Legal information related to PIPEDA
Recent Court Activity
Accusearch, Inc. d/b/a Abika.com v. Federal Trade Commission
In June 2004, an individual complained to our Office that Accusearch, Inc., in the course of private commercial activities, routinely collected, used and disclosed personal information about Canadians for inappropriate purposes and without their knowledge or consent, and that, notwithstanding the fact that it was based in the United States, Accusearch, Inc. violated PIPEDA in a number of respects. The Assistant Privacy Commissioner initially declined to investigate the complaint for lack of jurisdiction. On judicial review, however, the Federal Court of Canada confirmed that the OPC had jurisdiction to investigate the individual’s complaint regarding Accusearch, Inc., even though the company was based in the U.S. and notwithstanding any difficulty in effectively being able to carry out an investigation. The individual also complained to the Federal Trade Commission (“FTC”) with respect to possible violations of U.S. legislation.
In May 2006, the FTC charged AccuSearch, Inc. (Abika.com) and its principal with violating federal U.S. law by selling consumers’ telephone records to third parties without the consumers’ knowledge or authorization. According to the FTC complaint, the defendants advertised on their Web site that they could obtain the confidential phone records of any individual – including details of outgoing and incoming calls – and make that information available to their clients for a fee. To obtain such information, the FTC alleged that the defendants caused others to use “false pretenses, fraudulent statements, fraudulent or stolen documents or other misrepresentations, including posing as a customer of a telecommunications carrier,” to induce the telecommunications carriers to disclose the confidential records. As such, the FTC charged that the defendants’ practices were unfair in violation of the FTC Act.
On January 28, 2008, Judge Downes of the United States District Court for the District Of Wyoming found that the defendants’ obtaining and selling of confidential phone records without consumers’ knowledge or consent was “necessarily accomplished through illegal means,” and that defendants knew that the phone records were being obtained surreptitiously. The Court further found that this practice caused substantial injury to consumers who had no way of avoiding these harms. Judge Downes permanently barred the defendants from, among other things, obtaining, purchasing, marketing, or selling consumer personal information unless the information was lawfully obtained, and ordered the defendants to give up the $199,692.71 they earned through obtaining and selling the records. Accusearch, Inc. appealed from this decision to the United States Tenth Circuit Court of Appeals.
Considering our Office’s involvement with Accusearch, Inc., and considering the trans-border nature of the issues at stake, the OPC prepared and was granted leave to file an amicus curiae brief in the appellate proceedings initiated by Accusearch. The case before the U.S. Tenth Circuit Court of Appeals relates to trans-border data flows between the US and Canada, how data-brokers collect, use and disclose personal information without the knowledge or consent of the individual concerned, and how online trade in personal information impacts privacy rights. The OPC brief outlined how the Court’s decision would have a direct impact on the privacy rights of Canadians and the business reputation of Canadian organizations affected by the actions of data-brokers. Recognition that Accusearch Inc.’s practices and the resulting harms are illegal under U.S. law would support international cooperation between Canadian and United States regulators by enhancing the consistency in approach between the two jurisdictions. This, in turn, would provide the necessary assurance to organizations that contemplate outsourcing data processing functions in the US, and help boost the confidence that individuals need in conducting business over the Internet. The OPC brief particularly highlighted the fact that the unauthorized collection, use and disclosure of personal information over the Internet by data-brokers can cause harm and has extra-territorial effects.
We invite you to read the OPC’s amicus curiae brief as filed with the U.S. Tenth Circuit Court of Appeals.
OPC update: Complaint under PIPEDA against Accusearch Inc., doing business as Abika.com