Harper Pick for Privacy Commissioner “May Not Be the Best Fit”

News that the Harper government has nominated a new federal privacy commissioner is sending shock waves through the Canadian privacy community. But the buzz isn’t over the fact that former Commissioner Jennifer Stoddart’s replacement has been found; rather, it’s over the fact that no one in the privacy world has ever heard of the newly nominated-for-appointment Daniel Therrien—and what they have heard doesn’t sound good if the end-goal is the protection of Canadians' privacy rights. What is known about Therrien is that he’s been a lawyer at the Department of Justice (DOJ) for more than 20 years. His current title is assistant deputy attorney general, public safety, defence and immigration portfolio. And in the midst of an increasing push by the government for surveillance powers and law enforcement access to Canadians’ data—a la bills like the highly controversial C-13 and now-dead-in-the-water C-30—a lawyer who’s worked on helping the DOJ achieve those aims isn’t exactly who privacy advocates had in mind as the chief defender of privacy rights. In fact, NDP Leader Thomas Mulclair has outright told the Harper government that Therrien has “neither the neutrality nor the necessary detachment to hold this position,” CBC reports, and has asked Prime Minister Stephen Harper to reconsider the nomination, which, by mandate of the Privacy Act, the House of Commons and the Senate must approve. Outgoing Privacy Commissioner of Ontario Ann Cavoukian told The Privacy Advisor the nomination certainly comes as a surprise to the privacy community. “He’s not known to the privacy community in Canada,” she said. “And, it would seem that nominating the assistant deputy general for public safety and defence may not be the best fit. On the face of it, looking at someone whose expertise is in public safety and defence would seem the antithesis of the expertise you’d seek for privacy commissioner.” Ian Kerr, Canada research chair in Ethics, Law and Technology at the University of Ottawa, Faculty of Law, is as surprised as Cavoukian with the choice and wonders what it indicates is to come from the government. “Previously, the traditional approach had been to recruit people who were already well known and respected subject matter experts in the field of privacy,” he said. “If you look, for example, at our current and recent privacy commissioners in the main jurisdictions—Elizabeth Denham, Jill Clayton, Jennifer Stoddart—all of those people became appointed privacy commissioners as long-standing experts within the privacy community.” Why choose someone without any real privacy background and mostly unknown to the community, Kerr wondered? “Let alone selecting a person who is, on paper, the proverbial fox-in-the-hen-house, is a bold move that stands out as illogical and inexplicable—especially in light of the fact that there are so many obviously qualified people whose careers have been built on protecting, not diminishing privacy,” he said. “The appointment is potentially quite alarming.” To be clear, Therrien is surely highly skilled and has considerable expertise in his area, Cavoukian said. “But I guess what I’m questioning is whether one can assume from that that he will have the necessary privacy expertise and digital expertise in terms of data protection and ubiquitous computing,” she said. Former Alberta Information and Privacy Commissioner Frank Work said he’s willing to give Therrien the benefit of the doubt. “I don’t want to say Monsieur Therrien cannot do the job or should not do the job, because I think with his credentials he’s capable of doing the job,” Work said. Therrien’s history in the justice department required of him some promises to be impartial, after all, he added. But Work echoed his peers’ concerns that a history in law enforcement rightly raises some concerns. “Public safety initiatives tend to consume large amounts of personal information, and public safety officials are notoriously not in favor of transparency or accountability,” he said. “So here’s someone who’s done a lot of work in the area of public safety, in negotiating information-sharing agreements with the U.S., who’s now going to be the oversight of that kind of activity. So you have to be a little concerned about that.” At the very least, Work said, you have to wonder whether he’s going to be able to make the transition. Further, Work said, it’s too bad Therrien doesn’t have more experience in the private sector. Cavoukian is well aware just how much expertise a commissioner needs to be effective. “The technical area is huge and deep, and it’s a challenge to stay on top of it all,” she said, and that’s as someone who’s been immersed in privacy and data protection for the last 15 years. More puzzling to her is why Therrien would be chosen amongst what was surely a healthy pool of highly qualified candidates. The process itself was not transparent in terms of who made the short list, however. The Harper government did not respond to The Privacy Advisor’s request for comment by the time this story published. Kerr said that in many ways, the story of this nomination is much less about the career qualifications of the nominee and much more about the process and the approach of the Canadian government. “I say this because I think this fits in with a now established pattern of our Prime Minister,” he said. “Namely—carry out the agenda that the government wants to, without real regards to tradition or, in some cases, constitutional requirements.” Concurring with what the leader of the opposition wrote in his aforementioned letter to the Prime Minister, Kerr added, if Therrien becomes the privacy commissioner, he will be “required to make decisions about some of the very legal frameworks and policy choices that he himself participated in the creation of in his prior role … This is highly problematic on a number of different levels.” Tamir Israel, a staff lawyer at the Samuelson-Glushko Canadian Policy & Public Interest Clinic, said he’s not so worried about the fact that Therrien isn’t a privacy expert yet. Over time, people can pick up the specialized skill set required to do data protection. And besides, maybe the fact that Therrien is coming at this from a public safety background will give him a nuanced perspective on privacy that those steeped in it wouldn’t necessarily have. More concerning to him is the fact that Canada is facing some pretty big privacy challenges right now, and there’s not necessarily time to train someone green. “An ideal candidate could keep up and start rolling without taking a year to get up-to-speed on the specific nuances on a lot of these issues,” Israel said. “Data protection is very specialized, it’s a very specialized set of legal and policy norms that requires technical know-how, and I think that takes time to build.” Additionally, the nomination process is going to take some time, and Interim Commissioner Chantal Bernier is now something of a lame duck, lacking a mandate, meaning there’s an important voice missing in the ongoing debate. What about Interim Commissioner Chantal Bernier, Cavoukian asked? “You already have had an excellent candidate for more than a year, doing an outstanding job,” she said. “That’s what troubled me personally, that instead of considering seriously someone who had been doing the job on an interim basis and doing an excellent job—that she would not be considered.” Editor's Note: This story was updated on May 30 to add the comments of former Alberta Information and Privacy Commissioner Frank Work.