Law Times

Law Times • January 24, 2011 FOCUS Privacy watchdogs join forces New global network tackles enforcement challenge BY ROBERT TODD Law Times enforcement functions in a world where few breaches are confi ned to a single country. Privacy enforcement agen- P cies in 12 countries launched the Global Privacy Enforce- ment Network last September. By early January, that number had grown to 18 countries, along with the notable late ad- dition of the European Union's European Data Protection Su- pervisor, which covers institu- tions within the bloc. Canada was among the early signa- tories, along with other key economic players such as the United States, Australia, Brit- ain, Germany, and France. "We're really hoping to get widespread international par- ticipation," says Yael Weinman, legal counsel for international consumer protection at the U.S. Federal Trade Commission. Weinman declined to iden- tify other countries being tar- geted for inclusion but notes the criteria are broad: members must be independent authori- ties with the ability to investi- gate alleged breaches and en- force privacy laws. "In this glo- balized day and age, there are no borders when dealing with privacy violations. Th e transfer of information is so easy and seamless that you would be hard-pressed to fi nd a privacy violation that is limited to just one jurisdiction." Th e challenges agencies face when enforcing privacy legisla- tion are often no diff erent than the enforcement of other laws. Issues like locating necessary in- formation and assets, identifying defendants, and serving process rivacy watchdogs from across the globe are join- ing forces to boost their are the primary roadblocks. Members of the network hope to break down some of those walls by pledging to pro- vide bilateral assistance dur- ing investigations, share best practices for investigations and enforcement strategies, and en- gage in consumer and business education programs. Th ey'll also provide content for the network's web site at privacy- enforcement.net. It's early days, however, and organizers see the potential for far more collabo- ration in the future. Carman Baggaley, a senior policy and research analyst at the Offi ce of the Privacy Com- missioner of Canada, says the network refl ects the reality that information and privacy com- missioners across the globe are now facing. Most of the issues they now deal with have an in- ternational component as more information fl ows outside of national borders than ever be- fore. It happens when people conduct an online search via Google, update their Facebook profi le, make purchases online or call a customer assistance hotline. Information from all of those interactions will most likely end up on a server in an- other country. "Given that the information is fl owing internationally and the privacy issues are increas- ingly international, it's becom- ing more and more important for offi ces like ours to have mechanisms to work together," says Baggaley. Th e network is just one of several mechanisms for col- laboration among privacy guardians. Th e Asia-Pacifi c Economic Cooperation forum, of which Canada is one of 21 member econo- mies, has established a sim- ilar system. Canada joined APEC's cross-border pri- vacy enforcement arrange- ment in August. It creates a means for participants to contact each other for information during inves- tigations or when carrying out enforcement. Th ere are also less for- mal means for authorities to share information. For ex- ample, they meet annually at the International Confer- ence of Data Protection and Privacy Commissioners and engage in case-by-case dis- cussions on specifi c issues. Baggaley says partner- for us, it's very important to have the weight of some of our international colleagues when we weigh in and say, 'We think this practice is un- acceptable.'" Th e network initiative is Adam Kardash believes the new global network could help companies that may face privacy investigations. ships with colleagues abroad have developed signifi cantly over the past decade. Th e shift has allowed watchdogs to speak against breaches collectively, which he says provides a more powerful message to potential violators. He cites the global response following revelations last year that Google had erro- neously collected content while identifying Wi-Fi hot spots. "It was very useful to be able to dis- cuss this with our international counterparts, so we weren't nec- essarily all going over the same ground," he says. At the same time, Baggaley emphasizes the general impor- tance of enforcement when it comes to meaningful pri- vacy protections. Unlike some watchdogs in other countries, Canada's privacy commis- sioner is unable to levy fi nes against violators, making the threat of reputational damage the most compelling motive for compliance. "When we conduct an in- vestigation and have evidence that an organization is not complying, we need to take enforcement action in order to provide an incentive to encour- age organizations to comply, to send a message to other orga- nizations about the importance of complying," Baggaley says. "We rely heavily on moral sua- sion, on the value of publicity. So in line with Privacy Com- missioner Jennifer Stod- dart's agenda. She has ad- vocated strongly for more international collaboration among her peers and cur- rently leads a volunteer group at the Organisation for Economic Co-oper- ation and Development. In 2007, that group devel- oped a recommendation calling for more co-opera- tion on enforcement that was seen as the fi rst move toward the creation of the new network. Adam Kardash, head of Heenan Blaikie LLP's national privacy and infor- mation management group, points out that the enhanced co-operation facilitated by the new network will directly af- fect many of his clients. While the network will certainly make it easier for regulatory authorities to enforce their rulings internationally, he be- lieves it could actually help companies that may face pri- vacy investigations. "To the extent that there's going to be more constructive and proactive dialog with pri- vate-sector stakeholders, then this type of more formalized approach could be benefi cial," he says. 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• Public Call
• Transit Solution
• Focus On Privacy Law