Letter to the Standing Committee on Transport, Infrastructure and Communities regarding the study of Bill C-49, the Transportation Modernization Act

The Privacy Commissioner of Canada, Daniel Therrien, sent the following letter to the Standing Committee on Transport, Infrastructure and Communities, to provide his views for the Committee's study of Bill C-49, the Transportation Modernization Act.

September 12, 2017

The Honourable Judy A. Sgro, M.P.
Chair, Standing Committee on Transport, Infrastructure and Communities
Sixth Floor, 131 Queen Street
House of Commons
Ottawa, ON  K1A 0A6

Dear Ms. Chair:

As you undertake your study of the wide-ranging amendments contained in C-49, the Transportation Modernization Act, I would like to take this opportunity to offer some views on privacy considerations you may wish to bear in mind related to the proposed requirements mandating the installation of locomotive voice and video recorders (LVVRs) in all trains.

We understand that these proposed amendments largely emerged from the work of the Transportation Safety Board (TSB) in its study of the potential safety benefits of installing recorders in locomotives, and the appropriate use of LVVR. It is encouraging that the TSB’s report on the issue appropriately acknowledged employee privacy rights and workplace surveillance questions, noting that the implementation of LVVR will depend on ensuring there is an appropriate balance of rights.

Importantly, the bill before the Committee not only mandates the installation of LVVRs, but it also sets out specific uses for which companies may use the data that are collected.  The proposed amendments will allow for both proactive safety management as well as for post-accident/incident investigation. We can appreciate the use of these data for conducting investigations or responding to a safety incident, which seems to be appropriately targeted and justifiable. However, we find the provision allowing rail companies to have access to these data for proactive safety spot checks is less clearly defined.

Our underlying concern is that proactive safety management is a purpose that could be broadly interpreted in practice, potentially encompassing employee output measurement or other performance-related objectives. Train operators have pointed out that certain rail routes are extensive and could result in drivers being recorded continuously over 60-70 hours while operating the locomotive. In our view, allowing rail companies to have broad access to audio and video data for non-investigatory purposes has a greater impact on privacy, and could open the door to potential misuse of the data or function creep.

Over the years, our Office has weighed in on issues related to workplace surveillance programs that include audio and/or video recording in a number of complaint investigations, in both public and private sectors.  Although the details of each case vary to some degree, we have consistently made recommendations calling for the limitation of data usage, and where use is necessary, we urge organizations to implement controls to ensure the use of personal information captured through audio/video is appropriately limited and specific.

In one particularly relevant investigation under the Personal Information Protection and Electronic Documents Act (PIPEDA), we responded to a complaint against a railway company for its use of video surveillance and audio recording of workplace telephone lines and radio channels.  In that case, we accepted that there were certain appropriate purposes for collecting this information in the circumstances, namely, for ensuring compliance with applicable legislative and regulatory obligations, including safety-related investigations, audits or training, and for ensuring the safety and security of employees, property and the public.  In that case we worked extensively with the railway company to ensure that it had a clear policy establishing the purpose for the audio recording and video surveillance, as well as clear notice to employees of the use of the data.

There is no doubt that persistent audio and video recording of individuals in a workplace can be intrusive from a privacy perspective, so we expect such measures to be continually re-evaluated to ensure the use of the information remains valid and reasonable. To assess this, we encourage companies to consider the following key questions:

• Is the audio/video recording demonstrably necessary to address a real, pressing and substantial problem?
• Is audio/video recording likely to be effective in meeting that specific need?
• Is the loss of privacy proportional to the benefit gained?
• Is there a less privacy-invasive way of achieving the same end?

We also urge organizations to implement clear internal policies that are consistent with our guidance on this topic^{Footnote 1} and uphold the privacy principles contained in PIPEDA.  In particular, the privacy implications of C-49 should be considered with the following boundaries in mind:

1. Limit use: We strongly suggest that the use of audio recording logs and video surveillance feeds be restricted to investigation of reported accidents or detected safety incidents, and not for managerial reviews of productivity or employee output measurement.  We also recommend that there be clear policies and protocols for controlling access and use of this information.
2. Limit retention: That absent a reported safety incident or accident, the footage and audio logs should be disposed of in a timely manner;
3. Limit access: That access to audio logs and video footage also be restricted to appropriate security, compliance staff or investigators authorized by law;
4. Ensure openness: Ensure that all recorded radio lines, channels or compartments are clearly identified to signal the purposes for which surveillance and/or recording are conducted, and adopt appropriate measures to communicate these changes to staff;
5. Ensure proper training: Provide training on the new policy and procedures to all employees.

I hope these comments will be helpful to Committee Members as you pursue your study. If you have any follow-up questions on specific issues noted above, it would be our pleasure to support your study as best we can. Please do not hesitate to contact Pierre-Luc Simard, Parliamentary Affairs Officer, directly at 819-994-6015.

Sincerely,

(The original version was signed by)

Daniel Therrien
Commissioner

c.c.: Ms. Marie-France Lafleur, Clerk of the Committee