Privacy @ Gowlings - April 2005

Edited by E. Michael Power

• California: Stolen Laptops Contain Medical Info on 185,000 Patients

• Canada: Patriot Act Decision

• Canada: Poll Shows E-mail Marketing Making Comeback

• Five Mistakes of Incident Response

• System Tracks PDF Documents Over Internet

• U.K.: Airport Photographs Violate Data Protection Act; Compensation Awarded

• U.S.: Fight Over Whether to Have Government CPOs

• Privacy Commissioner Decisions

California: Stolen Laptops Contain Medical Info On 185,000 Patients

A San Jose, California medical group acknowledged that two computers stolen from the organization's offices contained sensitive information on some of the group's patients, including Social Security numbers and confidential medical information on 185,000 people.

The computers were taken from behind locked doors at the administrative offices of the San Jose Medical Group on March 28, after thieves broke through the doors, according to a statement posted on the group's Web page. News of the theft comes just a week after news of a similar incident at the University of California, Berkeley, that resulted in the loss of personal information on 98,000 graduate students and applicants to the University.

The computers that were taken were new and contained medical billing codes and Social Security numbers for the group's patients, but not complete medical records.

Full press report is available at:
http://computerworld.com.sg/ShowPage.aspx?pagetype=2

In the matter of BC Govt Serv. Empl. Union v. British Columbia (Minister of Health Services),2005, BCSC 446, Mr. Justice Melvin of the British Columbia Supreme Court, issued his decision on March 23, 2005.

On January 28, 2005, the BCGSEU sought a declaration that the Master Services Agreement entered into between the Minister of Health Services and the Maximus companies dated November 4, 2004, is ultra vires; an order quashing the Master Services Agreement; and a declaration that the disclosure of sensitive personal information pursuant to the Master Services Agreement is contrary to the Charter and other relief.

In support of that amended petition the petitioner argued that :

• The contracting out of the duties and powers listed in s. 5(1) of the Medicare Protection Act to a private contractor is contrary to the requirement of public administration as set out in the Canada Health Act, and is thus ultra vires;
• The Master Services Agreement will require disclosure of personal information in circumstances that will constitute a violation of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 155, and is thus ultra vires;
• The release of highly sensitive personal information pursuant to the Master Services Agreement contravenes ss. 7 and 8 of the Canadian Charter of Rights and Freedoms.

In his opinion, Mr. Justice Melvin held "the petitioner has standing to bring this petition. However, in my opinion the petitioner does not fall within the provisions of the Judicial Review Protection Act and their petition must fail as a result. In addition, I am satisfied that there is no breach of the provisions of the Medicare Protection Act or the Canada Health Act in relation to public administration. Consequently, the petition fails on that basis as well.

Finally, I am satisfied that there has not been a breach of either ss. 7 or 8 of the Charter or of The Freedom of Information and Protection of Privacy Act. Consequently, the petition fails on that basis as well."

Text of full decision is available at:
http://www.courts.gov.bc.ca/Jdb-txt/SC/05/04/2005BCSC0446.htm

Canada: Poll Shows E-Mail Marketing Making Comeback

Those on the outside might assume the e-mail marketing industry is in a state of crisis as a result of the backlash against spam, but insiders say business is booming.

Issues with unsolicited e-mail have indeed made some companies wary of sending messages that might be misconstrued as spam, but despite these threats, e-mail service providers and their clients maintain that e-mail marketing continues to gain support from advertisers.

And they point out that in Canada, consumers seem more willing than ever to receive relevant commercial e-mail that promotes products and services. The key word is relevant. Ipsos-Reid reports that roughly eight in 10 Canadian Internet users have registered to receive e-mail from commercial websites. And those who are registering are doing so at an average of nine sites, up from about eight in 2004.

Part of the reason, market watchers say, is that privacy legislation, such as the Personal Information Protection and Electronic Documents Act (PIPEDA ), introduced in Canada last year, and anti-spam laws in the United States are helping to rebuild the image of e-mail advertising by reducing the amount of unwanted spam clogging in-boxes.

Full press report is available at:
http://www.theglobeandmail.com/servlet/story/RTGAM.20050331.wtwspam31/

Five Mistakes Of Incident Response

All companies have to address security incident response. While it's not uncommon for organizations to have weak prevention and detection capabilities, a company must respond once it has been the target of a computer attack. This story presents five mistakes that companies make regarding security incident response.

• Not having a plan
• Failing to increase monitoring and surveillance
• Being unprepared for a court battle
• Putting it back the way it was
• Not learning from mistakes

Ideally, the organization should build an incident-related knowledge base, so that procedures are consistent and can be repeated in practice.

Full press report is available at:
http://www.computerworld.com/securitytopics/security/holes/story/

System Tracks Pdf Documents Over Internet

A Canadian company has developed a system for businesses to track PDF documents in much the same way they can keep tabs on Web visits.

Before, businesses could count the number of times documents were downloaded, but they had no way of knowing whether the files were passed around or even opened. With the service from Remote Approach, companies can insert a small programming script into documents using the popular Portable Document Format from Adobe Systems Inc.

The script sends a message over the Internet with such details as the file name, the computer's Internet address and any unique identifier the company might have included.

Remote Approach is also working on a feature that would let a company block a document from being read if there's no Internet connection. Another feature in the works would allow tracking on a page-by-page basis.

Full press report is available at:
http://www.globetechnology.com/servlet/story/RTGAM.20050331.gtpdfmar31/

U.K.: Airport Photographs Violate Data Protection Act; Compensation Awarded

A passenger has been awarded £4,000 compensation after Manchester Airport took his photograph without permission.

The landmark pay-out, for breaking data protection rules, could open the floodgates to thousands of other claims. Another passenger has been given £2,000 in an out-of-court settlement and 20 other travellers have begun legal action against the airport. Two claims have been rejected.

Photographs are taken as people on domestic flights go through security and baggage checks at Terminals One and Three. The pictures are scanned onto a barcode stuck on the back of boarding cards so staff can check the correct passenger is boarding a flight and stop domestic passengers buying goods at duty-free prices.

After a year-long battle for an apology, airport bosses settled the case and the complainant was awarded £4,000 - £2,000 for each photo. Manchester Airport has now produced leaflets advising passengers of their rights. Security staff have been told that passengers refusing to be photographed can stay landside until their flight is called when a security officer will escort them to the gate.

Full press report is available at:
http://www.manchesteronline.co.uk/men/news/s/153/

U.S.: Fight Over Whether To Have Government CPOS

A fight over privacy is brewing on Capitol Hill, and it has nothing to do with the Homeland Security Department screening travelers or the General Services Administration's lost credit-card data. The current spat revolves around a little-known provision in the fiscal 2005 omnibus appropriations bill requiring agencies to name chief privacy officers and perform a number of privacy oversight functions.

Two influential lawmakers are battling over whether agencies need more privacy oversight and who should administer it. And the Office of Management and Budget is caught in the middle, trying to pacify both sides. To that end, OMB is drafting new reporting requirements and requiring agencies to name a senior official to be in charge of privacy.

Full press report is available at:
http://www.gcn.com/24_7/news/35412-1.html

Privacy Commissioner Decisions

NO. 288: Identification Requirements For Cell Phone Services

When the complainant contacted the company to apply for a special cell plan service available to employees of the company he worked for, he was asked to provide four pieces of identification: date of birth, major credit card, driver's licence, and his social insurance number (SIN). According to the company, the date of birth, along with either a credit card, the SIN, or bank information is necessary to ensure that the correct credit bureau information is obtained for the credit evaluation. The driver's licence (or alternative) is needed for positive identification of the applicant to prevent subscription fraud.

The Office reviewed the practices of other telecommunications companies with respect to identification requirements and found that three major wireless companies and two regular telephone companies all required two pieces of identification. Of the five reviewed, all provided three or more choices and only one did not request date of birth.

Although the company maintained that its purposes could only be achieved with three pieces of identification, the Assistant Commissioner disagreed. For example, she noted that a driver's licence or passport meets the need to visually authenticate identity and provides verification of the date of birth, which is needed to obtain accurate information from the credit bureau. By asking for one of those, in combination with a credit card or bank information (which supports both identity authentication and accurate credit information), the company could still achieve its objectives. In the Assistant Commissioner's view, a third piece of identification is not needed, and is not in fact industry practice.

She therefore found that the company was requiring more personal information than necessary, contrary to Principle 4.4 of Schedule 1. Accordingly, the Assistant Commissioner concluded that the complaint was well-founded. The Assistant Commissioner recommended that the company amend its policy to require only two pieces of personal identification and report back to her within 60 days on its progress in this regard.

Text of full finding available at:
http://www.privcom.gc.ca/cf-dc/2005/288_050201_e.asp

NO. 289: Stolen Laptop Engages Bank's Responsibility

In early 2004, a laptop computer containing the personal information of 960 bank clients was stolen from an employee's locked vehicle while it was parked in her home's underground garage. The theft was reported to the police, as well as to the Office, prior to the complainant filing a complaint. The bank contacted the complainant to advise him that the personal information on the laptop consisted of his name, address, telephone number, and his mutual funds account number (but no balance). The bank also informed the complainant that the laptop had been in the custody of a financial planner/advisor, who was using the information to set up appointments with clients to provide them with information about other bank products and services.

According to the bank, the complainant's name was included on the list of clients for two reasons: the value of one of his accounts met or exceeded a pre-set target, and the account was not managed by a "relationship" manager, such as a bank advisor.

On the matter of inappropriate use of his personal information, the Assistant Privacy Commissioner noted that the reason the complainant's personal information was on the laptop was that the bank intended to market other bank products and services to him. The bank had sent the complainant two privacy notices that described this practice and offered clients the opportunity to have their names suppressed from the bank's marketing lists. As the complainant had not requested suppression, it would appear that the bank had his implied consent to include his name on such a list, and was acting in accordance with Principle 4.5. When the complainant informed the bank after the theft of the laptop that he wanted his name removed from the list, the bank suppressed it. She therefore concluded that the use complaint was not well-founded.

As for the safeguards, the Assistant Commissioner noted that, with respect to laptop computers, the bank had policies and procedures in place that required passwords and safe physical storage of the computers. Although these policies and procedures appeared to meet the requirements of Principle 4.7, the financial planner in this instance did not follow the bank's recommendations regarding physical security, and left the laptop unattended on the seat of her vehicle. The Assistant Commissioner therefore found the bank in contravention of Principle 4.7. The Assistant Commissioner concluded that the safeguard complaint was well-founded.

Text of full finding is available at:
http://www.privcom.gc.ca/cf-dc/2005/289_050203_e.asp

NO. 290: Video Surveillance Cameras At Food Processing Plant Questioned

A Canadian Food Inspection Agency (CFIA) employee working at a federally registered meat processing plant complained that the company was collecting his personal information by way of video cameras without his consent, and had disclosed it to his employer in an attempt to undermine his work and the work of the other federal inspectors at the plant.

There are 15 cameras on site, located at entry and exit points, and in all areas of the plant, including the evisceration room where CFIA employees have their workstations. The cameras are motion activated, but have no pan or zoom capacity. They record digitally on the hard drive and automatically overwrite when the memory is used up. The cameras are used by the plant manager, who has a monitor in his office. The camera in the evisceration room captures the CFIA employees at their workstations. Since the CFIA employees also monitor the other areas of the facility, their images may also be captured by other cameras as they move through the work site.

The company stated that the cameras are used to address security concerns and to monitor hygiene, safety and product safety. In support of the security argument, the company cited an incident where one of its trucks was stolen, and the company was able to provide police with a photograph of the theft because of the cameras. Equipment and meat products had also been stolen. The complainant did not dispute that cameras could be useful for security purposes, and did not take issue with their installation at entry and exit points to the facility for such a purpose.

The Assistant Privacy Commissioner began her deliberations by noting that her findings were limited to collection of the CFIA employees' personal information by the video camera directly trained on their workstation in the evisceration room. Although the company claimed that the camera was useful in monitoring food safety, it presented no evidence to support this argument. The Assistant Commissioner found it difficult to understand how having a camera in this area - a camera that cannot provide a clear picture of the animals - ensures product safety when the very people responsible for ensuring product safety are in the room, monitoring production.

Thus, the Assistant Commissioner determined that using video surveillance in the evisceration room does not appear to be demonstrably necessary to ensure product safety, nor would it likely be effective in meeting that need. As she noted, the need for product safety was already being met by the federal inspectors. She also commented that the same federal inspectors are responsible for monitoring employee hygiene, and do so while at their workstations. If there were a need to deal quickly with equipment or mechanical failures in the evisceration room, this could be accomplished in a much less privacy-invasive fashion through the deployment of one of the three lead hands.

In sum, the Assistant Commissioner found that the company was collecting the complainant's personal information without his consent, contrary to Principle 4.3, for a purpose that upon closer examination would not likely be considered appropriate in the circumstances, as outlined by subsection 5(3). The Assistant Commissioner concluded that the collection complaint was well-founded. The Assistant Commissioner recommended that the company remove the video camera from the evisceration room where CFIA staff have their workstations and to report back to her on its progress in this regard.

Text of full finding is available at:
http://www.privcom.gc.ca/cf-dc/2005/290_050127_e.asp

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.