Complaint under PIPEDA against Accusearch, Inc., doing business as Abika.com

PIPEDA Case Summary #2009-009

July 27, 2009

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An investigation by the Office of the Privacy Commissioner of Canada (OPC) has concluded that Accusearch, Inc.,^{Footnote 1} doing business as Abika.com, a Wyoming-based search services website, violates key provisions of Canadian privacy law in its collection, use and disclosure of the personal information of residents of Canada.

Abika.com provides a range of search services on individuals by engaging third-party researchers who search for and obtain personal information about individuals from a variety of public and private records and databanks. It also provides a service under which it compiles “psychological profiles” of the behaviour and personal traits of specifically identified individuals.

The U.S. Federal Trade Commission (FTC) separately investigated the activities of Abika.com, successfully bringing suit before the District Court for the District of Wyoming to curtail the sale of confidential consumer information. The U.S. Tenth Circuit Court of Appeals recently affirmed the lower court ruling. The OPC filed an amicus curiae (friend of the court) brief in that appeal in support of the FTC position, arguing that the online trade in personal information across international borders threatens the privacy rights of Canadians and the reputations of Canadian businesses.

In its decision, the Tenth Circuit Court of Appeals affirmed that Abika.com was in the business of soliciting customer requests for confidential information and then paying researchers to obtain it. The court also affirmed that the company knew that its researchers were obtaining the information through fraud or illegality. In so doing, Abika.com “knowingly sought to transform virtually unknown information into a publicly available commodity.” As a result of this important decision, Abika.com remains under an injunction prohibiting it from trading in confidential customer phone records, as well as other non-public “consumer personal information” without express written permission from the consumer.

This U.S. court decision clearly recognizes the harm to privacy resulting from unauthorized online trade in personal information and offers important new protection to citizens on both sides of the Canada-U.S. border.

Responding to a three-part complaint, the OPC conducted its own investigation of the information-handling practices of Abika.com.^{Footnote 2}

Based largely on information provided by the FTC, the investigation determined that the American company disclosed the personal information of Canadians, without their knowledge or consent, to third parties. The Assistant Privacy Commissioner concluded that such actions contravene the Personal Information Protection and Electronic Documents Act, which governs private-sector companies.

Moreover, the Assistant Commissioner found that Abika.com typically accepts and fulfils requests for personal information without considering whether the request is for an appropriate purpose. In some cases, in fact, the company knowingly turned over the personal information of Canadians for purposes that a reasonable person would consider highly inappropriate in almost any circumstances.

A third element of the complaint, relating to the accuracy of the personal information that was disclosed about the complainant in a prepared “psychological profile”, was dismissed on the grounds of insufficient proof. The Assistant Commissioner did, however, underscore her suspicions that much of the psychological profile was highly questionable and inaccurate.

The Assistant Commissioner has recommended that Abika.com stop collecting, using and disclosing the personal information of people living in Canada without their knowledge and consent. The company did not provide a substantive response to the recommendations within the timelines set by the Assistant Commissioner. It was not considered reasonable in the circumstances to grant a request from American counsel representing Abika.com for a further time extension.

The Assistant Commissioner recognized and thanked the U.S. Federal Trade Commission for its invaluable assistance in this investigation. This is an important step in international co-operation and collaboration that will become increasingly necessary to adequately protect privacy rights on both sides of the border in years to come. The collaborative efforts of the OPC and the FTC in this case have enhanced and ensured consistency in approach between the two jurisdictions.

Links

• Complete report of findings in OPC investigation
• Court affirms penalties against U.S.-based search services web site
• U.S. Tenth Circuit Court of Appeals judgment in the case of the Federal Trade Commission v. Accusearch Inc., d/b/a Abika.com