Continuing a series of blog posts that I’m calling “A Conversation with…“, I’m really pleased to post the following conversation with the Information and Privacy Commissioner of Saskatchewan, Gary Dickson, Q.C.
Gary Dickson was appointed as Saskatchewan’s first full-time Information and Privacy Commissioner back in 2003, and he was re-appointed in 2009 for a further five-year term. That’s great news because Gary Dickson has been outstanding in his role as Commissioner. On a personal note, I’ve been thrilled to watch his many successes as Commissioner. I’ve known Gary for many years. In fact, it was he who suggested that I get involved with the Canadian Bar Association at a time when some of us were trying to form what is now the CBA’s National Privacy and Access Law Section.
Thanks to Commissioner Dickson for agreeing to take part in this online Q & A conversation. CFL fans may find some humour in the last Q & A below. Go Bombers! If you’d like to learn more about Commissioner Dickson or the Office of the Saskatchewan Information and Privacy Commissioner (“IPC”), I’d encourage you to visit the IPC’s website.
Q. You were previously an Alberta MLA. In that capacity, you were involved in privacy law development as the critic for the Freedom of Information and the Protection of Privacy portfolio, and also on several important privacy law committees and panels. What’s it like to now be involved with privacy as the Information and Privacy Commissioner of Saskatchewan?
A. The experience is exciting, stimulating, and almost always challenging. I am very fortunate that our office has a committed team of excellent staff who are focused on ensuring that Saskatchewan residents enjoy the full benefit of our provincial access and privacy laws. I’m very lucky to continue to be involved with such a fascinating area but from a very different perspective than that of a lawmaker. It has been very useful to have had that experience in the development of access and privacy legislation before I assumed the new Commissioner role in Saskatchewan. I hope that I am more aware and more sympathetic to the challenges and issues that arise with any access and privacy law for front line workers. It has certainly motivated me to promote wherever possible making such laws simpler and more accessible to the people who must administer them and for those who are the ‘data subjects’. I have also enjoyed the opportunity to modestly influence the way that our access and privacy laws are viewed and understood. My experience in Saskatchewan has been that those who work in public bodies or health trustee organizations genuinely want to do the ‘right thing’ in terms of transparency and privacy protection but are often unsure on where the line is drawn and are unfamiliar with best practices that have evolved over the last 26 years in Canada. As a result, a major focus for my initial five years in Saskatchewan has been on raising awareness and creating tools to assist those workers meet their statutory responsibilities.
Q. While Alberta, Quebec, British Columbia and Ontario (for personal health information only) have provincial privacy laws that are “substantially similar” to PIPEDA, Saskatchewan does not. Is it time for that to change?
A. I have for the last six years encouraged the former provincial government and now the current government to carefully consider the advantages of adopting a PIPA type law based on the B.C. and Alberta experience. As it stands, our fundraising foundations and NGOs, including those that deal with significant amounts of sensitive, prejudicial personal information are effectively unregulated. We often hear complaints from employees working in private businesses (not federal works, undertakings, etc.) who are extremely disappointed and upset when we tell them that they do not have the same privacy protection guaranteed to all public sector employees in Saskatchewan. I must acknowledge that the federal Privacy Commissioner has recently undertaken a pilot project in Saskatchewan to raise awareness of PIPEDA but this exercise also has highlighted how big the knowledge deficit is in the small and medium sized business sector. I remain of the view that Saskatchewan individuals, businesses and charitable NGOs should all benefit from a simple private sector privacy law. This could be designed to complement and harmonize with our public sector FOIP and Local Authority FOIP Acts and our Health Information Protection Act. It would allow for a more seamless kind of privacy protection that would be simpler for those organizations and for residents. I notice that the impetus for PIPA in BC and Alberta was really business organizations such as Chambers of Commerce realizing that PIPEDA is in some respects cumbersome and deficient for the SME sector. Business organizations in Saskatchewan do not appear to have adopted that view.
Q. The Saskatchewan Gaming Corporation has been recognized as a positive privacy story. What has it done, and what role has your office had in this development?
A. This is a good example of how an Information and Privacy Commission office can perhaps achieve more through consultation than by emphasizing the enforcement role. We started out a year ago with a complaint that the Casino Box Office in Regina required anyone purchasing a ticket for a show to provide name and contact information even if purchasing the ticket with cash. When we followed up with the Saskatchewan Gaming Corporation that operates the casinos in Regina and Moose Jaw, we found no senior identified FOIP Coordinator or Privacy Officer, no appropriate policies and procedures and no comprehensive training program for staff. Instead of focusing solely on the collection of personal information by the Box Office, we spent the better part of the year working with the Corporation in fundamentally reorganizing to meet its FOIP responsibilities as a ‘government institution’. With the assistance of a Portfolio Officer from our OIPC, the Corporation made a senior Vice President the new Privacy Officer and FOIP Coordinator. Comprehensive policies were put in place and a new FOIP training program rolled out. In the casino, the Box Office now only collects personal information if the ticket purchaser volunteered that information but it is no longer mandatory. In addition, prominent signage now advises customers of the Corporation’s information collection practices. There is also new literature readily available to customers. I think that as a result of our collaboration the Corporation and its leadership now view our office as a useful resource and as an office genuinely committed to operating on the basis of cooperation and collaboration.
Q. You’ve published a best practices guide for mobile device security. It’s getting easier to collect and store personal information, but are we keeping up with our privacy responsibilities in the meantime?
A. I’m afraid that privacy risks are not always top-of-mind for organizations embarking on new IT programs, systems, etc. Although we have developed a Privacy Impact Assessment tool available on our website, there is no statutory requirement that a PIA be done by a public body or health trustee before proceeding with new technology. What is perhaps even more troubling is that we see problems with old technology. Our office brought out a FAX advisory after we found a number of health information trustees didn’t appreciate that when the modern multi-use copier machine is sold as surplus equipment it likely will contain memory of the documents it has processed and perhaps substantial amount of personal health information. Look at the number of cases that have come to Information and Privacy Commissioners across the country that involved theft of unencrypted laptops. So, the short answer is that many organizations are not keeping up with their privacy responsibilities. The education and compliance challenge continues apace.
Q. Your office opened more than double the amount of case files in 2009 than it did in 2008. Is this number going up because of inadequate privacy practices, because the public is becoming more aware of its privacy rights, or both?
A. Good question. I think the answer is some of both. I believe there is significantly higher privacy awareness with the organizations that my office oversees and also greater public awareness. The difficult question is how accurately we can assess what is going with all approximate 3000 organizations that we oversee given that we are largely in a reactive role. In any given year if we are dealing with 200 organizations are these just the few ‘bad apples’ or is this indicative of widespread non-compliance. We simply don’t have the resources to be able to accurately assess and catalogue privacy compliance province wide. At the end of the day however, whatever the reason for the large increase in case files there is an indication that a lot more work is yet to be done to move to a more pervasive privacy protective culture.
Q. Looking forward, what kind of privacy developments should we watch for in 2010?
A. One of the interesting ‘growth’ areas will be the electronic health record. Our office just issued our first Investigation Report (H2010-001) dealing with our electronic health record now in development. This involved a pharmacist who entered the Pharmaceutical Information Program database on nine different occasions to view medication profiles for three individuals who were not patients/customers of that pharmacist of the pharmacy he worked for. We identified a number of problems in terms of HIPA compliance with the pharmacy, the regional health authority and the Ministry of Health. We also issued more than 20 recommendations for remedial action. Since the electronic health record is still some distance from completion, I anticipate that there may be more of this type of complaints touching on some element or another of the E.H.R. In fact, at the end of my Investigation Report, I included a Postscript which incorporated a number of broader considerations that this particular case highlighted.
We will be carefully monitoring changes to our health information regulations that enable regional health authorities to disclose certain personal health information of patients to hospital foundations without prior consent of those patients.
Finally, we are witnessing a number of new information and data-sharing initiatives with Executive Government and we expect to be busy considering these initiatives in the next few years.
Q. And, finally, how many points do you think the Winnipeg Blue Bombers will beat the Saskatchewan Roughriders this year in the Labour Day Classic game?
A. I love the fact that all of those Bomber fans come to Regina and generously spend their dollars in our hotels and restaurants and I always feel badly for their long drive back to Winnipeg. Sorry Brian but I don’t see that the return trip to Winnipeg is likely to be any more joyous in 2010!!
Canada’s Privacy Commissioner, Jennifer Stoddart, has teamed up with nine other country’s privacy watchdogs today to warn Google and other organizations to better respect people’s privacy rights. The privacy commissioners have sent a letter to Google, accusing it of overlooking privacy values and legislation in launching new online products.
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:
collecting and processing only the minimum amount of personal information necessary to achieve the identified purpose of the product or service;
providing clear and unambiguous information about how personal information will be used to allow users to provide informed consent;
creating privacy-protective default settings;
ensuring that privacy control settings are prominent and easy to use;
ensuring that all personal data is adequately protected, and
giving people simple procedures for deleting their accounts and honouring their requests in a timely way.”
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.
Last week’s widely reportedruling by Judge Tim Preston that cameras will not be permitted into the Brian Sinclair inquest hinged largely on a desire to protect the privacy rights of witnesses.
But what if some individual witnesses don’t have privacy concerns and actually want their testimony broadcast to the world?
This really is the kind of personal information that identity thieves love so the OPC article is a useful read. In fact, businesses whose employees create accounts on their behalf would be well-advised to have employees read the OPC article.
In what can only be describe as a bizarre fact scenario, ABC News is reporting that “an appeals court in the US state of Minnesota has upheld a one-year prison sentence for a man who drilled a hole in his bathroom wall and filmed his wife naked without her consent.”
The case is interesting because it deals with the important privacy issue of what constitutes a “reasonable expectation of privacy” (in this case, in one’s own bathroom). Read the story here>>
Continuing a series of blog posts that I’m calling “A Conversation with…“, I’m delighted to post the following conversation with Ontario’s Information and Privacy Commissioner, Dr. Ann Cavoukian.
Dr. Cavoukian leads a dynamic team of professionals at the IPC who are at the forefront of addressing today’s privacy challenges. Her depth of understanding of privacy issues combined with her passion for privacy has made for a powerful and learned force in Canada’s privacy world.
Thanks to Dr. Cavoukian for agreeing to take part in this online Q & A conversation. If you’d like to learn more about Dr. Cavoukian, the IPC, or the issues raised in this conversation, I’d encourage you to visit the IPC’s website.
Q. In one of my previous blog posts, Jennifer Stoddart explained how she got involved in the world of privacy. How about you?
A. I have always had an interest in human rights, but my direct introduction to the privacy world came as a result of my work as the Chief of Research for the Attorney General of Ontario. As part of the role I completed a program evaluation of the Public Complaints Commission headed by (now Justice) Sidney B. Linden. He was aware of my work with the Canadian Civil Liberties Association, among other things, and when Justice Linden was appointed as the first Information and Privacy Commissioner of Ontario in 1987, he asked me to join him as the Director of Investigations. I haven’t looked back since!
Q. One of your significant achievements has been your development and advocacy of “Privacy by Design”. Can you explain the concept behind Privacy by Design?
A. The privacy landscape of the early ‘90s had become increasingly challenging – the volume of personal information collected was growing, as were the risks posed by increasingly sophisticated and interconnected technologies. It became clear to me that relying solely on compliance with regulation and legislation would no longer be sufficient to safeguard the protection of personal information. Instead, organizations would need to operate in an environment of default privacy protection. Those which could do so, I recognized, would gain a competitive advantage.
This is the context in which I developed Privacy by Design (PbD), my philosophy of embedding privacy into the design of three broad application areas: information technology; business practices; and physical design/infrastructure. Instead of treating privacy as an afterthought – “bolting” it on after the fact – I argued that privacy should be regarded as a design feature and built right into the system, from the outset. PbD shatters the zero-sum paradigm which trades off privacy against security and functionality. It is positive-sum, or doubly-enabling “win-win” in nature, demonstrating that it is possible to protect privacy without compromising other legitimate requirements, such as security or functionality.
You can find our “7 Foundational Principles” of PbD at www.privacybydesign.ca. To summarize, PbD seeks to establish privacy as the default by embedding it in system design. It is proactive in nature – already in place when data is first collected, it describes a comprehensive “cradle to grave” approach to information management. In being proactive, it seeks to prevent data breaches from occurring, rather than prescribing remedial actions. Importantly, it demonstrates respect for user privacy by ensuring that its component parts and operations are transparent and subject to independent verification.
Q. Who should be aware of, and consider following, the principles of Privacy by Design?
A. Broad spectrums of people within most organizations should be aware of Privacy by Design – certainly anyone with influence over how personal information is managed.
Personal information is an asset, the value of which is protected and enhanced by a suite of security practices and business processes. Regardless of industry sector, whether the organization is large or small, public or private, whether it is retained in house or out-sourced, executive leadership and managers responsible for the management of personal information need to carefully consider how to build privacy protections directly into their operations.
I have a new title for those who commit themselves and their organizations to the principles of Privacy by Design – I am appointing them as PbD Ambassadors. Those who wish to learn more can visit our Privacy by Design website, which houses all of the PbD resources developed by my Office over the years. While there, I hope people will take the time to share their own PbD experiences or questions with our growing PbD community on the Global Forum. You can now also follow PbD on Twitter @embedprivacy.
I remind people that Privacy by Design was not developed for use in an ivory tower. I always intended it to result in real and positive changes in our everyday lives.
Q. So can you give us an example of the “win-win” approach of Privacy by Design in action?
A. An example that really brought Privacy by Design to life is the work being undertaken by our mass transit system – the Toronto Transit Commission (TTC), in testing and deploying encryption-based video surveillance technology.
In the autumn of 2007, the Toronto Transit Commission (TTC) announced plans to expand its video surveillance program on both surface vehicles and within the subway system. In response to a formal complaint, I launched an investigation. I found that the TTC’s expansion of its video surveillance system did not contravene any applicable laws. However, I strongly urged the TTC to adopt privacy-enhancing video surveillance technology that was being developed at the University of Toronto by Karl Martin and Professor Kostas Plataniotis.
Using innovative object-based encryption, the technology completely obscures the images of individuals who appear as the subjects of video surveillance. However, unlike current permanent masking techniques, the technology enables the images to be decrypted at a later time, only by authorized staff, when an incident occurs that demands further investigation for safety or security purposes.
This new technology, in its essence, lays to rest the outdated zero-sum paradigm, where one party wins and one party loses. It ushers in a new era in “positive-sum” thinking where both parties may “win” and neither party must, by necessity, lose. Positive-sum privacy-enhancing technologies (I call them PETs Plus) ultimately enable the co-existence of privacy and security, side by side, without forfeiting one for the other, “win-win,” not “win-lose.”
Q. One of the first virtual strip search scanners was recently installed at Toronto’s Lester B. Pearson International Airport. What are your thoughts about the privacy implications of these scanners?
A. I feel it’s important that we understand exactly what this technology does. The public should know what types of images are being produced of them, and what happens with those images. That’s why I chose to personally experience the Whole Body Imaging (WBI) system in both Toronto and Washington D.C. – to assess first-hand how passengers are treated.
From a privacy perspective, my WBI experience highlighted several important points. The scanned images displayed are not actual pictures and do not contain any unique personal identifiers (there is no way for someone to identify the image as my own). The screening site where the scanner images are viewed is located in a windowless, secure room located a significant distance away from the open scanning area. The personnel viewing the images are not able to visually connect images with the actual passengers being scanned. Also, the machines are not able to record, copy or store any images. Finally, the personnel who review the scanned images are not allowed to have cameras, cell phones or any other recording devices in the secure viewing room.
I have always believed that privacy needs to be built directly into technology – privacy by default. Improved airport security need not come at the expense of privacy – both may be achieved together, in a positive-sum manner.
Q. Business professionals consult this blog (at least, I like to think they do!). Based on your experience as Ontario’s Information and Privacy Commissioner, can you identify an area where businesses fall short in the realm of privacy and provide tips to help address the problem?
A. It is a sad fact that many privacy breaches occur largely because of poor information management practices by organizations, and the volume of the information at risk grows with the ever increasing collection of personal information.
As Commissioner, half of the Health Orders that I have issued under Ontario’s Personal Health Information Protection Act (PHIPA) were the result of personal health records being abandoned or disposed of in an unsecure manner. Identity theft is one of the fastest growing forms of consumer fraud in North America, costing Canadians millions of dollars a day and billions of dollars a year.
That is why it is crucial for all organizations, large, medium or small, to engage in the practice of “secure destruction.” The goal of secure destruction is to have records containing any personal information permanently destroyed or erased in an irreversible manner which ensures that the record cannot be reconstructed in any way.
For the effective secure destruction of records, organizations need to ensure that they match the destruction method to the media. For paper records this means using cross-cut shredders which do not allow for records to be reconstructed. For electronic media such as DVD’s or USB keys, the media should be physically destroyed.
Further, if an organization is hiring an external agent to destroy records, they need to be selective. Look for a provider that is accredited by an industrial trade association or is willing to commit to upholding its principles, including undergoing independent audits. Always check references, and insist on a signed contract spelling out the terms of the relationship, to ensure end-to-end lifecycle protection. Remember, you can outsource the service, but you can never outsource accountability.
Q. Looking forward, what kind of privacy developments should we watch for in 2010?
A. The privacy landscape is continually changing and posing new challenges – particularly in this age of information technology where personal information about individuals is increasingly collected and stored indefinitely.
In addition to daily developments on the “Cloud” and Web 2.0, one of the areas we are focusing on in 2010 is the Smart Grid – the modernization of the current electrical grid with a view to more efficient energy usage and delivery. This will involve the increased collection, use and disclosure of end users’ personal information. I have identified privacy as the real “sleeper issue” in this area, which causes me great concern. The Smart Grid is still in a nascent stage, not only here in Ontario and across North America, but around the world. So now is the time to bake in privacy right from the outset. With that in mind, we are proactively working with local energy distributors, and government officials, to ensure that privacy is top of mind as we move toward the Smart Grid. It is the ideal time to proactively build in privacy – by design.
It’s safe to say that the Alberta provincial government is regarded as being right wing. But Manitoba’s? Not at all. So why then is Alberta light years ahead of Manitoba at protecting workers’ privacy?
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 TimesMagazine 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.
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 investigationinto 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.
Will the virtual strip-search scanners soon to be operational in Winnipeg’s Richardson International Airport be an invasion of privacy? Absolutely. Should they be installed despite privacy concerns? Absolutely.
You may note that 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!
For years now, Ontario’s Personal Health Information Protection Act has contained provisions requiring health custodians to notify individuals if their personal health information is stolen, lost or accessed by unauthorized persons. Until now, such mandatory privacy breach notification provisions have been limited to the sphere of health care in Ontario. That’s about to change.
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 lawis 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.
CTV News is reporting that the U.S. federal government improperly posted an internal guide to its airport passenger screening procedures on the Internet in a way that could offer valuable tools to terrorists. The guide was posted on the U.S. Federal Business Opportunity website, but the sensitive information (which was electronically redacted, or blacked out) was not properly protected. Some websites, using widely available software, were able to uncover the original text of sections that had been redacted.
This situation is an example of redactions gone terribly wrong! And it should serve as a reminder to public and private sector organizations to take extra care when making redactions in documents that will be released to third parties. Different redaction strategies can be implemented depending on the circumstances. One strategy that I implement when records will be posted online is to make my redactions and then physically scan the document and save it as a PDF. It’s a basic way to protect sensitive portions of records. Please feel free to post a Comment below with other suggested strategies for making secure redactions.
The U.K.’s Huffington Post is reporting that a rogue employee of a major mobile phone company has illegally sold millions of customer records to rival companies. Apparently, customers’ personal information (including contract expiry dates) was sold to several rivals, which then used the material to cold-call customers to offer them an alternative deal.
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.
You may know someone who has been a victim of identity theft. What you may not know is that, before today, police couldn’t charge fraudsters with “identity theft”. That changed when Bill S-4 was given Royal Assent by Parliament earlier today.
Obtaining and possessing identity information with the intent to use the information deceptively, dishonestly or fraudulently in the commission of a crime;
Trafficking in identity information, an offence that targets those who transfer or sell information to another person with knowledge of, or recklessness as to, the possible criminal use of the information; and
Unlawfully possessing or trafficking in government-issued identity documents that contain information of another person.
Before Bill S-4 came into effect, police had to use other Criminal Code provisions to target identity theft. Today’s development should help law enforcement officials attack a growing problem: the Canadian Council of Better Business Bureaus has estimated that identity theft may cost Canadians more than $2 billion annually.
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.
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.
Call off the strike, some trade unions are protecting more than their members’ collective bargaining rights. In fact, many unions have taken a proactive approach to privacy by creating policies that attempt to comply with the benchmarks set out in the federal Personal Information Protection and Electronic Documents Act(“PIPEDA). However, there hasn’t yet been a case summary or court action under PIPEDA that definitively determines whether a union that collects personal information in their general capacity is obligated to observe the rules outlined in the legislation. As a result, some unions are complying with PIPEDA’s obligations to protect their members’ privacy and, regrettably, some unions are not.
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.
Have you heard the saying “Just when you think you understand the situation, what you don’t understand is that the situation has changed”? If you think you understand The Personal Information Protection and Electronic Documents Act (“PIPEDA”), get ready… changes may be just around the corner.
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.
Headline after headline these days talk about the growing incidences of identity theft. But who really are these identity thieves? Do they work alone or for KAOS (Get Smart fans will understand this joke)? To answer this timely question, there is a recent post on the Office of the Privacy Commissioner of Canada’s blog entitled “Who are these identity thieves?“
The post cites an earlier survey by the Privacy Commissioner that shows that one Canadian out of six has been the victim of some form of identity theft and that more than 90% of Canadians report that they are concerned about identity theft. The Privacy Commissioner’s post also cites a report by Benoit Dupont, the Canada Research Chair in Security, Identity and Technology at l’Université de Montréal, and his colleague Guillaume Louis, which offers an illuminating profile of identity thieves. Here are some highlights:
1.7 million Canadians were affected by identity theft in 2008.
More than 45% of cases of identity theft involve Internet use. However, the way “offenders” use the Internet is not as significant as we might think in terms of acquiring the victim’s personal information. On the contrary, it plays a greater role in actually committing fraud.
“Women account for nearly 40% of offenders. We believe that this strong presence can be attributed to the absence of violence inherent to this sort of crime and the possibility of committing the crime without help from an accomplice.”
“Identity thieves are relatively older than other offenders; the average age is 33 years.”
“Offenders acted alone in the majority of cases (64.6%), which seems to contradict the theory of extensive involvement by organized crime in this type of offence.”
The Privacy Commissioner’s post also cites a 2008 report released by the McMaster eBusiness Research Centre that showed that victims spent more than 20 million hours and $150 million resolving problems associated with these crimes. If you’d like to read more about identity theft, please click on the “Identity theft” link under this blog’s Tags.
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).
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.
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.
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.
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.
The current global economic climate has led to a growing number of bankruptcy and insolvency proceedings, particularly in the U.S. In dealing with these proceedings, many business leaders have not paid enough attention to the role of privacy law and its impact on the bottom line.
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 Lawyers Weekly (a national newspaper for the Canadian legal profession) recently approached me to publish an article for their “Focus on Information Technology” section of the newspaper. The request gave me pause to think about the impact on Canadians’ privacy of recent technological advances such as e-mail, instant messaging, online forums, blogs and social networking websites (such as Facebook and Twitter). Upon reflection, I concluded that these technological advances are the driving force for what I argue are increasing calls for a “third wave” of privacy laws.
The “first wave” of privacy laws (such as the federal Privacy Act) were introduced decades ago to protect the privacy of individuals in respect of public sector government bodies. The “second wave” of privacy laws (such as PIPEDA) were introduced more recently to protect the privacy of individuals in respect of private sector businesses. Arguably, the only missing link in this chain of privacy protection, and what could be the focus of a “third wave” of privacy laws, is protecting individuals from violations of privacy by other individuals in the non-commercial sphere. My goal with the article was not to promote a “third wave” of privacy laws, but rather to engage Canadians in a debate about whether such laws are required.
I also encourage you to share your thoughts on whether – in the era of Facebook and Twitter – the status quo is sufficient or whether a “third wave” of privacy laws are needed.
Businesses are increasingly being asked to reduce their “carbon footprint”. And while many customers are interested in doing business with organizations that are trying to reduce their carbon footprint, many customers are also concerned about their own “digital footprints“.
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.
Does PIPEDA apply to non-Canadians? It’s a common question.
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.
Another day, another development in the Google Street View story. Canada’s Privacy Commissioner and several provincial privacy commissioners have commented on street level imaging technology by releasing a timely Fact Sheet on the related privacy issues.
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.
The looming battle between privacy advocates and Google Street View could have implications beyond Google and its Canadian-based service providers, who are currently taking detailed photos of Canadian cities. I’m quoted in today’s Winnipeg Sun article on this issue, where I argue that the implications of the Google Street View battle could extend to how Canadian privacy laws are interpreted and enforced.
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.
I recently discussed with Nymity News some of the privacy issues related to third party opt-out websites. Specifically, I highlighted in the interview the risks facing organizations who honour requests from such websites. Marketing research organizations such as those that are members of the MRIA may find the interview of particular interest, but it’s still worth reading regardless of what industry your business operates in if you’re not yet aware of these types of third party opt-out websites.
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.
Bell Canada recently announced that it would acquire The Source, a national electronics dealer. Bell has indicated that it will be acquiring substantially all of the assets of The Source.
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.
How is your business dealing with metadata? If you’re scratching your head and asking “what the heck is metadata?” or if you’re drawing a blank about what your business may (or may not) be doing to manage its metadata, then you should definitely read on.
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.
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.
Most Canadian businesses these days supply their employees with devices such as laptops, cellphones and PDAs that are then often used by employees after work hours for personal use. In most cases, this isn’t a problem for either the employer or the employee. But too many businesses that issue cellphones, laptops or PDAs to their employees have not taken the necessary steps to mitigate the associated legal risks.
These legal risks can include the fact that employees can use these devices to distribute emails or text messages that defame other parties or that include illegal sexual or racial content (which in Manitoba could give rise to employee and employer liability under The Human Rights Code). Employees may also use these devices to intentionally or unintentionally leak personal or corporate information. Employees, however, may have an expectation or legal right of privacy depending on the circumstances, so wholesale monitoring by employers may not be in the cards.
In that case the court found that a police department had violated the Fourth Amendment and state constitutional rights of employees and the people they exchanged text messages with, when they reviewed “personal” text messages created on devices owned and issued by the police department. It also found that the text messaging provider, Arch Wireless, violated the Stored Communications Act (SCA), 18 U.S.C. §§2701-2711, by providing transcripts of these messages to the employer.
Although this decision is based on U.S. law, similar results could happen in Canada. As a result, Canadian businesses should ensure that their employees clearly understand what they can and cannot do with the devices issued to them. One of the best ways to accomplish this goal is to develop appropriate policies and procedures, which will minimize the chances of being taken to court by third parties or employees.
Do you ever wish you were Jack Bauer from the TV show 24? Here’s your chance!
There are a growing number of articles that are highlighting the threat of “cyber-terrorism”. It’s a scary topic that is surely consuming the time of government technology infrastructure professionals in the U.S. and Canada.Some of these articles discuss the remote possibility that terrorists may perpetrate cyber-attacks against critical online government and corporate infrastructure.Other articles discuss the very real possibility that terrorists may simply use the Internet (and the information contained online) to plan attacks in the real world. Don Cavender, a special agent and instructor with the FBI’s Computer Training Unit at Quantico, Virginia, is quoted in an excellent ZDNet article and says that “the worry right now is not so much a cyberterrorism event…but when the terrorists use the Internet to facilitate the planning of these attacks.”
We all know that the Internet is filling up with vast amounts of data including people’s personal information, as well as corporate and government data.The lesson that I take from all of these “cyber-terrorism” related articles is that businesses should make sure that they are working with technology professionals to secure their databases and limit the amount of personal information and corporate data available online.Of course, there are many reasons for businesses to secure their databases and to limit what information is available online.For example, privacy laws such as Canada’s PIPEDA regulate the safeguarding of personal information.And, there are good business reasons to limit the availability of proprietary corporate data online.But, if you ever wished you were Jack Bauer, then here’s your chance to fight terrorism…one corporate move at a time.
After several days of intense media scrutiny, Facebook has backed down on controversial changes to its Terms of Service (TOS). Both CTV Winnipeg and the Winnipeg Free Press asked me to comment on this timely story, which provides a lesson for other businesses that operate websites to be mindful that TOS (and privacy policies) must be able to withstand legal scrutiny but also user expectations.
If you’re from Winnipeg, you’re well aware of the terrible tragedy of Brian Sinclair, who passed away in the emergency department of the Health Sciences Centre after waiting to see a doctor for 34 hours. Manitoba’s NDP government and the Winnipeg Regional Health Authority (WRHA) have been dealing with the political and legal consequences since Mr. Sinclair’s death last fall.
I was asked yesterday to provide comment to the Winnipeg Sun on the validity of the government’s recent claim that it could not release the first administrative review into the tragedy because of privacy concerns. The story serves as a reminder to government bodies and businesses of the challenges (and need for expert legal counsel) when dealing with access to information and related privacy matters.
A separate story reported at TechCrunch demonstrates the risks when releasing redacted documents to the public. Canadian privacy laws typically require organizations to blackout, or redact, portions of documents that contain someone else’s personal information unless that person consents to its disclosure. It’s a time-consuming, but important, step that organizations need to take before disclosing documents under access to information legislation. But, as this story points out, organizations need to be very careful about how they redact!
My November 5, 2008 column in the Winnipeg Free Press provides some tips on how to be a savvy online shopper and the benefits to online retailers of having sercure websites and comprehensive online privacy policies.
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.
My August 18, 2008 column in the Winnipeg Free Press provides a definition of the position of Chief Privacy Officer (CPO) as well as some tips to help determine the scope of the role in particular firms.
My July 2, 2008 column in the Winnipeg Free Press announces the Privacy Commission of Canada’s new youth privacy site, My Privacy. This is a great site for both parents and their children to view, to help youthful Internet users to be aware of the dangers of ignoring privacy settings as they’re filling out personal information on sites like Facebook and MySpace.
My March 5, 2008 column in the Winnipeg Free Press discusses some of the problems that can occur when trying to sell a business, if you haven’t put privacy policies in place.
My October 3, 2007 column in the Winnipeg Free Press emphasizes the importance of protecting your personal information by not handing it over to strangers, among other strategies.
My September 5, 2007 column in the Winnipeg Free Press highlights the common misconceptions surrounding privacy law, under the backdrop of the Virginia Tech tragedy.
My January 2, 2008 column in the Winnipeg Free Press makes some suggestions for businesses to improve their privacy efforts before legislation forces them to make them.
My August 1, 2007 column in the Winnipeg Free Press points out the security risks inherent with mobile data holders such as USB drives, laptops and portable hard drives.
With March being Fraud Prevention Month, my March 7, 2007 column in the Winnipeg Free Press lists some of the procedures businesses should have in place to ensure they are compliant with privacy legislation.
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.
My April 4, 2005 column in the Winnipeg Free Press details the more imaginative ways thieves have come up with to take over your identity and your life.
My April 5, 2006 column in the Winnipeg Free Press reports on the implication of Canadian businesses using American companies to store Canadian personal information.
In today’s economy, information 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. My September 6, 2006 column for the Winnipeg Free Press discusses the importance of protecting corporate information.
This blog provides practical assistance to Canadian businesses so they can better deal with issues related to privacy, access to information, online reputation management, intellectual property and technology legal matters. 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.
Posted by Brian Bowman 
You may know someone who has been a victim of identity theft. What you may not know is that, before today, police couldn’t charge fraudsters with “identity theft”. That changed when Bill S-4 was given Royal Assent by Parliament 
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 
BBC News
A summer incident involving sensitive personal information on stolen laptops has brought the issue of data protection once again into the crosshairs of 
Call off the strike, some trade unions are protecting more than their members’ collective bargaining rights. In fact, many unions have taken a proactive approach to privacy by creating policies that attempt to comply with the benchmarks set out in the federal 
Have you heard the saying “Just when you think you understand the situation, what you don’t understand is that the situation has changed”? If you think you understand 
Headline after headline these days talk about the growing incidences of identity theft. But who really are these identity thieves? Do they work alone or for 
The 
The 
The 
The current global economic climate has led to a growing number of bankruptcy and insolvency proceedings, particularly in the U.S. In dealing with these proceedings, many business leaders have not paid enough attention to the role of privacy law and its impact on the bottom line.
The Lawyers Weekly
Businesses are increasingly being asked to reduce their “carbon footprint”. And while many customers are interested in doing business with organizations that are trying to reduce their carbon footprint, many customers are also concerned about their own “
Does 
Another day, another development in the 
The looming battle between privacy advocates and 
I recently discussed with 
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. 
Bell Canada
How is your business dealing with 
The 
Most Canadian businesses these days supply their employees with devices such as laptops, cellphones and PDAs that are then often used by employees after work hours for personal use. In most cases, this isn’t a problem for either the employer or the employee. But too many businesses that issue cellphones, laptops or PDAs to their employees have not taken the necessary steps to mitigate the associated legal risks.
Do you ever wish you were 
After several days of intense media scrutiny, 
If you’re from Winnipeg, you’re well aware of the terrible tragedy of Brian Sinclair, who passed away in the emergency department of the Health Sciences Centre after waiting to see a doctor for 34 hours. Manitoba’s 
Online shopping a risky transaction: Protect yourself from identity thieves
Data “packrats” failing customers: Companies need policies on retention
Privacy chief important role in modern firm
New push to educate on online privacy: Youth can get info on important website
Get your company’s privacy policy in order: Potential purchasers will need to know
Privacy ultimately your responsibility
Privacy is not a fad, laws are misunderstood
Privacy resolutions for 2008
Mobile devices prone to I.D. theft
Protecting IDs is good business, and it’s the law
Time to amend the Personal Information Act
Buying or selling a business requires due diligence
ID thieves steal your money the modern way … they dumpster-dive, “phish” online to get your info
New privacy law evolves rapidly, changes consumer attitudes
Outsourcing comes with risks; U.S. service providers bring privacy concerns 
Information requires safekeeping
