PIPEDA and Identify Theft: Solutions for Protecting Canadians

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Organization

The B.C. Freedom of Information and Privacy Association

Published

2005

Summary

This report describes identity theft as the “perfect non-violent yet highly lucrative crime” and sets out to assess its scope both in Canada and the U.S., the methods of identity theft, legal issues in prosecution, legal responses in the U.S. and the protection offered by the Personal Information Protection and Electronic Documents Act (PIPEDA) in Canada. The report ends with a series of recommendations to improve protection against identity theft in Canada.

The report highlights statistical data from 2002 and 2004 on incidences of identity theft in both Canada and the United States. The report differentiates identity theft from simple credit card or bankcard fraud where banks have taken steps to limit individual liability. ID theft is defined as situations where an individual takes over the identity of the person to open new accounts, an activity which the report states, “creates real problems for the honest individual to substantiate their own identity”. There are informative descriptions with anecdotal examples of different methods of identity theft techniques.

Three chapters of the report cover the identity theft legal environment in the U.S., including legal issues, legal responses, and an analysis of what is referred to as the “ChoicePoint Scandal”. Reasons for the low prosecution rate for identity theft cases in the U.S. are explored, including a discussion of one benchmark legal case, Huggins v. Citibank. There is also a useful selective inventory of U.S. laws addressing identity theft, including both federal and state laws. In the U.S. discussion, the report describes a Model Regime of Privacy Protection, proposed in the wake of the ChoicePoint scandal by two public interest lawyers. The 16 specific proposals contained in this Model Regime are all described, followed by analysis.

From a Canadian perspective, the most useful aspect of the report is the very detailed examination of the protections against identity theft currently available under Canada’s PIPEDA, with detailed analysis of specific clauses of the 10 CSA Principles where the law offers specific protections.

This chapter is useful, in fact required, reading for anyone specifically concerned with corporate obligations to prevent identity theft or seeking to understand how PIPEDA can be used to protect consumer interests, including filing a complaint under the act.

The report concludes with eight specific recommendations that include the need for further research on company practices and ID theft risk and specific guidance for business, as well as more public education on this issue. The federal Privacy Commissioner should also be encouraged to collaborate with other commissioners and police agencies on investigations, audits and public education, and to take identity theft cases to the Federal Court to seek redress and damages for victims.

Proposed legal changes include mandatory breach notification by businesses where individuals are put at risk of ID theft, and amendment to Canada’s Criminal Code to address identity theft. The report also calls for acceleration in establishing mutual assistance arrangements for the prosecution of ID theft, and mutual assistance for the investigation of privacy breaches between Canada and the U.S.

This document is available in the following language(s):

English only

OPC Funded Project

This project received funding support through the Office of the Privacy Commissioner of Canada’s Contributions Program. The opinions expressed in the summary and report(s) are those of the authors and do not necessarily reflect those of the Office of the Privacy Commissioner of Canada. Summaries have been provided by the project authors. Please note that the projects appear in their language of origin.

Contact Information

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V6H 1E2

Email: fipa@fipa.bc.ca
Website: http://fipa.bc.ca/home/
Tel: (604) 739-9788

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