The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Sunday, January 29, 2006

Database on sellers of used goods upsets Ontario Privacy Commissioner 

The Ontario Privacy Commissioner is up in arms over the growing requirement that citizens hand over their ID and get entered into police databases to engage in entirely legal conduct, such as sell used stuff to second-hand stores. According to the Toronto Star, the Commissioner has made inquiries after hearing of a new bylaw in Oshawa that would require those selling to pawn shops to provide three pieces of government-issued ID (I'm not sure I even have three pieces of government-issued ID). All the information is entered into a database that is handed over to the local police, along with the photo of the vendor.

Here's the gist: - Database on goods sold angers privacy watchdog

The privacy commissioner says she was spurred to investigate after reading a Toronto Star story about a legal battle between the 24-store franchise chain Cash Converters Canada Inc. and the City of Oshawa.

"It opened my eyes to all this stuff that was going on," says Cavoukian. "From privacy perspective this is extremely invasive, and who pays the price for this erosion of rights? It's the average lay person; you and I. The people contemplating crimes, selling (stolen) goods to these shops, are going to learn of this and they are going to use fake ID."

On Monday, Cash Converters asked the Superior Court of Justice to quash amendments to an Oshawa bylaw that would require it to send clients' personal information in electronic format to Durham Regional Police Services, and to pay Oshawa up to $1 per transaction to cover the cost of storing and inspecting data. (A lawyer for the city says Oshawa has no contract yet with BWI to store data.)

Justice Edward P. Belobaba reserved judgment on Monday after lawyer David Sterns presented his multi-pronged attack on the bylaw, but the judge promised a ruling shortly.

He warned Sterns he was not impressed by the argument that a municipality does not have constitutional authority to help police enforce the criminal code offence of possession of stolen property.

The court received a factum from the Ministry of the Attorney General in support of Oshawa's authority, within the umbrella of provincial responsibility, to raise a barrier to criminals and protect local shop owners and their customers from acquiring stolen property, a criminal offence. Belobaba spent more time exploring the arguments that Oshawa would be collecting an improper tax if it collected an unsupported fee per transaction that could cost the local Cash Converters franchisee more than $8,000 a year.

After some discussion, Belobaba also heard Stern's argument that the bylaw would force shop owners to breach federal and provincial privacy laws that require informed consent about the use of private information.

Cavoukian said she is only at the preliminary stages of exploring her concerns about privacy in second-hand shops. She said she sent letters by courier to Oshawa's mayor, clerk and director of legal services on Wednesday.

Oshawa's bylaw will require local shops to request three pieces of government identification from customers selling used goods, including one with a photograph. Shops would then have to copy the photograph digitally, and send it electronically to the police along with a description of the goods sold, the seller's name, address and telephone number, gender, birth date and approximate height.

"Where is (their) legal authority to collect this information?" asks Cavoukian, who reports directly to the speaker of the provincial legislature. "I want them to demonstrate this to me."

Previously, Oshawa shop owners were only required to keep paper record of the names, addresses and a description of customers who sell goods, to make it available to police for inspection, and to report daily to police on items purchased.

Cavoukian says it's one thing for a shop to acquire your personal information in order to stay in touch, or for the police to collect information if you have done something wrong. But she says it's quite another thing for police to get your information if you are just trying to get rid of some clutter around the house.

"Once it gets on a police database, do you really think it's going to get destroyed?" she asks rhetorically. "In this day and age, you don't want your name and address improperly in any database. It could potentially be harmful out of context."

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