Transparency reporting in Canada: still opaque?

Without an Edward Snowden-like scandal, exposing inappropriate government access of citizens’ personal information, the current landscape may be as good as it gets for transparency reporting in Canada, a privacy expert says. As of Monday, only two of the country’s major telecom companies — Telus Corp. and Rogers Communications Inc. — had published figures on how many government requests for subscriber information they fielded the previous year. Transparency reporting is voluntary in Canada, and there’s a few potential factors for why more companies haven’t come on board, Christopher Parsons, research associate and managing director of the Telecommunications Transparency Project at the University of Toronto’s Citizen Lab, said in a phone interview. These include not being a top-of-mind issue for consumers, who may not immediately equate privacy protection with telecoms the same way they may services from Facebook Inc. or Alphabet Inc.’s Google. U.S.-based companies like Facebook and Twitter Inc. have been consistently releasing info on government requests for Canadian user’s details. In a recently published paper, Parsons noted that the “different political and policy situations experienced by American and Canadian companies were important. Most American intermediaries faced a direct, and very public, series of facts that threatened their ability to retain and gain subscribers both within and outside of the United States.” There hasn’t been a “recent crisis” like that faced by Americans in the wake of revelations about the National Security Agency (NSA) spy program. “So we haven’t had revelations of CSIS spying on us using wiretaps or something like that,” Parsons said in the interview. “I think, in the absence of that, there’s less pressure on the companies.” In addition to Rogers and Telus, Saskatchewan Telecommunications Holding Corp. also publishes annual reports, though the most recent has not yet been released. In an email, spokesman Greg Jacobs said SaskTel’s 2016 report would likely be released in mid to late August. Shaw Communications Inc., which had a 2015 report, did not respond to questions about whether a 2016 report was forthcoming. Quebecor Inc.’s Videotron “hasn't published a transparency report yet,” spokeswoman Alexandra Graveline said in an email, “but we are currently evaluating the possibility to do so.” The most notable holdout, BCE Inc., has never published information on subscriber information requested by government organizations — and doesn’t appear to have any inclination to begin doing so. “Bell takes customer privacy very seriously and complies with all federal privacy laws and CRTC regulations,” spokeswoman Jacqueline Michelis said in an email. But since Bell has been “acquiring additional telecommunications providers, that raises the further question as to whether their lack of transparency will simply propagate across the country,” Parsons said. The federal privacy commissioner’s office has been making calls for companies to proactively make these disclosures, “for a number of years,” spokeswoman Tobi Cohen said in an email, and will “continue to encourage the government to take action on this front.” In its annual report published in September, the office said that with respect to “companies that have yet to produce such reports, we hope they will see the value of transparency and share relevant information with public. If not, we may resume our call for legislative changes in this area.” This followed commissioner Daniel Therrien warning telecoms directly at an industry event last summer. “We welcome the transparency reporting being done by some companies, as they add needed clarity to the debate around lawful access. Unfortunately, others are still not issuing such reports. This is why we continue to believe that mandatory reporting requirements are necessary,” Cohen said. The overall situation is “worlds better” than it was even five years ago, Parsons said. For its part, in its fourth annual transparency report published July 13, Rogers said it responded to 126,349 requests, of which it disclosed information in 122,148, rejected 799 and didn’t have info for 3,402. Nearly 92 per cent of those requests were from court orders or warrants (115,954), while 7,706 were emergency requests from law enforcement agencies and another 55,921 were emergency calls for 911. According to Rogers’ numbers, it does not appear as though the company received any requests to fulfill investigations by foreign entities in 2016, whereas it responded to 46 requests the previous year. The 2016 numbers represent a 46-per-cent increase over the 86,328 requests fielded in 2015. However Rogers said that is partially attributed to a change in how the figures are reported. This year’s report included “for the first time,” the total number of customers affected by all requests made of Rogers for information, as the company can now “fully quantify the customer impact of ‘Tower Dump’ requests,” Rogers chief privacy officer David Watt said in the report, which resulted in an increase of about 37,000 requests “compared to the previous reporting methodology.” Under the new method, “one Court Order requesting information on ten customers would be counted as ten requests,” the report explained. The latest report also split up requests Rogers rejected from those it didn’t have the information to provide. “In 2016, we continued to be vigilant with these requests and pushed back against 60% of the ‘Tower Dump’ orders we received, narrowing the requests so that information was only disclosed for about 10% of the customers who were part of the original request,” the report said. Telus includes its subscriber-information request numbers as part of its annual sustainability report, and said that in 2016, “we challenged or declined to provide information in response to an estimated eight per cent of the court orders we received because we thought the order was invalid or over-reaching.” That’s a smaller percentage than the 15 per cent challenged/declined the previous year. Telus said the reason for that couldn’t be limited to one factor, but that it believes “this variance can be largely attributed to the continuing increase in due care that law enforcement exercises in preparing their requests for records via court order.” Telus — which doesn’t measure by number of affected subscribers, but by number of requests — said it responded to a total of 65,183 requests in 2016, which is a 14-per-cent increase over the 2015 total of 57,167, but well below the 2014 total of 97,938. Ninety per cent of the requests were in response to emergency calls — 42,761 from 911 call centres, and 5,443 from police or first responders — while 5,196 stemmed from court orders and subpoenas. Outside of the issue with companies not reporting information, voluntary reporting means there is also no standardized structure to how the information is presented, Parsons noted. “The reports themselves are often challenging to directly compare against one another. And they don’t rise to the level of specific that Industry Canada has suggested in their suggested voluntary guidelines,” which were issued in 2015, he said. “So what that means is that the good corporate efforts are a little bit mitigated by the fact that parsing them against one another is not the easiest thing to do.” Achieving that standardization is easier said than done, Parsons acknowledged, adding that it’s an area the government “doesn’t necessarily have an interest in regulating.” Parsons said he wasn’t aware of any government with mandatory transparency reporting requirements. “In the United States, there is guidance on national security matters. In the U.K., there’s limitations on what companies can report, period. So I think Canada, in some ways, is a leader in here’s how you could do things. But that hasn’t led to a significant uptake in proposed standard.” Ideally, reporting would be set up in such a way that information could be used to both to understand how companies process government requests for information and to hold government agencies accountable for their requests, Parsons said. “I generally believe the government is behaving lawfully, I believe the corporations are behaving lawfully and in response to lawful requests. But in a democracy we should understand how that process works,” he said. “And, currently, we have no idea, functionally.” CORRECTION: A previous version of this story referred to Tobi Cohen as a spokesman for the privacy commissioner's office. — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Transparency reporting in Canada: still opaque?

News | July 31, 2017

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