This blog post reports on the report of findings made by the Office of the Privacy Commissioner of Canada (OPC) against a US-based company called Accusearch, Inc., operating as Abika.com (Abika) for collecting and disclosing data on Canadian residents without their knowledge and consent. This decision is noteworthy since it recognizes the harm done to individuals’ privacy by a third virtual party collecting and selling their personal information. Also, the decision highlights the success of a joint collaboration between the U.S. Federal Trade Commission (FTC) and the OPC.
Abika and FTC
Abika.com is a Wyoming-based search service website which collects and sells individuals’ personal information and also provides services such as selling “psychological profiles” of individuals. In 2007, the FTC obtained a permanent injunction against Abika.com from the U.S. District Court, District of Wyoming, for collecting and disclosing confidential phone records without individuals’ consent. Furthermore the court ordered Abika to disgorge $199,692.71, and to comply with some restrictive measures for the next five years. Recently, in June 2009, The United States 10th Circuit Court of Appeals upheld the District Court’s decision against Abika. It is noteworthy that OPC also provided an amicus curiae (friend of the court) brief supporting the FTC and arguing that Abika’s online search services violates Canadian privacy rights and harms Canadian businesses’ reputation.
Abika and OPC – Some History
In December 2004 and March 2005, the Canadian Internet Policy and Public Interest Clinic (CIPPIC), brought a case to the OPC against Abika under the Personal Information Protection and Electronic Document Acts (PIPEDA) arguing that Abika, was collecting, and disclosing Canadians’ personal data without their knowledge and consent for inappropriate purposes. In some cases, particularly in relation with Abika’s “psychological profile” service, the disclosed information was inaccurate. OPC conducted a preliminary investigation and found that the case lacked evidence. OPC concluded that PIPEDA does not confer upon OPC investigative powers with respect to foreign companies beyond the border. Thus, accordingly, OPC lacked jurisdiction to compel U.S. organizations to produce the necessary evidence. In February 2007, CIPPIC applied for judicial review in order to get OPC to investigate Abika’s business and the case was subsequently re-opened.
The OPC’s Recent Decision
Based on the evidence provided by the FTC, OPC’s recent decision affirmed that Abika collects and discloses Canadian personal information without their knowledge and consent for inappropriate purposes (such that the reasonable person would deem the purpose highly inappropriate). This violates principles 4.3 and 5(3) of PIPEDA.
On the accuracy of Abika’s services, OPC concluded that it lacked evidence, although suspicions were raised in this regard.
The Assistant Commissioner has recommended Abika.com stop collecting, using and disclosing the personal information of people living in Canada without their knowledge and consent. The company has not provided a reasonable response within the timelines set by the Assistant Commissioner and the request from American counsel representing Abika.com for a further time extension has subsequently been refused.