In a late move, the Office of the Privacy Commissioner of Canada has raised concerns with the privacy exceptions in Bill C-49 regarding the use of locomotive voice and video recorders (LVVRs). The exceptions would diminish the protections of railway engineers under the Personal Information Protection and Electronic Documents Act, according to Commissioner Therrien. The Bill has already passed third reading before the House of Commons. When asked by the Senate Committee studying the Bill whether the OPC had raised the concerns before the House of Commons, Commissioner Therrien frankly admitted that the OPC had missed the significance of the amendments until they saw the debates in Parliament.
The LVVR Initiative
In 2015, the Transportation Safety Board of Canada (TSB) conducted a study on the potential use of LVVRs. The study was conducted in the wake of several high-profile railroad accidents in Canada. The TSB ultimately included that LVVR technology would enhance rail safety if implemented.
The Government of Canada included the mandatory use of LVVR in the Bill C-49, which promises to modernize aspects of Canada’s legislation governing rail, air and marine transportation. Unions have raised concerns regarding the privacy implications of the LVVR technology. Apart from the general objection to the constant surveillance that employees would be under in the locomotive, unions have objected to employers having access to LVVR recordings. Unions fear the data could be used against employees if it could be routinely reviewed by railway companies. They argue that the data should only be available to the TSB during an incident investigation.
The OPC’s Concerns
For privacy advocates, there is another aspect of Bill C-49 that is of interest and was the subject of concerns raised by the Privacy Commissioner of Canada, Daniel Therrien, when he appeared before the Senate Committee on Transportation and Communications to discuss Bill C-49. The role of the OPC in overseeing the privacy practices of the railway companies in connection with the LVVRs will be diminished, given the way that the Bill C-49 has been drafted.
It appears that the intention was to protect against the OPC scrutinizing the use of LVVR data by railway companies. To accomplish this, Bill C-49 provides explicit carve-outs from the application of the Personal Information Protection and Electronic Documents Act (PIPEDA). These carve-outs disturb the Commissioner. In particular:
- Railway companies do not have to comply with section 7 of PIPEDA, which restricts the ability to collect, use or disclose personal information without consent
- Railway companies do not have to comply with the principles in Schedule 1 of PIPEDA regarding the collection, use, disclosure and retention of information
The Commissioner is concerned that the OPC’s jurisdiction to investigate complaints under PIPEDA may be in doubt. Naturally, if a railway company may collect, use and disclose personal information in the LVVRs without regard to the section 7 of PIPEDA and Schedule 1 of PIPEDA, they will argue that the OPC has no jurisdiction to hear complaints on these issues.
Further, the OPC is concerned that an individual may not have a right of access to the personal information in the LVVRs as would otherwise be required by PIPEDA in light of section 28 of the Canadian Transportation Accident Investigation and Safety Board Act, which restricts to whom the LVVR data could be disclosed.
Find Bill C-49 on LegisInfo here.
Read the TSB Railway Safety Issues Investigation Report R16H0002 here.
Read the transcript of Commissioner Therrien’s remarks before the Senate Committee here.