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By Terry McQuay, CIPP, CIPP/C

The Privacy Commissioner of Canada has published a draft guidance document setting out good practices for private-sector organizations using or contemplating the use of covert video surveillance. Although the commissioner recognizes that the use of covert video surveillance may be appropriate in some circumstances, this technology is viewed as being inherently intrusive.
The proposed guidelines contain the following information:

A. Introduction and scope:

The guidelines are intended to outline privacy obligations when contemplating and engaging in covert video surveillance, and to help organizations strike a balance between the desire to conduct video surveillance and the obligation to respect individuals' rights to privacy.
Video surveillance is considered to be covert when there is intent on the part of the organization to monitor an individual's activities without his or her knowledge or consent. Covert video surveillance is, by its very nature, highly privacy invasive:

  • it can inadvertently collect extraneous personal information;
  • with ongoing technological advances, it is increasing its capacity to collect ever more personal information;
  • individuals under covert surveillance behave "naturally" without consciously altering their actions or hiding their intentions:

          o this makes covert video surveillance attractive to organizations that may feel justified in wanting to surreptitiously track their employees or customers.

  • under private-sector privacy legislation, covert video surveillance is considered to be the collection of personal information (PI) without knowledge or consent:

          o PI can only be collected with the knowledge and consent of the individual, except in very limited and specific circumstances;
          o organizations deciding to resort to covert video surveillance must meet very strict requirements in order to comply with PIPEDA.

B. Deciding on covert surveillance — considerations:

A decision to undertake covert surveillance should be made at a very senior level of the organization.

The test used by the Office of the Privacy Commissioner (OPC) to determine whether an organization may properly rely on covert video surveillance is as follows:

  • the collection of personal information must only be for purposes that a reasonable person would consider appropriate in the circumstances;
  • there should be substantial evidence to support the suspicion that:

          o the relationship of trust between the organization and an individual has been broken;
          o there has been a breach of an agreement; or,
          o a law has been contravened.

  • covert surveillance is a last resort and should only be contemplated if all other less privacy-invasive means of collecting personal information have been exhausted;
  • collection of personal information must be limited to the stated purposes to the greatest extent possible.


C. Limiting collection of personal information:

Organizations should be very specific about what kind of personal information they are looking to collect and should limit the duration and scope of the surveillance to what would be reasonable to meet their purpose.

  • surveillance should be conducted in a fair and lawful manner;
  • the audio feature should be disabled;
  • collection of images of individuals other than the subject of the investigation should be avoided unless the third party is relevant to the investigation:

          o if any personal information of third parties is captured, it should be deleted or depersonalized at the earliest opportunity.

  • the use of blurring technology is recommended:

          o although this represents a cost to organizations, the expenditure is viewed  as necessary due to the significant risk covert video surveillance poses to the privacy rights of individuals.

D. The need to document:

Organizations should have in place a policy in place that:

  • sets out privacy-specific criteria that must be met before covert video surveillance is undertaken;
  • requires that the decision be documented, including rationale and purpose;
  • requires that authorization for undertaking video surveillance be given ]at a very senior level of the organization;
  • limits the collection of personal information to that which is necessary to achieve the purpose;
  • limits the use of the surveillance to its stated purpose;
  • requires that the surveillance be stored in a secure manner;
  • designates the persons in the organization authorized to view the surveillance;
  • sets out procedures for dealing with third party information;
  • sets out a retention period for the ]surveillance; and,
  • sets out procedures for the secure disposal of images.

There should be a documented record of every decision to conduct covert surveillance, its progress, and outcome, including:

  • a description of alternative measures undertaken and their result;
  • a description of the kind of information to be collected through the surveillance;
  • the duration of surveillance;
  • names of individuals who viewed the surveillance;
  • what the surveillance was used for;
  • when and how the surveillance was disposed of; and,
  • a service agreement with the third party conducting surveillance, if applicable.


E. Using private investigation firms:

When hiring private investigation firms to conduct covert video surveillance, it is the responsibility of both the hiring organization and the private investigation firm to ensure that all collection, use, and disclosure of personal information is done in accordance with privacy legislation. The parties should enter into a service agreement that incorporates the following:

  • confirmation that the private investigation firm is listed as an "investigative body" pursuant to PIPEDA "Regulations Specifying Investigative Bodies;"
  • an acknowledgement by the hiring organization that it has authority under PIPEDA to collect from and disclose to the private investigation firm the personal information of the individual under investigation;
  • a clear description of the purpose of the surveillance and the type of personal information the hiring organization is requesting;
  • the requirement that the collection of personal information be limited to the purpose of the surveillance;
  • the requirement that the collection of third party information be avoided unless there is a reasonable connection to the investigation;
  • a statement that any personal information of third parties collected during the surveillance where there is no reasonable connection to the investigation should not be used or disclosed and that it should be deleted or depersonalized at the earliest opportunity;
  • confirmation by the private investigation firm that it will collect personal information in a manner consistent with all applicable legislation, including PIPEDA;
  • confirmation that the private investigation firm provides adequate training to its investigators on the obligation to protect individuals' privacy rights and the appropriate use of the technical equipment used in surveillance;
  • the requirement that the personal information collected through surveillance is appropriately safeguarded by both the hiring organization and the private investigation firm;
  • the requirement that all instructions from the hiring company be documented;
  • a provision prohibiting the use of a subcontractor unless previously agreed to in writing;
  • a designated retention period for the personal information; and,
  • a provision allowing the hiring company to conduct an audit.

The Office of the Privacy Commissioner (OPC) is seeking feedback on the draft guidance, particularly from those directly affected by covert video surveillance, including unions representing employees of federally regulated organizations and consumer associations. The OPC intends to issue final recommendations for good practices soon.

Terry McQuay, CIPP, CIPP/C, is the founder of Nymity, which offers
Web-based privacy support to help organizations control their privacy risks. Learn more at www.nymity.com.


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