Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic
Abika.com and National Locator Services (June 2004)
Abika.com and National Locator Services (June 2004)
In June and July, 2004, CIPPIC filed complaints with the Privacy Commissioner of Canada about two U.S.-based companies, Abika.com and National Locator Services, that offer online background checks and other search services about individuals, including Canadians, for a fee. In its complaints, CIPPIC alleged that these services breach federal data protection legislation by routinely collecting, using and disclosing personal information about Canadians, for unlimited purposes, without the knowledge or consent of the individuals in question. As well, CIPPIC noted that its testing of the Abika.com "psychological profile" service suggested serious inaccuracies in the personal information provided, thus further contravening the legislation. The Office of the Privacy Commissioner responded by way of a letter dated November 30, 2004, stating that "While the organization may well be collecting information on Canadians, our legislation does not extend to investigating organizations located only in the United States. We are, therefore, unable to investigate this matter under PIPEDA."
On December 14, 2004, CIPPIC sent a formal complaint about Abika.com to the Federal Trade Commission in the United States, alleging violations of US law. We also responded to the Privacy Commissioner of Canada by way of a letter encouraging her to reconsider her staff's determination that they could not investigate companies located wholly in the USA. After discussions with the Office of the Privacy Commissioner, we filed another complaint against Abika.com under PIPEDA on December 20, 2004.
In a letter dated November 18, 2005, the Assistant Privacy Commissioner determined that "we cannot proceed with your complaint as we lack jurisdiction to compel U.S. organizations to produce the evidence necessary for us to conduct the investigation". Interestingly, however, the Privacy Commissioner's office recently launched an investigation in respect of Locatecell.com, using the information provided by a journalist who purchased the Privacy Commissioner's cell phone records and published a cover story on the issue. It's not clear what is stopping the Privacy Commissioner's office from simply ordering a few searches from abika.com and other online investigators in order to get the evidence it needs.
On December 19, 2005, CIPPIC filed an application for judicial review in the Federal Court of Canada challenging the Privacy Commissioner's determination that she lacks jurisdiction to investigate Abika.com. The court hearing was held in January 2007, and the court released its decision Feb.5, 2007, finding that the Privacy Commissioner indeed has jurisdiction under PIPEDA to investigate transborder data flows.
Following the Federal Court’s ruling, the Privacy Commissioner re-opended her investigation of Abika.com. In a finding released May 20, 2009, the Privacy Commissioner upheld CIPPIC’s complaint, stating that Abika.com’s collection of personal information of Canadians, as well as its disclosure of information for often ‘questionable’ and unreasonable purposes violated PIPEDA. On a third ground, the Privacy Commissioner found that, although she seriously doubted their veracity, psychological profiles of Canadians sold by Abika.com were ‘opinions’ and so difficult to disprove. The complaint sparked cooperation between the Privacy Commissioner and the US Federal Trade Commission, as well as an additional investigation of Abika by the latter.
Resources
The Office of the Privacy Commissioner, letter Nov.30,2004.
CIPPIC's formal complaint, December 14,2004.
CIPPIC's letter, December 14,2004.
Letter released about Abika.com
CIPPIC's application in the Federal Court of Canada, December 19, 2005.
Commissioners finding, May 20, 2009.
