By Terry McQuay, CIPP, CIPP/C

Reflections on five years as privacy commissioner

In a speech to attendees at the 2008 Privacy Invitational Strategic Forum in November, the Privacy Commissioner of Canada, Jennifer Stoddart, reflected on her last five years as privacy commissioner. Ms. Stoddart shared her thoughts on five issues that have become important themes during her tenure to date

The changing nature of privacy issues

Traditionally, privacy arose in the context of interactions between one person and an organization. Today the most important privacy issues arise from systemic threats resulting from rapidly advancing information technologies, for example the Internet, surveillance technologies, social networking, and others. These technologies affect all individuals, and often in a complex and obscure manner.
The commissioner noted that she would like her office to put a greater focus on systemic issues through research, public education, commissioner-initiated complaints, and audits, but that under the current model, complaint-driven investigations consume a tremendous amount of resources.

In an effort to shift focus, the commissioner has asked the government to consider granting her office the flexibility to dismiss some complaints early as serving no public interest or warranting no further investigation

Connection between privacy and security:

There is a need for those in the privacy business to develop closer relationships with security experts. All evidence suggests that organizations are not doing a good job at preventing data breaches.  
Technological advances mean that mountains of personal information can be held in a single database, on a laptop, or even a thumb drive. Many data breaches occur because of simple errors, such as an employee’s failure to follow company policies by, for example, leaving an unencrypted laptop in the car. The OPC’s investigation of TJX showed that even a corporate giant can fail to adhere to elementary rules of privacy protection.

The commissioner noted that mandatory breach notification will go some ways to improving the situation; a requirement to tell people when things go wrong will act as an added incentive for businesses to ensure that personal information is properly protected

Workplace privacy

Over the past five years a better understanding has emerged regarding what is, and what is not, acceptable in the workplace.

The OPC has published a dozen PIPEDA findings about employee surveillance, addressing such issues as the recording of employee telephone calls and the use of new technologies such as biometrics and Global Positioning Systems.

In addition, a recent Federal Court decision goes some ways to clarifying the status under PIPEDA of e-mails exchanged in the workplace. The Court:

• agreed with the OPC that e-mail messages concerning a person constitute personal information under PIPEDA; and,

• concluded that, if e-mails are exchanged for purely personal purposes and are not used or disclosed in connection with the operation of a business, they do not come under the Act.

While some have been quick to characterize this as a significant carve-out of "personal e-mails" from PIPEDA, this finding must be understood in the context of the specific facts of the case, and assessments of whether supposedly “personal e-mails” fall under the Act will need to be undertaken on a case-by-case basis.

While the mere fact that an e-mail is automatically stored on an employer's server because it was sent or received using a workplace computer does not make the e-mail accessible under PIPEDA, an attempt to distinguish between "personal" and "business" e-mails may impose an additional step when organizations respond to access requests.

International data flows

Ms. Stoddart noted that the rapid growth of trans-border data flows means that the only way Canadians’ privacy rights will be protected in the future is by working with other countries to ensure adequate levels of protection for personal information around the globe. The goal should be an equivalent level of basic protection around the world, one that reflects legal and cultural differences.

The Organisation for Economic Cooperation and Development (OECD) has been a key player in developing global solutions to privacy and security issues. The adoption of its Recommendation on Cross-border Privacy Co-operation last year is a positive step forward.  Important work is also taking place within the Asia-Pacific Economic Cooperation in terms of implementing the APEC Privacy Framework.

Five years of PIPEDA

PIPEDA has been in full force for almost five years and most would agree it strikes the right balance; organizations have recognized that PIPEDA’s requirements are not going to bankrupt them and do not require drastic changes in business practices.

The level of compliance with PIPEDA has been generally quite good. The Commissioner noted that a poll commissioned by her office in 2007 found that 67 percent of businesses of all sizes had fully implemented policies on the collection, use, and disclosure of personal information.

Ms. Stoddart expressed that one change she would like to see, sooner rather than later, is mandatory breach notification.

PIPEDA mandates that a review take place every five years, and 2010 is not far away.  The Commissioner has already begun thinking about this next PIPEDA review and whether more substantive changes would make PIPEDA more effective.

One of the issues to explore in the coming years is whether the privacy commissioner should have order-making powers. A paper has been commissioned by her office to determine the implications associated with moving to this model.

A second issue of concern is transparency. PIPEDA dictates a restrained approach to naming the organizations investigated by the OPC. Other than the occasions when the commissioner has gone to court, only a small number of organizations have been named by the OPC, and those were generally previously named in the media.

It is worth questioning whether such an opaque process serves the best interests of privacy regulation.

In summary, the commissioner noted that over the past five years her office has undergone a significant amount of change and the issues it deals with are constantly evolving. The commissioner asked that attendees continue bringing forward issues and ideas to the OPC

Terry McQuay, CIPP, CIPP/C, is the founder of Nymity, which offers
Web-based privacy support to help organizations control their privacy risks. Learn more at www.nymity.com.