyway: the Statistics Act specifies (in section 8) that mandatory demands for information have to be published in advance and that the responsible minister be notified. Neither happened here because Statcan tried to have its data cake and eat it too: it sent out extremely mandatory-looking notices without having formally arrived at a conclusion that the demand was mandatory under s.8. In view of the commissioner’s analysis, this scandal now looks worse than it did last winter — and it already looked pretty inexplicable and monstrous back then.

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