Minneapolis Data Privacy Listening Session by Tony Webster (CC BY 2.0) https://flic.kr/p/2hUwUZj

Minneapolis Data Privacy Listening Session by Tony Webster (CC BY 2.0) https://flic.kr/p/2hUwUZj

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“We Don’t Have Any Specific Analysis”: CUSMA Negotiators Surprising Admission On Key Privacy Issues

Earlier this week, the Standing Committee on Industry, Science and Technology began hearings on Bill C-4, the bill designed to implement the Canada-U.S.-Mexico Trade Agreement. I appeared before the committee to discuss digital issues (more on the appearance in an upcoming post), but just prior to my panel, the team of lead negotiators from Global Affairs took questions from Members of Parliament.

The questioning opened with a stunning exchange between Conservative MP Michelle Rempel Garner and chief negotiator Steve Verheul on the privacy analysis (or lack thereof) conducted by Canadian officials:

Hon. Michelle Rempel Garner: Thank you, Madam chair. I will start my questions as it pertains to Chapter 19. Reading Chapter 19, I notice that it agrees to prohibitions against restrictions on the transfer of personal information, and prohibitions requiring where computing facilities are located, and this has less policy flexibility on data localization under the CPTPP. Can you table the analysis that shows that Chapter 19 of CUSMA will not prevent Canada from adopting laws that would create similar provisions such as those contained in Article 20 of the GDPR or California’s Consumer Privacy Act.

Mr. Steve Verheul: If I could, Madam Chair, I’d like to bring one of my experts to the table.

Hon. Michelle Rempel Garner: Madam Chair, can you stop the clock? I’ve lost about 20 seconds already.

The Chair: Could you kindly introduce yourself and then respond to the question?

Hon. Michelle Rempel Garner: Just to be clear, I’m just asking if the analysis on that particular provision could be tabled with the committee.

Global Affairs Representative: Sorry, we don’t have any specific analysis.

Hon. Michelle Rempel Garner: No analysis was completed on that.

Global Affairs Representative: No.

Hon. Michelle Rempel Garner: Thank you. That’s good enough. I’m wondering if you can point me to anything in Bill C-4 that would preserve the rights for Canada to proceed with similar types of legislation.

Mr. Robert Brookfield: The bill generally does not indicate where there is policy flexibility. It does the reverse. It will indicate where there is a policy limitation. There is nothing in the bill that specifically says where the policy flexibility is.

Hon. Michelle Rempel Garner: Can you table the analysis that shows that British Columbia’s data localization would survive a challenge for the provisions in Chapter 19?

Mr. Robert Brookfield: That analysis doesn’t exist in a report form.

Hon. Michelle Rempel Garner: Okay, that’s great. In the absence of a national data strategy, what guidelines is the government using on data privacy, data generation and ownership and applied to the operating environment and Canada’s place in the global data economy when taking a position on Chapter 19?

Mr. Robert Brookfield: Again, the chapter provides certain policy limits and flexibility.

Hon. Michelle Rempel Garner: Were there specific guidelines on those points that were used by the negotiating team in putting together Chapter 19?

Mr. Robert Brookfield: There were various considerations in putting together the negotiating position, but there are no documents related to that analysis.

The exchange really speaks for itself. Canadian officials readily admit that the agreement limits future policy flexibility but that no formal analysis was done on the implications of the agreement on Canada’s ability to retain existing laws such as the provincial data localization rules nor on Canada’s ability to comply with European Union standards under the GDPR. The very foundation of a national digital and data strategy will be dictated by a trade agreement in which the government conducted little analysis.

4 Comments

  1. Seriously? No homework done on this at all?

  2. Annie O'Nimmus says:

    “The only thing necessary for the triumph of evil is that good men do nothing.”
    This has become the most popular quote of the modern era for good reason.

  3. Pingback: Canadian Government on Privacy Implications of NAFTA 2.0: ¯_(ツ)_/¯

  4. Pingback: News of the Week; March 4, 2020 – Communications Law at Allard Hall

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