The Current

Proposed digital privacy bill has 'more holes than Swiss cheese,' says Jim Balsillie

Former Research In Motion co-CEO Jim Balsillie has concerns about the federal government’s proposed privacy Bill C-11. The bill is the first update to Canada's digital privacy laws in decades, but Balsillie says stronger action is needed.

Harvesting our online data for profit 'undermines human autonomy': Jim Balsillie

Jim Balsillie, former co-CEO of Research in Motion, says he has spent months analyzing the federal government's proposed update to digital privacy laws, and is not convinced that it can deliver protections for Canadians. (Lucas Jackson/Reuters)

The federal government's proposed updates to digital privacy law favour the concerns of tech giants over the protection of ordinary Canadians, says entrepreneur and technology expert Jim Balsillie. 

"This legislation has really more holes than Swiss cheese," said Balsillie, founder of the Centre for Digital Rights, and former co-CEO of Research in Motion, the maker of BlackBerry devices.

"It's a function of what the Silicon Valley interests want for their benefit, and I think we need a wholesale revision of this bill," he told The Current's Matt Galloway. 

Bill C-11, the Digital Charter Implementation Act, had its first reading in November. The proposal promises that Canadians will have greater control over their online data, and heavy penalties for companies that breach privacy. 

The bill represents the biggest attempt to reform online privacy laws in decades. Existing rules were implemented while search engines like Google were still in their infancy, and before the rise of social media giants like Twitter and Facebook.

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Big tech companies have long faced criticism for breaches of privacy and how they monetize user data, with Balsillie likening the industry that has grown around it to the "same bucket of evils" as slavery and child labour.

"Slavery was a very profitable business model. Child labour is a very profitable business model. But we said those forms of capitalism violate our fundamental morals."

Balsillie, who left his role as co-CEO of RIM in 2012 after 20 years, argued that big tech companies manipulate users and "really move you in a way that benefits their profits," which in turn "undermines human autonomy."

He said the industry's economic potential was always evident, but in the past six years, he has been surprised at "how strong the algorithms have become, that this economic force has crossed over into non-economic realms."

In recent years, "we saw the amplification of these algorithms in the Brexit election and the Trump election. We've seen a tremendous surge in mental health problems in children," he said.

"That's why it creates such urgency for public policy."

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C-11 offers increased control, hefty fines: feds

In an email to The Current, a spokesperson for Minister of Innovation, Science and Industry François-Philippe Champagne said the bill promises Canadians increased control and transparency around how their information is used by private companies, as well as "the freedom to move their information from one organization to another in a secure manner."

The bill also outlines the ability to demand that information held by a company be "destroyed," the statement noted, and lays out hefty fines for companies that violate Canadians' privacy. Those could run to 5 per cent of global revenue or $25 million, whichever is greater, for the most serious offences.

The proposed legislation also provides "the Privacy Commissioner with broad order-making powers, including the ability to force an organization to comply and the ability to order a company to stop collecting data or using personal information," the statement continued.

After "three months unpacking this bill," Balsillie believes it "does not embody any of those principles that are being represented in the words."

He said the transparency promised is undermined "because you do not have the right to know you've been surveilled."

While Canadians will be able to ask an organization why an algorithm or AI is offering them a certain promotion or discount or advertisement, Balsillie said "you don't have a right to contest that."

I am seeing tremendous progress around the world … and Canada's a unique laggard.- Jim Balsillie

He added that the mechanisms for things like moving your data around are still to be determined, and could be shaped by industry associations, rather than privacy advocates.

Balsillie pointed to other countries, such as recent legislation in Australia that makes digital giants pay for the journalism that previously filled platforms with free content; and the European Union, which enacted some of the world's strictest online privacy rules in 2018 with General Data Protection Regulation (GDPR).

"I am seeing tremendous progress around the world … and Canada's a unique laggard," he said.

Mixed response from advocates

When it was announced, Bill C-11 did receive some positive reviews, including from OpenMedia, a registered non-profit advocating for "affordable and surveillance-free" internet. 

In a news release, the organization noted that without meaningful penalties, like big fines, data privacy was an afterthought for many companies.

"Bill C-11 takes critical steps towards changing that status quo, making privacy a core business value, and restoring trust online," said OpenMedia executive director Laura Tribe

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But the statement noted questions remained around how companies could secure exceptions under the legislation, saying there could be a significant reduction in protections if interpreted broadly.

Balsillie also said organizations have plenty of options to claim exceptions under the proposed rules, meaning that heavy fines may be rare.

"The likelihood that you'll ever get near those fines is very, very small. So it sounds good, but it doesn't have proper force in effect," he said.

After the bill's first reading, privacy expert Ann Cavoukian warned that the privacy commissioner's new powers could be countered by a separate tribunal that can address appeals and adjust penalties.

"If you're going to dilute that by having it be reviewed by this data protection privacy tribunal, it's contrary to any of the models of privacy protection out there in terms of having privacy commissioners who make the decisions and issue the orders," she told Day 6.

The federal government says its new bill gives Canadians the ability to demand that information about them held by a company be 'destroyed.' (Jenny Kane/Associated Press)

Convenience versus privacy

Balsillie said there doesn't have to be a trade-off between our privacy and the conveniences of the internet.

"It's kind of like saying if you want a car, then you're OK with the trade-off of pouring spent mercury into the water table," he said.

"I want a car, and I want proper environmental legislation."

That regulation is possible, he said, but there isn't a silver bullet.

"You have to do a suite of things. Some of it is anti-competitive practices. Some of it is regulation of the elements that give them liability. Some of this is privacy legislation."

"The most important thing Canada can do is empower our existing regulators."

"We all have a duty — if you see somebody being attacked across the street, you go over and say, 'That has to stop.'"

Written by Padraig Moran. Produced by Julie Crysler.

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