Canada: Helping Business Leaders Deal with Privacy and Data Protection - June 2004

Contents

• Australia Names New Privacy Commissioner

• Commissioner Cavoukian Draws the Government a Blueprint for Action on Access and Privacy

• Northwest Privacy Class Action Lawsuits Dismissed

• OECD Privacy Guidance Available for Purchase

• RCMP Commissioner Call for Video Surveillance Debate

• United Kingdom: Court of Appeal Decision Restricts Meaning of "Personal Data"Under the U.K. Data Protection Act

• Vermont enacts Identity Theft Laws

• Privacy Commissioner Decisions

Australia Names New Privacy Commissioner

The former policy director with the Australian Chamber of Commerce and Industry has been named Australia's new Federal Privacy Commissioner. Karen Curtis' appointment, effective immediately, was announced by Attorney-General Philip Ruddock. The announcement brings to an end a lengthy search for a replacement for Malcolm Crompton, who resigned nine months ago and stepped down in April.

Ms. Curtis, who has been a member of the Commissioner's privacy advisory committee (PAC) for more than three years, was "well qualified for the position," Mr. Ruddock said. She was been appointed for a five-year term.

Full press report available at:

http://australianit.news.com.au/articles/

Information and Privacy Commissioner Ann Cavoukian handed the Ontario government a blueprint for action on access and privacy.

In her 2003 annual report, the Commissioner's first to the McGuinty government, she outlines eight key issues that require government action. "These reforms are critical to addressing the public's growing demand for transparency and accountability in public administration and the protection of privacy," said the Commissioner, who was recently re-appointed to a second five-year term.

The eight cornerstones of the Commissioner's blueprint for action cite the need for:

• direct personal action by the Premier to help create a government

• culture of openness;

• made-in-Ontario private-sector privacy legislation;

• the creation of an open meetings law;

• establishment of a provincial chief privacy officer;

• a review of fees charged for access requests;

• reforming the "contentious issues management" process;

• restoring the access and privacy rights of public sector workers; and

• addressing the issue of electronic public registries.

Full press report available at:

http://www.investors.com/breakingnews.asp?journalid=21649795&brk=1

The dismissal of lawsuits brought against Northwest Airlines has online privacy advocates renewing calls for federal privacy legislation. In a decision dated June 6, U.S. District Court Judge Paul Magnuson ruled that seven consolidated class action lawsuits against Northwest had no merit--in part because the privacy policy posted on the airline's Web site was unenforceable unless plaintiffs claimed to have read it. The plaintiffs had contended that the airline, in giving passenger information to the government in the wake of the September 11, 2001, terrorist attacks, violated laws and its own privacy policy.

"Although Northwest had a privacy policy for information included on the Web site, plaintiffs do not contend that they actually read the privacy policy prior to providing Northwest with their personal information," Magnuson noted. "Thus, plaintiffs' expectation of privacy was low."

Privacy advocates assailed that part of the decision, saying it rendered Web site privacy policies all but unenforceable.

Northwest shared passenger information with the National Aeronautical and Space Administration (NASA) for its research into improving airline security following the terrorist attacks of September 11, 2001.

Full press report available at:

http://news.com.com/Privacy+advocates+protest+Northwest+dismissal/

Addressed to OECD member countries, business and industry, and individual users, Privacy Online: OECD Guidance on Policy and Practice has been prepared under the auspices of the OECD Committee for Information, Computer and Communications Policy (ICCP) by its Working Party on Information Security and Privacy (WPISP).

Focused on the implementation of the OECD Privacy Guidelines online, the policy and practical guidance offered in this publication is based on the work achieved within the OECD to fulfil the 1998 Ministerial Declaration on the Protection of Privacy on Global Networks. It reflects the OECD ministerial high-level objective to build bridges between different national approaches in order to ensure the effective protection of privacy and personal data, as well as the continued transborder flow of personal data on global networks.

Full text of notice available at:

http://www.oecd.org/document/49/

Text of "Privacy Online: OECD Guidance on Policy and Practice" available for purchase at:

http://217.26.192.119/cgi-bin/OECDBookShop.storefront/EN/product/932003051P1

The commissioner of the RCMP is calling for a national debate on the use of video surveillance. Guiliano Zaccardelli made the comments in Edmonton on Friday, while speaking to a national conference on access to information and privacy.

Edmonton police plan to step up their use of video cameras on Whyte Avenue this summer. Zaccardelli says Canadians need to decide when video surveillance is appropriate, and when it infringes on privacy. Zaccardelli urged provincial and national privacy commissioners to take a leading role in the debate and development of policies for the use of video surveillance.

Full press report available at:

http://edmonton.cbc.ca/regional/servlet/View?filename=ed_video20040611

"The UK Court of Appeal issued judgment in December 2003 in the case of Durant v. Financial Services Authority. The judgment provides important guidance on the meaning of ‘personal data’ under the UK Data Protection Act 1998 ("DPA"), which implements the EU Data Protection Directive 96/46/EC, and provides guidance on responding to requests for access to information and documents under the subject access provisions of the DPA.

In relation to the definition of "personal data" the Court stated that mere mention of an individual in a document does not necessarily amount to personal data. In order to constitute personal data, information (whether electronic or manual) should have the individual as its focus. The fact that Mr. Durant had initiated the complaints to the FSA did not mean that all information relating to those complaints amounted to his personal data."

Full report available at:

http://www.mondaq.com/article.asp?articleid=26615

A bill to protect consumers from identity theft has been passed by the Vermont Legislature. The bill creates a new crime of identity theft, and provides new tools to assist victims.

The key provisions:

• Allow consumers to place a "security freeze" on their credit reports. The security freeze allows consumers to stop the use of their credit report to open new accounts unless the consumer gives the business specific authority to review the credit report.

• Require local and state police to accept complaints about identity theft. In the past, victims of identity theft had difficulty filing complaints with police departments.

• Require credit card issuers who are offering new credit cards through the mail to verify changes in addresses of consumers.

• Prohibit the posting or displaying of Social Security numbers in public places, and require the Administration to study the use of Social Security numbers and report on ways to limit such use.

• Allow an executor or next of kin to notify credit reporting agencies when a consumer is deceased, so that the credit report isn't used inappropriately.

• Create the crime of identity theft.

Full text of press release available at:

http://www.atg.state.vt.us/display.php?pubsec=4&curdoc=693

No. 259: Bank Required Two Specific Pieces Of Identification As Well As Additional Information For Bank Card

When the individual requested a bank card, a bank employee requested two pieces of identification. The individual provided her driver's licence and her employee ID card containing her photograph, a physical description, and her date of birth. The bank employee refused to accept the ID card and demanded the individual's health insurance card. Then the bank employee asked for the individual's address and date of birth. The individual replied that this information was on the ID provided. The individual was refused the bank card. Subsequent to this incident, the individual met a bank official who apologized for what had occurred and stated that it would not happen again.

The bank admitted that the driver's licence was sufficient to identify the individual and issue her a bank card. The Assistant Commissioner concluded that, in this case, the collection of personal information failed to comply with Principle 4.3.3 in Schedule 1 of the Act. She also found that a reasonable person would not find this kind of information collection acceptable for the purposes of obtaining a bank card.

The Assistant Commissioner pointed out, though, that bank staff had met with the individual after the incident and had apologized. In addition, the bank staff had met with the bank employee in question and had urged him to update his training on the client identification required for a bankcard. The Assistant Commissioner concluded that the complaint was well founded.

Full finding available at:

http://www.privcom.gc.ca/cf-dc/2004/cf-dc_040127_e.asp

An individual ordered something from a company by telephone. A few months later, she asked the company, in writing, to remove her name from its mailing list. The company said that its catalogues and the other documents made available to customers stated that customer lists were shared and laid out the procedure for getting one's name removed from the lists. It said that customers were specifically told in this information that their names and addresses would be shared with other businesses.

The Office of the Privacy Commissioner determined that, at the time of the complaint, the promotional materials contained a notice stating that customers' names and addresses were shared with third parties and identified a procedure for being removed from the lists, thus complying with Principle 4.3 of Schedule 1 of the Act. However, the notice and the suggested procedure for being removed from the lists were unclear. The information was hidden away under headings that were not very representative of the contents. This notice did not constitute a reasonable effort by the company to ensure that individuals were clearly informed about the secondary disclosure purposes for which the personal information was collected. The Assistant Commissioner found, therefore, that the consent was not meaningful and the company had contravened Principle 4.3.2 of Schedule 1 of the Act.

Since the individual involved stated that she was satisfied with the fact that her name had been removed from the list and the company had made the necessary changes to its materials, the Assistant Commissioner concluded that the complaint was resolved.

Full finding available at:

http://www.privcom.gc.ca/cf-dc/2004/cf-dc_040204_e.asp

The complainant obtained financing for the purchase of a mattress through an affiliate of the bank in question. Approximately two years after he had paid for the mattress, he received a credit card statement from the bank, indicating a zero balance owing. He was not aware that a credit card account had been opened in his name, and requested that it be closed. The bank did so immediately, and advised him in writing that it had removed the record of the account from his credit bureau file.

According to the bank, the practice of issuing an unsolicited credit card is a common promotional technique, and the bank did not view it as problematic, as there was no liability for an inactive account on the part of either the bank or the complainant. The compliance office of the bank had not realized, however, that inactive accounts were being reported to the credit bureau.

With respect to the first complaint, the Assistant Commissioner noted that the bank had collected the personal information of the complainant within the two-year time frame set out in the agreement that he signed with the financing company. She therefore found that the bank had not collected the complainant's personal information without consent. She therefore concluded that the first complaint was not well founded.

Regarding the second complaint, the Assistant Commissioner noted the bank's assertion that opening an account and issuing a credit card is a common promotional technique and not problematic as long as there is no associated credit bureau file entry. However, she also noted that while issuing a credit card and opening an account may very well be a common promotional practice, it is clearly not good privacy practice. It involves taking the individual's personal information and opening an account for him or her before the person knows about it, let alone decides whether or not he or she even wants it.

As for the matter of reporting the account to the credit bureau (which the bank acknowledged was a mistake and discontinued the practice), she noted that when an individual applies for a credit card, such reporting is part of the consent agreement. In this instance, the complainant clearly had no idea that the bank had reported his information to the bureau. Thus, the Assistant Commissioner found the bank's use and disclosure of the complainant's personal information in contravention of the consent requirement set out in Principle 4.3 and concluded that the second complaint was well founded.

Full finding available at:

http://www.privcom.gc.ca/cf-dc/2004/cf-dc_040211_e.asp

An individual complained that an airline improperly disclosed her personal information, regarding a flight she had taken, to another company on contract with the airline to conduct surveys on its behalf.

The Assistant Privacy Commissioner deliberated as follows:

• The investigation confirmed that the consulting company was acting on the airline's behalf when it contacted the complainant and that, based on the confidentiality agreement between the two organizations, it was required to respect the confidentiality provisions set by the airline.

• Given this, the Assistant Commissioner found the airline was respecting Principle 4.1.3.

• The airline collected the complainant's personal information for the purpose of her trip.

• When it provided her personal information for the survey, it should first have informed her about the possibility of her personal information being used for this new purpose. She should also have been given the opportunity to withdraw consent.

• Given this, the Assistant Commissioner found the airline in contravention of Principle 4.5.

However, as a result of the complaint, the airline agreed to change its privacy policy to inform customers that it may provide their personal information to another party contracted to perform functions on its behalf, such as a survey, and that they have the option of withdrawing their consent. The Assistant Commissioner was pleased that the airline had taken the opportunity to improve its privacy policies and practices.

She thus concluded that the complaint was resolved.

Full finding available at:

http://www.privcom.gc.ca/cf-dc/2004/cf-dc_040227_e.asp

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