Facebook must satisfy Canada's privacy commissioner by Monday

Following the Commissioner's adverse finding against Facebook, the social networking site's deadling to respond is tomorrowf (See: Canadian Privacy Law Blog: Canadian Privacy Commissioner calls on Facebook to improve privacy practices). I don't expect a big response from Facebook, so we'll have to wait to see if the Commissioner takes them to court. See: Facebook must satisfy Canada's privacy commissioner by Monday.

Opinion: Give privacy laws teeth

The next in the series of three privacy OpEds in the National Post goes to Phillipa Lawson, formerly of CIPPIC:

Give privacy laws teeth Internet use in Canada has had enormous economic and social benefits; individuals and organizations can now broadcast their ideas, promote their businesses and build communities of interest instantly, at minimal cost, worldwide. But technology is a double-edged sword; it can be used for bad as well as good, and the impacts of its use even for non-criminal purposes are not all positive. The greatest casualty of our enthusiastic embrace of the Internet is, without doubt, individual privacy.

Fraudsters, identity thieves, stalkers and vengeance-seekers are using the Internet to solicit, track and prey on victims, often by taking advantage of the vast amount of personal information available online. While such information is a gold mine for imposters and stalkers, its collection, use and trading by non-criminals can be equally damaging for the individuals whose personal information is at issue.

Careless or malicious posting of photos, videos and personal information online can have devastating reputational impacts on individuals -- impacts that may never fully disappear because the digitized information, once released online, never disappears.

A video posted on You-Tube, for example, can turn a small-town student into an instant celebrity, but it can also provoke ridicule worldwide. False rumours can spread like wildfire. Embarrassing photographs posted online can seriously impede future employment prospects. And because the digital medium is so persistent, reputational effects may never be overcome.

Easily abused personal information is offered up to a remarkable extent by individuals themselves on social-networking sites, personal blogs and chat rooms. But many users don't appreciate the extent to which such information is publicly accessible, easily gathered and compiled by others and thus vulnerable to abuse. Only a minority of Facebook users, for example, bother to adjust their privacy settings from the defaults set by Facebook, which are to share with everyone in the Facebook-determined networks they have joined.

Personal information is also made public by friends, acquaintances and organizations who post it online often without the individual's knowledge, let alone consent. Once discovered, it can be too late to undo the damage caused, for instance, by publication of an indiscreet photo or the home address of a high-risk social worker.

Furthermore, there is a huge industry in the collection and trading of personal information, much of it covert. Marketers want to manipulate us into buying more stuff. Insurers want to minimize their risk. Employers want reliable, mature employees. Governments want to make sure that we aren't threatening national security.

Privacy law is about protecting our right to control with whom we share information about ourselves. But it should also recognize that certain uses are simply inappropriate, and that "consent" is often no more than a fiction.

Canada has a reasonably good set of data-protection laws. In general, corporations are required to get our informed consent before collecting, using or disclosing our personal data, and can do so only for purposes that a reasonable person would consider appropriate in the circumstances. Government entities can collect, use and disclose our data only for certain specified purposes.

But these laws do not place explicit limits on the collection and use of personal information posted by children, who are most vulnerable to abuse online.

Nor do our laws, outside Quebec, Alberta and B. C., place significant limits on non-commercial and nongovernmental uses of personal data without consent. While courts are starting to recognize a common-law right to privacy that would fill this gap, there is little to protect most Canadians from privacy abuses that arise outside the commercial or government context.

Moreover, existing privacy laws are only as good as their enforcement. At least one study has shown that there is widespread non-compliance with Canadian privacy laws, especially in the commercial sector.

This is not surprising given that the costs of non-compliance are minimal. The federal privacy commissioner is limited to making recommendations. Complainants in most jurisdictions must engage in expensive lawsuits in order to get binding orders for which they will likely receive no compensation.

This is not good enough. Privacy laws should apply to non-commercial as well as commercial activities. They should prohibit collection and use of kids' data, other than in exceptional cases. They should require meaningful consent, not just an easily overlooked opt-out check box. And we should be able to hold others accountable under privacy laws without undue effort and cost -- it's time to put some teeth into our privacy laws.

Philippa Lawson was director of the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa from 2003 to 2008 and currently practises law in Whitehorse, Yukon.

Privacy needs to be built into the product

Jacob Glick, Canadian policy counsel for Google Inc., has a good OpEd piece in today's National Post. I agree that innovators need to build privacy into their products, not only to manage their own risks but as members of society who have responsibilities for their users. I would say that responsibility is heightened for companies whose products are used by young people who may have an under-developed sense of privacy.

Privacy is in the product

This week, the National Post brings you a three-part series on the rocky place where the Internet meets the law. The question put to today's contributors: Given the proliferation of personal information on the Internet, especially on social-networking sites such as Facebook, how must Canada's laws adapt to ensure our privacy online?

When I moved to Ottawa four years ago, social-networking sites helped me keep up with my friends in Toronto and elsewhere -- in a way and on a scale that wasn't possible previously. Recently, I started micro-blogging on Twitter (mostly because I'm too lazy to blog more than 140 characters at a time) to share my thoughts on work-related matters and other miscellany. Through the Internet, we're reshaping the ways we do business, communicate and represent ourselves to the world. The good news is, we can embrace these changes without surrendering our privacy.

Privacy protection can and ought to be at the heart of innovative tools -- not only as a matter of legal compliance, but also as a principle of product design. This is what Ontario's Information and Privacy Commissioner, Dr. Ann Cavoukian, calls "Privacy by Design."

Questions about the sufficiency of Canada's privacy regime, while relevant, miss the bigger picture. Privacy is best protected by good product design. In fact, Canada has a well-functioning private-sector privacy regime. The Internet is not a Wild West: Existing rules related to legal jurisdiction and privacy apply online, as they do in the physical world. Internet companies, just like their brick-and-mortar brethren, are legally accountable for the ways they collect, use and disclose personal information.

For example, street-level photography has long been part of cartography. With a quick trip to your local municipal archive, you'll discover thousands of photos, taken over decades, of our urban landscapes. For those of us who can't read maps, seeing the world at street level is the easiest way to get around unfamiliar locales. Google Street View takes this traditional discipline and integrates it with digital mapping.

Google's approach is to build products that harness the power of the Internet while protecting privacy for the benefit of hundreds of millions of people worldwide, including tens of millions of Canadians. That's why we have built facial and license-plate blurring into Google Street View and why we make it easy for Canadians to request that we remove any image containing themselves, their kids, their cars or their homes -- even if the image is already blurred. There are privacy rules that apply to Google Street View just as they do to more traditional cartographers.

In addition to offering more accessible and useful mapping data, today's online applications provide exciting tools for collaboration and community building. They help us break through the alienation endemic to urban society and reconnect with our communities in new and fun ways. For example, here in Ottawa, online groups and web-sites give new parents a great support network and help them find local activities they can enjoy with their kids.

One of these innovative communications and collaboration tools is YouTube, a revolutionary platform that turned four this year. YouTube enables people to make their videos, professional or amateur, available worldwide. This ability can blur the line between the public and the private spheres, and Canadians get that. They also know that they are in control of what they post on YouTube -- and with whom they share it.

That's why not every video on YouTube has to be made public. Some can be shared with a smaller circle of friends. That's also what Google has done with the recent launches of Google Latitude, our mobile feature which enables users to select people to share their location with, and our Interest-based advertising system, which was built with tools that allow users to specify which categories of ads they'd like to see (or not see).

Of course, to make sensible choices people must have products that let them make such choices. Innovators should therefore develop applications in which privacy is built in from the start, so that Canadians can control the parts of themselves they reveal to the world.

Regulators ought to hold companies accountable for their privacy practices. However, privacy ultimately should be about good product design -- not just about legislation, regulation or compliance. The best products and businesses will have transparency and user choice built right in. Canadians should expect it.

-Jacob Glick is Canada policy counsel for Google.

BC Privacy Commissioner issues license swiping decision

Earlier this week, the Information & Privacy Commissioner of British Columbia issued a decision (P09-01) related to the controversial practice of scanning photo IDs of patrons by bars, pubs and night clubs.

From the Commissioner's media release:

FOR IMMEDIATE RELEASE

July 21, 2009

Information and Privacy Commissioner Releases Order on Driver’s Licence Scanning

VICTORIA — Information and Privacy Commissioner David Loukidelis today released Order P09-01, in response to a complaint about the scanning of a bar customer’s driver’s licence. The customer complained that, when he went to the bar, employees asked him to produce his driver’s licence, swiped it through a card reader and then required him to have his digital photograph taken. He did not receive what he considered to be a reasonable explanation for why his personal information was being collected and later complained under B.C.’s Personal Information Protection Act (“PIPA”), which regulates the collection, use and disclosure of personal information by businesses.

The OIPC investigated the complaint twice and a formal hearing was eventually held. In Order P09-01, the Commissioner has decided that section 7(2) of PIPA does not allow the organization complained about, the Wild Coyote Club, to force its customers to give up their personal information, to the extent this is now being done, as a condition of being allowed into the bar.

Section 7(2) says a business “must not, as a condition of supplying a product or service, require an individual to consent to the collection, use or disclosure of personal information beyond what is necessary to provide the product or service.” The Commissioner accepted that it is “necessary” to collect personal information of certain customers for the purpose of operating a nightlife establishment, but not “to develop and maintain a personal profile containing the personal information of all customers in order to effectively track the few who may be removed from, and subsequently barred from re-entering, an establishment. Certainly, the full scope of information which is collected by Wild Coyote and the length for which it is retained is not necessary to achieve that purpose” (para. 98). The Commissioner therefore found that “a requirement for consent to the collection of personal information through the TreoScope system is a requirement for consent to the collection and use of information ‘beyond what is necessary’ for providing the service of operating a nightlife establishment in the terms I have described” (para. 98).

Section 11 of PIPA says a business “may collect personal information only for purposes that a reasonable person would consider appropriate in the circumstances”.

The Commissioner found that, under s. 11 of PIPA, the collection of personal information was not appropriate in the particular circumstances, including given the nature and amount of personal information being collected. He found that “it is reasonable, in the case of Wild Coyote, for it to be able, in order to preserve a safe environment for customers, to identify those individuals who have been determined to be violent, or otherwise undesirable for re-entry from a safety perspective, and thus improve customer safety” (para. 127). He went on to say, however, that “much of the information collected by the TreoScope system”, including driver’s licence numbers, “does not further this safety purpose”, adding, “Moreover, I have not been provided with any reason related to improved customer safety for an establishment’s retention of any information at all relating to customers who are not involved in violent incidents” (para. 127).

As regards moving forward with a system for keeping banned customers out of bars, Loukidelis said this:

[132] Of course, I have received no submissions from the other parties on this alternative, and no details from Wild Coyote on how the system would operate if it were aimed at only maintaining a list of banned customers. As a result, I can only decide whether or not the collection as a whole, as it was being conducted at the time of the Investigation Report, complies with s. 11 of PIPA. For reasons already given, I conclude that it is not. The alternative proposed in Wild Coyote’s supplemental submissions would likely involve different considerations and cannot be addressed here.

In closing, the Commissioner said this:

[151] … I am well aware of, indeed share, public concern about gang violence and public safety in British Columbia. Some may assert that the technology involved here is synonymous with safety, such that any decision perceived to constrain ID scanning is a decision against safety. These are easy claims to make, but my duty is to apply PIPA based on the evidence and argument actually before me, which I have done.

[152] On the basis of the material before me, I have decided that it is reasonable for Wild Coyote to be able, in order to preserve a safe environment for customers, to identify those individuals who have been determined to be violent or otherwise undesirable for re-entry from a safety perspective, and thus improve customer safety. For the reasons given above, however, the collection of personal information as a whole does not comply with PIPA. In this light, and in view of the reasons given above, I invite –– indeed, strongly encourage––those involved to seek the views of this Office if they wish to find a solution for collecting personal information of a nature, and in a manner, that complies with PIPA.

Neither the Commissioner nor the OIPC will be giving interviews or commenting on this decision.

For previous posts on this topic, see the keywrd "id swiping".

Canadian Privacy Commissioner calls on Facebook to improve privacy practices

The Privacy Commissioner of Canada has determined that Facebook needs to improve its privacy practices to comply with Canadian privacy laws.

The Report is here: Commissioner’s Findings - PIPEDA Case Summary #2009-008: Report of Findings: CIPPIC v. Facebook Inc. - July 16, 2009.

Here's the media release:

News Release: Facebook needs to improve privacy practices, investigation finds - July 16, 2009

Privacy Commissioner recommends steps to ensure social networking site better protects the privacy of users and meets the requirements of Canadian privacy legislation

OTTAWA, July 16, 2009 — In order to comply with Canadian privacy law, Facebook must take greater responsibility for the personal information in its care, the Privacy Commissioner of Canada said today in announcing the results of an investigation into the popular social networking site’s privacy policies and practices.

“It’s clear that privacy issues are top of mind for Facebook, and yet we found serious privacy gaps in the way the site operates,” says Privacy Commissioner Jennifer Stoddart.

The investigation, prompted by a complaint from the Canadian Internet Policy and Public Interest Clinic, identified several areas where Facebook needs to better address privacy issues and bring its practices in line with Canadian privacy law.

An overarching concern was that, although Facebook provides information about its privacy practices, it is often confusing or incomplete. For example, the “account settings” page describes how to deactivate accounts, but not how to delete them, which actually removes personal data from Facebook’s servers.

The Privacy Commissioner’s report recommends more transparency, to ensure that the social networking site’s nearly 12 million Canadian users have the information they need to make meaningful decisions about how widely they share personal information.

The investigation also raised significant concerns around the sharing of users’ personal information with third-party developers creating Facebook applications such as games and quizzes. (There are more than 950,000 developers in some 180 countries.) Facebook lacks adequate safeguards to effectively restrict these outside developers from accessing profile information, the investigation found.

The report recommended a number of changes, including technological measures to ensure that developers can only access the user information actually required to run a specific application, and also to prevent the disclosure of personal information of any of the user’s friends who are not themselves signing up for an application.

The investigation also found that Facebook has a policy of indefinitely keeping the personal information of people who have deactivated their accounts – a violation of the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s private-sector privacy law. The law is clear that organizations must retain personal information only for as long as is necessary to meet appropriate purposes.

Recommendations to Facebook included the adoption of a retention policy whereby personal information in deactivated accounts is deleted after a reasonable length of time.

Facebook has agreed to adopt many of the recommendations stemming from the Privacy Commissioner’s investigation or, in some cases, has proposed reasonable alternatives to the measures recommended. However, there remain a number of recommendations that Facebook has not yet agreed to implement.

“We urge Facebook to implement all of our recommendations to further enhance their site, ensure they are in compliance with privacy law, and ultimately show themselves as models of privacy,” says Assistant Commissioner Elizabeth Denham, who led the investigation on behalf of the Office.

“Social networking sites can be a wonderful way to connect. They help us keep up with friends and share ideas and information with people around the globe. It is important for these sites to be in compliance with the law and to maintain users’ trust in how they collect, use and disclose our personal information.”

The Office of the Privacy Commissioner will review after 30 days the actions Facebook takes to comply with the recommendations. The Commissioner is empowered to go to Federal Court to seek to have her recommendations enforced.

“The privacy issues stemming from social networking sites are still relatively new. All of us – social networking sites, users and data protection authorities – are only beginning to develop the appropriate rules of engagement in this new world of online communication,” says Assistant Commissioner Denham. “The findings of our Facebook investigation are an important contribution to the development of these rules.”

While the investigation recommendations are aimed at Facebook, Assistant Commissioner Denham said users of social networking sites also have responsibilities.

“We asked Facebook to clearly advise users about its privacy practices, but it’s still up to the user to actually read it and use the privacy tools to control how their information is shared,” she says. As a result of the investigation, Facebook has announced a new privacy tool for its site, which is aimed at giving users more control over who gets to see each item on their Facebook page.

A detailed report on the Facebook investigation is available at www.priv.gc.ca. The website also includes information about some of the other work the Privacy Commissioner’s Office has done on social networking, including guidelines for employers and public education materials.

The Privacy Commissioner of Canada is mandated by Parliament to act as an ombudsman, advocate and guardian of privacy and the protection of personal information rights of Canadians.

Privacy Commissioner to issue Facebook privacy finding tomorrow

The Privacy Commissioner of Canada is holding a press conference tomorrow to announce her findings after a complaint against Facebook's privacy practices. The Ottawa Citizen is anticipating that the report will not be favourable to the online social networking service used by over 250 million users. See: Facebook still violates privacy laws: Experts.

Trojan software compromises Alberta's electronic health record system

This is not good and should have been avoidable:

Commissioner urges vigilance in wake of computer virus outbreak at Alberta Health Services

July 8, 2009

The Office of the Information and Privacy Commissioner has been notified by Alberta Health Services that a virus was present on the Alberta Health Services network in Edmonton. The virus impacted the network and Netcare, Alberta’s electronic health record, before it was discovered and removed.

The virus is a new variant of a Trojan horse program called coreflood and is designed to steal data from an infected computer and send it to a server controlled by a hacker. Coreflood captures passwords and data the user of the computer accesses. The virus was active from May 15 to 29 before it was detected and removed.

AHS identified two groups who are potentially at risk. Patients whose health information was accessed in Netcare through an infected computer and employees who accessed personal banking and email accounts from work using an infected computer. AHS is sending letters to the 11,582 patients whose information may have been exposed and has notified all affected employees.

Commissioner Frank Work says this does not necessarily mean Netcare itself has been infected by the virus; rather the virus may have captured patient data accessed through Netcare from an infected computer and sent it to an external party. “While it appears the risk to patients is low, viruses don’t discriminate and this is an important message to everyone about the need to run up to date anti virus software”, says the Commissioner.

The Commissioner’s office is investigating. In the meantime Work is expecting a full forensic report from Alberta Health Services on how this happened and what steps will be taken to prevent future breaches. Work says “AHS responded quickly when the virus was detected and that steps have been taken to notify users and patients with advice on what they should do to protect personal and health information”.

British intelligence leader's personal details on Facebook

A lesson that just because you're not on Facebook, your friends, acquaintances and spouses may have put your information up there. Or information that may compromise your eligibility to be the head of the British Secret Intelligence Service (aka MI6): MI6 chief blows his cover as wife's Facebook account reveals family holidays, showbiz friends and links to David Irving Mail Online.

Facebook to streamline user privacy controls, raise awareness about dissemination of info

Facebook is responding to privacy backlash concerns by introducing a new unified privacy interface and making users more aware of where their posted materials may be broadcast on the service. This stems, in part, from their plans to make users postings available system-wide like Twitter. (See: Canadian Privacy Law Blog: One privacy step forward, one back for Facebook.)

This is a Good Thing, in my view. The more control you give people to make informed decisions about their privacy, the better. Even if they're completely ignored, it's harder for people to later say they didn't know what was going on. Privacy is about giving people the ability to make informed choices about how their information is collected, used and disclosed.

A copy of a WebEx given by Facebook is available here: Facebook’s Complete Privacy Presentation.

And some additional details are on Facebook's blog: Facebook Improving Sharing Through Control, Simplicity and Connection.

Some coverage from SiliconValley.com.

Responding to privacy concerns, Facebook streamlines user controls - SiliconValley.com

By Scott Duke Harris and Elise Ackerman

Mercury News

Posted: 07/01/2009 11:57:07 AM PDT

Amid mounting concerns about Internet privacy, Facebook on Wednesday announced plans to streamline its user controls by introducing a "Unified Privacy Page."

The Palo Alto social-networking leader said it was taking action to address common complaints among its more than 200 million users worldwide about privacy. The company also announced that it is phasing out familiar regional networks such as "Silicon Valley" to minimize confusion.

Facebook credits its growth to fostering a culture that assures privacy and encourages authenticity. But in the past, Facebook has also engendered controversy by gathering data without user consent — a practice later reversed amid a user backlash.

On Wednesday, Facebook also sought to allay puzzlement and concerns over its fledgling "Everyone" posting feature, which it introduced in March. The feature, Facebook says, eventually will enable users to broadcast messages, photos and video far beyond their personal social networks and to the Internet at large. Facebook is vague about products, but acknowledged they could take the form of bulletin boards or forums on a vast array of topics, as well as a new searchable database.

The "Everyone" initiative has helped revive questions about Facebook's dedication to privacy safeguards. Jeffrey Chester, executive director of the Center for Digital Democracy, portrayed the latest changes as a public relations gimmick.

"I think Facebook realizes they have a political problem,'' he said. "They are in denial. They are in digital denial."

Full control

But Facebook Chief Privacy Officer Chris Kelly, in a conference call with reporters and analysts, insisted that Facebook's fundamental philosophy remains to give users full control over their privacy settings, and said the changes will simplify those controls.

"We've always believed privacy controls enhance this mission," Kelly said.

Facebook users can expect the changes to be tested and refined over the next three weeks. The Unified Privacy Page, the company said, should alleviate user frustration by simplifying and consolidating some 45 privacy settings scattered across six pages in the current format.

Facebook, because of its size and influence, is closely watched by Internet privacy advocates in the United States and abroad. It is the only company listed among 16 "hot policy issues" on the home page of the Washington, D.C.-based Electronic Privacy Information Center, along with such general topics as "domestic surveillance," "cloud computing," "search engine privacy" and "social-networking privacy." Marc Rotenberg, executive director of the Electronic Privacy Information Center, advised Facebook users to carefully watch the changes.

"Changing user settings is a risky strategy, particularly in the privacy world. And this is always what gets Facebook into trouble," Rotenberg said. "It will be very important that users are not opted-in to data sharing under the new settings where they had previously opted out with the original settings.

"Facebook also needs to do more to address data collection by third-party app developers," he added. "Too much personal information, made public by Facebook, ends up in secret profiles."

The Center for Digital Democracy's Chester flatly questioned Kelly's statement that Facebook allows users to control data shared with advertisers. "That's not true. The fact of the matter is they are really not transparent when it comes to how the data is used for advertising," Chester said. "We think it's a black box."

Pop-up questions

Facebook said care will be taken to guide users through the changing privacy process. There will be, for example, pop-up questions to make users doubly aware of where their posts will be sent.

Facebook has already started phasing out the regional networks users often join. About half of Facebook users opted in to such networks, the purpose of which often has caused confusion as Facebook has grown and attracted users with identical and similar names.

Local businesses and advertisers that relied on such networks for marketing will instead be able to use data such as city of residence to reach Facebook users.

One privacy step forward, one back for Facebook

One step forward and one step backward for privacy on Facebook ...

One Step Back: According to the New York Times (The Day Facebook Changed - Messages to Become Public by Default - NYTimes.com), Facebook "feeds" will become publicly available. This is seen as a step to compete with Twitter. This will surprise and upset a lot of Facebook users.

One Step Forward: Facebook will let users specify privacy settings for individual status updates, so you can let your real friends know you're hung over but your acquaintances will remain clueless (Facebook More Ways to Share in the Publisher).

Facebook shoud have learned from the Feed and Beacon debacles by making the default settings more privacy protective. Choice is good, but assuming that people want to disclose more of their personal information is not a good idea.