Privacy and Cybersecurity Law 

On Saturday April 4, 2020, newspapers in Québec reported the geolocation of a person infected with COVID-19 through cell phone data by the Québec City Police Service (SPVQ). Lawful access was based on section 108 of the Québec Public Health Act, which provides for the issuance of an order by the public health director to “do everything reasonably possible to locate and apprehend the person whose name appears in the order.” As the COVID-19 crisis deepens, it is fair to expect the practice to expand. This article seeks to provide some guidance for an organization facing a request from law enforcement authorities to obtain geolocation data for public health purposes.

The starting point is the prohibition under the Personal Information Protection and Electronic Documents Act (PIPEDA) for an organization to disclose personal information without consent save in exceptional circumstances listed in section 7(3). The exception relevant to COVID-19 is subsection 7(3) (c.1) (ii), allowing an organization to disclose personal information without consent to a government institution that (i) has identified its lawful authority to obtain the information; and (ii) indicated that the disclosure is requested for the purpose of enforcing any law of Canada. Beyond legislative provisions, case law has recognized “exigent circumstances” as grounds for lawful authority. 

In 2016, the Ontario Superior Court went a step further in R. v Rogers Communications siding with Rogers and Telus, which had refused to grant the Peel Regional Police a “tower dump” of cell phone data to investigate a robbery. What is of most relevance here is that the court went beyond recognizing the reasonable expectation of privacy in cell phone data. It also found Rogers and Telus to have a contractual obligation towards their customers to challenge and refuse to comply with a warrant manifestly unconstitutional, as was the case for the requested indiscriminate “tower dump” for the purpose of investigating a robbery. 

The decision shed new light on the exceptions to the prohibition to disclose personal information without consent. It was also a bittersweet victory for the private sector, as the court recognized not only the right of an organization not to comply with a warrant it judges unconstitutional, but also its contractual duty to do so. Here are some parameters that may assist in decision-making in the face of a request for cell phone location data in relation to fighting the spread of COVID-19: 

1. Don’t just look for warrants. In R. v Spencer, in 2014, the Supreme Court of Canada (SCC) clarified that the exception of 7(3) (c.1) (ii) did not only apply to warrants, but more broadly “to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law.” An access request for cell phone data under public health legislation may be based on other lawful authority than a warrant.
2. Assess “exigent circumstances.” In 2017, in R. v Paterson, the SCC provided guidance in assessing “exigent circumstances.” The SCC insisted that the circumstances must make obtaining a warrant “impracticable,” they must create a situation of “urgency,” and they must call for immediate action to preserve public safety.
3. Request identification of lawful authority. Public health legislation creates exceptional powers for government, including those to access personal information for public safety, executed by peace officers. An organization must request identification of lawful authority to obtain the information and specification of the legal provision to be enforced before disclosing without consent.
4. Notify the customer. Once the information is provided, if notifying the customer would not defeat the purpose of the information request, the right to privacy of the individual calls for notification to ensure transparency and accountability to the customer.
5. Issue Transparency Reports. As a matter of accountability to customers and openness regarding the protection of personal information, organizations are encouraged to provide Transparency Reports stating how often, and in what circumstances, they provide information about their customers to government authorities. For more information on these reports, the Government of Canada has issued Transparency Reporting Guidelines.

Of course, seeking legal counsel minimizes risk of violating PIPEDA in these unprecedented times. For more information, please contact Chantal Bernier, Kirsten Thompson, or another member of Dentons’ Privacy, Cybersecurity and Data Protection group. 

Chantal Bernier, National Practice Leader, Privacy and Cybersecurity, and Trevor Neiman, Dentons Canada, adapting “Pandemics in a Connected World: Integrating Privacy with Public Health Surveillance,” by Chantal  Bernier, Liane Fong and Timothy M. Banks, in the University of New Brunswick Law Journal, volume 66 at page 117.

The ongoing COVID-19 pandemic illustrates and confirms the immense pressures both public and private entities face to widely collect, use and share individuals’ personal health data in order to facilitate a coordinated pandemic response.

Public health interventions include numerous forms of personal data collection, analysis and dissemination. Pandemic response plans will generally call for the active surveillance of ill persons’ symptoms and health status, reporting the identity of ill or suspected ill individuals, and the tracing of anyone who may have come into contact with an infected person.

These responses will invariably reveal details about the actual or suspected ill, as well as information about their friends, neighbours, employers, and social or religious affinity groups, including persons’ names, addresses, personal contacts, travel histories, risk factors and health records.

While public health objectives are an imperative during a pandemic, the ill or assumed ill will be quick to highlight the privacy risks of response measures. Private or public dissemination of personal health information in the efforts to contain COVID-19 have led to discrimination and restrictions on freedom.  

In that light, an effective pandemic response requires commensurate safeguards to protect individual privacy. This article describes the rights and obligations of employers and employees, as well as those of health professionals and patients in relation to protecting privacy while pursuing public health objectives.

1. Privacy and pandemics management in the workplace

Privacy considerations for employers

Employers play a critical role in responding to the spread of COVID-19. Many employers are currently considering various kinds of measures to mitigate the spread of the virus and to safeguard the work environment. Employers are taking precautionary measures, such as excluding access to work premises to employees having traveled abroad and to employees showing symptoms of the virus, or limiting office access to visitors from certain regions of the world. These responses, and many similar measures, necessarily involve the collection, use and disclosure of personal information above what is normally required in the workplace.  

Where employers collect, use and disclose personal information to prevent or manage the risks associated with COVID-19, employers’ actions must be guided by applicable law, including Canada’s privacy legislation. The basic rule across Canada regarding personal information is that it cannot be collected, used or disclosed without consent, unless authorized or required by law.

With this in mind, here are the main rules to follow in the context of a pandemic:

• As a preliminary rule, employers need to identify the minimal personal information they need to collect from their employees in the management of the COVID-19 pandemic. For example, additional contact information or personal travel plans may be relevant in protecting the workplace from COVID-19, and, therefore, assist in the effort to contain the pandemic. That being said, employers should limit this collection to the bare minimum necessary to fulfill that purpose. Use and disclosure of that personal information must also be minimal, limited to the strict purposes for which the information was collected.
• Employers should obtain consent for this additional information, albeit with health and safety policies that could justifiably restrict access to the workplace where the employee refuses to provide essential information.
• The form of consent obtained from employees must take into account the sensitivity of the personal information. Given the highly sensitive nature of health information, explicit consent will likely be required in most circumstances. For consent to be meaningful, employers must provide their employees with sufficient information so that they understand what they are consenting to, including the nature, purpose and consequences of the collection, use and disclosure of their personal health information. Consent will be considered express where it is the result of positive action from the individual.
• Employers should put in place dedicated security measures to prevent any loss, theft, or unauthorized access, disclosure or use of an employee’s personal information provided in the context of managing the COVID-19 pandemic. In addition, the information must be kept for only as long as it is needed to serve the intended purposes of collection. Guidelines should be developed governing the retention and destruction of the personal information when the organization no longer needs it.

Employers must also apply any special considerations unique to their business. For instance, businesses with global operations should consider the implications of cross-border sharing of personal information. While cross-border sharing of personal information may be essential in a pandemic response to trace ill employees moving between a company’s various locations or offices, the sharing of such information must be implemented with strict safeguards in place. Cross-border sharing carries high risks, as once the personal information enters another jurisdiction, it will become subject to the laws of that jurisdiction. Therefore, measures should be adopted, including regarding the use and disclosure of the personal health information, to ensure that the information will be handled in a manner that meets the standards of Canada’s privacy legislation.

Employers must also consider where they may be unable to obtain consent from employees and how they will achieve their objectives in those circumstances. Where employee consent cannot be obtained, employers may be able to rely, in a narrow set of exigent circumstances, upon exceptions to consent contained in Canada’s privacy legislation. For example, the Canada Personal Information Protection and Electronic Documents Act (PIPEDA) permits the disclosure of personal information without consent, where disclosure is required in an emergency that threatens the health or security of an individual, subject to written notification requirements to the person to whom the information relates. In addition, an organization may disclose personal information to a government institution without that individual’s consent if the institution has made a request for the information, identified its lawful authority to obtain the information, and the disclosure is requested for the purposes of administering any law of Canada or a province.

Privacy considerations for employees

As each individual must play a part in the management of a pandemic in relation to their right to privacy, employees must contend with the broadened need for their employer to collect certain personal information. Responding to the pandemic broadens the justifiable need for personal information and brings some limitation to the right to exercise consent.

The broadened need for personal information  

While employees have the right to privacy in the workplace, employers may require the personal information demonstrably necessary to manage the workplace. The nature of a pandemic will generate a demonstrable need for employers to collect additional personal information from employees to ensure health and safety in the workplace. It follows that employees may be legitimately required to provide personal information and will have to comply as a matter of employee duty.

The notion of consent in a pandemic

While the general rule is that personal information, particularly sensitive information as personal health information is, cannot be collected without consent except in exigent circumstances, employees need to understand that the right to privacy may be lawfully limited where public health and safety imperatives prevail. As mentioned in relation to employers’ rights and obligations, employees must accept that the refusal to consent to provide health information necessary to the management of the pandemic in the workplace, may entail proportionate limitations of their rights as employees, such as denial of access to work premises.

2. Privacy and pandemic management in the health care system

The right to privacy also yields to public interest in the context of the efforts of the health care system in containing a pandemic. One major response to limiting the spread of infection is contact tracing, which is the practice of identifying and monitoring anyone who may have come into contact with an infected person. Specifically, the duty to disclose and the right to share personal information, including across borders, constitute lawful limitations to the right to privacy in a pandemic. That being said, the duty to minimize privacy intrusion and the duty to safeguard the personal information at hand, with due consideration for its sensitivity, are never extinguished.

The duty for patients to disclose

Taking the SARS outbreak as a precedent, the Ontario government designated SARS as a reportable, communicable, and virulent disease under the Ontario Personal Health Information Protection Act (PHIPA). Such a measure gives public health agencies the legislative authority to issue orders to detain and isolate individuals through written orders mandating quarantine.

At the federal level, the Quarantine Act also allows exceptional collection of personal information with the purpose of restricting the spread of a communicable disease. The right to privacy is limited in accordance with section 1 of the Canadian Charter of Rights and Freedoms, meaning “within such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” A duty to disclose can therefore be lawfully created.

Sharing personal information across borders

The privacy risks of sharing personal information across borders cannot be overstated. As the information comes in the hands of a foreign state, it also comes under the scope of that state’s laws of general application, which may or may not correspond to the level of human rights protection Canada affords. Sharing of personal information across borders, even with the imperative objective of containing a pandemic, should be minimal and circumspect to protect privacy.

While certain provincial personal health information protection laws allow cross-border sharing of personal information where the protection of health and safety require it, Canadian health authorities are bound by the World Health Organization’s (WHO) International Health Regulations. They are legally binding and apply to the international sharing of information to contain the rapid international spread of communicable diseases.

The obligation to safeguard

The general safeguarding principle of privacy law requires that personal information be protected at a level commensurate to its sensitivity. For health authorities who must collect and share personal information to respond to the crisis created by the COVID-19 pandemic, the following minimal safeguarding obligations apply:

• Sharing of personally identified information should be kept to a minimum as demonstrably necessary, resorting instead to pseudonymized information (meaning where the identifying information is replaced by a number or bar code, or other “pseudonym” which can be traced back to the individual in a protected master list), or anonymized (meaning the information can non longer be traced back to an individual) where individual tracing is not necessary.
• The personal health information shared should be kept exclusively to what is relevant to manage the pandemic. For example, even where individual tracing is necessary, not all health information relating to that patient is relevant and necessary to share in the effort to contain the pandemic.
• Information sharing agreements should be in place to govern the sharing of personal information and impose the necessary safeguards to mitigate the privacy risks inherent to the sharing of personal information.
• The sharing of personal information for the containment of a pandemic should be subject to strict prohibition, through the information sharing agreements, of the use of the personal information for any other purpose.
• Finally, enhanced technological safeguards should be implemented in the wider sharing of personal information as required in the efforts to contain a pandemic.     

Conclusion

There is no question that effective pandemic control requires an exceptional degree of collection, disclosure and analysis of highly sensitive personal information. While we must  accept unusual collection, use and sharing of personal information, the right to privacy still commands minimization of the collection, use and sharing of that information, respect for consent unless overwhelming public interest must prevail and, in all cases, protection of the information to its high level of sensitivity.   

For more information, please contact Chantal Bernier or another member of Dentons’ Privacy and Cybersecurity group.

On 21 January 2020, the ICO published the Age Appropriate Design Code of Practice. The Code is available here.

Who does the Code apply to?

• The Code applies to information society services which are likely to be accessed by under-18s. The ISS does not have to be deliberately directed at children.
• This includes any online products or services (e.g. apps, programs, websites, games). This also includes Internet of Things (IoT) connected toys and devices – whether with or without a screen.
• The Code applies to ISS with an establishment in the UK OR those that are outside the UK (but target goods and services to, or monitor children in the UK).

What does the Code say?

The Code sets out 15 headline “standards of age appropriate design”:

• Best Interests: The best interests of the child should be a primary consideration when you design and develop online services likely to be accessed by a child.
• Data Protection Impact Assessments: You should undertake a DPIA before launching the product or service to assess and mitigate risks to the rights and freedoms of children.
• Age Appropriate Application: You should take a risk-based approach to recognising the age of individual users and ensure you effectively apply the standards in this code to child users. Either establish age with a level of certainty that is appropriate to the risks to the rights and freedoms of children that arise from your data processing OR apply the standards in this code to all your users instead.
• Transparency: The privacy information you provide to users must be concise, prominent, and in clear language suited to the age of the child.
• Detrimental Use of Data: You should not use children’s personal data in ways that have been shown to be detrimental to their wellbeing, or that go against industry codes of practice, other regulatory provisions, or Government advice.
• Policies and Community Standards: Uphold your own published terms, policies and community standards (including but not limited to privacy policies, age restriction, behaviour rules and content policies).
• Default Settings: Settings must be ‘high privacy’ by default (unless you can demonstrate a compelling reason for a different default setting, taking account of the best interests of the child).
• Data Minimisation: Collect and retain only the minimum amount of personal data you need to provide the elements of your service in which a child is actively and knowingly engaged. Give children separate choices over which elements they wish to activate.
• Data Sharing: You should not disclose children’s data unless you can demonstrate a compelling reason to do so, taking account of the best interests of the child.
• Geolocation: You should switch geolocation options off by default (unless you can demonstrate a compelling reason for geolocation to be switched on by default, taking account of the best interests of the child), and provide an obvious sign for children when location tracking is active. Options which make a child’s location visible to others should default back to ‘off’ at the end of each session.
• Parental Controls: If you provide parental controls, give the child age appropriate information about this. If your online service allows a parent or carer to monitor their child’s online activity or track their location, provide an obvious sign to the child when they are being monitored.
• Profiling: You should switch options which use profiling ‘off’ by default (unless you can demonstrate a compelling reason for profiling to be on by default, taking account of the best interests of the child). Only allow profiling if you have appropriate measures in place to protect the child from any harmful effects (in particular, being fed content that is detrimental to their health or wellbeing).
• Nudge techniques: You should not use nudge techniques to lead or encourage children to provide unnecessary personal data or turn off privacy protections.
• Connected Toys and Devices (IoT): If you provide a connected toy or device, ensure you include effective tools to enable conformance to this code.
• Online Tools: Provide prominent and accessible tools to help children exercise their data protection rights and report concerns.

What should businesses do?

There are five steps that businesses should take now to prepare themselves (as set out in the Code):

• Step 1: Implement an accountability programme
• Step 2: Have policies to support and demonstrate compliance
• Step 3: Train staff
• Step 4: Keep proper records
• Step 5: Be prepared to demonstrate compliance with the Code 

What happens now?

• The Code needs to be notified to the European Commission and laid before Parliament (in case there are any objections). This process will likely be concluded in July / August 2020.
• Businesses will then have 12 months to implement the changes from the date the Code takes effect. Based on the timescales above, we anticipate the Code will take effect around August/September 2021.
• The ICO will enforce the Code in line with their Regulatory Action Policy and may impose fines under the Privacy and Electronic Communications Regulations (PECR) and/or GDPR, depending on the nature of the breach.

On Friday, January 31, 2020, the United Kingdom (UK) left the European Union (EU) after 47 years as part of the union.

While the UK has ceased to be part of the EU when the clock struck midnight in Brussels, the UK and EU have agreed to a transition period until the end of 2020, to allow the UK to continue its current relationship with the EU, while future trading relationships are negotiated.

As part of this transition period, the UK’s Information Commissioner Office has clarified that the EU’s General Data Protection Regulations (GDPR) will remain in effect until the end of 2020.

No changes required at this time, but …

If you or your clients offer goods or services in the UK, and process personal data of UK residents, the GDPR will continue to apply to the treatment and safeguarding of that personal data.

Similarly, the GDPR still applies, and data protection agreements (DPA) are still required as part of an agreement with organizations that process personal data of individuals from the UK.

The UK’s Data Protection Act of 2018 incorporates the GDPR into UK law. It remains to be seen what status the EU will give to personal data transfers to the UK: Will the EU allow such transfers or will it apply the same conditions as for the rest of the world?

Adequacy status for Canada

At the time of this writing, the EU Commission considered Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA) adequate to receive and process personal data of EU residents in Canada without further conditions under the GDPR. However, this adequacy status is up for review in 2020 by the EU Commission.  

Even if Canada retains its adequacy status with the EU, it is not clear what regime the UK will adopt in relation to cross-border personal data flows. While it is fair to expect that the UK will look favourably at facilitating cross-border data flows towards North America in support of new trade agreements, UK businesses have recently started to show concern with the UK’s direction in that regard. Indeed, in the months leading up to the UK leaving the EU, organizations from the UK have started to ask for further assurances related to data protection from entities outside the UK, including Canadian businesses processing information of UK residents.

With all these uncertainties at play this year, do not be surprised if a UK business partner asks you to sign the Standard Contractual Clauses with respect to personal data of UK residents being stored or processed in Canada. 

What to expect

Following the transition period, there may be areas of uncertainty around the data protection landscape in the UK. It is likely, however, that the UK will keep its GDPR-based data protection legislation to address any concerns about the flow of personal data between the EU and the UK, and keep its flexibility in negotiating free trade agreements with North America.

Please contact a member of our Privacy and Cybersecurity group if you have any questions on the impact of Brexit and the privacy compliance obligations.

Senators Mark Warner (D-Va.) and Josh Hawley (R-Mo.) have proposed the Designing Accounting Safeguards to Help Broaden Oversight and Regulations on Data Act, or “DASHBOARD Act.” The bipartisan legislation seeks to impose a series of new regulations on major commercial data operators. Among the new requirements, the proposed legislation will mandate that commercial data operators disclose their internal valuations of consumer data. This requirement could fundamentally change how damages are demanded, calculated, and awarded in data breach litigation. In the linked article, Denton’s partner Jason Scheiderer looks at the why and how the DASHBOARD Act might impact data breach litigation.

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