Monday, June 27, 2022

Video: Preparing for Canada's new Consumer Privacy Protection Act

The government of Canada tabled the Digital Charter Implementation Act, 2022 in the week before parliament rose for their summer break. While this is in limbo, what, if anything, should Canadian businesses be doing to prepare for the Consumer Privacy Protection Act?

In the week before the summer break, the Industry Minister tabled in parliament the Digital Charter Implementation Act, which will overhaul Canada’s federal private sector privacy law. It has been long anticipated and for many, long overdue. With parliamentarians off the for the summer, what can we expect and what should businesses be doing to get ready for it?

I expect that when the house resumes, the bill will be referred to either the Standing Committee on Industry, which is where PIPEDA went more than 20 years ago, or to the Standing Committee on Access to Information, Privacy and Ethics.

I have to say that the current government is very unpredictable. When Bill C-11 was tabled in 2019 for the Digital Charter Implementation Act of 2019, the bill just sat there with no referral to committee and it seemed to not be a priority at all. If they are serious about privacy reform, they should get this thing moving when they are back in session.

When it gets to committee, the usual cast of characters will appear to provide comments. First up will be the minister of Industry and his staff. Then will be the privacy commissioner of Canada, who will only have had a few months in his office at that point. I would not be surprised to see provincial privacy commissioners have their say, and maybe even data protection authorities from other countries. Then industry and advocacy groups will have their say.

The Commissioner in 2019 was very critical of the C-11 version of the bill, and it appears that most of his suggestions have gone unheeded. I expect that between 2019 and now, there has been a lot of consultation and lobbying going on behind the scenes that resulted in the few changes between C-11 and C-27. It will be interesting to see how responsive the committee and the government are to making changes to the bill.

I would not be surprised to see this bill passed, largely in its current form, before the end of the year. But even if it speeds though the House of Commons and the Senate, I do not expect that we will see this law in effect for some time. In order for the Consumer Privacy Protection Act and the Personal Information and Data Protection Tribunal Act to be fully in force, the government will have a lot of work to do.

The biggest effort will be standing up the new tribunal under the Personal Information and Data Protection Tribunal Act. Doing so will not be a trivial matter. At least three members have to be recruited, and at least three of those have to have expertise in privacy and information law. They’ll need offices, staff, a registry, IT infrastructure, then they’ll need to make their rules of procedure. I can’t see that taking any less than a year, even if the government is currently informally recruiting for those roles.

An example I’d look at is the College of Patent Agents and Trademark Agents, which was established pursuant to a bill passed in December 2018 and came into force on June 28, 2021. Essentially, it took two and a half years between the passing of the bill and when the College was open for business. The college was probably more complicated to set up than the tribunal, but it provides some insight I think.

Personally, I don’t think the CPPA can be phased in without the tribunal operating as a going concern. There are transitional provisions related to complaints that are being dealt with by the Commissioner prior to the coming into force of the CPPA, but otherwise the existence of the tribunal is essential to the operation of the CPPA and the Commissioner’s mandate.

So if I had to look into my crystal ball, I don’t think we’ll see this fully in effect for at least a year and a half.

So should companies be doing anything now? I think so. When the CPPA and the Tribunal Act come into effect they will be fully in effect. In addition to making your politicians aware of any concerns you have, companies should be looking very closely at their current privacy management program – if any – to determine if it will be up to snuff.

Section 9 of the Act says that “every organization must implement and maintain a privacy management program that includes the policies, practices and procedures the organization has put in place to fulfill its obligations under this Act, including policies, practices and procedures respecting

(a) the protection of personal information; (b) how requests for information and complaints are received and dealt with; (c) the training and information provided to the organization’s staff respecting its policies, practices and procedures; and (d) the development of materials to explain the organization’s policies and procedures.”

It then says “In developing its privacy management program, the organization must take into account the volume and sensitivity of the personal information under its control.”

This is, of course, very similar to the first principle of the CSA Model Code that’s in PIPEDA. But section 10 of the CPPA says the Commissioner can ask for it and all of its supporting documentation at any time.

I can imagine the OPC sending out requests for all of this documentation to a huge range of businesses shortly after the Act comes into force.

So what does a privacy management program include? If of course includes your publicly-facing privacy statement described in section 62. What has to be in this document will change a lot compared to PIPEDA. It has to explain in plain language what information is under the organization’s control, a general account of how it uses that personal information.

If the organization uses the “legitimate interest” consent exception, the privacy statement has to include a description of that. If the organization uses any automated decision system to make predictions, recommendations or decisions about individuals that could have a “significant impact on them”, that has to be described. It also has to say whether or not the organization carries out any international or interprovincial transfer or disclosure of personal information that may have reasonably foreseeable privacy implications. You also have to state the retention periods applicable to sensitive personal information, then explain the process for questions, complaints, access requests and requests for deletion. Most privacy statements don’t currently include all this information.

You need to assess what personal information you have, where it is, who has it, who has access to it, what jurisdiction is it in or exposed to, how it is secured, when did you collect it, what were the purposes for that collection, are there any new purposes, and have those purposes expired.

A good starting point for your privacy management program is to document all the personal information under the organizations’ control and the purposes for which it is to be used. Section 12(3) of the CPPA requires that this be documented. You will also need to ensure that all of these purposes are appropriate using the criteria at section 12(2).

You’ll also want to review whether any of the consent exceptions related to business activities under 18(1) or legitimate interests in section 18(3) could be applicable, and document them.

Under s. 18(4), this documentation will have to be provided to the Commissioner on request.

You will also need to document the retention schedule for all of your personal information holdings, and make sure they are being followed. And remember, all information related to minors is deemed to be sensitive and the retention schedule for sensitive information has to be included in your privacy statement.

Next, you’ll want to inventory and document all of your service providers who are collecting, using or disclosing personal information on your behalf. You’ll need to review all of the contracts with those service providers to make sure the service provider provides the same level of protection equivalent to original controlling organizations’ obligations. It should be noted that service providers, in the definition in the Act, expressly includes affiliated companies. So you’ll need to make sure that intercompany agreements are in place to address any personal information that may be transferred to affiliates.

You’ll want to check your processes for receiving questions, complaints and access requests from individuals. You may need to tweak your systems or processes to make sure that you can securely delete or anonymise data where required.

And last, but certainly not least, you’ll want to look very closely at your data breach response plans. It needs to identify all suspected data breaches, make sure they are properly escalated and reviewed. Any breach itself of course has to be stopped, mitigated and investigated. The details will need to be recorded and you’ll also want to think about the processes for getting legal advice at that stage so information you may want to keep privileged will be protected and you can understand your reporting and notification obligations.

At the end of the day, the CCPA is not a radical departure from the existing framework of PIPEDA. It requires greater diligence and what we in the privacy industrial complex call “privacy maturity”. Even if it didn’t, the significant penalties and the cost of dealing with investigations and inquiries by the commissioner and possible hearings before the tribunal should be enough to convince organizations to up their privacy games.

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