In 2008, Toyota Matrix advertised the “Your Other You” campaign which targeted young males. It encouraged individuals to provide someone else’s personal information, who would then receive an invitation to a fake personality test.  What really happened was, the “victim” ended up receiving numerous disturbing emails from an imaginary soccer hooligan with a pitbull named Trigger.  This impersonator claimed to be on their way to the victim’s house, who had no idea it was a hoax. In order to promote the advertising campaign, a fake social networking account for the stalker was even set up.

How would a similar case play out here in Canada? Under the PIPEDA framework , there would possibly be a violation of the law because of the alleged collection, use and disclosure of personal information without consent. Further, PIPEDA’s requirement that the “identified purposes” of any collection, use or disclosure of personal information would not likely met. Finally, the reasonableness test, enshrined in PIPEDA, would probably be violated. In short, the facts pertaining to the case could put the relevant parties in the crosshairs of the Office of the Privacy Commissioner of Canada and courts. As a result, the case should serve as a warning to advertising agencies to ensure that privacy law considerations are thoroughly canvassed with legal counsel before initiating campaigns involving personal information – especially where people are submitting friends’ data.

You see Canada’s private-sector privacy legislation (PIPEDA) requires organizations to retain personal information only “as long as necessary”, regardless of the format in which such information is held. So emails and paper records alike should only be retained as long as necessary.

I know that many organizations across Canada are struggling to develop business-friendly retention schedules that comply with the law. In some cases, these businesses are outsourcing their efforts. Do you work with such a company? Does your company offer these services? If so, I know that readers of this blog would welcome any positive recommendations. Feel free to post a “Comment” below with your thoughts.

In fact, device fingerprinting works so well that many businesses that use it might not even be aware that they’re doing so. Is your organization using the technology? If so, it’s vital that your organization’s use of device fingerprinting complies with applicable privacy laws.

To learn more about device fingerprinting click here to view a presentation that I recently delivered alongside Steven Johnston (Senior Security and Technology Advisor, Office of the Privacy Commissioner of Canada) and David Stark (CIPP, Vice President, Compliance and Privacy Officer, GFK Group) to the International Association of Privacy Professionals in Baltimore, Maryland. As you’ll see, the presentation includes an overview of device fingerprinting, identifies relevant privacy law issues (my contribution to the presentation), the OPC’s perspective and provides practical examples.   

Thanks to the IAPP for the opportunity to present and compliments to Steven Johnston and David Stark for excellent remarks.

Anticipated amendments to PIPEDA include:

• a mandatory breach notification regime that would require organizations to promptly notify affected individuals and to report major data breaches to the Privacy Commissioner of Canada; 
• amendments to account for the unique circumstances regarding consent in employer/employee relationships; and
• modifications to allow organizations to collect, use and disclose personal information as necessary for the conduct of business transactions, such as mergers and acquisitions.

Stay tuned…

This and other similar news stories should serve as a reminder that PIPEDA requires organizations to exercise care in the disposal or destruction of personal information to prevent unauthorized parties from gaining access to the information (for example, don’t dispose of sensitive tax information records in a back lane). Other provincial laws, such as Alberta’s PIPA and B.C.’s PIPA, have similar requirements. Disposal or destruction policies and procedures should focus on physical, organizational and technological measures.

As the Commissioner notes, “the dominant theme of [the OPC's] work in 2009 was the protection of privacy in an increasingly online, borderless world. A case in point was the investigation that resulted in more public attention than any other in [the OPC's] history: Facebook.”  The Commissioner notes two key issues, namely, Data without borders and Risks remaining in the wake of mortgage broker breaches.

From today’s news release:

The Honourable Tony Clement, Minister of Industry, and the Honourable Denis Lebel, Minister of State (Economic Development Agency of Canada for the Regions of Quebec), today announced two steps that the Government of Canada is taking to enhance the safety and security of the online marketplace. Together, the tabling of amendments to the legislation protecting the personal information of Canadians (Personal Information Protection and Electronic Documents Act, or PIPEDA) and the reintroduction of anti-spam legislation in the House of Commons (the proposed Fighting Internet and Wireless Spam Act, or FISA) are important steps towards positioning Canada as a leader in the digital economy.

Here’s the full Industry Canada news release.

(Hat tip to David Fraser’s Canadian Privacy Law Blog )

Read more>>

The above link takes you to the Winnipeg Sun.  I’m delighted to have been asked by Sun Media Corp. to provide Comment columns like today’s on a monthly basis.  I hope you find them of interest!

Commissioner Work is as personable as he is professional. I’ve had the pleasure to speak at privacy conferences with Commissioner Work and let’s just say that I’m glad I presented first!  As privacy professionals will know, he’s a plain spoken, intelligent speaker and so his sessions are always a “must attend”.

Thanks to Commissioner Work for agreeing to engage in this online Q & A conversation.  If you’d like to learn more about Frank Work, the Office of the Information and Privacy Commissioner of Alberta (the “Alberta OIPC”) or the issues raised in this conversation, I’d encourage you to visit the Alberta OIPC’s website.

Q.  Your office has investigated identity theft arising from crystal meth abuse. What’s the link between the two?

A.  A couple of years ago the Edmonton police raided a hang out for meth users.  They found a lot of papers from businesses in the area, which they gave to us.  Cell phone contracts, credit bureau checks, credit card information and so on.  The police told me that meth users, unlike some other substance abusers, are pretty alert when they are high.  They don’t sleep.  They have lots of time to do the kind of detailed work necessary to engineer credit card fraud and identity theft.

Q.  So what can the public do to protect itself from that kind of identity theft?

A.  Individuals should shred bank and credit card statements.  They shouldn’t carry certain ID, like birth certificates, on them. These kinds of foundation documents are very useful for identity theft.  Always report lost or stolen credit cards, but also lost or stolen driver’s licences, birth certificates, and passports.  Check your bank and credit card statements to make sure someone else isn’t using them.  Do a credit bureau reference on yourself maybe once a year.  If your score is lower than you think, find out why.  If your score changes from one year to the next, find out why. Sometimes it can be identity theft (someone using your good name). Sometimes it can be an error on the part of the credit bureau.

The other side of the problem is organizations that have peoples’ info.  They must take proper care of it.  As I said, we have been given credit reports, draft mortgages, cell phone contracts, purchase of goods contracts and bookkeepers files, all thrown away.  These papers all have potential for fraudulent use.  Businesses need to shred this stuff.  Furthermore, for businesses that have customer databases, how well secured is it?  Who on their staff has access to it?  We have had cases where someone in the business is taking the info and using or selling it for fraud and identity theft.

Q.  Alberta’s private sector privacy legislation was recently amended to include mandatory breach notification. How will this impact privacy regulation in, and outside of, Alberta?

A.  It is early days yet.  Hopefully it will make organizations extra careful with personal information.  Will that raise the bar for organizations in other provinces?  Maybe.  If you are going to change your practices here, you might as well change them everywhere.  Possibly more provinces will legislate.  A big piece of the picture will be when the Federal government amends PIPEDA in this regard.  Maybe this will increase pressure to do so.  It will be a challenge to figure out what “a real risk of significant harm” is.  It will be a challenge to figure out in which cases there should be notice given and what kind of notice.

Q.  You’ve worked as a lawyer in different countries around the world. How does Canada’s approach to privacy compare to your experience in other places?

A.  We aren’t perfect but we are way ahead of most other jurisdictions.  The “commissioner” system of enforcement has served us well because we do not have the kind of well funded civil society organizations which can advocate for privacy.  Commissioners can and do advocate.  I mean, I would love to have an ACLU, or and EPIC or an EFF in Canada.  Our civil liberties people, like FIPA in BC do great work with the resources they have but resources are scarce.  We need some rich people to endow some of these groups.  The other thing is that I think, relative to other societies, Canadians have a disposition towards privacy.  We get it to some extent.  I like to think it is because we are, yes, polite, and respectful of other people.  That makes us respect each other’s space.  We must not lose that as the world becomes one big facebook/google culture.  Teach your children well.

Q.  Looking forward, what kind of privacy developments should we watch for in 2010?

A.  Cyber attacks, hacks and other losses will continue.  Governments will continue to bring surveillance technologies to bear every time anything bad happens. I will continue to get judicially reviewed.  I would like to think people will start resisting surveillance and other intrusions into their lives but I don’t see it happening.  Governments like surveillance.  Heck, the public likes surveillance because we are just so bad at risk assessment.  We are scared of everything it seems and we want someone to keep an eye on everything for us.  It will be interesting to see if technology begins to fail us.  For example, what if there is another airplane bombing attempt and the technology doesn’t prevent it?  They bring in new technology.  And that doesn’t prevent the next one (God forbid).  Maybe they run out of technology, although, for the money involved I don’t see that happening.  Someone will come up with a new toy.  Will someone ever say “this technology isn’t doing what we want it to and it is costing us a bundle?”  I think that will be a social shock.

I’m very pleased to be able to post the following conversation with Jennifer Stoddart. 

Since becoming Canada’s Privacy Commissioner in 2003, Commissioner Stoddart has undoubtedly raised the value of privacy in a time when security, trade, technology and consumer expectations have created a volatile atmosphere for our personal information. I might add that she has accomplished this admirable feat with passion and professionalism.  As a result, Canadians have been exceptionally well-served.

Of course, I’d like to thank Commissioner Stoddart for agreeing to engage in this online Q & A conversation.  If you’d like to learn more about Jennifer Stoddart, the Office of the Privacy Commissioner of Canada (the “OPC”) or the issues raised in this conversation, I’d encourage you to visit the OPC’s website and blog.

Q. How did you get involved in the world of privacy?

A. Back in the spring of 2000, I happened to read an article in the New York Times Magazine by the noted American legal scholar Jeffrey Rosen. Prof. Rosen was explaining how personal privacy was being subtly eroded in the digital age. I was fascinated.

I was working at the Quebec Human Rights Commission at the time. The next week, I was asked to head up Quebec’s Access to Information and Privacy Commission, and that’s the field I’ve been in ever since.

Q. But it’s coming to an end.

A. Sadly. My seven-year term as Privacy Commissioner will wind up this year. On the plus side, though, I can look back with considerable pride at the progress we’ve made. The encroachments on privacy in this digital era really are staggering, but that doesn’t mean we’re letting them bowl us over.

Last year’s investigation into a complaint against Facebook was surely the most high-profile example of the kind of influence we have. And beyond that I would say that we’re making a meaningful difference, in countless other ways, every day of the year.

Q. What are the most rewarding aspects of being the Privacy Commissioner of Canada?

A. Certainly one of the most rewarding things for me is to know that our work matters, that it has a real and positive impact on the lives of Canadians.

As you know, it’s become fashionable in some circles to suggest that privacy is pretty much dead in this era of digital exhibitionism. But I think that’s totally wrong. And the best evidence for that was the worldwide response to our Facebook investigation.

Privacy may look different today than it did a generation – or even a decade – ago. But it remains an incredibly important and cherished value to Canadians. And to the extent that my Office can help protect that value, and advance privacy rights, I would say that is the most rewarding aspect of my job.

Q. What do you consider to be the greatest challenges for the Office of the Privacy Commissioner of Canada?

A. Our biggest challenges are the same that preoccupy data-protection authorities around the world: How to safeguard privacy rights in the face of so many rapidly changing technologies. You yourself have blogged about many of them – cloud computing, behavioural marketing, genetic technologies, to name just a few.

We’re seeing unimaginable quantities of data flash around the world, including to countries where data-protection laws are slim to non-existent. We’re also seeing technologies employed in the service of national security and law enforcement, but they’re guarded behind a wall of secrecy.

So the challenges are real, and they are huge.

Q. So how does an Office like yours keep up?

A. I guess the short answer is: By working smarter. We have zeroed in on four priority privacy challenges that are shaping and streamlining our work for the years ahead: information technology, genetic technology, national security and the protection of identity integrity.

We are re-engineering our internal processes to better handle the complaints and inquiries that come to our Office. We’re picking and choosing our privacy audits and our communications and public outreach efforts in order to maximize our impact. We’re ramping up our issuance of guidance, on the theory that an ounce of prevention outweighs a pound of cure. And we’re working with the global data-protection community, since so many of the challenges are international in scope.

But, most important of all, we’ve recently attracted an infusion of very bright, very knowledgeable – and in many cases young – new employees to key positions in our Office. They are really making a difference.

Q. If you could make a few recommendations for Canadian business leaders, what would you say?

A. First I’d thank them for having embraced PIPEDA, the Personal Information Protection and Electronic Documents Act as it came into force over the past nine years. When I look at the situation of our neighbours to the south, where there is no single law at the federal level to protect the personal information of consumers in a commercial setting, I am deeply gratified by the way things can work up here.

Beyond that, I would encourage business leaders to continue to consult the guidelines we issue on specific topics for the purpose of clarifying the responsibilities of organizations under PIPEDA. And we invite them to work with us to fill any other information gaps they may have encountered.

I also want to take this opportunity to mention that data breach notification will become mandatory – and I suspect that will happen sooner rather than later. So I would encourage business leaders to start giving some thought now to how they can bring their processes into compliance. 

Q. Do you have any “privacy-related” predictions for 2010?

A. I don’t think you need a crystal ball to conclude that national security will continue to dominate the privacy landscape in the year ahead. The controversy that erupted over Transport Canada’s deployment of millimetre-wave scanners at Canadian airports was just the first of the privacy-related issues that we can expect to be hearing about in 2010.

And stay tuned for more during and after the Vancouver Olympics. There, one of the big issues will revolve around the pervasive crowd surveillance measures, and what will happen with all the cameras and recordings after the flame is extinguished.

I’ll just mention two other issues of particular interest to our Office, because we will be consulting Canadians on them in the next few months. The first will focus on the tracking, profiling and targeting of consumers by marketers and other businesses, and we’ll be hosting consultation forums on that topic in Toronto in April and Montreal in May. Soon after, we’ll organize another forum to discuss the privacy implications of cloud computing.

Unfortunately, privacy law does not offer black and white answers to the legal issues raised by e-mail monitoring practices. Instead, and like most other privacy law issues, the standard of “reasonableness” rules the day.

I recently penned an article on point (link below) with my colleague Andrew Buck (who is currently completing his Articles at Pitblado LLP) for the Canadian Bar Association’s National Privacy & Access Law section newsletter, Privacy Pages. Our article examines some of the case law and commentary that has arisen from e-mail monitoring with a view towards setting out practical solutions for the creation of “reasonable” e-mail monitoring practices. If you’re interested in reading the full article, please click on the link below.

Monitoring employee e-mail: a privacy primer

The federal Personal Information Protection and Electronic Documents Act will likely contain mandatory privacy breach notification provisions in the near future. Since 2006, Special Committees at both the Federal and Provincial (Alberta and B.C.) levels have convened and generated a series of recommendations relating to breach notification.  For further information on these recommendations, see the final reports of the Federal , Alberta and B.C. committees.

The most important recommendation independently generated by each of the committees provides that organizations should be under a statutory breach notification duty.  On October 27, 2009, the initial step toward implementing this recommendation was taken in the Alberta Legislature with the first reading of Bill 54: Personal Information Protection Amendment Act, 2009.  The Alberta privacy breach notification provisions will soon come into force. British Columbia and the Feds are expected to follow suit and implement similar requirements in the near future. When that occurs, private sector organizations across Canada will be required by applicable law to notify affected individuals when privacy breaches occur.

The best advice is to make sure that privacy protection policies, procedures and training are implemented and enforced… now.

Courtney’s paper, entitled “Bill 219: An Insurmountable Goal”, argues that the law is necessary in order to “effectively protect the privacy rights of all Manitobans”.  The paper outlines the main features of the Bill; examines the role of PIPEDA and the concept of “substantially similar” legislation; and analyzes the main arguments advanced for and against the Bill, as expressed in Hansard and in the context of the Bill’s legislative history. Courtney also advances theories regarding the major impediments to its passing.

Courtney was a summer student at Pitblado LLP this past summer and will (fortunately for us) be returning in the New Year to complete her Articles.  Thanks to Courtney for sharing her paper, which you can read by clicking on the hyperlink below.

Bill 219: An Insurmountable Goal

As I’ve previously written, information really is the most valuable corporate asset. And for this reason, businesses of all sizes should take steps to protect corporate information regardless of whether it is stored online or off-line. Whether it’s customer or supplier lists, intellectual property or employees’ personal information, it’s information that needs safekeeping. 

This case should serve as a reminder that corporate safekeeping practices must include protecting data from rogue employees.

Is there one set of privacy rules for regular businesses and one for the media? In a past case summary, the Office of the Privacy Commissioner of Canada (the “OPC”) found that a radio station which had broadcast the name and comments of a caller who had phoned the radio station’s news tips line to relay specific details of a robbery was not a violation of the Personal Information Protection and Electronic Documents Act (PIPEDA). Why wasn’t this a violation?

PIPEDA contains provisions aimed at protecting the media’s right to “freedom of expression”, which is a pretty fundamental right worth protecting in a free and democratic society.  Specifically, PIPEDA’s privacy obligations don’t apply to “any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose”.  When the collection of personal information is solely for journalistic purposes, journalists aren’t required to obtain the consent of individuals about whom the information relates. The result is that if a journalist’s activities are truly “journalistic” then they can proceed with the collection and broadcast of personal information without seeking permission from individuals.  Of course, it’s still a good idea to obtain consent in most circumstances despite the exemption.   

When the media collects, uses or discloses personal information for reasons that are not journalistic, serious issues arise as they would for any regular business. In the finding noted above, the OPC determined that the personal information collected by the radio station was intended soley for journalistic purposes. That’s why the OPC was of the view that there had not been any violation of PIPEDA. Any illusion that the media are not bound by PIPEDA is wrong.  But there are appropriate exemptions in the law that help them to conduct their important work.

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.

The application of PIPEDA is dependent on the existence of a “commercial activity.” Although this term is vague, the case is strong that most union activities are, in fact, captured by PIPEDA. What is certain is the application of Alberta’s privacy legislation, the Personal Information Protection Act (“Alberta’s PIPA”), to the management of personal information by unions. The application of Alberta’s PIPA is not dependent on the existence of a “commercial activity”. As a result, a 2006 Investigation Report from the Alberta Information and Privacy Commissioner found that the collection of personal information by unions in their general capacity subjects them to the requirements found in Alberta’s PIPA. Manitoba’s Bill 219, The Personal Information Protection and Identity Theft Protection Act (the “Manitoba Bill”) is modeled after Alberta’s PIPA. Similar to Alberta’s PIPA, the application of the Manitoba Bill does not depend on whether an organization is engaged in a “commercial activity.”

As I’ve argued in previous posts, the Manitoba Government should support the Manitoba Bill (which was introduced as a private member’s bill by opposition member, Mavis Taillieu). The Manitoba Bill creates a level of certainty with regards to the privacy rights of union members. That’s one of the many reasons why the Manitoba government should ”cross the picket lines” to privacy and support the Manitoba Bill in this fall session of the Manitoba Legislature.

Still not convinced? Consider this list of impressive apps for today’s traveler: Pocket Express, an app that acts as a mobile concierge; Stanza, an app that allows a user to load magazines and books to their smartphone; and GoodFood, which helps a user pick and locate a restaurant based on an array of dining preferences. It’s a good time to be a smartphone user, but perhaps even a better time to be an entrepreneur. Smartphones are increasingly offering businesses a direct window into the hearts, minds and, yes, wallets of potential customers.

But it’s not all good news, privacy advocates remind us. Many smartphone apps guzzle fuel like your Dad’s ’70 GTO, except they’re eating personal user information instead of gasoline. For example, your app may record your location, gender and birth year before it spits out the location of that perfect sale you’ve been looking for. A sizeable amount of personal information is in play, but, fortunately, Ontario’s Office of the Information and Privacy Commissioner (“IPC”) has been ahead of the curve with its call for “Privacy by Design“. Initially unveiled over 10 years ago, the concept of Privacy by Design combines privacy and security measures at the design specification stage of a project. Instead of waiting until privacy problems pop up to deal with them, Privacy by Design contemplates a proactive approach toward potential privacy issues. This methodology uses Privacy Enhancing Technology such as encryption to provide both maximum security and privacy protection. It is, as the IPC bills it, a “win-win” situation. Other examples of Privacy by Design include anonymous billing systems and depersonalization software.

It’s an exciting time to be a technologically-inclined entrepreneur, but the privacy consequences of smartphone apps cannot (and should not) be ignored. Any business that is considering creating or otherwise implementing an app should consider the privacy implications of doing so, preferably at the early stages of project development.

PIPEDA was introduced back in 2001. It requires the Canadian Government to review the law every five years.  To this end, the House of Commons Standing Committee on Access to Information, Privacy and Ethics (the “House of Commons Committee”) conducted its review and held public hearings from November 2006 to February 2007, where it heard from over 60 witnesses and considered over 30 submissions from a wide range of interested organizations and individuals. I had the pleasure of appearing before the House of Commons Committee to present the Canadian Bar Association’s National Privacy & Access Law Section’s submission, which you can read here. The House of Commons Committee issued its report to Parliament in May 2007 (which outlined 25 recommended changes to the law), to which the Canadian Government subsequently issued its response in October 2007. As part of the Canadian Government’s response, further public consultation on key issues was requested.  A link to the Office of the Privacy Commissioner’s reply to this request can be read here and the Canadian Bar Association’s response can be read here.

Changes to PIPEDA may include:

• a mandatory breach notification regime that would require organizations to promptly notify affected individuals and to report major data breaches to the Privacy Commissioner of Canada; 
• amendments to account for the unique circumstances regarding consent in employer/employee relationships; and
• modifications to allow organizations to collect, use and disclose personal information as necessary for the conduct of business transactions, such as mergers and acquisitions.

The Industry Canada website targets 2009/10 for the implementation of changes resulting from this first PIPEDA review.  Yet, there is no definitive time frame, so stay tuned. Changes may be just around the corner.

Have you heard the term “cloud computing“, but aren’t really clear what it means?

Cloud computing is an umbrella term that refers to the use of Internet-hosted computer services. Think of your server — instead of having one in-house server located on company premises, an organization might opt to buy space on a third-party provider’s server. Other options include software hosting and data storage. By purchasing computing services from a variety of Internet-based providers, your computer needs are housed within a larger “cloud” of computer services.

Some organizations are opting for ”Software as a service” (SaaS), and allowing their data to reside on other company’s servers, or “the cloud“. Users only have to buy the space they need, which allows organizations to save money on their technology costs. Other benefits include access to people with technological know-how, flexibility and reduced maintenance costs.

Cloud computing is not new, but is now embedded into the fabric of modern business operations.  In fact, the Los Angeles Times has reported that the city of Los Angeles is considering using Google applications for all of its software needs. 

Privacy issues related to cloud computing, however, are profound. For example, many of the security questions that relate to traditional third-party data hosting were raised when a hacker broke into a Twitter employee’s work e-mail account and stole confidential company documents. The World Privacy Forum, meanwhile, has released a 28-page report on some of the privacy issues that relate to cloud computing. The report concludes that sharing information may expose some business users to liability, and emphasizes the importance of checking a cloud provider’s terms of service, privacy policy, and location.

Canadian businesses that engage in cloud computing should be reminded that they must do so in compliance with applicable privacy laws. For example, the Personal Information and Protection of Electronic Documents Act obliges organizations that transfer personal information to third parties to ensure appropriate security safeguards are in place.

They should also be mindful of the raging debate about the perils of cloud computing that has been underway now for some time. While cloud computing has the potential to provide benefits, organizations should ask themselves whether it is worth the risks it poses. You might save money in the short run, but is it worth the potential of a massive privacy breach? 

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).

People are increasingly aware of their privacy rights. This heightened awareness has translated into a greater willingness to initiate costly and time-consuming privacy complaints. Thanks to laws like the Personal Information Protection and Electronic Documents Act (PIPEDA), the reality for businesses is that non-compliance with privacy laws can take a chunk out of the bottom line. Given the costs associated with failing to meet legal standards, it’s not surprising that many insurers now offer privacy insurance coverage. But what is privacy insurance, and will it actually protect your business when you need it most? The scope of coverage offered varies depending on the provider, so it’s important to read the fineprint.

Be sure to ask what the policy covers. Some policies limit privacy insurance to protection from hacker attacks. But while hackers are a serious issue for any business, your insurance plan may need to do more. Depending on your jurisdiction and the applicable privacy laws, you may want to look for protection against any costs that can be imposed by the regulatory agencies that oversee compliance with privacy legislation. Otherwise, you might find you’re on your own for your businesses’s failure to fully meet the legal requirements for personal information under your control, including obligations to respond to access to information requests, obtain consents and ensure the accuracy of personal information holdings. It’s also a good idea to evalute your existing protection. Your current business insurance may already provide you with the coverage you need. If, for example, your errors and omissions insurance already protects you against privacy breaches, purchasing additional insurance may not be necessary.

Consider what the privacy insurance plan won’t cover. Many plans don’t cover illegal or fraudulent employee conduct, and some stop short of protecting against anything beyond the unauthorized release of personal information. Court defence costs may also be excluded. Make sure you read the plan or have your lawyer go over it before you buy it.

Finally, don’t forget that the best insurance policy is to take as many proactive steps as possible to get your privacy house in order. If you’re reading this blog, chances are you already have some of these measures in place. If not, consider comprehensive privacy policies and procedures that are reviewed and updated on (at least) an annual basis by legal counsel with expertise in privacy law. Staff privacy training is another excellent proactive step. As the saying goes, the best offence is a good defence!

It’s been a thrilling week for my colleagues at Pitblado LLP as it was announced earlier this week that we were to be the 1st Canadian law firm to be a guest blogger on the must-read slaw.ca.  Yours truly, three of my colleagues from our firm’s Information & Ideas Practice Group as well as our firm’s librarian each contributed one post a day this week to slaw.ca on cutting edge legal topics.  Here’s what we covered…

On Monday, I posted “What Would Happen If One of your Employees Posted a Video of an Irate Customer on YouTube?”, which I cross posted on my blog earlier this week.  The post highlights a YouTube video of an irrate customer as a reminder to Canadian businesses of the powers of new technologies such as YouTube and the corresponding need to protect against the dissemination of this type of video through employee privacy training and the adoption and enforcement of privacy and procedures.

On Tuesday, Carol Lynn Schafer posted “Do TOS Have the Final Word on our Fundamental Rights and Freedoms?”, which discusses the controversial effects of Terms of Service on popular websites such as Facebook and Twitter.  As Carol Lynn notes, Terms of Service should be drafted with the bigger picture in mind and can no longer be seen as standard agreements that can be treated with a one size fits all approach.

On Wednesday, Jolin Spencer posted “Whose Property Is It, Anyway?”, which discusses the questions that come into play when employees leave their positions.  For example, what can an employee take, and what must they leave, when they vacate their position? As Jolin points out, no business wants its intellectual property assets walking out the door with a former employee.

On Thursday, our firm’s librarian, Karen Sawatsky, posted “Legal Research Bootcamp – Winnipeg Style”, which discusses her experience collaborating with members of the Manitoba Bar Association and the Law Society of Manitoba to create a CLE for articling students on legal research. The Legal Research Bootcamp is a first for Manitoba students, and aims to bridge the gap between when students start their articles and when CPLED begins in the fall.

And last but not least, today Adam Herstein posted “Manitoba: Innovative Fighter of Child Sexual Exploitation”, which focuses on Manitoba’s recent enactment of The Child and Family Services Amendment Act (Child Pornography Reporting) (Manitoba) and how Manitoba is the first province in Canada to enact legislation that makes it mandatory for a person who encounters child pornography to report it to authorities.  Adam also notes that Canada has a national tipline called Cybertip.ca for reporting the sexual exploitation of children.

Thanks to slaw.ca for the opportunity to contribute!

The posting of a YouTube video of a woman throwing a tantrum at the Hong Kong International Airport should serve as a reminder to Canadian businesses that employees these days can (and do) easily record and post videos online from their mobile phones.

The three minute video shows a Cathay Pacific customer yelling and flailing her limbs as she lies on the floor after missing her flight from Hong Kong to San Francisco. I’ve been upset at missing a flight before, but the woman in this video takes things to an entirely new level. The video has drawn over five millions views and nearly 21,000 comments, which has resulted in some incredibly cruel and objectionable online commentary about the woman. Since the release of the video, Cathay Pacific has disciplined the gate worker who recorded the video on his mobile phone (although the video was posted on YouTube by a third party) and the company has issued a formal apology to the woman.

The video is noteworthy because it demonstrates the power of new technologies such as YouTube and the corresponding risks to Canadian businesses. Had the video been recorded by an employee of a Canadian business, subject to Canadian privacy laws, the potential privacy complaint and/or lawsuit by the woman in the video could have been substantial. 

Canadian businesses should be reminded of the need to protect against the dissemination of this type of video through employee privacy training and the adoption and enforcement of privacy policies and procedures.

Canadian businesses don’t need to look too far to find examples where more effective employee privacy training may have mitigated, or even prevented, privacy complaints.

A case in point was the high profile finding by the Office of the Privacy Commissioner of Canada (OPC) against TJX Companies Inc., the parent company of HomeSense and Winners. The OPC noted that the massive data breach was caused by inadequate encryption software which didn’t protect the company’s wireless network. New software had apparently been purchased by the company a year prior, but employees of TJX had not installed the programming on a timely basis.

In 2008 a laptop computer containing the personal information of over 800 customers was stolen from the office of a bank employee. The computer was left unmonitored and unsecured in an area of the office that was easily accessible to the public. In the resulting finding, the OPC stressed the importance of procedural safeguards and the need to periodically re-educate employees on privacy policies and procedures.

Another example occurred when a bank’s customer learned that his personal banking information was found in a recycling bin. Two employees who were cleaning out the desk of a former employee had placed the documents in the recycling bin, rather than ensuring the information was shredded. This situation (and many others) may very well have been prevented had the respective employees been better educated in the area of privacy.

Canada’s Privacy Commissioner, Jennifer Stoddart, recently gave a speech which addressed the importance of employee privacy training. In her remarks, Stoddart cited research from 2007 that reported that only one-third of Canadian businesses polled had conducted employee privacy training. Furthermore, Stoddart demonstrated that over half of the complaints received by the OPC could have been prevented had there been adequate employee privacy training.

Pro-active businesses are hearing the message loud and clear. Privacy training is an essential feature of employee training especially in this era of rapid technological advancements. This type of training should help to prevent unnecessary headaches such as privacy complaints and lawsuits. .

Therefore, the question remains, what would happen if one of your employees recorded a video of an irate customer and then uploaded the video on YouTube. The answer is, it’s best not to find out.

(Cross-posted to slaw.ca)

The Bill has been introduced as a private member’s Bill by Mavis Taillieu of the Opposition Progressive Conservative Party of Manitoba. It seeks to regulate the collection, use and disclosure of personal information by organizations in the private sector and is intended to be “substantially similar” to the federal Personal Information Protection and Electronic Documents Act (PIPEDA).  It would also establish a duty for organizations to notify individuals who may be affected when the personal information an organization has collected is lost, stolen or compromised.  Such a requirement would be groundbreaking in Canada (notwithstanding Ontario’s Personal Health Information Protection Act, which has a mandatory breach notification requirement).

Regrettably, the Government of Manitoba indicated in the Legislative Assembly debate last week that it has two primary concerns with the Bill.  The first concern is that the Bill lacks an independent oversight body such as a Privacy Commissioner of Manitoba. Legislative rules prevent private member’s Bills from containing financial penalties and so the Bill could not contain such provisions.  However, the government could add those provisions in amendments.  In fact, I assisted with the drafting of the Bill and would happily provide the government with the relevant provisions. The second concern raised by the government is that the Bill would introduce legislation in Manitoba that (according to the government) would regulate activities in the private sector already governed by PIPEDA. However, PIPEDA does not apply to the activities of private sector organizations in provinces such as Alberta and British Columbia, both of whom have Personal Information Protection Acts, because PIPEDA does not apply where “substantially similar” provincial legislation exists.

The Bill was first introduced in 2005 and since that time the need for such a law has significantly grown.  It’s modelled after Alberta’s Personal Information Protection Act, which provides a more business-friendly and clear legislative scheme than PIPEDA.  As I’ve previously argued, it would be good policy for the Government of Manitoba to support the Bill and I once again urge them to do so. 

If you want a more business-friendly privacy law in Manitoba, I’d strongly encourage you to contact the Government of Manitoba and Mavis Taillieu to indicate your support. 

Additional coverage on this topic by the Canadian HR Reporter here.

According to the government’s News Release, the ECPA would allow businesses and individuals to initiate civil actions against anyone who violates the law.  The ECPA deals with unsolicited text messages, or “cellphone spam”, as a form of “unsolicited commercial electronic message”.

It would establish a regulatory enforcement regime that would enable the CRTC to impose penalties of up to $1 million for individuals and $10 million in all other cases.  The Competition Bureau would use a penalty regime already provided for in the Competition Act, and the federal Privacy Commissioner‘s powers to cooperate and exchange information with her counterparts would be expanded in respect of the Personal Information Protection and Electronic Documents Act.

The ECPA is nearly 70 pages long.  Stay tuned to this blog.  As soon as I’ve been able to digest the content I’ll post again on how the ECPA is likely going to affect Canadian businesses, especially those enaged in online marketing.

A prime example is the bankruptcy of U.S. online toy retailer, Toysmart.com. Toysmart.com had collected vast amounts of personal information from its online consumers in accordance with its privacy policy, which stated that the company would never share its database with third parties. Despite the promise, Toysmart.com then made attempts to sell the database. The U.S. Federal Trade Commission (“FTC”) then sued Toysmart.com seeking injunctive and declaratory relief to prevent the sale of the database by Toysmart.com. The complaint alleged that Toysmart.com had violated U.S. law by misrepresenting to consumers that personal information would never be shared with third parties, and then disclosing, selling and offering that information for sale. Toysmart.com later settled with the FTC. The settlement agreement forbid the sale of the database except under very limited circumstances.

Of course, Canadian companies are subject to Canadian privacy laws such as PIPEDA, which require the consent of individuals for the disclosure of personal information to third parties. In structuring privacy policies, Canadian companies should consider all outcomes including bankruptcy. As a result, privacy policies should be carefully drafted with consideration of the possibility that personal information may be shared with third parties in the event of bankruptcy.  Doing so will almost certainly not be enough to fully comply with Canadian legal requirements, but it’s a prudent step in the right direction – especially in these uncertain economic times.

The Discovery Channel has an interesting online tool that allows you to play a simple scenario by conducting your normal transactions as you would on any given day. Doing so shows you how often you provide your personal information to businesses and governments. You can then play the scenario again to try to reduce your digital footprint. Click here to play!

Businesses can help reduce their customer’s digital footprints by ensuring they only collect the personal information of customers necessary for the purposes identified by the organization and required for particular transactions. Additionally, businesses should avoid collecting personal information indiscriminately. As I’ve mentioned in a previous post, reducing the volume of personal information that a business collects (and is then responsible for safeguarding and destroying in accordance with applicable privacy laws) helps customers to reduce their “digital footprints”.  It also helps businesses to comply with privacy laws like PIPEDA and improve customer relations.

PIPEDA applies to organizations that collect, use, or disclose “personal information” in the course of a commercial activity. The definition of “personal information” does not specify the residency of the individual to whom the personal information must relate. As a result, organizations are well-advised to manage their personal information holdings in accordance with all of the obligations set forth in PIPEDA regardless of the residency of the individuals to whom information relates. If they don’t, non-Canadians (including U.S. residents) may initiate privacy complaints to the Office of the Privacy Commissioner of Canada.

If there are other Canadian privacy law conferences in the coming months that I haven’t listed, please post a Comment or drop me an e-mail so I can update this post. If you, or your industry association, are interested in more focussed privacy training, please let me know as I regularly conduct in-house privacy training sessions for clients.

The commissioners point out that ”a common misconception is that a company doesn’t need your permission to take your photograph in a public place.  In fact, one of your key protections under Canadian privacy law is that you should know when your picture is being taken for commercial reasons, and what your image will be used for.  Your consent is also needed.”

The Winnipeg Free Press is also running an excellent story in today’s newspaper, which highlights some of the broader issues related to Google Street View.   Arthur Schafer, a professor at the University of Manitoba and director of the Centre for Professional and Applied Ethics, comments in the story about the related ethical issues while I comment in the story about the related legal issues.

If you’re not ramped up on Google Street View, you may want to read the Wikipedia description, which does a good job of explaining the Google service. David Fraser also has an illustrative blog post, which highlights the remaining privacy issues despite Google’s efforts to blur faces and licence plates. 

Despite the fact that Google’s Canadian-based service providers are taking pictures in public places, Canadian privacy laws generally require the consent of individuals for the collection of their personal information.  In fact, the first ever Case Summary under PIPEDA dealt with video surveillance activities in public places.   In the Case Summary, the former Privacy Commissioner advised the company being investigated that its intended public video surveillance for commercial purposes was unlawful and should not be pursued.   More recently, and on point, Canada’s Privacy Commissioner, Jennifer Stoddart, has sent a letter to Google outlining the concerns about Google Street View from a Canadian privacy law perspective. 

Stay tuned… this story is just beginning.

But if you work for a private sector organization and haven’t yet signed up for the federal Privacy Commissioner‘s e-newsletter entitled Privacy Perspectives, I’d suggest you do.   It contains great information and helps to stay on top of things.

If you’re in Manitoba and work for a public body, the Winter 2009 Issue of Manitoba OmbudsNews was published last Friday on the Manitoba Ombudsman‘s website.  It’s also a great resource.

If you’re still in need of ongoing assistance and aren’t already a member of the Privacy Forum, you may want to touch base with me to learn more.  It has been a super venue over the last 6 years for information sharing and the current members are an excellent group of individuals and first rate privacy professionals.

Despite this fact and that Canada’s federal privacy law, PIPEDA, has been in force since 2001, it’s surprising how many others are confused on this point.

For instance, I recently had a client make an information request to an organization for access to corporate information. When the organization responded, they denied access to the requested information and claimed that PIPEDA required that they do so in order to protect the privacy interests of a business.

There may be circumstances where organizations have other legitimate reasons for denying access to certain information. There may also be circumstances where privacy laws such as PIPEDA should be cited in denying access to certain business records where releasing the information could unlawfully disclose the personal information of another individual. Organizations should not, however, cite Canada’s privacy laws as a justification to deny access to information requests on account of the privacy rights of a business.

If you encounter this scenario you may be dealing with someone who either doesn’t understand privacy laws or who is perhaps being disingenuous. After all, the general thrust of Canada’s privacy laws is to encourage organizations to create a culture of privacy in order to protect the privacy of individuals whose personal information is collected, used, retained or disclosed by such organizations.

As the OPC points out, PIPEDA does not prohibit organizations in Canada from transferring personal information to organizations in other jurisdictions for processing, but Canadian organizations are still accountable and the OPC can investigate complaints and audit privacy practices of Canadian organizations.

PIPEDA provides that

an organization is responsible for personal information in its possession or custody, including information that has been transferred to a third party for processing. The organization shall use contractual or other means to provide a comparable level of protection while the information is being processed by a third party.

The primary means by which an organization can protect personal information that it transfers to a third party for processing is through a contract. Organizations must also be transparent about their privacy practices, including advising customers that their personal information may be sent to another jurisdiction for processing and that while the information is in another jurisdiction, it may be accessed by the courts, law enforcement and national security authorities.

Check out the OPC’s Guidelines, and if your business hasn’t yet signed privacy contracts with all third parties to whom you transfer or disclose personal information, now may be the time.

The important thing is to develop a culture of privacy within the workplace.  Fostering a workplace culture where privacy is valued and respected contributes to good employee morale and mutual trust.  It also helps employees to identify privacy issues before they become privacy complaints (which can result in costly grievances, lawsuits or settlements).  After all, it’s employees that are on the front line with customers and how employees respond to privacy related questions or concerns can make a big difference. 

When I conduct privacy training sessions for clients, I always remind employees that while privacy compliance is the law, it’s also important because good privacy practices can improve customer relations, increase efficiencies and mitigate time-consuming and costly privacy complaints.  I also try to make privacy compliance fun!  No, this is not a misprint…I said “fun”.  Privacy Forum members had some great suggestions on how to make privacy compliance fun and, in doing so, help to get staff “buy-in” on privacy compliance. 

Please post a Comment below on ways that you or your organization tries to get staff “buy-in” on privacy.

In a recent speech to the 10^th Annual Privacy and Security Conference in Victoria, B.C., Privacy Commissioner Jennifer Stoddart commented, “Polling for my Office in 2007 found that only a third of all businesses reported having trained staff about their responsibilities under Canada’s privacy laws.  This is a huge concern!  We recently conducted an analysis of 86 breaches reported to my Office and found that employee awareness and training was the most important contributing factor.  It was an issue in more than half of the spills we examined! We found that very basic mistakes – human errors – often lead to breaches. Breaches are caused mostly by employee misconduct and human error, not technological weaknesses.”  The full speech is entitled, “A Privacy Check Up For Canadians: Is the Glass Half Empty or Half Full?” and is definitely worth reading.

Data “packrats” failing customers: Companies need policies on retention

My December 3, 2008 column in the Winnipeg Free Press details the problems businesses can get in to when they keep every single piece of information on their customers, even when they no longer need it.

Privacy law update good: Job needs full-time commissioner

My May 7, 2008 column in the Winnipeg Free Press explains the difference between Manitoba’s Information and Privacy Adjudicator and a privacy commissioner, as appointed in almost every other province and at the federal level.

Recording telephone calls could be a risky business

My April 2, 2008 column in the Winnipeg Free Press discusses the privacy implications resulting from recording telephone calls, and why it is important to let your customers know if you are recording their calls to you.

Businesses face challenge in winning people’s trust

My November 7, 2007 column in the Winnipeg Free Press discusses the Privacy Commissioner of Canada’s annual report and what it means to private sector businesses.

Businesses must take steps to prevent I.D. theft

My July 4, 2007 column in the Winnipeg Free Press points out the fine-tuning to PIPEDA and what businesses will have to do to remain compliant.

Time to amend the Personal Information Act

My January 3, 2007 column in the Winnipeg Free Press discusses the mandatory review of PIPEDA and my recommendations on behalf of the Canadian Bar Association.

Buying or selling a business requires due diligence

My June 7, 2006 column in the Winnipeg Free Press considers PIPEDA Case Summary #325, which sets out the rules regarding sharing customer lists of businesses being considered for sale.

New privacy law evolves rapidly, changes consumer attitudes

My January 4, 2005 column for the Winnipeg Free Press reviews privacy issues of 2004 and what is coming ahead in 2005.

Privacy protection should be at top of resolutions: develop policies, procedures in a customer-friendly way

My January 4, 2006 column for the Winnipeg Free Press suggests three cutting edge new year’s resolutions for corporate success.