The Power of Perspectives

The Canadian Bar Association

Kim Covert

Once more unto the breach regulations

October 26 2017 26 October 2017

The news of a data security breach can send a chill through your bones. Anyone who’s ever shared sensitive information online is vulnerable, and these days that’s more and more of us – think of the three billion people affected by the breach at Yahoo! this summer.

The federal government is drafting regulations under PIPEDA on how and when to notify people whose information may have been caught up in a breach. They published those draft regulations in the Canada Gazette in September.

Overall, the comments by the CBA’s Privacy and Access Law Section and CCCA on the draft regulations are aimed at finding the sweet spot for consumer protection and the business exigencies of the notifying organization.

They congratulate the government for accepting earlier CBA recommendations not to require notices and reports of a breach to identify, or speculate on, the types of harm that may result from it. “The CBA Sections recommended that the content of reports be based on facts,” the latest submission says.

The draft regulations require “a notice to be sent to each individual affected by a breach of security safeguards where it is reasonable in the circumstances to believe that the breach creates a real risk of significant harm to the individual.”

But the draft regulations go too far when they require the notices of a breach to include information about the organization’s internal complaint process, the submission says. Providing a number to call for more information is sufficient. The focus of the notice, the submission says, should be on giving the individual a user-friendly message on how they can obtain further information about the breach and what they can and should do to protect themselves.

The draft regulations set out a number of ways to notify an affected person, which the Sections believe can be simplified to: a) email, b) secure messaging (if the affected individual has consented to receiving information from the organization in this manner), c) letter, d) oral communications (which may or may not include voice mail), and e) in-person meetings.

The Sections also argue that the use of email for this purpose should not require previous consent since it would not be classified as a “commercial electronic message” for CASL purposes.

“Direct notification is intended to alert individuals to a privacy breach and to give them an opportunity to reduce the risk of harm resulting from the breach, or to mitigate that harm. Expedited timing is critical to give individuals the best chance at risk mitigation and harm reduction. Imposing a prior consent pre-condition on the ability to send a notification via email reduces the capacity of an organization and individual to achieve that objective.”

The Sections also point out inconsistencies in the requirements for addresses and phone numbers – “last known address” and “home” phone, but not necessarily “last known phone number.” There is no reason for these specific requirements – requiring all contact points to be “last known” is sufficient.

Sometimes it is better – or more feasible – to notify individuals affected by a data breach indirectly. The Sections suggest amending the draft regulations to allow this when the contact information is “likely” to be out of date (the draft regulations say “is” out of date), or when the cost of directly notifying each individual in the affected group would be prohibitive to the organization.

And where the regulations state that the manner of indirect notification could be an “advertisement,” the Sections recommend using the word “announcement” instead, as “advertisement” is a narrow term with commercial connotations.

For more on PIPEDA and security breaches, please see the CBA submissions of March 2017 and May 2016.

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