Participation by wireless service providers in the National Public Alerting System

Submission to the Canadian Radio-television and Telecommunication Commission (CRTC)

May 30, 2016

Ms. Danielle May-Cuconato
Secretary General
Canadian Radio-television and Telecommunications Commission
Ottawa, ON
K1A 0N2

Re: Telecom Notice of Consultation CRTC 2016-115 — Call for comments re: Call for comments re: Participation by wireless service providers in the National Public Alerting System

Ms. Danielle May-Cuconato:

1. The Office of the Privacy Commissioner of Canada (OPC) makes this submission in response to Telecom Notice of Consultation CRTC 2016-115, pursuant to its legislative mandate to protect the privacy rights of individuals and promote the privacy protections available to Canadians.
2. The Notice of Consultation relates to a possible role for wireless service providers in the National Public Alerting System (NPAS) that issues warning messages to the public in a defined geographic area about an existing or impending emergency situation.
3. As several questions in Telecom Notice of Consultation CRTC 2016-115 are related to matters that are outside of the OPC's jurisdiction, this submission is directed only at those issues that are within our mandate.
4. Our submission consists of the following sections:
   1. The Complementary Roles and Authorities of the OPC and CRTC
   2. Previous Comments Made by the OPC on Related Matters
   3. Our Understanding of the National Public Alerting System
   4. Addressing Policy Challenges
   5. Conclusion

I - The Complementary Roles and Authorities of the OPC and CRTC

5. The OPC's mandate is to oversee compliance with the Privacy Act, which applies to the personal information management practices of federal government departments and agencies, and the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada's federal private sector legislation. PIPEDA applies to organizations that collect, use, or disclose individuals' personal information in the course of commercial activity. It does not apply to organizations covered by provincial legislation that has been deemed to be substantially similar to PIPEDA.
6. In all provinces, including provinces with substantially similar laws, PIPEDA continues to apply to companies engaged in interprovincial or international transactions and to all federally regulated organizations, including telecommunication companies, broadcasters and broadcasting distribution undertakings.
7. The CRTC derives its authority to regulate the telecommunications industry from the Telecommunications Act. Under section 7 of the Telecommunications Act, the telecommunications policy objectives include the safeguarding and protection of individuals' telecommunications privacy. In particular, paragraphs 7(a) and (i) of the Telecommunications Act state:
   

   7(a) to facilitate the orderly development throughout Canada of a telecommunications system that serves to safeguard, enrich and strengthen the social and economic fabric of Canada and its regions;…
   
   7(i) to contribute to the protection of the privacy of persons.

8. As my Office has noted in previous submissions to the CRTC, the OPC and CRTC's roles are complementary. PIPEDA is a statute of general application that applies to diverse industries, while the Telecommunications Act is sector-specific and enables the CRTC to create specific guidelines and regulations to address privacy concerns relevant to the industry.

II - Previous Comments Made by the OPC on on Related Matters

9. Our Office has previously provided comments to the CRTC with respect to a related issue, Telecom Public Notice CRTC 2005-7: Access to information contained in theincumbent local exchange carriers' emergency 9-1-1 databases for the purpose of providing a Community Notification Service.
10. In our comments we focused on the issue of access to the 9-1-1 database by Community Notification Service (CNS) providers and we recommended that the amount of personal information accessed should be limited to the minimum amount necessary for the purposes, consistent with fair information practices and PIPEDA and that safeguards were necessary to ensure that the information is not used for other purposes. We also recommended that a narrow definition of emergency should be developed.

III - Our Understanding of the National Public Alerting System

11. As Telecom Public Notice 2016-115 states, participation in the NPAS is mandatory for broadcast distribution undertakings and most radio and over-the-air television broadcasters. The Commission is seeking comments on several issues, including
    • whether wireless service providers should be required to participate in the NPAS; and
    • whether individuals should be able to opt out of receiving emergency alert messages on their mobile devices.
12. The Public Notice requests comments on whether participation in an NPAS should be mandatory for all Canadian wireless providers. We are reluctant to comment on this question since this raises considerations that are not clearly within our mandate.
13. The Public Notice indicates that two different wireless alert technologies are being tested in Canada: cell broadcasting (CB) technology and location-based Short Messaging Service (LB-SMS) technology. Our understanding is that some jurisdictions have opted for CB technology; others have opted for LB-SMS technology. The Public Notice does not indicate which technology will be used in Canada, nor does it seek comments on the merits or pros and cons, including the privacy implications, of the two technologies.

IV - Addressing Policy Challenges

14. We understand and support the Commission's desire to enhance Canada's NPAS. We also understand the advantages of making use of wireless service providers given the widespread adoption and use of mobile devices. As well, sending alerts to wireless mobile devices has the potential to reach individuals who may not have access to radio or television broadcasts and to do so in a more timely way.
15. Privacy is often viewed as an impediment to protecting public safety. This is a false dichotomy; by establishing clear and consistent procedures to protect personal information, a well-designed NPAS can enhance public safety without sacrificing privacy.
16. To help organizations respond to emergencies while meeting their privacy obligations our Office, along with our provincial and territorial colleagues, have developed a Privacy Emergency Kit that provides guidance on how personal information can be disclosed under Canada's privacy laws in emergency situations.^{Footnote 1}

Privacy Considerations

17. From a privacy perspective, the most important issue would seem to relate to the choice of technology. The respective privacy implications of CB and LB-SMA are not mentioned in the Public Notice.
18. We strongly recommend that the CRTC consider the relative privacy implications of using CB or LB-SMS. LB-SMS is a one-to-one technology that effectively involves sending an individual message to every handset and therefore needs to keep track of subscribers' locations in order to be able to send them an SMS. CB technology, on the other hand, is a one-to-many technology that sends a message simultaneously to all CB enabled mobile handsets within a specified area. Unlike LB-SMS, CB technology does not require determining in advance which phone numbers are present in a given area and therefore does not require the collection of any additional personal information.
19. Many individuals consider their wireless telephone numbers to be private information that they share or disclose very selectively. Location information can often be even more sensitive.
20. CB technology, as it is currently being implemented for NPAS in other jurisdictions, is a more privacy sensitive option. As well, CB technology appears to have other advantages: for example, it is less likely to experience network congestion problems and it is more secure. Only the mobile operator can send CB messages while SMS messages can be sent by anyone pretending to act in an official capacity.
21. Regardless of which technology is chosen, safeguards are needed to ensure that no information about the handsets that have been sent alert messages or their locations should be retained. As well, reports on the number of messages sent, should not include information on which users or phone numbers have been sent the messages.
22. The question of whether individuals should be able to opt out of, or silence, emergency alerts, however justifiable, raises privacy considerations. The personal and ubiquitous nature of mobile phones — the very characteristics that make them a useful way of distributing emergency alerts — also means that such alerts could be considered intrusive by some individuals. Individuals are more connected to their wireless devices than to wireline telephones. Even though an increasing number of people are abandoning wireline service and relying solely on wireless service, many people still perceive that their wireless devices are private and personal.^{Footnote 2}
23. This suggests that it is important find a balance between informing individuals of emergency situations so they can respond appropriately and respecting their privacy.
24. At a minimum, before a wireless alerting system is implemented a public education campaign should be undertaken to make individuals aware that they may be receiving emergency alerts on their wireless devices. As well, it will be important to limit the use of the wireless alerting system to clearly defined emergency situations.
25. On the specific question of opting out, we would note that in the United States there are three categories of wireless alerts — AMBER alerts, imminent threat alerts and Presidential alerts — and individuals can opt out of receiving the first two types of alerts. We recommend that the CRTC review how opt-out has been implemented in the United States and other jurisdictions and whether the ability to opt out has had a significant negative impact on making individuals aware of existing or impending emergency situations. If the impact has been minimal, the CRTC might consider allowing individuals to opt out.

V - Conclusion

26. We appreciate that it may be challenging to develop a robust privacy framework for a wireless alerting system given the number of entities involved at the federal, provincial and territorial levels. Nonetheless, we believe that it is critically important to develop such a framework that recognizes the sensitivity of wireless numbers and location data. Individuals should not be forced to choose between their safety and the protection of their personal information.
27. I appreciate the opportunity to comment on this issue and I look forward to reviewing the Commission's deliberations.

Sincerely,