The ordered closure of TikTok’s Canadian operations over national security concerns will make it more difficult to force the company to cooperate with privacy investigations, Canada’s privacy commissioner said Tuesday.
Philippe Dufresne testified to MPs on the House of Commons ethics committee who are scrutinizing the federal government’s order last month that TikTok Canada wind up its operations following a national security review.
The government hasn’t shared the specific national security risks that led to the windup order, but has said it won’t prevent Canadians from using the app.
The company filed documents in Federal Court in Vancouver last Thursday to challenge the government’s order.
Dufresne — whose office and provincial counterparts are currently investigating whether TikTok unlawfully collected and shared younger users’ information — said privacy laws allow his office to seek a Canadian court order to force a company to provide evidence and testimony during an investigation.
“Certainly in terms of compelling powers, if there’s a refusal to provide us with documentation, it’s easier if the organization is in Canada,” where that order can be enforced by Canadian authorities, he said.
Dufresne said his office, which has no enforcement powers itself, can ask a foreign company to cooperate in an investigation if there is a provable “real and substantive connection to Canada,” such as Canadian users of an app or service.
“Where the issue could come up is in terms of enforcing it,” he said. “If all the assets are in another country then it becomes an issue of private international law, where you seek to have another court, another country, enforce the decision of Canadian courts.”
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Dufresne told the committee the government’s windup order will not have an impact on his current investigation, which was launched last year alongside British Columbia, Alberta and Quebec. He said he expects a final report and recommendations to be released in the coming months.
Canada, the U.S. and other countries have raised national security concerns about TikTok, whose corporate owner ByteDance is based in China and would be subject to Chinese laws compelling the sharing of private information held by Chinese companies if ordered by the government.
The popular social media app is facing a potential ban in the U.S. in January unless ByteDance divests itself of TikTok. A U.S. appeals court last week upheld the legislation that would enforce that ban, but TikTok has asked the U.S. Supreme Court to intervene.
U.S. prosecutors have redacted entire sections of court documents to protect what they say is top secret information while defending the law.
Industry Minister Francois-Philippe Champagne, whose department conducted the national security review, has repeatedly declined to share the information raised by the national security review that led to the decision to order TikTok Canada’s closure, citing national security laws.
Dufresne wouldn’t give an opinion on the government’s decision when pressed by several MPs, saying he hasn’t seen the information the government has, and wasn’t notified or involved in the national security review as his office is independent from the government.
“I think transparency is important,” he told NDP MP Matthew Green, who asked if the government should be more forthcoming about its decision.
“I think the more the public can understand about the decisions of the government, the decisions of my office, the better. There may be some limits in terms of confidentiality, but certainly this is important.”
The federal and provincial privacy commissioners’ investigation into TikTok is focused on whether the company obtained valid and meaningful consent for the collection, use and disclosure of personal information. The commissioners said last February, when announcing the launch of their probe, that they are focused on younger users given their outsized use of the app compared to other age groups.
Dufresne said Canadian privacy law should be strengthened to give his office enforcement powers after an investigation concludes that a company violated the law.
He argued that would help rein in social media and other tech companies that seek to avoid punishment.
“Technology is moving very quickly, websites are evolving very quickly, so we need to be able to have faster application of decisions,” he said.
An example cited during the meeting was the lack of penalty against Meta, which owns Facebook, for a 2019 privacy investigation that found the company failed to obtain user consent for the sharing of information. Dufresne’s office in 2020 asked the Federal Court to enforce its findings, but the commissioner said no penalty has been issued to date.
Meanwhile, Meta agreed Tuesday to settle a Quebec class action lawsuit over its data sharing practices for $9 million, while refusing to admit to wrongdoing.
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