Discussion Paper: Issues Arising from Improper Telecommunications with Electors
2. Legal Context
This part of the paper sets out the rules that apply – or do not apply, as the case may be – to the improper calls made during the last general election. It sets out relevant parts of the Canada Elections Act, indicates that the main pieces of federal privacy legislation do not apply to political parties, and explains how a number of the Unsolicited Telecommunications Rules of the Canadian Radio-television and Telecommunications Commission (CRTC) dealing with telemarketing or automated calls do apply to political entities. Finally, it refers to certain offences set out in the Criminal Code.
- Communications with electors by political entities under the Canada Elections Act
- Communications with electors by political entities are essential to the democratic process. The main purpose of an election is to convince electors to vote and to vote for a particular candidate. This is done through a number of means but for many, the direct contact between candidates or their team and the elector remains an important strategy, if not the most important.
- To facilitate these communications, Parliament has included a number of provisions in the CEA requiring the transmittal of elector information to parties, candidates or MPs through lists of electors (ss. 93, 104.1, 107, 109 and 45).
- These lists contain the name, addresses (mailing and civic) and numerical identifier of each elector. They do not contain elector phone numbers.
- Four of these lists are given to candidates and parties during the election period (the preliminary lists, the updated preliminary lists, the revised lists and the official lists). The final lists, produced after the election, are given to registered parties that endorsed candidates in the electoral districts and to MPs for their respective districts. MPs also receive an annual copy of the lists of electors for their respective districts, as do parties that so request, provided they endorsed a candidate in that district in the last election.
- The Act imposes no obligations on the recipients of the lists with respect to protecting and controlling access to the personal information they contain. Elections Canada provides administrative guidelines that include best practices to protect the personal information found on the lists. However, these guidelines are not enforceable.
- Elections Canada has limited information on how this personal information is managed by political parties, and does not know whether there are measures put in place by the parties to control or limit the use made of this information.
- The agency understands that political parties merge the information contained on the lists of electors with their own information on electors. These databases may contain a significant amount of additional information, including phone number and vote preference, if known.Footnote 4 Elections Canada also understands that, in certain cases, local campaigns and the parties to which they are affiliated share the elector information in the party's database to increase the information available to both entities for that electoral district and to facilitate communication with the electors.
- The evolution of new technologies and their increased use by participants in the electoral process have allowed participants to target segments of the electorate and reach out to electors more easily and more efficiently. This is done through an expanding range of mechanisms, including live or automated calls and interactive telephone town halls, all of which allow parties and candidates to pass on their message and foster participation.
- The tools to do so are not expensive and are relatively easy to use. For this reason, they present significant benefits to the electoral process. However, these very qualities, combined with the capability some of these tools present to hide the true source of the communication, also make them key instruments for those who want to deceive electors.
- Deceptive practicesFootnote 5 involving the use of "robocalls" or websites have emerged in the US over the last decade. For example, in 2006, in Kansas City and Virginia, electors received automated phone calls falsely informing them of changes in polling location.Footnote 6
- Apart from interfering with the constitutional rights of electors, such practices potentially erode the trust of electors as well as the capacity of political parties and candidates to effectively communicate with electors and stimulate voter participation.
What can and cannot be done by parties and candidates in communications with individual electors
- Under the CEA (ss. 110, 111(f)), the primary constraint on the use of personal information contained on the lists of electors by parties, candidates and MPs is that the personal information they contain not be knowingly used for a purpose other than: a) communicating with electors or b) a federal election or referendum. Under this prohibition, not only the misuse must be demonstrated but also the individual's knowledge of the source of the information and its use.Footnote 7
- Election advertising is allowed – that is, promoting or opposing a candidate or party (CEA, s. 319ff). This may and is done through many means, including door-to-door canvassing and other forms of voter contact.
- Get-out-the-vote calls are also allowed.
- However, wilfully preventing or trying to prevent an elector from voting is prohibited (CEA, s. 281(g); offence at s. 491(3)(d)).
- Similarly, inducing a person to refrain from voting (or to vote for or against a particular candidate) by "any pretence or contrivance" is prohibited (CEA, s. 482(b)).
- Knowingly making or publishing a false statement of fact in relation to the personal character or conduct of a candidate or prospective candidate with the intention of affecting the result of the election is also prohibited (CEA, s. 91; offence at s. 486(3)(c)).
- On the positive side, these prohibitions are drafted fairly broadly. The prohibitions found in ss. 281(g) and 482(b) are not tied to a particular technology or means of interference. Section 482(b) would capture both tricks used to deceive electors in their vote preference (e.g. by falsely pretending to call on behalf of another candidate) as well as tricks to suppress the vote (e.g. by falsely informing electors that their polling location has changed).
- However, it is also important to note that these prohibitions are backed with criminal sanctions and not administrative penalties. As a result, non-compliance is dealt with through criminal investigations. This limits the tools available to obtain information and translates into relatively lengthy and cumbersome procedures. There is also a significant imbalance between these lengthy and cumbersome procedures and the small fines that may be imposed as a result of a guilty finding, thus limiting the deterrent effect of such a finding.
- Communications with electors regarding polling locations
- Each electoral district is divided into a number of geographic parcels called polling divisions, with a division comprising at least 250 electors. Generally, there is one polling station for every polling division. The basic rule is that a polling station should be located in the polling division. However, if the returning officer considers it advisable, several polling stations may be placed together in a central polling place. In practice, most polling stations are grouped in this manner.
- Before each election, returning officers are tasked with identifying polling sites in the polling divisions or sites in which a central polling place may be established, grouping together a maximum of 15 polling stations. Where feasible, polls should be in a public building that is centrally located, in proximity to the electors they serve, and should meet specific accessibility standards both inside and outside the building.Footnote 8 While returning officers may have preliminary discussions with landlords for the rental of the premises, they may not enter into a lease prior to the issue of the writs unless authorized to do so by the CEO, usually not before the election is imminent.
- A voter information card (VIC) is then sent to all electors in the electoral district. The VIC indicates the address of the elector's polling station as well as voting dates, voting hours and a telephone number to call for further information.
- At the start of each election, Elections Canada asks political parties and candidates not to communicate with electors regarding polling locations or poll changes to avoid the risk of confusion or potentially erroneous information being given.
- If it is necessary to change the location of a polling station – for example, because of the sudden unavailability of a polling site – the returning officer prints and sends amended VICs to affected electors. If the change occurs too late in the election calendar to proceed in this fashion, electors are informed through media broadcasts and personally by an election worker posted at the entrance of the closed or changed polling station.
- Elections Canada does not call electors to advise them of changes in polling sites. Subject to a few exceptions, the agency does not have the phone numbers of electors.Footnote 9 Even in the few cases where electors provide their phone number voluntarily, this personal information is not captured in the National Register of Electors or on the lists of electors and it is not available to returning officers.
- Privacy Act and Personal Information Protection and Electronic Documents Act
- The general principles governing the collection, use, disclosure and retention of personal information are found in the Privacy Act and the Personal Information Protection and Electronic Documents Act (PIPEDA), and they reflect internationally recognized standards.Footnote 10
- However, neither the Privacy Act nor PIPEDA generally applies to political entities. The Privacy Act applies only to federal institutions – that is, generally, departments and agencies of the federal government. With respect to PIPEDA, its scope is limited to personal information collected, used or disclosed in the course of commercial activities.Footnote 11
- The absence of a legal framework governing how personal information is managed and protected by political parties and candidates is a matter of significance, considering that the use of devices such as robocalls to deceive targeted segments of the electorate is not possible without the kind of intelligence on the composition of the electorate compiled and accessed by political parties.
- The Canadian Radio-television and Telecommunications Commission's Unsolicited Telecommunications RulesFootnote 12
- Section 41 of the Telecommunications Act states: "The Commission may, by order, prohibit or regulate the use by any person of the telecommunications facilities of a Canadian carrier for the provision of unsolicited telecommunications to the extent that the Commission considers it necessary to prevent undue inconvenience or nuisance, giving due regard to freedom of expression."
- While the rules adopted by the CRTC are in many ways quite comprehensive, it is important to keep in mind that they do not apply to the Internet or e-mail communications.Footnote 13
National Do Not Call List Rules
- The National Do Not Call List (DNCL) allows consumers to register a telephone number to avoid receiving telemarketing communications at that number. Pursuant to s. 41.7(1)(c) to (e) of the Telecommunications Act, the National DNCL Rules do not apply to a telecommunication made by or on behalf of political entities governed by the CEA, that is, registered parties, candidates, nomination contestants, leadership contestants and electoral district associations.
- That said, it is important to note that s. 41.7(4) requires exempted individuals and organizations, such as political parties and candidates, to maintain their own internal DNCL. Political parties and candidates must ensure that no telecommunication is made on their behalf to any person who has requested to be on their DNCL. However, this provision does not apply in respect of a person making a telecommunication for the sole purpose of collecting information for a survey of members of the public.
- The Telemarketing Rules apply whether or not the telemarketing telecommunication is exempt from the National DNCL Rules. Therefore, the rules apply to political entities.
- However, "telemarketing" is defined as the use of telecommunications facilities to make unsolicited telecommunications for the purpose of solicitation; and "solicitation" means the selling or promoting of a product or service or the soliciting of money or money's worth.
- Therefore, the Telemarketing Rules apply to political entities when soliciting donations, but would probably not be found to apply when they are asking for the electors' support at the polls, as such a call does not involve a commercial activity. Nor would the rules apply to get-out-the-vote calls or calls advising of changes in polling locations.
- The Telemarketing Rules include:
- Prior registration of a telemarketer acting on its own behalf or of a client of a telemarketer
- Maintenance of an internal DNCL by a telemarketer acting on its own behalf or by a client of a telemarketer
- Adding a consumer's name and number to the internal DNCL within 31 days of the consumer's do not call requestFootnote 14
- At the beginning of a voice telemarketing telecommunication, providing the name or fictitious name of the individual making the call, the name of the telemarketer and the name of the client
- Upon request during a voice telemarketing telecommunication, providing a voice telecommunications number that allows access to an employee or other representative of the telemarketer and of the client
- Telemarketing telecommunications restricted to certain hours of the day (9 a.m. to 9:30 p.m. on weekdays and 10 a.m. to 6 p.m. on weekends)Footnote 15
- The telemarketer must display the originating phone number or an alternate number where the telemarketer can be reached
The Automatic Dialing-Announcing Device Rules
- These rules apply whether or not the telemarketing telecommunication is exempt from the National DNCL Rules. Therefore, they apply to political entities.
- An "automatic dialing-announcing device" (ADAD) is defined as "any automatic equipment incorporating the capability of storing or producing telecommunications numbers used alone or in conjunction with other equipment to convey a pre-recorded or synthesized voice message to a telecommunications number". It produces what are sometimes referred to as robocalls.
- A person using an ADAD to make unsolicited communications where there is no solicitation must nevertheless comply with a number of conditions. The most relevant conditions for the purposes of this discussion paper are the following:
- Restriction on the hours during which such telecommunications can be made (9 a.m. to 9:30 p.m. on weekdays and 10 a.m. to 6 p.m. on weekends)Footnote 16
- Must begin with a clear message identifying the person on whose behalf the telecommunication is made. This message must include a mailing address and a local or toll-free telecommunications number at which a representative of that person can be reached. If the actual message relayed is longer than 60 seconds, the identification message must be repeated at the end of the telecommunication.
- Telecommunication must display the originating telecommunications number or an alternate telecommunications number where the telecommunication originator can be reached.
Enforcement of the Unsolicited Telecommunications Provisions by the Canadian Radio-television and Telecommunications Commission
- The regime provides for administrative monetary penalties as the main enforcement tool (see ss. 72.01 to 72.15 of the Telecommunications Act). Because such penalties are not part of the criminal law process, and therefore are not accompanied by the full panoply of rights and protections granted to suspects and those accused of criminal offences, they can be imposed with much greater speed and efficiency by the agency.
- The CRTC's investigative powers regarding a violation of the provisions on unsolicited telecommunications are found at ss. 72.05 and 72.06 of the statute. A person designated by the Commission to issue notices of violation may enter and inspect, at any reasonable time, any place in which he or she believes on reasonable grounds there is any document or information relevant to the enforcement of the rules. That individual may also use or cause to be made use of any data processing system at that place to examine any data contained in or available to the system, and the records contained in the system may be copied or reproduced, etc.
- Criminal Code restrictions on fraudulent communications
Current provisions of the Criminal Code may be of limited assistance in dealing with inappropriate communications with electors.
Harassing or misleading phone calls (s. 372(1), (3))
- It is an offence to convey, by telephone, information known to be false "with intent to injure or alarm any person" (s. 372(1)). It is unclear whether a court would consider that affecting an opponent's chances of success in the election (as opposed to injuring the opponent himself or herself) constitutes an injury under this section.
- It is also an offence to "mak[e] or caus[e] to be made repeated telephone calls" with "intent to harass" the person receiving the calls (s. 372(3)).
Personation (s. 403)
- It is an offence to fraudulently personate another person, living or dead, with intent to achieve any of four specified purposes, including "to cause disadvantage to ... another person". The jurisprudence confirms that the personation must be of a real person. The offence would not be applicable to a call or caller represented as "Elections Canada", nor to a fictitious character such as Pierre Poutine.Footnote 17
Mischief (s. 430, 430(1.1))
- Section 430 lists activities in relation to "property" (as defined) that constitute the offence of "mischief". Section 430(1.1) creates mischief offences for destroying, altering or interfering with the use of "data" as defined in s. 342.1 (that is, "representations of information ... suitable for use in a computer system"). These provisions do not appear to apply to the calls per se.
Footnote 4 See Colin J. Bennett and Robin M. Bayley, Canadian Federal Political Parties and Personal Privacy Protection: A Comparative Analysis (Ottawa: Officer of the Privacy Commissioner, 2012), p. 34ff. http://www.priv.gc.ca/information/pub/pp_201203_e.asp.
Footnote 5 The expression "deceptive practices" is used in this document rather than the (in some respects) narrower concept of "voter suppression" commonly found in the literature. Voter suppression is defined in the US Department of Justice manual for the prosecution of election offences as follows: "Voter suppression schemes are designed to ensure the election of a favored candidate by blocking or impeding voters believed to oppose that candidate from getting to the polls to cast their ballots. Examples include providing false information to the public – or a particular segment of the public – regarding the qualifications to vote, the consequences of voting in connection with citizenship status, the dates or qualifications for absentee voting, the date of an election, the hours for voting, or the correct voting precinct. ... Currently there is no federal criminal statute that expressly prohibits this sort of voter suppression activity." See Craig C. Donsanto, Federal Prosecution of Election Offenses, 7th ed. (Dept. of Justice, 2007), p. 61. Elections Canada understands "deceptive practices" more broadly as including misinformation about political opponents.
Footnote 6 See Common Cause, Lawyers' Committee for Civil Rights Under Law and Century Foundation, Deceptive Practices 2.0: Legal and Policy Responses (Washington: Common Cause, 2008).
Footnote 7 The CEA does not address the collection of personal information by political entities or its disclosure. The need for the prosecutor to prove that the individual who used the information knew that it came from the lists of electors (as opposed to another source) reduces the chance of a successful prosecution and as such reduces accountability with regard to the protection and use of the personal information contained on the lists.
Footnote 8 On polling day, May 2, 2011, there were 64,477 polling stations located in 15,260 polling sites. In addition, 1,669 mobile polls were set up in 4,865 establishments.
Footnote 9 For example, electors have the option of providing their telephone number when they apply for special ballots in order for Elections Canada to contact them if their faxed documents are illegible.
Footnote 10 These principles are set out in Schedule 1 of PIPEDA and have been reproduced in the Annex to this paper.
Footnote 11 The Bennett and Bailey report mentioned supra indicates that British Columbia's Personal Information Protection Act defines an organization to include "a person, an unincorporated association, a trade union, a trust or a not for profit organization" and does not limit its application to commercial activities. It has been held to cover British Columbia's political parties and may also cover the activities of federal political parties in that province. See http://www.priv.gc.ca/information/pub/pp_201203_e.pdf, p.26.
Footnote 12 This section is Elections Canada's attempt to summarize the CRTC rules. The rules themselves can be found on the CRTC's website at http://crtc.gc.ca/eng/trules-reglest.htm. Also of interest is a one-pager entitled "Key facts on the telemarketing rules for political candidates, parties and organizations" found at http://crtc.gc.ca/eng/info_sht/t1041.htm. For further information regarding the Unsolicited Telecommunications Rules, please contact the CRTC.
Footnote 13 In December 2010, Parliament adopted anti-spam legislation (see S.C. 2010, c. 23). As a result, once the legislation comes into force, the mandate of the CRTC will be expanded to include commercial electronic messages.
Footnote 14 This issue is dealt with in the CRTC fact sheet entitled "Key facts on the telemarketing rules for political candidates, parties and organizations." It indicates that "[a] constituent's request to have their name and phone number added to the internal do not call list of a party or candidate, or those making calls on their behalf, must be honoured at the time of the call. Callers must update their internal do not call list within 31 days." See http://crtc.gc.ca/eng/info_sht/t1041.htm.
Footnote 15 These hours are subject to provincial legislation governing this type of activity.
Footnote 16 These hours are subject to provincial legislation governing this type of activity.
Footnote 17 The automated message sent to Guelph voters identified the originator as follows: "This is an automated message from Elections Canada."