Yet in recent days, privacy issues have impacted school buses, casinos and garbage bins. This may seem odd when most privacy news stories these days deal with Facebook and other websites. But the world of privacy is increasingly affecting just about every segment of society. Read more>>

In B.C., landlords and property managers acting on their behalf must comply with B.C.’s Personal Information Protection Act (“B.C.’s PIPA”). The guidelines are intended to assist landlords and property managers in discharging their duties under B.C.’s Residential Tenancy Act in a manner that respects the privacy of tenants and promotes transparency in the operation of landlord and tenant relationships.

Despite the B.C. focus, landlords and property managers in other jurisdictions would be well-served by reading the guidelines – especially given that B.C.’s PIPA is “substantially similar” to PIPEDA.

In this recent case involving Veteran Affairs, a veteran had filed a complaint with the Office of the Privacy Commissioner of Canada (“OPC”) alleging that Veterans Affairs had violated the Privacy Act by including excessively detailed and sensitive medical information in briefing notes to the Minister of Veterans Affairs. The complainant also alleged that Veteran Affairs had transferred his medical file to a hospital administered by Veterans Affairs without his consent.

The OPC has issued the following formal recommendations to Veterans Affairs, but they should also serve as useful recommendations to other organizations:

• “Take immediate steps to develop an enhanced privacy policy framework with adequate protections and controls to regulate access to personal information within the department.
• Revise existing information-management practices and policies to ensure that personal information is shared within the department on a need-to-know basis only.  Personal information, including but not limited to sensitive medical information, should not be shared with programs that have no operational requirements for access to such information.
• Provide training for employees about appropriate personal information-handling practices.
• Review procedures to ensure that consent is obtained prior to personal information being transferred to veterans’ hospitals.”

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.

The PWC survey demonstrates that spending is shifting to monitoring of company networks, at a time when more employees are bringing their own PDA’s and computers into the workplace.  But as PWC states, businesses should be making employees the first line of defence against data leaks. 

The PWC survey and commentary serves as a reminder of the need to focus resources for data security (and privacy law compliance) strategically. This means investing in technological safeguards but it should mean investing in privacy training for your staff.  It’s an important point because so many of the privacy breaches these days result from mistakes, or human error, by one’s own employees.  I’d suggest that you compare your organization’s line item for network monitoring with your line item (if it exists) for privacy training. Are your privacy risk mitigation efforts as strategic as they could be?

As I have previously posted, we’ve seen million dollar privacy awards here in Canada but what’s interesting is the fact that the FTC took issue with an organization “misrepresenting” its privacy protection practices. It’s a good reminder that simply having a privacy policy doesn’t cut it. Businesses must ensure that internal policies and procedures exist and are enforced on an ongoing basis in order to live up to commitments made in privacy policies.

The privacy commissioners’ letter states, “we are increasingly concerned that, too often, the privacy rights of the world’s citizens are being forgotten as Google rolls out new technological applications. We were disturbed by your recent rollout of the Google Buzz social networking application, which betrayed a disappointing disregard for fundamental privacy norms and laws… Unfortunately, Google Buzz is not an isolated case. Google Street View was launched in some countries without due consideration of privacy and data protection laws and cultural norms. In that instance, you addressed privacy concerns related to such matters as the retention of unblurred facial images only after the fact, and there is continued concern about the adequacy of the information you provide before the images are captured… We therefore call on you, like all organizations entrusted with people’s personal information, to incorporate fundamental privacy principles directly into the design of new online services. That means, at a minimum:

The privacy commissioners’ demand that Google and other organizations better incorporate privacy into the design of new online services underscores the need for the “Privacy by Design” initiative that Ontario’s Information and Privacy Commissioner recently discussed in my “A Conversation with Dr. Ann Cavoukian” post. All organizations, regardless of their size (after all, we’re all not Google), would be well-advised to learn from today’s “buzz” about Google Buzz.

Well, the first thing you should do is ask the police for written documentation relating to their request. You should also immediately contact a lawyer with appropriate expertise because this type of scenario can be a legal minefield. For example, are you actually dealing with the police or some bold scam artist? Do the police have the legal authority to demand the requested information? Should they have a warrant?

Presuming that you end up providing the records to the police, you’ll need to ensure that you’re not providing too much information. If the records of your customer are co-mingled with another individual, you’ll need to consider whether you can legally provide the police with access to the other person’s information. Are you then barred from telling the customer that the police were at your office? What sort of internal records should you keep to document that the police accessed your files? How long do you need to keep those internal records?

It’s never fun to say “no” to the police. They are, after all, typically armed. But hopefully the police will make it easy for you to satisfy yourself, and your lawyer, that working cooperatively with them won’t violate your customer’s privacy and unnecessarily exposing your business to liability.

Read the Computerworld article here!

More disturbingly, 51% said it’s “easy” to take sensitive information out of their company and, as reported by Out-Law.com, 85% were aware that it’s illegal to download corporate information.  The favoured medium for stealing corporate information is a USB memory stick followed by e-mail. 

As I’ve mentioned in previous posts rogue employees pose a risk to privacy compliance and, as a result, corporate information requires safekeeping.  In today’s economy, information is the most valuable corporate asset.  For this reason, businesses of all sizes should take proactive steps to protect corporate data.  Whether it’s customer or supplier lists, intellectual property or employee personal information, it’s information that needs safekeeping, especially when we see statistics like those reported above.

The Global Recession and its effect on Work Ethics

This complimentary 30 minute webinar will provide a plain language overview of the most significant privacy issues/events of 2009 and, more importantly, prepare you and your business for 2010.  Among other things, I’ll highlight notable court cases and privacy commissioner findings from 2009 as well as point out anticipated privacy issues likely to affect Canadian businesses in the coming year.

Space is limited so please RSVP early by emailing me at bowman@pitblado.com.

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.

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.

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.

Generally, the ® or ™ symbols are used in connection with a trade-mark, which is a word, symbol or design used to distinguish the wares or services of one person or organization from those of others. Trade-marks can be valuable intellectual property.

The Trade-marks Act (Canada) (the “TM Act”) does not contain any marking requirements. However, trade-mark owners often indicate their registration through certain symbols, namely, ® (registered) or ™ (trade-mark). Although the TM Act does not require the use of these symbols, in Canada, the ™ and ® symbols may be used whether the trade-mark is registered or not. However, while this is not a requirement of the TM Act, the ® should be used only if the mark is registered with the Canadian Intellectual Property Office. If the ® is used and the mark is not in fact registered, it may be possible for someone to argue its use amounts to false advertising. The ™ suggests the mark is not registered, but can help establish distinctiveness in the mark.

One should be especially careful using the ® outside in Canada. In certain jurisdictions, including the U.S., ® may only be used by the owner of a mark following registration with that jurisdiction’s trade-mark office. For example, if a Canadian company is marketing a product in the U.S. and its mark is not registered with the U.S. Patent and Trademark Office, it would not be able to use the ® in connection with its mark and could only use the ™, even if the company has been using ® in Canada all along.

Businesses should consider having their intellectual property “audited” by legal counsel with an expertise in the field and, in doing so, developing an appropriate trade-marks business strategy. When I advise my clients on trade-marks matters I often rely on the expert counsel of my friends and colleagues Jolin Spencer (whom I should thank for this blog post), Robert Watchman and Howard Nerman, all of whom have expertise in trade-marks law.

If you’re a trademark owner and you want to approach your strategy conservatively, then you may want to take a defensive position and register any of the gTLDs that relate to the business in which you’re engaged.  The list of commercial gTLDs would include .com, .net., .info, .org, .tel, .biz, .mobi, .tv and any other TLDs that seem to have a commercial application.  Additionally, you may want to register and maintain the country code domain names (ccTLDs) in the jurisdictions where your organization offers, or plans to offer, its products or services.  Once this is completed, you should then register any known variations of your trademark.

While, in theory, this is a very effective strategy – in practice, this strategy will be more difficult to execute.  For example, the owners of Lego currently own 450 domain names within the TLDs.  They recently pursued and won a WIPO arbitration decision against a cybersquatter who had registered the domains Justlegos.com, legosonly.com, and onlylegos.com; illustrating that even the most vigilant defensive strategy for the registration of domains names cannot prevent all infringements.  As such, any brand strategy should be accompanied by vigorous monitoring and enforcement.  The decision about which TLDs to register is a business decision that must weigh the cost of brand enforcement from a defensive position and an offensive position.

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.

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.

Bell Canada

I don’t know what those assets will be, but I think it is an interesting example of the fact that even in recessions we still see acquisitions of companies.  When an organization’s assets are bought, one of the most valuable assets that are purchased is often its customer list.   

PIPEDA and other applicable privacy laws, of course, govern transactions involving personal information.   In the course of such transactions some companies are now implementing concepts once used only to secure physical assets.  For example, many organizations are choosing to employ “escrow” arrangements to ensure the security of personal information.

Most businesses now understand that the implications of violating applicable privacy laws can be very serious to the reputation and bottom line of both the vendor and purchaser.  As part of a sale of a customer list, and depending on the specific circumstances, both parties may agree that the customer list be placed in escrow until the transaction is completed.  This ensures that what is likely the most valuable asset in the transaction – the customer list – is protected from unintended disclosures prior to the actual transfer of the business.

For the basics on metadata, read here. As you’ll learn in more detail, “metadata” is data about data. It’s detailed information that is automatically created about an electronic document when you use Microsoft Word, PowerPoint or Excel. It can include the name of the person or organization that created a document, the date that it was created, the identities of people who modified a document, including the time and day they did so, the name of the computer that was used to create a document and detailed revisions to a document, including past modifications and deleted text not visible on your computer screen. If not properly managed, metadata can help other businesses steal your intellectual property, learn about your business processes and view personal information that you’re legally required to protect under privacy laws.

One practical way to deal with metadata is to use metadata scrubber software. Some are costly but well worth it, including Payne Metadata Assistant and Workshare Protect. There are also free tools available including a Microsoft one (but it is only for Office 2007) and one offered by Javacool Software. Of course, I’d recommend that you work with technology professionals to determine the best metadata scrubber software for your business. Regardless of whether you use one of these or other tools, it’s important that you deal with metadata in some fashion. I hope these links help provide you with a good place to start!  Feel free to Leave a Comment below if you know of other metadata scrubber software worth recommending.

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.

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.

Canada, U.S. laws on privacy complex

My September 3, 2008 column in the Winnipeg Free Press reports on the findings of the Privacy Commissioner of Canada regarding canada.com’s  outsourcing to a U.S. based service provider. The finding highlights the complexities of Canadian and U.S. laws as they relate to the personal information of customers and reminds Canadian businesses of the need to have legal agreements with third party service providers, especially those located in the U.S.

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.

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.