Article: The PIPEDA puzzle

The online business publication, ProfitGuide has an article on PIPEDA that is worth looking at.

The PIPEDA puzzle:

"Recent judgments prove Canada's new privacy act has surprisingly long arms

By Laura Garetson

PROFIT Magazine / June 2004

It's 2:25 P.M. Two employees, certain no one is watching, slip into their cars and drive away from work 35 minutes early. But the shift supervisor sees the entire incident with the aid of a security camera and doles out reprimands the next day. The employees take the boss to court, arguing the camera invaded their privacy. True or false: the employees win? "

One thing that it didn't highlight is that PIPEDA only applies to employees if they are employees of a "federal work, undertaking or business". (See by blog entry "PIPEDA and Employees".)

From my perspective, the article does a good job of telling businesses that PIPEDA is for just about every organization:

"Clearly, PIPEDA is not solely the concern of telemarketers and mailing-list brokers. So how can your firm avoid falling afoul of the act? The trick is realizing that PIPEDA applies not only to personal information collected on paper or electronically, but from all sources, including various correspondence, pictures, sound recordings and videotape. "Businesses need to focus not just on info they collect from individuals, but on everything they learn about those about individuals," says Robert Parker, Toronto-based national privacy partner with Deloitte and Touche. The key, according to Parker, is to ask yourself the following when collecting personal information: "Is this reasonable to do? Was it reasonably done? Are there less intrusive methods I could use?" That, he says, is a good start to covering the bases."

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Article: Public supportive of strict rules for telemarkers

From today's Toronto Star:

"TheStar.com - Public supportive of strict rules for telemarkers

How to make `do not call' list work

TYLER HAMILTON

Telemarketing.

Doesn't just the sight of the word make your blood boil? Not that all telemarketers are bad, it's just that the very word conjures up the image of dinner-time interruption and an uncomfortable phone conversation that usually ends with the handset crashing to its base.

To its credit, the Canadian Marketing Association is trying its best to separate itself from insensitive, rogue marketers who insist on bothering us at the worst of times and, despite our pleas, call back over and over again, or worse, defiantly challenge us when we say, 'Sorry, not interested.'

The problem is, the CMA only has 800 members - all big, respectable companies with reputations to protect and enough sense to listen when we ask to be removed from their respective calling lists."

Full text here ...

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Article: Hey kid - you wanna buy a ...

The Christian Science Monitor has published an article on issues related to the privacy of children's information, particularly information that is compliled for marketing purposes. The United States already has legislation that deals with the privacy of kids' information online (the Children's Online Privacy Protection Act), but there is -- at present -- no regulation of offline collection and marketing. This will change if a legislative initiative by Senators Wyden and Stevens is passed by congress (see http://thomas.loc.gov/cgi-bin/bdquery/z?d108:s.2160:.

Hey kid - you wanna buy a ... | csmonitor.com:

"With Gary Ruskin at its helm, Commercial Alert has gained recent attention on Capitol Hill for its "Parents' Bill of Rights."

The document includes nine provisions to help parents combat commercial influences, one of which calls for banning advertising aimed at children under 12 and two of which have already been introduced in the US Senate.

The first bill under consideration requires fast-food chains to disclose basic nutritional information, and the other, introduced last month by Sens. Ron Wyden (D of Oregon) and Ted Stevens (R of Alaska), would ban list brokers without parental permission from collecting data about children 16 and under - everything from ethnicity and family income to hobbies - and selling it to advertisers and marketers.

This practice extends even to the diaper set, which is especially alarming to parents. But no matter what the child's age, parents consider these lists an invasion of privacy.

"Parents are flabbergasted and angry when they learn that their child's information could be sold on the Internet," says Chris Fitzgerald, press secretary for Senator Wyden.

"These list brokers work by stealth," says Mr. Ruskin. "No one even knows this is happening. Children are naturally more trusting than adults, and that trust is often easy to exploit."

Repeated calls to two of the best-known list brokers, American Student List and Student Marketing Group, were not returned. But Doug Wood, general counsel to both the Association of National Advertisers and the Advertising Research Foundation, spoke up in list brokers' favor. Banning them, he says, would be discriminatory and a violation of the First Amendment.

He doesn't even favor an "opt out" feature similar to the Do Not Call Registry for telemarketers."There would be a huge rush of parents who sign up out of ignorance," Mr. Wood explains. "Some of the things they sell to kids are valuable. The fact that we are a nation of sellers is not necessarily a bad thing."

But Wood, who has three children, does concede that list brokers might want to tweak their approach: "They could do themselves a favor by being more open," he says.

The Children's Listbroker Privacy Act will be heard sometime before October, says Courtney Schikora, press secretary for Senator Stevens. That may not be soon enough for some activists, but most are encouraged that politicians are listening.

See also coverage in Wired.

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Findings: New findings issued by the Office of the Privacy Commissioner

Commissioner's Findings - Privacy Commissioner of Canada - For the first time in quite a while, the Office of the Privacy Commissioner has issued a new batch of findings (and when I say "new", it only means newly-released because they all date from August through September of last year):

1. PIPED Act Case Summary #223: Bank accused of collecting too much information from credit card applicant


2. PIPED Act Case Summary #222: Bank exceeds time limits in responding to an access request


3. PIPED Act Case Summary #221: Bank fails to respond to access request within time limit


4. PIPED Act Case Summary #220: Telemarketer objects to employer sharing her sales results with other employees


5. PIPED Act Case Summary #219: Bank requires credit checks as condition for opening deposit account


6. PIPED Act Case Summary #218: Bank accused of using personal information for purposes other than those for which it was initially collected


7. PIPED Act Case Summary #217: A telecommunications company requires two pieces of identification from a subscriber


8. PIPED Act Case Summary #216: An airport is accused of not having disclosed all the personal information requested by an employee and of not having retained other personal information

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Website: Mathew Englander, privacy advocate

Mathew Englander was one of the very first complainants under PIPEDA. According to sources at the Office of the Privacy Commissioner, his complaint was sent by e-mail on January 1, 2001 at 12:01 am. He complained that Telus, the phone company in British Columbia, violated PIPEDA by requiring the payment of a fee to have an unlisted number. His complaint was determined by George Radwanski to be not well founded" (See PIPEDA Case Summary #8). Mr. Englander took the case to the Federal Court, where Blais J. agreed with Radwanski (See Englander v. Telus, [2003] FCT 75). The case is now under appeal and Mr. Englander has made his Memorandum of Fact and Law [PDF] for the appeal available on his website. His website also has other links, including a page on telemarketing rules in Canada.

The Englander case will be one to watch, because it raises some very important issues that need to be sorted out. One question is how much of an obligation do consumers have to educate themselves about a company's privacy practices and policies? Telus apparently never told customers about the option of having an unlisted number or of having their names included in the normal directory but left off CD-Roms sold to marketing companies. There is also an issue of how PIPEDA interacts with other statutes or regulators, such as the Canadian Radio-Television and Telecommunications Commission, which had OK'd the Telus practices. Finally, there is the key issue of whether the hearing before the Federal Court is really a completely de novo hearing or whether the Privacy Commissioner should be granted some curial deference. Stay tuned!

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