By John Jager, CIPP/C
Effective May 1, 2010, amendments to Alberta’s Personal Information Protection Act (PIPA) created an obligation for organizations to notify the information and privacy commissioner of any incident involving the loss of or unauthorized access to or disclosure of PI, “where a reasonable person would consider that there exists a real risk of significant harm to an individual as a result of the loss or unauthorized access or disclosure.” The amended PIPA also provides that the commissioner may require the organization to notify individuals to whom there is a real risk of significant harm as a result of the loss or unauthorized access or disclosure, “in a form and manner prescribed by the regulations,” and “within a time period determined by the commissioner.”
Since these provisions have come into effect, the commissioner has published a number of decisions that provide guidance as to how the he has interpreted “real risk of significant harm” and subsequently decided if the organization should notify affected individuals. Here are a number of examples of decisions published on the commissioner’s Web site.
In P2011-ND-006 - Transalta Corporation, the commissioner decided that there was a real risk of significant harm to employees when medical test forms sent in the mail by a third-party service provider to an organization were lost. While the forms contained low to moderately sensitive information, data elements such as name, address and telephone number could be combined with date of birth to commit identity theft. The organization was ordered to provide notification to affected employees as a real risk of significant harm exists as mail services are often targeted for identity theft and other criminal activity; the fact that lost personal information had not yet been accessed or disclosed did not mean there was no real risk (e.g., the information was in paper form that was readily accessible and could be used by anyone who may find it).
In P2010-ND-003 - TD Investment Services Inc., it was determined that there was a real risk of significant harm to an individual when a fax containing the individual’s personal information was accidentally sent to the individual's workplace (it was unknown how long the fax was left on the recipient fax machine nor how many individuals may have had access to it). The individual notified the organization that the fax had been sent to her workplace and, in response, the organization offered the individual a complimentary subscription to a credit bureau monitoring service in order to reduce the risk of identity theft. The commissioner noted that for an organization to be required to notify an affected individual there must be some harm that could be caused as a result of the incident and the harm must be significant (important, meaningful with non-trivial consequences or effects); in this case the harm is the possibility for identity theft and, given the sensitivity of the information, there is a real risk of significant harm.
P2010-ND-001 - Knights of Columbus Charitable Foundation dealt with the discovery of underwriting documents (including Social Security numbers, financial account numbers and driver's license numbers) found outside the organization's headquarters. In this case, a real risk of significant harm existed given the moderate to high sensitivity of the information and the fact that the cause of the breach was unknown. It is interesting to note that although the incident occurred in the United States, the commissioner had jurisdiction as the personal information included that of a number of Albertans, which was collected by an organization licensed to operate in Alberta.
In P2011-ND-002 - Mini Mall Self Storage, it was determined that there was a real risk of significant harm to individuals when unencrypted computers were stolen from business premises; the computers contained highly sensitive information of customers (customer credit card numbers, expiry dates and specific banking information) and employees (Social Insurance Numbers and birth dates). Had the business not already notified employees and customers, either by letter or in person, it would have been ordered to provide notification as a real risk of significant harm exists due to the sensitivity of the information (it provides partial or comprehensive individual profiles that could be used for identity theft or fraud) and the fact that the unencrypted information was stolen and not recovered.
In P2011-ND-003 - CEDA International Corporation, there was a real risk of significant harm to individuals when a company's human resources folder was found to be accessible to all employees on a public drive. The folder contained highly sensitive information of employees (e.g. Social Insurance numbers, banking information including transit and account numbers, discipline records and medical information). The company was ordered to provide notification to affected employees due to the sensitivity of the information (the individual profiles could be used for identity theft and/or fraud) and the fact that the information was located on an unsecured employee public drive for a three to five-month period and was likely accessed and viewed by unauthorized individuals.
In P2010-ND-005 - Full Bars Communications Inc., external hard drives were stolen from a business owner's home garage. The hard drives contained information for current and former employees (including Social Insurance Numbers and driver's license numbers) and customers (including truncated credit card numbers). The organization was required to notify its employees as there was a real risk of significant harm to the current and former employees (it had already notified current employees and must notify former employees). Notification to customers was not required, as truncated credit card numbers are unlikely to be used for fraudulent purposes or to perpetuate identity theft.
In light of the above examples, organizations must carefully review each security breach incident and consider the sensitivity of the information, the protection afforded the information (e.g. encryption) and the likelihood that the information can be used for identity theft.
John Jager, CIPP/C, is vice president of research services at Nymity, Inc., which offers Web-based privacy support to help organizations control their privacy risk. He can be reached at email@example.com.