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.
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.
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Wednesday, February 20, 2008
In a long awaited decision, the Information and Privacy Commissioner of Alberta has ordered a nightclub to cease scanning drivers licenses. The practice is an unreasonable collection of personal information and is not justified under the Personal Information Protection Act.
From the decision, the Commissioner didn't see the connection between the collection of drivers license information and the supposed purposes for collecting it:
[para 31] From my review of the evidence and the parties’ submissions, I find that, at best, the Organization offers conjecture that collecting driver’s license information of patrons may act as a deterrent to violent behaviour. The Organization did not submit any evidence to establish that collecting the Complainant’s driver’s license information, or that of other patrons, is in any way a deterrent to violent behavior. In addition, it did not provide any evidence regarding the causes of violence in bars or statistics relating to the incidence of violence in bars before and after the implementation of a driver’s license collection program. I draw the inference that the Organization is unable to produce any evidence to draw a correlation between violence, patron safety, and collecting driver’s license information. As a result, the Organization has failed to establish any reasonable relationship between collecting driver’s license information and any of its stated purposes for scanning driver’s licenses. I am therefore unable to conclude that the Organization has a reasonable purpose within the meaning of section 11 when it scans patrons’ driver’s licenses.
[para 32] For these reasons, I find that the Organization did not comply with the requirements of either section 11(1) or (2) when it scanned the driver’s license information of the Complainant, as its collection of personal information is not reasonable related to its purpose....
On the topic of whether putting up a poster results in informed consent:
[para 53] The Complainant’s evidence is that his driver’s license was scanned before he could raise an objection. He had assumed that the Organization’s employee would check his birth date, but she instead scanned the information on the license into a database. The Organization does not challenge the Complainant’s version of events, but points to a poster it has now posted for patrons explaining why it collects driver’s licenses and what it does with them. It argues that this poster satisfies the requirements of section 13(1).
[para 54] As noted above, the poster explains that its collection practice is intended “to encourage our patrons to behave responsibly and deter those who are seeking to ruin your experience with us, from entering the venue.” The poster is not clear about the purposes of the Organization in collecting the information and does not warn patrons that information will be retained for a period of 7 – 10 days or longer by the Organization.
[para 55] I find that the poster is misleading and does not provide sufficient information for patrons to provide informed consent to the Organization’s collection of personal information. In addition, the Organization provided no evidence that the poster was in place when it scanned the Complainant’s driver’s license. In fact, paragraph 8 of the Organization’s affidavit establishes only that the notice was posted on August 24, 2006, the date of the affidavit.
[para 56] I find that the Complainant did not consent to the scanning of the information on the face of his driver’s license, other than to permit the Organization employee to confirm his date of birth. I also find that the Organization did not provide adequate notice to the Complainant of its collection of his personal information. As none of the provisions of 14 apply, and because an individual cannot consent to the unreasonable collection of personal information, I find that the Organization was required to provide notice of its collection and did not. As a result, I find that the Organization contravened section 13 of the Act when it collected the Complainant’s personal information.
The Calgary Sun reports that the owner of the bar is considering appealing and is "furious" about the decision: The Calgary Sun - Bar owner furious after licence checks halted.
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