Sunday, April 16, 2023

Privacy Commissioner of Canada Loses in Federal Court against Facebook

Just this past week, the Office of the Privacy Commissioner of Canada was on the receiving end of a Federal Court decision that I would characterize as more than a little embarrassing for the Commissioner.

In a nutshell, the Commissioner took Facebook to court over the Cambridge Analytica incident and lost, big time.

You may recall from 2019, when the Privacy Commissioner of Canada and the Information and Privacy Commissioner of British Columbia released, with as much fanfare as possible, the result of their joint investigation into Facebook related to the Cambridge Analytica incident.

Both of the Commissioners concluded, at that time, that Facebook had violated the federal and British Columbia privacy laws, principally related to transparency and consent.

Because Facebook was not prepared to accept that finding, the Privacy Commissioner of Canada commenced an application in the Federal Court to have the Court make the same determination and issue a whole range of orders against the social media company.

The hearing of that application took place a short time ago and a decision was just released from the federal court this past week. It concluded that the Privacy Commissioner did not prove that Facebook violated our federal privacy law in connection with the Cambridge Analytica incident and made a few other interesting findings and observations. 

Just a little bit of additional procedural information: under our current privacy law, the Privacy Commissioner of Canada does not have the ability to issue any orders or to levy any penalties. What can happen after the Commissioner has released his report of findings  is that the complainant, or the Commissioner with the complaint’s okay, can commence an application in the federal court of Canada. This is what is called a de novo proceeding. 

The finding from the privacy commissioner below can be considered as part of the record, but it is not a decision being appealed from. Instead, the applicant, in this case, the Privacy Commissioner, has the burden of proving to a legal standard that the respondent has violated the federal privacy legislation.

This has to be done with actual evidence, which is where the privacy commissioner fell significantly short in the Facebook case.

It has to be remembered that the events being investigated took place almost 10 years ago, and the Facebook platform is substantially different now compared to what it looked like. Then, if you were a Facebook user from that time, you probably remember a whole bunch of apps running on the Facebook platform. You probably were annoyed by friends who were playing Farmville and sending you invitations and updates. Well, these don't exist anymore. Facebook largely is no longer a platform on which third party apps will run.

In a nutshell, at the time, one of the app developers that used the Facebook platform was a researcher associated with a company called Cambridge Analytica. They had an app running on the platform called “this is your digital life”. It operated for some time in violation of Facebook's terms of use for app developers, hoovering up significant amounts of personal information and then selling and/or using that information for, among other things, profiling and advertising targeting. Here’s how the court described it:

[36] In November 2013, Cambridge professor Dr. Aleksandr Kogan launched an app on the Facebook Platform, the TYDL App. The TYDL App was presented to users as a sort of personality quiz. Prior to launching the TYDL App, Dr. Kogan agreed to Facebook’s Platform Policy and Terms of Service. Through Platform, Dr. Kogan could access the Facebook profile information of every user who installed the TYDL App and agreed to its privacy policy. This included access to information about installing users’ Facebook friends. ...

[38] Media reports in December 2015 revealed that Dr. Kogan (and his firm, Global Science Research Ltd) had sold Facebook user information to Cambridge Analytica and a related entity, SCL Elections Ltd. The reporting claimed that Facebook user data had been used to help SCL’s clients target political messaging to potential voters in the then upcoming US presidential election primaries.

One thing to note is that in 2008-2009, the OPC investigated Facebook and the Granular Data Permissions model that it was employing on their platform. Facebook said that the OPC sanctioned and expressly approved its GDP process after testing it after the conclusion of that investigation. They argued that the Commissioner should not be able to now say that a model it approved is inadequate. The Court didn’t have to go there. 

In this application, the Privacy Commissioner alleged that Facebook failed to get adequate consent from users who used apps on Facebook’s platform, and failed to safeguard personal information that was disclosed to third party app developers. The Commissioner failed on both, but for different reasons. 

In the court process, both the Commissioner and Facebook had the opportunity to put their best evidence and best arguments forward. Facebook was able to talk about their policies, their practices with respect to third party developers, and the sorts of educational material that they provided as part of their privacy program. 

Ultimately, the court concluded that the Commissioner had failed to put forward strong evidence to lead to the conclusion that Facebook had not obtained adequate user consent for the collection, use and disclosure of their personal information when using the app in question, or apps more generally.

It’s interesting to me that the Court notes that the Commissioner did not provide any evidence of what Facebook could have done better, in their view, nor did it offer any expert evidence about what would have been reasonable to do in the circumstances. This is from paragraph 71 of the decision:

[71] In assessing these competing characterizations, aside from evidence consisting of photographs of the relevant webpages from Facebook’s affiant, the Court finds itself in an evidentiary vacuum. There is no expert evidence as to what Facebook could feasibly do differently, nor is there any subjective evidence from Facebook users about their expectations of privacy or evidence that any user did not appreciate the privacy issues at stake when using  Facebook. While such evidence may not be strictly necessary, it would have certainly enabled the Court to better assess the reasonableness of meaningful consent in an area where the standard for reasonableness and user expectations may be especially context dependent and are ever evolving.

The Court also seems to be saying that the Commissioner was trying to suck and blow at the same time:

[67] Overall, the Commissioner characterizes Facebook’s privacy measures as opaque and full of deliberate obfuscations, creating an “illusion of control”, containing reassuring statements of Facebook’s commitments to privacy and pictures of padlocks and studious dinosaurs that communicate a false sense of security to users navigating the relevant policies and educational material. On one hand, the Commissioner criticizes Facebook’s resources for being overly complex and full of legalize, rendering those resources as being unreasonable in providing meaningful consent, yet in some instances, the Commissioner criticizes the resources for being overly simplistic and not saying enough. 

The judge then found that Facebook was essentially asking the court to make a whole bunch of negative inferences in the absence of evidence, which they did not appear to try to obtain. Here’s the court at paragraph 72 of the decision: 

[72] Nor has the Commissioner used the broad powers under section 12.1 of PIPEDA to compel evidence from Facebook. Counsel for the Commissioner explained that they did not use the section 12.1 powers because Facebook would not have complied or would have had nothing to offer. That may be; however, ultimately it is the Commissioner’s burden to establish a breach of PIPEDA on the basis of evidence, not speculation and inferences derived from a paucity of material facts. If Facebook were to refuse disclosure contrary to what is required under PIPEDA, it would have been open to the Commissioner to contest that refusal.

The judge then goes on to say at paragraph 77:

[77] In the absence of evidence, the Commissioner’s submissions are replete with requests for the Court to draw “inferences”, many of which are unsupported in law or by the record. For instance, the Court was asked to draw an adverse inference from an uncontested claim of privilege over certain documents by Facebook’s affiant. 

I think there are a couple very important things to note here. The first is that the Privacy Commissioner’s report of findings, which was released with great fanfare and which concluded that Facebook had violated Canada's federal privacy laws, was essentially based on inadequate evidence. The court found it sadly lacking – not enough to convince the Court that it was more likely than not – but apparently this evidentiary record was entirely satisfactory for the purposes of the Commissioner’s investigation and report of findings.

The second thing to note here is that the court application was essentially the privacy commissioner's second kick at the can. More evidence could have been obtained for this hearing had they actually exercised their authorities under the legislation or under the rules of court. If they did that, they came to court with an inadequate evidentiary record.

The second main violation that was alleged by the Privacy Commissioner was that Facebook had failed to adequately safeguard user information that was disclosed to third party app developers. Essentially, the Privacy Commissioner's argument is that Facebook continues to have an obligation to safeguard all of the information even after a user has chosen to disclose that information to a third party app developer. Facebook took the view that the safeguarding obligation transferred to the app developer when the user initiated the disclosure to that app developer. 

This is consistent with the scheme of the Act, in my view, because the responsibility to safeguard information and to limit its use falls on the organization that actually controls that information. Once it is given to an app developer for this purpose, it is under the control of that app developer and the obligation to safeguard it would rest with them.

The Court summarized the Commissioner’s argument on this point in paragraph 85:

[85] The Commissioner counters that Facebook maintains control over the information disclosed to third-party applications because it holds a contractual right to request information from apps. The Commissioner maintains that Facebook’s safeguards were inadequate.

[86] I agree with Facebook; its safeguarding obligations end once information is disclosed to third-party applications. The Court of Appeal in Englander observed that the safeguarding principle imposed obligations on organizations with respect to their “internal handling” of information once in their “possession” (para 41). 

Very importantly here, though, is the statement from the court that companies can expect good faith and honesty in contractual agreements:

[91] In any event, even if the safeguarding obligations do apply to Facebook after it has disclosed information to third-party applications, there is insufficient evidence to conclude whether Facebook’s contractual agreements and enforcement policies constitute adequate safeguards. Commercial parties reasonably expect honesty and good faith in contractual dealings. For the same reasons as those with respect to meaningful consent, the Commissioner has failed to discharge their burden to show that it was inadequate for Facebook to rely on good faith and honest execution of its contractual agreements with third-party app developers.

This is the conclusion that the court reached. So, in the result, the court did not conclude that Facebook had violated PIPEDA in any way in association with the Cambridge analytica incident.

Another important observation, in my view, is that the Privacy commissioner of Canada did not actually investigate Cambridge Analytica itself, but focused all of its regulatory attention at Facebook. It is common ground that Cambridge Analytica and its principal violated Facebook's policies and developer agreements in taking user data off the platform and using it for secondary, unauthorized purposes. But they did not investigate Cambridge Analytica. They went after Facebook.

So what are the takeaways from this?

I think certain folks at the Office of the Privacy Commissioner should take an opportunity to think deeply about their approach to this entire thing. They should not be issuing flashy press releases and lobbing accusations in the way that they did without evidence that could support the allegations in a court of law. 

I also think we need to think carefully about what this says for privacy law reform in Canada. The Commissioner at the time used his finding as an example of why he should be given order making powers and the powers to impose penalties. They even issued a handy-dandy table in which it concluded:

Because “Facebook disputed the validity of the findings and refused to implement the recommendations,” this should lead to the result that:

“The Office of the Privacy Commissioner of Canada’s interpretation of the law should be binding on organizations. 

To ensure effective enforcement, the Commissioner should be empowered to make orders and impose fines for non-compliance with the law.”

Almost certainly, if he’d had those powers, he would have imposed orders and fines on Facebook, based on what the Court concluded was inadequate evidence. The Court even disagreed with the Commissioner’s interpretation of the law. 

If we are going to have fines and orders under PIPEDA’s replacement, which seems inevitable, the OPC should NOT be in a position to impose them. The OPC should be the prosecutor, recommending any such fines or orders to a tribunal that will not show any deference to the Commissioner. 

And finally, this offers some certainty that once information has been disclosed to a third party, it is the third party’s legal obligation to safeguard it. The OPC clearly thought that the obligation remained with the company where it originated, but that view was not shared with the court.

After the OPC filed its application in court, Facebook filed a judicial review application to have the whole thing thrown out. Facebook was not successful on that, mainly because they filed late and were not entitled to an extension. Regardless, there are some very interesting things in that decision, which I’ll discuss in an upcoming episode.

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