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Friday, 02 December 2016 14:00
Many Canadians are justifiably concerned that the vast amounts of information they share with private sector companies – simply by going about their day-to-day activities – may end up in the hands of law enforcement or national security officials without their knowledge or consent. The channels through which vast amounts of personal data can flow from private sector hands to law enforcement with little transparency or oversight can turn the companies we do business with into informers and make us unwittingly complicit in our own surveillance.
A recent Finding of the Office of the Privacy Commissioner of Canada (OPC) illustrates how the law governing the treatment of our personal information in the hands of the private sector has been adapted to the needs of the surveillance state in ways that create headaches for businesses and their customers alike. The Finding, which posted on the OPC site in November 2016 attempts to unravel a tangle of statutory provisions that should not have to be read by anyone making less than $300 per hour.
Basically, the Personal Information Protection and Electronic Documents Act (PIPEDA) governs how personal information is collected, used and disclosed by private sector organizations at the federal level and in all provinces that do not have their own equivalent statutes (only Quebec, B.C. and Alberta do). One of the core principles of this statute is the right of access to one’s personal information. This means that individuals may ask to be informed about the existence, use and disclosure of their personal information in the hands of an organization. They must also be given access to that information on request. Without the right of access it would be difficult for us to find out whether an organization was in compliance with its privacy policies. The right of access also allows us to verify and request correction of any erroneous information.
Another core principle of PIPEDA is consent. This means that information about us should not be collected, used or disclosed without our consent. The consent principle is meant to give us some control over our personal information (although there are huge challenges in this age of overly-long, vague, and jargon-laden privacy policies).
The hunger for our personal information on the part of law enforcement and national security officials (check out these Telco transparency reports here, here and here) has led to a significant curtailment of both the principles of access and of consent. The law is riddled with exceptions that permit private sector companies to disclose our personal information to state authorities in a range of situations without our knowledge or consent, with or without a warrant or court order. Other exceptions allow these disclosures to be hidden from us if we make access requests. What this means is that, in some circumstances, organizations that have disclosed an individual’s information to state authorities, and that later receive an access request from the individual seeking to know if their information has been disclosed to a third party, must contact the state authority to see if they are permitted to reveal that information has been shared. If the state authority objects, then the individual is not told of the disclosure.
The PIPEDA Report of Findings No. 2016-008 follows a complaint by an individual who contacted her telecommunications company and requested access to her personal information in the hands of that company. Part of the request was for “any information about disclosures of my personal information, or information about my account or devices, to other parties, including law enforcement and other state agencies.” (at para 4). She received a reply from the Telco to the effect that it was “fully in compliance with subsections 9(2.1), (2.2), (2.3) and (2.4) of [PIPEDA].” (at para 5) In case that response was insufficiently obscure, the Telco also provided the wording of the subsections in question. The individual complained to the Office of the Privacy Commissioner (OPC).
The OPC decision makes it clear that the exceptions to the access principle place both the individual and the organization in a difficult spot. Basically, an organization that has disclosed information to state authorities without the individual’s knowledge or consent, and that receives an access request regarding this disclosure, must check with the relevant state authority to see if they have any objection to the disclosure of information about the disclosure. The state authorities can object if the disclosure of the disclosure would pose a threat to national security, national defence or the conduct of international affairs, or would adversely impact investigations into money laundering or terrorist financing. Beyond that, the state authorities can also object if disclosure would adversely impact “the enforcement of any law of Canada, a province or a foreign jurisdiction, an investigation relating to the enforcement of any such law, or the gathering of intelligence for the purpose of enforcing any such law.” If the state authorities object, then the organization may not disclose the requested information to the individual, nor can they disclose that they contacted the state authorities about the request, or that the authorities objected to any disclosure. In the interests of having a modicum of transparency, the organization must inform the Privacy Commissioner of the situation.
The situation is complex enough that in its finding, the OPC produced a helpful chart to guide organizations through the whole process. The chart can be found in the Finding.
In this case, the Telco justified its response to the complainant by explaining that if pushed further by a customer about disclosures, it would provide additional information, but even this additional information would be necessarily obscure. The Commissioner found that the Telco’s approach was not compliant with the law, but acknowledged that compliance with the law could mean that a determined applicant, by virtue of repeated requests over time, could come up with a pattern of responses that might lead them to infer whether information was actually disclosed, and whether the state authority objected to the disclosure. This is perhaps not what Parliament intended, but it does seem to follow from a reading of the statute.
As a result of the complaint, the Telco agreed to change its responses to access requests to conform to the requirements outlined in the table above.
It may well be that this kind of information-sharing offers some, perhaps significant, benefits to society, and that sharing information about information sharing could, in some circumstances, be harmful to investigations. The problem is that protections for privacy – including appropriate oversight and limitations – have not kept pace with the technologies that have turned private sector companies into massive warehouses of information about every detail of our lives and activities. The breakdown of consent means that we have little practical control over what is collected, and rampant information sharing means that our information may be in the hands of many more companies than those with which we actively do business. The imbalance is staggering, as is the risk of abuse. The ongoing review of PIPEDA must address these gaps issues – although there are also risks that it will result in the addition of more exceptions from the principles of access and consent.
Thursday, 17 November 2016 14:47
The Supreme Court of Canada has issued a relatively rare decision on the interpretation of Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). Although it involves fairly technical facts that are quite specific to the banking and mortgage context, the broader significance of the case lies in the Court’s approach to implied consent under PIPEDA.
The case arose in the context of the Royal Bank of Canada’s (RBC) attempt to obtain a mortgage discharge statement for property owned by two individuals (the Trangs), who defaulted on a loan advanced by the bank. The mortgage was registered against a property in Toronto, on which Scotiabank held the first mortgage. In order to recover the money owed to it, RBC sought a judicial sale of the property, but the sheriff would not carry out the sale without the mortgage discharge statement. Scotiabank refused to provide this statement to RBC on the basis that it contained the Trangs’ personal information and it could therefore not be disclosed to RBC without the Trangs’ consent.
PIPEDA allows for the disclosure of personal information without consent in a number of different circumstances. Three of these, raised by lawyers for RBC, include where it is for the purpose of collecting a debt owed by the individual to the organization; where the disclosure is required by a court order; and where the disclosure is required by law. Ultimately, the Court only considered the second of these exceptions. Because Scotiabank refused to disclose the discharge statement, RBC had applied to a court for a court order that would enable disclosure without consent. However, it found itself caught in a procedural loop – it seemed to be asking the court to order disclosure on the basis of a court order which the court had yet to grant. Although the Court of Appeal had found the court order exception to be inapplicable because of this circularity, the Supreme Court of Canada swept aside these objections in favour of a more pragmatic approach. Justice Côté found that the court had the power to make an order and felt that an order was appropriate in the circumstances. She ruled that it would be “overly formalistic and detrimental to access to justice” to require RBC to reformulate its request for a court order in a new proceeding.
Although this would have been enough to decide the matter, Justice Côté, for the unanimous court, went on to find that the Trangs had given implied consent to the disclosure of the mortgage statement in any event. Under PIPEDA, consent can be implied in some circumstances. Express consent is generally required where information is sensitive in nature. Acknowledging that financial information is generally considered highly sensitive, Justice Côté nevertheless found that in this case the mortgage discharge statement was less sensitive in nature. She stated that “the degree of sensitivity of specific financial information is a contextual determination.” (at para 36) Here, the context included the fact that a great deal of mortgage-related financial information is already in the public domain by virtue of the Land Titles Registry, which includes details such as the amount of a mortgage recorded against the property, the interest rate, payment periods and due date. Although the balance left owing on a mortgage is not provided in the Registry, it can still be roughly calculated by anyone interested in doing so. Justice Côté characterized the current balance of a mortgage as “a snapshot at a point in time in the life of a publicly disclosed mortgage.” (at para 39)
Justice Côté’s implied consent analysis was also affected by other contextual considerations. These included the fact that the party seeking disclosure of the discharge statement had an interest in it; as a creditor, it was relevant to them. According to the Court, the reasonable expectations of the individual with respect to the sensitivity of any information must be assessed in “the whole context” so as not to “unduly prioritize privacy interests over the legitimate business concerns that PIPEDA was also designed to reflect”. (at para 44) The fact that other creditors have a legitimate business interest in the information in a mortgage disclosure statement is “a relevant part of the context which informs the reasonable expectation of privacy.” (at para 45) In this regard, Justice Côté observed that the identity of the party seeking disclosure of the information and the reason for which they are seeking disclosure are relevant considerations. She noted that “[d]isclosure to a person who requires the information to exercise an established legal right is clearly different from disclosure to a person who is merely curious or seeks the information for nefarious purposes.” (at para 46)
Justice Côté also found that the reasonable mortgagor in the position of the Trangs would be aware of the public nature of the details of their mortgage, and would be aware as well that if they defaulted on either their mortgage or their loan with RBC, their mortgaged property could be seized and sold. They would also be aware that a judgment creditor would have a “legal right to obtain disclosure of the mortgage discharge statement through examination or by bringing a motion.” (at para 47)
It seems that it is the fact that RBC could ultimately legally get access to the mortgage discharge statement, viewed within the broader context that drives the Court to find that there is an implied consent to the disclosure of this information – even absent a court order. The Court’s finding of implied consent is nevertheless limited to this context; it would not be reasonable for a bank to disclose a mortgage discharge statement to anyone other than a person with a legal interest in the property to which the mortgage relates. The Court’s reasoning seems to be that since RBC is ultimately entitled to get this information and has legal means at its disposal to get the information, then the Trangs can be considered to have consented to the information being shared.
Pragmatism is often a good thing, and it is easy to be sympathetic to the Court’s desire to not create expensive legal hurdles to achieve inevitable ends in transactions that are relatively commonplace. It should be noted, however, that the same result could have been achieved by the addition of a clause in the mortgage documents that would effectively obtain the consent of any mortgagor to disclosures of this kind and in those circumstances. No doubt after the earlier decisions in this case and in the related Citi Cards Canada Inc. v. Pleasance, banks had already taken steps to address this in their mortgage documents. One of the reasons for having privacy policies is to require institutions to explain to their customers what personal information is collected, how it will be used, and in what circumstances it will be disclosed. While it is true that few people read such privacy policies, they are at least there for those who choose to do so. Nobody reads implied terms because they are… well, implied. Implied consent works where certain uses or disclosures are relatively obvious. In more complicated transactions implied consent should be sparingly relied upon.
It will be interesting to see what impact the Court’s judicial eye roll to the facts of this case will have in other circumstances where consent to disclosure is an issue. The Court is cautious enough in its contextual approach that it may not lead to a dangerous undermining of consent. Nevertheless, there is a risk that the almost exasperated pragmatism of the decision may cause a more general relaxation around consent.
Thursday, 25 June 2015 12:37
Bill S-4, the Digital Privacy Act has received royal assent and is now law. This bill amends Canada’s Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA, Canada’s private sector data protection statute has been badly in need of updating for some time now. Although it only came into being in 2001, the technologies impacting personal information and the growing private sector thirst for such data have changed dramatically, rapidly outstripping the effectiveness of the legislation. There have been many calls for the reform of PIPEDA (perhaps most notably from successive Privacy Commissioners). The Digital Privacy Act addresses a handful of issues – some quite important, but leaves much more to be done. In this post I consider three of the changes: new data sharing powers for private sector organizations, data breach notification requirements, and a new definition of consent.
The amendments will also add to PIPEDA data breach notification requirements. This is a change long sought by privacy advocates. Essentially, the law will require an organization that has experienced a data security breach to report the breach to the Privacy Commissioner “if it is reasonable in the circumstances to believe that the breach creates a real risk of significant harm to an individual.” (s. 10.1) Affected individuals must also be notified in the same circumstances. “Significant harm” is defined in the legislation as including “bodily harm, humiliation, damage to reputation or relationships, loss of employment, business or professional opportunities, financial loss, identity theft, negative effects on the credit record and damage to or loss of property.” A determination of whether there is a “real risk” of these types of harms can be determined by considering two factors spelled out in the legislation: the sensitivity of the information at issue, and the likelihood that it is being misused or may be misused in the future. Any other “prescribed factor” must also be taken into account, leaving room to include other considerations in the regulations that will be required to implement these provisions. The real impact of these data breach notification provisions will largely turn on how “real risk” and “significant harm” are interpreted and applied. It is important to note as well that these provisions are the one part of the new law that is not yet in force. The data breach notification provisions are peppered throughout with references to “prescribed” information or requirements. This means that to come into effect, regulations are required. It is not clear what the timeline is for any such regulations. Those who have been holding their breath waiting for data breach notification requirements may just have to give in and inhale now in order to avoid asphyxiation.
One amendment that I find particularly interesting is a brand new definition of consent. PIPEDA is a consent-based data protection regime. That is, it is premised on the idea that individuals make free and informed choices about who gets to use their personal information and for what purposes. Consent is, of course, becoming somewhat of a joke. There are too many privacy policies, they are too long and too convoluted for people either to have the time to read them all or be capable of understanding them. It doesn’t help that they are often framed in very open-ended terms which do not give a clear indication of how personal information will be used by the organization seeking consent. In this context, the new definition is particularly intriguing. Section 6.1 of the statute now reads:
6.1 For the purposes of clause 4.3 of Schedule 1, the consent of an individual is only valid if it is reasonable to expect that an individual to whom the organization’s activities are directed would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.
This is a rather astonishing threshold for consent – and one that is very consumer-friendly. It requires that the individual understand “the nature, purpose and consequences” of the use of their personal information to which they consent. In our networked, conglomerated and big-data dominated economy, I am not sure how anyone can fully understand the consequences of the collection, use or disclosure of much of their personal information. Given a fulsome interpretation this provision could prove a powerful tool for protecting consumer privacy. Organizations should take note. At the very least it places a much greater onus on them to formulate clear, accessible and precise privacy policies.
Wednesday, 02 July 2014 07:07
The public-oriented goals of the open government movement promise increased transparency and accountability of governments, enhanced citizen engagement and participation, improved service delivery, economic development and the stimulation of innovation. In part, these goals are to be achieved by making more and more government information public in reusable formats and under open licences. The Canadian federal government has committed to open government, and is currently seeking input on its implementation plan. The Ontario government is also in the process of developing an open government plan, and other provinces are at different stages of development of open government. Progress is also occurring at the municipal level across Canada, with notable open data and/or open government initiatives in Vancouver, Toronto, and Ottawa (to give a few examples).
Yet open government brings with it some privacy challenges that are not explicitly dealt with in existing laws for the protection of privacy. While there is some experience with these challenges in the access to information context (where privacy interests are routinely balanced against the goals of transparency and accountability (and see my posting on a recent Supreme Court of Canada decision on this issue), this experience may not be well adapted to developments such as open data and proactive disclosure, nor may it be entirely suited to the dramatic technological changes that have affected our information environment. In a recent open-access article, I identify three broad privacy challenges raised by open government. The first is how to balance privacy with transparency and accountability in the context of “public” personal information (for example, registry information that may now be put online and broadly shared). The second challenge flows from the disruption of traditional approaches to privacy based on a collapse of the distinctions between public and private sector actors. The third challenge is that of the potential for open government data—even if anonymized—to contribute to the big data environment in which citizens and their activities are increasingly monitored and profiled.
I invite you to have a look at this article, which is published in (2014) 6 Future Internet 397-413.
Canadian Trademark Law
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Electronic Commerce and Internet Law in Canada, 2nd Edition
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