Class action certified in privacy breach 1

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1 Class action certified in privacy breach 1 Federal government lost hard drive with student loan information A Federal Court judge has given a green light to a class action lawsuit against the federal government for losing a hard drive from an office in Gatineau in 2012 containing personal information about 583,000 Canadians who applied for student loans between 2000 and DON HEALY/POSTMEDIA NEWS Assistant privacy commissioner Chantal Bernier told Parliament this week that a hard drive with information about 583,000 Canadians was often left unsecured. Based on the sheer numbers involved, the government could conceivably face a damage award of $1 billion or more if the lawsuit is successful. The class-action suit is by far the largest involving a digital privacy breach in Canada. It s 583,000 people. It s big, said Ted Charney, one of the lawyers representing the class plaintiffs. Certainly there s been nothing of this scale against anyone (in Canada).

2 Litigating privacy law claims in Canada is still in its infancy, said Charney, who hopes the case will come to trial within a year. There s been almost no litigation in Canada yet on this topic, and it s really becoming an increasingly difficult issue for anybody who does any kind of volume of electronic Internet business. The government revealed in January 2012 that a portable hard drive containing the names, dates of birth, loan balances, social insurance numbers and addresses of 583,000 Canada Student Loan borrowers had vanished from a Human Resources and Skills Development Canada office in Gatineau. In a report to Parliament this week, Chantal Bernier, the interim federal privacy commissioner, said the hard drive had been left unsecured for extended periods, often in an unlocked filing cabinet in an open cubicle. The government has since beefed up its policies for the secure storage of personal information, banned the use of portable hard drives and toughened discipline for employees who violate privacy and security policies. It also set up an information line that received more than 250,000 calls and sent letters to 333,000 of those affected, offering to put a notation on their credit file for up to six years at no cost. As of last June, more than 88,000 people had signed up for that credit protection. Four law firms initiated the proposed class action lawsuit in 2013, using three people who obtained student loans Gaelen Condon of St. John s, N.L., Rebecca Walker of Sydney, N.S., and Angela Piggott of Toronto as representative plaintiffs. In a decision dated March 17, Federal Court Justice Jocelyne Gagné certified the case as a class proceeding. Everyone whose name was on the hard drive is part of the class unless they sign a form opting out, Charney said. So my guess is we re going to have at least 582,000. When it hears the case, the Federal Court will consider whether the government breached its contract with student loan recipients by failing to protect their personal information, retaining it too long and failing to destroy it as the loan agreement required. It will also decide whether the government is guilty of intrusion upon seclusion, a new tort for invasion of personal privacy first recognized by the Ontario Court of Appeal in If the court rules against the government, it could be liable for nominal damages. It could also be assessed punitive damages if its loss of the hard drive arose from reckless behaviour. Under contract law, nominal damages are awarded when the court rules there has been a breach of contract but those affected by it didn t actually lose money, Charney said. You can still recover damages for all your wasted time and frustration.

3 Nominal damages typically range from $500 to $2,000, Charney said. If all 583,000 people in the class received $500, the government would be on the hook for $291 million. If they received $2,000 each, that would balloon to more than $1.1 billion. If you do the math, Charney said, it s quite significant. The massive size of the affected class means even small numbers can multiply into huge ones. If those affected by the data loss spent four hours on average trying to deal with the problem, you re talking about hundreds of years of lost time, Charney said. One issue that arises with class actions is whether they can modify the behaviour of those being sued. In the hearing before Gagné, the federal government argued that it had already done everything it could to prevent a recurrence, so there was no need for behaviour modification. But lawyers for the plaintiffs pointed out that the government had hundreds of privacy breaches in the previous two years. The class action might force the government to better protect personal information, they argued. The judge bought that and certified it, Charney said. He said some of those affected have suffered identity theft since the loss of the hard drive. The question is, when you have this huge size of a class, whether it s just part of the usual percentage of people who experience identity theft on an annual basis, or if it s connected to this specific hard drive, he said We re not at the stage yet where we re able to make those decisions. Revenue agency big source of data breaches Better reporting sees statistics jump 3,763 Total number of breaches reported for 10 months of fiscal year 6,318 Total number of people affected by those breaches 2,983 Number of breaches reported at the Canada Revenue Agency 1,372 Approximate number of those breaches the CRA said were privacy breaches

4 532 Number of people affected by six breaches at the National Science and Engineering Research Council 223 Number of reported breaches at Employment and Social Development Canada 0 Number of breaches ESDC reported to the privacy commissioner 0 Number of breaches at NSERC reported to the Office of the Privacy Commissioner 8 Number of departments that reported all breaches to the privacy commissioner 10 Number of departments that didn t report any of their breaches to the privacy commissioner 10 Number of breaches reported to the privacy commissioner in fiscal year 109 Number of breaches reported to the privacy commissioner in fiscal year 219 Number of breaches reported to the privacy commissioner so far in fiscal year They are being blasé with the privacy of Canadians, and this is not trivial information. MURRAY RANKIN NDP national revenue critic The federal government has reported more data breaches over a recent 10-month period than it reported in the previous 10 years. Between April 1, 2013 and Jan. 29, 2014 a period covering 10 months of the fiscal year that ends Monday federal departments and agencies reported 3,763 breaches of data, which includes, but is not limited to, instances in which a taxpayer s or organization s information was incorrectly released, lost or compromised. During the previous 10-year period, the government reported slightly more than 3,000 breaches in total, according to figures recently tabled in Parliament. For that decade, however, data was not provided for several agencies. Even the 10-month figures are missing details. For instance, the Department of National Defence wouldn t say how many times classified information has been lost, calling the detail a threat to national security. The large number of breaches reported during the 10-month period is primarily a result of the Canada Revenue Agency reporting details of data problems for the first time. The CRA, like several other federal departments and agencies, started tracking data breaches as a response to several high-profile cases in which Canadians sensitive, personal information was put at risk.

5 The most recent figures show the CRA accounted for 2,983 or almost 80 per cent of breaches during the reporting period. About 120 of those breaches were a result of theft, loss or information being compromised. Not all were privacy breaches, per se: the government said 95 per cent of those problems were a result of misdirected mail usually by a taxpayer. A CRA spokeswoman said that, in April 2013, the CRA appointed its first chief privacy officer. The CPO has a broad mandate for privacy oversight, including managing internal breaches and ensuring the agency is following new, strict rules to crack down on data breaches. In the fiscal year, the CRA alerted the privacy commissioner of 32 privacy breaches. Overall, government departments reported 219 breaches to the privacy commissioner, a dramatic jump from previous years and a doubling of the 109 reported in the preceding fiscal year. Government departments and agencies appear to be aware of the heightened public concern about breaches, said Anne-Marie Hayden, a spokeswoman for the privacy commissioner s office. While it s our view that the federal government generally does a good job of protecting personal information, it is clear that there remains room for improvement. The official Opposition says that improvement should include an overhaul of federal privacy laws, including making it mandatory to report breaches to the privacy commissioner. This government is dragging its heels on doing what the privacy commissioner has been seeking, which is compulsory data breach notification, said NDP national revenue critic Murray Rankin. They are being blasé with the privacy of Canadians, and this is not trivial information. It is some of the most sensitive information that our government holds about us. Given that one-third of breaches this fiscal year were reported to the privacy commissioner s office, could the office handle the investigative load if the government made it mandatory to report every breach? Hayden couldn t say. The impact on our office of any new breach reporting requirement would depend on a number of things, including what types of breaches had to be reported to us, she said. The new figures come after some high-profile cases in which Canadians personal information was lost. One of the largest, for instance, occurred when a portable hard drive with social insurance numbers of 583,000 individuals went missing from Employment and Social Development Canada..

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