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.

Saturday, February 18, 2006

Finding: Scanning TCP headers by ISP does not violate PIPEDA 

The Privacy Commissioner's office has recently released a new finding (Commissioner's Findings - PIPEDA Case Summary #319: ISP's anti-spam measures questioned (November 3, 2005)) after a subscriber to a residential high-speed internet service complained that its anti-spam measures violated PIPEDA. In this case, the ISP filtered outgoing packets and blocked any access to outgoing mail servers (SMTP) that are not part of the ISP's service. This is part of the ISP's anti-spam measures. The complainant alleged that by "reading" his outgoing e-mail, the ISP was collecting and using his personal information without consent.

The Assistant Commissioner disagreed. Here's the gist:

In making her determinations, the Assistant Privacy Commissioner deliberated as follows:
  • The first issue the Assistant Commissioner considered was whether any of the information under discussion in this complaint could be considered “personal information” as defined in section 2.
  • In her view, an IP address can be considered personal information if it can be associated with an identifiable individual.
  • In the complainant’s case, he is assigned a dynamic IP address, which means that it changes each time he logs on. This IP address was associated with the particular computer he was using.
  • The ISP does not identify the user before he or she is allowed to send e-mail, but ensures that the user is directly connected to the ISP network and is therefore a customer of the ISP.
  • For the purposes of this complaint, which involved the sending of e-mail by the complainant, the Assistant Commissioner accepted that the originating IP address identified the complainant and was therefore his personal information, as per section 2.
  • The ISP needs to know the destination IP address in order to deliver the message that is being sent. A port address, however, is not personal information as it is not linked to an identifiable individual.
  • The complainant accepted the terms of the service agreement, which specify that the ISP collects and uses personal information for the purpose of providing service. By virtue of sending e-mail, the complainant also consented to the ISP reading the IP addresses to route the mail.
  • She therefore did not find the ISP in contravention of Principle 4.3 when it reads the originating IP address.
  • As for the allegation that the ISP reads the contents of the entire e-mail packet without the complainant’s consent, the Assistant Commissioner determined that there was no evidence to suggest that this was the case.
  • The ISP denied that it reads anything apart from the IP and port addresses (the latter is not personal information). When the port information on the address is read, it is read by the ISP’s mail servers, electronically. No person actually reads the e-mail in this process.
  • The process of reading and routing e-mail address information does not require the servers to access or read the user portion of the e-mail. The software program is set to access a predetermined portion of the address, and therefore this is the only portion of the address that is read.

The Assistant Commissioner therefore found that the ISP did not contravene Principle 4.3. She therefore concluded that the complaints were not well-founded.

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