The Citizen Lab has received a response from the National Energy Board (NEB), replying to our letter of June 26, 2018, which questioned a request for information (RFI Process # 84084-18-0093) that the NEB issued earlier that month, as the CBC has covered. The RFI sought proposals for “security threat monitoring services” that could “algorithmically process” real-time social and other media to monitor online activities related to industry sectors such as Energy, Environment, Government, and Infrastructure.

Director Ron Deibert, on behalf of the Citizen Lab, sent a letter raising numerous questions and serious human rights concerns with the NEB’s proposed initiative, which appeared poised to target environmental activists and Indigenous communities, particularly in light of protests and political tensions surrounding the Trans Mountain Pipeline (federal approval of which was recently quashed by the Federal Court of Appeal) and similar energy sector projects in Canada.

On August 29, 2018, the Citizen Lab received a written response from Mark Power, Vice President, Performance and Results, and CFO of the NEB. The letter did not specifically acknowledge or address any of the questions posed in Director Deibert’s letter. Instead, it primarily stated the following: “Upon considering its security requirements and the responses received in the RFI Process, the National Energy Board has decided not to pursue a contract process (request for proposals at this time).”

The services sought in the NEB’s RFI would have detrimentally implicated the freedom of thought, belief, opinion and expression; the freedom of association and assembly; and the right to privacy (including the right to be secure against unreasonable search or seizure), among other fundamental rights protected by the Canadian Charter of Rights and Freedoms. As such, the Citizen Lab is glad to see that the NEB appears to have decided against pursuing a request for proposals on the basis of its RFI.

However, the NEB’s failure to address any of the questions in the Citizen Lab’s letter is unfortunate; making such information available would be in the public interest even if the NEB has decided not to move forward. These enquiries sought critical information such as whether, how, and why the personal data of those monitored would be collected, used, or disclosed; and how the NEB would mitigate risks of discriminatory targeting or human rights violations. A second set of questions attempted to shed light on the NEB’s procurement process and rationale for seeking such monitoring services in the first instance.

These questions remain unanswered. Moreover, the NEB’s decision against pursuing the RFI, combined with its notably brief ten-day submission period, raises further questions about the decision-making process and nature of consultation, if any, that initially drove the RFI. This outcome and the events leading to it engage ongoing concerns regarding any future process that might accompany a renewal of the NEB’s request for information or a future request for proposals.

The Citizen Lab will be following future developments in this area very closely.