Canada long overdue for a data commissioner

In Budget 2021, the federal government resurrected the project of creating a data commissioner. It’s a proposal that might raise some eyebrows as it’s supposed to be led by the innovation minister who has been very quiet—not to say absent—from the digital policy debate lately, and notably on the privacy agenda. The Liberals were elected in 2015 promising to support the digital economy and protect Canadians’ privacy. But it did little to act on this, despite supportive reports from the House of Commons to update the data protection law governing the private sector and to provide appropriate powers to the privacy commissioner. The data commissioner first appeared in the Liberals’ 2019 platform. After long and encouraging promises regarding new data protection rights for Canadians, and powers for the privacy commissioner, the platform concluded with “new regulations for large digital companies, overseen by a newly created Data Commissioner.” Leaving us wondering: was it a typo? An erroneous copy and paste? What else could it be? If enhanced data protection in the private sector would still be under the existing privacy commissioner, what would be left for the data commissioner? The 2019 mandate letter for then-innovation minister Navdeep Bains mentioned again this new mysterious commissioner who would oversee regulations designed “to better protect people’s personal data and encourage greater competition in the digital marketplace”—under a joint mandate with the minister of Canadian Heritage. And then, nothing. Justice Minister David Lametti launched a consultation to reform the public sector privacy act. Minister Guilbeault entered in the digital policy circus; without mention of this new regulator. In November 2020, then-minister Bains introduced with much fanfare Bill C-11, the digital charter implementation act, which is now on life support, but there’s still no sign of the promised new commissioner. With Bill C-11, we saw the promises of a powerful privacy commissioner to be annihilated by a new administrative tribunal, where only one member out of six was to be required to have basic expertise in privacy. Then, in the last budget, the data commissioner was resurrected with a mission to “inform government and business approaches to data-driven issues to help protect people’s personal data and to encourage innovation in the digital marketplace.” Indeed, as the budget states, “as the digital and data economy grows, Canadians must be able to trust that their data are protected and being used responsibly.” However, except for the name, we’re quite far from the 2019 promise and the mandate letter: the government proposes to create yet another advisor, not a regulator. We seem quite far from a coherent and comprehensive overhaul of our data protection and governance frameworks to thrive in the global and digital era and protect Canadians. Let’s pause for a minute. Let’s imagine we were to have a coherent digital policy. The establishment of a data commissioner presents a unique opportunity to resolve some of the key challenges for data governance and protection in the digital age. It could be the foundation to create a unified data framework for the public and private sectors, from data protection, to access to information, to allow for better collaboration—notably, in the face of a pandemic. Replacing both the privacy and the information commissioners, this new data regulator would also take on the Canadian anti-spam legislation; and the political parties, which aren’t covered by privacy regulations. Inspired by the Treasury Board’s directive on automated decision-making, the government would designate this new regulator to be the clearing house for the use of complex data processing systems within the federal government. In a world where the federal government would pass algorithmic accountability frameworks for the private sector. This data commissioner would be in charge of enforcing and overseeing the regulation of algorithmic systems. This commissioner would not be an adviser of the government, but an independent agent of Parliament. Obviously, as regulator and not just an adviser, it would have actual order-making and punitive powers—with possible oversight, but not à la Bill C-11. The time of the powerless ombudsperson would be over. The global, digital, and data economy requires collaboration. The data commissioner would host a Canadian data board with representatives from the Competition Bureau, the Canadian Centre for Cyber Security, as well as volunteer provincial regulators–to enhance collaboration on complex files from data breaches, market and technology-facilitated abuses. This is what the data commissioner of a G7 country should look like. A one-stop shop for businesses to seek advice, compliance, or for support to mitigate data breaches; possibly with national sandboxes run through the Canadian data board. A one-stop shop for Canadians in the case of privacy violation. Such a commissioner would make sense to answer the challenges ahead. One thing for sure: we do need better privacy and data protection frameworks, both to protect Canadians and support inclusive and responsible innovation. Bill C-11 doesn’t answer those needs. Another adviser or committee doesn’t fit those needs. The government’s digital policies compass seems broken. It is urgent that it goes back on track. Florian Martin-Bariteau holds the university research chair in technology and society and is an associate professor of law at the University of Ottawa, where he leads the university’s Centre for Law, Technology and Society. The Hill Times

Canada long overdue for a data commissioner

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Canada long overdue for a data commissioner

The establishment of a data commissioner could be the foundation to create a unified data framework for the public and private sectors, from data protection, to access to information, to allow for better collaboration.

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