The Federal Government’s recent initiative to modernize law enforcement related legislation for the Internet age has (at least within law enforcement and privacy circles) once again propelled the issue of privacy vs. security to the forefront. The issues are incredibly important for Canadians, yet there has been little debate within the wider public. That being said, I’m pleased to read Ian MacLeod’s recent Ottawa Citizenarticle, which (even if you don’t agree with some of the points) does a good job of raising the issues in plain language. For a more technical analysis of the legal issues, you may want to read fellow blogger David Fraser’s post regarding the debate about warrantless access to ISP customer information.
The debate surrounding the “lawful access” legislation stems from real challenges affecting Canada’s law enforcement agencies and their need for access to personal information in the course of investigations. What is concerning, however, is the prospect of warrantless searches without judicial oversight. As a citizen in a free and democratic society, it troubles me to see any legislative initiative that could lead to investigations without appropriate checks and balances. Privacy and security don’t need to be mutually exclusive. Let’s hope that through the upcoming Parliamentary Hearings on the “lawful access” legislation we see a balance emerge between privacy and security in such a way that empowers law enforcement agencies while preserving the judicial oversight that Canadians have come to rightfully expect in our society.
BBC News is reporting that thousands of Hotmail accounts have been compromised in a phishing attack, which has reportedly affected at least 10,000 individuals.
Phishing involves identity thieves attempting to obtain personal information, such as user names, passwords and financial information, by pretending to be trustworthy organizations in need of such data.
Coincidentally, the Privacy Commissioner of Canada released her annual report today, which stresses the importance of making informed choices when sharing personal information online. The Privacy Commissioner reminds Canadians that there is a risk that unguarded personal information could be exploited by identity thieves. The Hotmail phishing attack, as well as the Privacy Commissioner’s annual report, should also remind businesses to remain vigilant in protecting their brands – or online reputations – from being damaged by identity thieves that use phishing attacks to exploit the well-earned trust that such businesses have built with their customers.
The Lawyers Weekly is running a story that focuses on one of the most cutting edge and rapidly emerging areas of law – online reputation management. Here are some excerpts from the story, which profiles an ongoing client matter:
“On the heels of a recent New York state court decision that ordered Google Inc. to reveal the identity of an anonymous blogger in a defamation suit, a Winnipeg business lawyer has asked the California-based online search engine giant to do the same and out a blogger on behalf of an Ottawa-area resident. Brian Bowman, a partner with Pitblado LLP in Winnipeg who specializes in privacy, access to information, online reputation management, intellectual property and technology matters, says that his client was defamed on a site appearing on Google-operated blogspot.com (also known as Blogger.com).”
“The New York court decision and the Canadian case raise “one of the fundamental legal questions of our time over the appropriate balance between legitimate, anonymous Internet speech versus the right for people to protect their reputations,” says Bowman, who expects more of these situations will emerge in the near future.”
In a press release, the Commissioner expressed shock and disappointment with the fact that the stolen laptops, which contained the personal health information of more 300,000 individuals, were not encrypted. “This is shocking for me…I don’t know what we have to do to drive this message home” said the Commissioner. “The standard in Alberta for storing personal or health information on portable devices is encryption. I can’t accept anything less.” The Alberta incident is strikingly similar to an incident that occurred in Ontario back in 2007. The Ontario incident also involved the theft of a non-encrypted laptop containing personal health information. A review of the incident by Ann Cavoukian, Ontario’s Information and Privacy Commissioner, produced an order for information of this type to be encrypted.
These incidents demonstrate how easily sensitive data can be compromised when stored on laptops. Encryption is a relatively easy way to improve the security of such information. But, where do you start? There are numerous encryption options available. Choices range from free open source encryption software like TrueCrypt to full information security consultations from companies that offer comprehensive data protection services like Seccuris. Regardless of which course you choose, one fact remains the same, encrypting laptops significantly improves security and that’s just smart business.
It is an interesting story because it illustrates the importance of having clear and understandable privacy policies that customers can understand. It is also an interesting story because it (once again) demonstrates the attention that the media place on privacy matters and the potentially explosive reaction that customers can have if they feel their privacy isn’t being respected.
While the OPC’s Facebook investigation should be a “must read” for all Facebook users, it also provides some insightful information for Canadian organizations regulated by PIPEDA. The lessons that can be learned from the investigation can be applied by Canadian businesses regardless of whether their activities are online or offline.
Despite the fact that “[i]t’s clear that privacy issues are top of mind for Facebook…” federal Privacy Commissioner Jennifer Stoddart says that the OPC has found “serious privacy gaps in the way the site operates”. According to Stoddart, in order to comply with Canadian privacy law, Facebook must take greater responsibility for the personal information in its care. An overarching concern of the OPC was that, although Facebook provides information about its privacy practices, it is often confusing or incomplete. For example, the “account settings” page describes how to deactivate accounts, but not how to delete them, which actually removes personal data from Facebook’s servers. The OPC recommends more transparency, to ensure that the social networking site’s nearly 12 million Canadian users have the information they need to make meaningful decisions about how widely they share personal information.
The investigation also raised significant concerns around the sharing of users’ personal information with third-party developers creating Facebook applications such as games and quizzes. (There are more than 950,000 developers in some 180 countries.) Facebook lacks adequate safeguards to effectively restrict these outside developers from accessing profile information, the investigation found. The report recommended a number of changes, including technological measures to ensure that developers can only access the user information actually required to run a specific application, and also to prevent the disclosure of personal information of any of the user’s friends who are not themselves signing up for an application.
The investigation also found that Facebook has a policy of indefinitely keeping the personal information of people who have deactivated their accounts, which is a violation of PIPEDA. The law requires organizations to retain personal information only for as long as is necessary to meet appropriate purposes. Recommendations to Facebook included the adoption of a retention policy whereby personal information in deactivated accounts is deleted after a reasonable length of time.
Click here to read the OPC’s News Release, here for the full investigation report and here to read a helpful backgrounder. If you’d like to read more about Facebook, please click on the Facebook link under this blog’s Tags (below).
The Australian and New Zealand Privacy Commissioners recently released studies examining the use of Portable Storage Devices (PSDs) by their governmental agencies. The aim was to examine the risks to personal information posed by the use of PSDs. PSDs are small, convenient devices that are capable of storing large amounts of information including laptops, cell phones, USBs, hard drives and iPods.
The studies found that government agencies often keep track of the PSDs they issue but seldom do audit checks on those devices. Policies regulating the proper usage are often developed, but rarely enforced. Hardware controls (i.e. sealing off ports and disabling cables) are used less frequently than software controls (i.e. blocking access to certain databases, monitoring access and information downloaded, etc.).
The majority of agencies (like most private sector businesses in Canada) also allow the use of private PSDs for work (i.e. a cell phone which is used for both personal and business purposes). The studies found that policies regarding the use of private PSDs were less common and much less enforceable than policies for agency-issued PSDs. Even though these studies only analyzed governmental use, the New Zealand Privacy Commissioner stated that she believed the findings were equally applicable to private sector businesses as well.
As I’ve commented in previous posts, there are privacy risks associated with the use of PSDs. First of all, there have been numerous incidents of stolen laptops and other PSDs that contained personal information. Secondly, devices such as USBs are easy to lose. Thirdly, disgruntled employees can easily use PSDs to steal personal information and other confidential corporate information from employers. For example, an employee can simply click a button and download a company’s entire database in a matter of minutes. This is called “pod-slurping” and is especially a threat given the fact that many government agencies and private companies do not have the software capability to track when data has been downloaded to a PSD.
In order to avoid a privacy breach and resulting damage to your business, consider implementing some of the suggestions contained in a 2006 investigation by the Alberta Privacy Commissioner (which I would add should, of course, be implemented in accordance with your organization’s privacy policy and applicable law):
Develop policies on proper usage of PSDs (whether company-issued or private) and train employees about these policies. Include detailed instructions about retention and deletion of personal information;
Limit the amount of personal information that is stored on PSDs;
Use encryption on all PSDs that store personal information. Password protection alone is not sufficient as there are free software programs available on the Internet which can crack passwords;
Monitor the use of PSDs through software (i.e. install software that tracks data downloaded from a database onto a PSD);
Instead of using PSDs, implement technologies that allow employees to access a database through a secure network;
With respect to laptop thefts, consider installing tracking software that can trace the location of a lost laptop. Also consider installing a “kill switch” so that the computer will self-destruct if an individual tries to gain unauthorized access; and
Stress to employees the need to use appropriate safeguards at all times, even when at home.
Of the 198 new access complaints that were launched, 134 (68%) dealt with “refused access”. This indicates that the provincial government and public bodies either have to be more willing to grant access when requested or do a better job at explaining their rationale for refusing access. Of the 207 cases that were closed in 2008, 38% of the complaints were supported by the Ombudsman, 35% were not supported and 5% were resolved before the Ombudsman could issue a finding. This indicates that all of the complaints brought to the Ombudsman are not without merit. The public appears to have a relatively good understanding of what their rights are under FIPPA and PHIA.
The Ombudsman has also been proactively involved in the development stages of legislation and programs in order to address potential privacy issues. For example, the Ombudsman expressed concerns about the technology used in Enhanced Drivers Licenses (EIC). Radio Frequency Identification chips store the necessary information on the EICs, but the chips are always “on”, meaning that they can be read by unauthorized individuals. This concern is being addressed by providing the cardholder with a protective sleeve. However, if the sleeve is ripped, torn or used improperly, it will not provide the necessary protection. Therefore, the Ombudsman has stressed that it is essential that individuals understand the privacy implications of opting into the EIC program.
The Ombudsman was also been involved in assessing the use of closed-circuit television monitoring by Winnipeg Police, who have agreed to follow the recommendations of the Ombudsman and will not live-monitor the cameras and will work towards developing retention policies and technology to “sever” individuals from images which are not relevant.
Overall, the Ombudsman largely applauds public bodies and government agencies for addressing privacy concerns in the development phases of new programs and legislation. However, it is clear that public bodies need to do a better job of dealing with access requests.
As I’ve previously discussed, Social networking websites such as MySpace and Facebook are provoking new questions about the appropriate boundaries in employee-employer relationships. This is evident in a United States Federal Court case coming to a head in New Jersey. The case pertains to the conduct of a manager who logged into a private social networking website and observed employees slandering company supervisors and customers. Those same employees were later dismissed. The case exemplifies a rapidly expanding “grey area” between an employee’s work life and personal social life. It begs the question, at what point does a “private” comment to friend made outside of the office constitute defamation, and at what point are such comments simply banter between individuals? Of course, the answer is, it all depends on the facts.
For an interesting discussion on the matter, check out Myrth on a Blog, a personal journal of law, technology and social media.
In terms of privacy, as with many other things, each step forward seems to come with a catch that makes the step forward a little smaller than one would hope. Google, in response to demands from privacy advocates and users, has taken a progressive step forward and created a means for users of Google to opt out of their targeted advertising by allowing a user to access Google Ad Preferences to change settings or to opt out completely.
At the same time, Google has announced plans to launch a new type of targeted advertising. Currently, when an Internet user visits a webpage with Google Adsense, Google will store cookies on a user’s computer and remember their interests from previous searches. The example used by Google is that if you have an interest in gardening, you may be shown gardening ads along with those related to the site you are visiting.
While Google’s addition of its Ad Preferences program is encouraging for privacy advocates, it does come in the wake of an entirely new and -according to privacy advocates – more invasive means of targeting ads at users. As part of this new initiative, Google has asked all Google Adsense publishers to update their privacy policies to notify users of their site of the fact that interest-based advertising will be displayed.
The Privacy Commissioner once noted that although PIPEDA (and other privacy legislation) imposes obligations on organizations to take appropriate measures in protecting personal information, sometimes the more important role of privacy legislation is to help people shape their view of privacy.
By revising their privacy policies, businesses will be taking steps to comply with applicable privacy laws; but whether these steps are enough to address the expectations of their customers regarding privacy is a matter to be best considered by each business. In the meantime, if a business using Adsense has any questions about this change or requires any assistance in updating their Privacy Policy, I would encourage you to contact me to discuss.
This blog provides practical assistance to Canadian businesses so they can better deal with issues related to privacy, access to information and social media law. I hope you subscribe to this blog via RSS (below) or via e-mail (below) so that you can receive timely updates to new posts. Thanks, Brian
This blog is presented for informational purposes only. Content does not constitute legal advice or solicitation and does not create solicitor-client relationship. Views expressed are solely the author's and should not be attributed to any other party, including Pitblado LLP or its clients. The author makes no guarantees regarding the accuracy or adequacy of the information contained herein or linked to via this blog. The author is not able to provide free legal advice. If you are seeking advice on specific matters, please contact Brian Bowman at (204) 956.3520 or bowman@pitblado.com, but please be aware that any unsolicited information sent to the author cannot be considered to be solicitor-client privileged. Comments published on this blog do not reflect the views of Brian Bowman, Pitblado LLP or its clients.
The Federal Government’s recent initiative to modernize law enforcement related legislation for the Internet age has (at least within law enforcement and privacy circles) once again propelled the issue of privacy vs. security to the forefront. The issues are incredibly important for Canadians, yet there has been little debate within the wider public. That being said, I’m pleased to read Ian MacLeod’s recent Ottawa Citizen article, which (even if you don’t agree with some of the points) does a good job of raising the issues in plain language. For a more technical analysis of the legal issues, you may want to read fellow blogger David Fraser’s post regarding the debate about warrantless access to ISP customer information.
Posted by Brian Bowman 
BBC News
The Lawyers Weekly
A summer incident involving sensitive personal information on stolen laptops has brought the issue of data protection once again into the crosshairs of 
The Los Angeles Times
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In terms of privacy, as with many other things, each step forward seems to come with a catch that makes the step forward a little smaller than one would hope. 
