April 20, 2020
Rt. Hon. Prime Minister of Canada
Hon. Premiers of Nunavut, North West Territories, Yukon, BC, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, PEI, New Brunswick, Newfoundland & Labrador
Re: Data Surveillance Technology and COVID-19 Response in Canada
Dear First Ministers,
We are writing you about the use of technologically-mediated surveillance as a public health response to the COVID pandemic. We are not addressing the use of technology generally by Canadians, voluntarily, nor the urgent need to modernize our privacy laws in and out of a pandemic.
The present focus of the Canadian Civil Liberties Association (CCLA), set forth in this letter, is narrowed to future government orders (by order-in-council or like executive instrument) requiring or authorizing the use of surveillance by public officials as part of its COVID19 response, or government orders mandating that residents of a Canadian jurisdiction employ a technology in order to enjoy a pre-COVID19 freedom.
Canadian governments have the opportunity and responsibility to learn from the approaches of other countries. To be sure, there are no magic bullets — not in big data, not in automated decision-making about individual risk, and not in automated contact tracing. This is not to suggest that technology can never support public-health led efforts. However, involuntary collection of information by governments remains unwarranted today and any requests for voluntary participation should be considered carefully. Nor should existing privacy laws be suspended for proposed public surveillance.
Of particular concern to CCLA is Canada’s lack of legislative and executive proficiency with data privacy. For some time, Canada has fallen behind other jurisdictions like the European Union or US states like California, when it comes to data privacy laws, regulation and security. To legalize data surveillance in a pandemic is therefore a high risk gamble with Canadian privacy rights. We urge strict scrutiny of the efficacy of any new technological solutions to COVID19. If pursued, they must accord with constitutional principles of due process, liberty, equality and privacy.
Accordingly, CCLA proposes that the following recommendations apply to any executive order or law enacted as a response to COVID19:
We will elaborate and add to (b)-(e), below.
In this crisis, our use of technology to improve public health must be grounded in evidence of effectiveness, and an understanding of what technology can do, and what it cannot. We insist that no data-driven initiatives in Canada serve to discriminate, stigmatize, or deny fundamental rights to people in Canada.
CCLA is a non-partisan, independent non-profit founded in 1964. We have stood up to power in hundreds of Canadian courts and legislatures. Our goal during this pandemic is to prevent civil liberties infringements where feasible, hold public authorities to account, and focus upon those most vulnerable to abuse of power.
 As a Director at the Singapore Ministry of Communications and Information puts it: “You cannot “big data” your way out of a “no data” situation. Period.” Jason Bay was the product lead for Singapore’s TraceTogether contact tracing application. No Bluetooth contact tracing system is ready to replace manual contact tracing, he has made clear, adding that automated notifications are unadvisable, even when developing an application in close coordination with local public health authorities, as was the case in Singapore. https://blog.gds-gov.tech/automated-contact-tracing-is-not-a-coronavirus-panacea-57fb3ce61d98
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