Privacy Advisor

Regulator Chat

October 1, 2006

The Privacy Advisor recently interviewed Dr. Ann Cavoukian, Information and Privacy Commissioner of Ontario, about her priorities and accomplishments.

Dr. Ann Cavoukian

1. How does your office's jurisdiction and oversight differ from the Privacy
Commissioner of Canada?

This office is the oversight agency for three provincial laws governing access and privacy rights in Ontario. The Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act govern access and privacy obligations with respect to provincial and municipal government institutions respectively. The Personal Health Information Protection Act, 2004 governs the collection, use and disclosure of personal health information within the health care system in Ontario.

The Office of the Privacy Commissioner of Canada oversees the Privacy Act, which applies to personal information held by the Government of Canada. That office also has oversight in relation to organizations covered by the Personal Information Protection and Electronic Documents Act.
 
2. How long have you held your post and what do you view as the most significant accomplishment on your watch?
I was initially appointed as Ontario's Information and Privacy Commissioner in 1997 and I was re-appointed to a second term in 2004 - my term now extends to 2009. I think that my most significant accomplishment has been raising the profile of privacy and the integral importance of privacy to freedom.

In so doing, I have tried to take a leadership role in the design and implementation of emerging information technology, emphasizing the importance of building privacy into the design and operation of information systems. With respect to legislative initiatives, I was especially gratified - after years of advocating for health sector privacy legislation - that Ontario finally passed the Personal Health Information Protection Act, 2004, the only health sector specific privacy law in Canada that has been deemed to meet national privacy standards, thereby exempting health service providers in Ontario from the requirements of federal privacy legislation.
The breed of privacy I practice is practical privacy - it has to work on the ground, not just at a conceptual level. By taking a practical and balanced approach to applying legislative privacy requirements, my office has also been effective in shaping information practices of provincial and municipal government organizations and health service organizations in Ontario. For example, the Short Notices project undertaken in conjunction with the Ontario Bar Association has helped to ensure that the public has a comprehensive understanding of their privacy rights in relation to personal health information, without complex jargon. For other accomplishments and initiatives, please visit our Web site at: www.ipc.on.ca.

3. You recently released your annual report that highlighted eight issues. Can you summarize your findings?
The findings address significant access and privacy issues. On the privacy side, I addressed a number of developing concerns, including when privacy issues need to be considered in use of radio frequency identification technologies (See our RFID Privacy Guidelines), as well as the destruction of fingerprints and other personal information kept by police in relation to people who were charged with a crime but never convicted.

With respect to personal health information, we successfully addressed a controversy relating to the screening of women who were attempting to access the emergency contraceptive pill, known as Plan B. Following a highly successful collaboration with the Ontario College of Pharmacists and Ontario Pharmacists' Association, the Ontario College of Pharmacists issued new guidelines for pharmacists operating in Ontario. We also addressed the disclosure of essential information in emergency situations, stressing that privacy should not be used as a shield to minimize disclosure in these circumstances. In the annual report, I also highlighted the need for securely destroying personal information so that it cannot be reconstructed in any way. In addition, this office continues to closely follow the steps being taken towards the development of an interoperable electronic health records system in Ontario.

4. Your office also worked on RFID guidelines. Is this an urgent issue in Canada, and if so, how will the new guidelines help when companies seek to employ RFID technology?

Consumers have fears about the misuse of RFID-linked personal data, such as possible surveillance, profiling and identity theft. While the privacy and security questions are real, consumer confidence and trust are THE central issues.

The media often help to promote sensationalized or alarmist views about RFID technologies and their uses. The reality is that, for retail consumer products, there are currently NO item-level RFID deployments in Canada.

Retail organizations need to be pro-active on this front to assuage concerns and prevent possible consumer backlashes. They need to address the fears head-on with clear promises and strong accountability regarding their use of RFID technology and associated data. This is what my office's RFID Privacy Guidelines (the Guidelines) and Practical Tips for Implementing RFID Privacy Guidelines (theTips) help provide. Based on the CSA Privacy Code, the Guidelines and Tips provide a gold standard for business accountability and consumer trust and, ultimately, compliance with the law and business success.

The IPC will continue to work with the RFID industry and retailers to promote adoption of the Guidelines and to ensure the necessary confidence and trust in the marketplace for privacy-friendly RFID adoption.

5. What emerging privacy issue do you see on the horizon for Canadians?
With the advancement of information technology, personal information has become a primary asset for public and private organizations. Therefore, an emerging privacy issue is the need for the responsible management of this asset. The impact of weak governance can be seen in the increase of data breaches, the over-collection of personal information without justification, and the absence of notification about the use of personal information, to name a few. These consequences will erode customer confidence and undermine business success.

On the flip side of this coin, individuals are concerned about the erosion of their ability to control the collection, use and disclosure of their personal information by organizations. This loss of control can lead to harmful consequences such as on-line fraud, identity theft, no-fly lists and profiling.

Due to the vast reservoir of privately held databases and the capacity of private companies to gather vast amounts of personal information through their interactions with consumers, one trend that has emerged over recent years is the requirement for private sector companies to provide intelligence to government agencies to assist in fulfilling public sector mandates such as law enforcement and public safety. For example, financial institutions are required to provide information to be used to combat organized crime and money laundering. To combat property crime, some jurisdictions require used goods retailers to collect and make available to the police personal information about individuals who sell used goods. The federal government is contemplating the introduction of legislation that would require Internet service providers to provide personal information about their customers, upon request by the law enforcement community, for investigation of a variety of criminal activities. While this trend toward using private companies as agents of the state in the war on crime has existed for some time, it intensified dramatically following the events of September 11, 2001, and poses a significant risk to privacy.

6. What aspects of Canadian privacy laws, or privacy laws specific to Ontario, are working well and what aspects need to be amended or strengthened?
On the whole, Ontario's privacy laws are working well, and I welcomed the enactment of Ontario's Personal Health Information and Protection Act, 2004 which introduced privacy rights and protections in relation to personal health records.

I would like to see Ontario's public sector legislation strengthened by expanding the scope to many organizations that are not currently covered by the legislation, yet receive large government transfer payments. While I was pleased to see universities recently brought under the jurisdiction of the provincial Act, more inclusive public sector laws would enhance access and privacy rights in Ontario.

I have also been calling for private sector privacy legislation at the provincial level. A made-in-Ontario private sector law comparable to those enacted in Alberta and British Columbia would ensure that companies with operations in all three provinces face a consistent set of rules.

Finally, I believe that in light of the marked increase in security breaches, all privacy laws should include a mandatory breach notification requirement, as does Ontario's health information privacy law. Such provisions would require organizations to notify the public of breaches relating to the disclosure of their personal information.

7. What message did you deliver to privacy pros last week during your keynote at the IAPP Privacy Academy 2006 in Toronto?
Consumers are losing trust and confidence in the Internet and e-commerce because of systemic identity problems such as on-line fraud and surveillance. A far-reaching solution called the "7 Laws of Identity" has been proposed by technology expert, Kim Cameron, and is gaining momentum.

I believe that privacy must be built into this identity architecture and in my keynote at the IAPP Privacy Academy 2006, I showed how this can be done. I am inviting privacy professionals to become engaged and make this proposed solution a reality.

Dr. Ann Cavoukian is Ontario's Information and Privacy Commissioner. Initially appointed in 1997, she is currently serving her second term as Commissioner. Dr. Cavoukian joined the IPC in 1987, as its first Director of Compliance. Dr. Cavoukian's published works include a book titled, Who Knows: Safeguarding Your Privacy in a Networked World (McGraw-Hill, 1997), co-authored with Don Tapscott, who also is an IAPP Privacy Academy 2006 keynote speaker.

Editor's Note: Regulator Chat will be an occasional feature in The Privacy Advisor.