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Consultation Draft Telecommunications Integrated Public Number Database Scheme 2007; Submission to the Australian Communications and Media Authority (March 2007)

Submission to the Australian Communications and Media AuthorityMarch 2007 Office of the Privacy Commissioner Contributions by this Office IPND access arrangements and the scheme The ACMA IPND Scheme Conditions for authorisation Relationship between authorised users and...

pdfConsultation Draft Telecommunications Integrated Public Number Database Scheme 2007; Submission to the Australian Communications and Media Authority (March 2007)

Submission to the Australian Communications and Media Authority

March 2007

Office of the Privacy Commissioner

The Office of the Privacy Commissioner (the Office) is an independent statutory body whose purpose is to promote and protect privacy in Australia.

The Office, established under the Privacy Act 1988 (Cth) (the Privacy Act) has responsibilities for the protection of individuals' personal information that is handled by Australian and ACT government agencies, and personal information held by all large private sector organisations, health service providers and some small businesses.

The Office also has responsibilities under the Privacy Act in relation to credit worthiness information held by credit reporting agencies and credit providers, and personal tax file numbers used by individuals and organisations.

In addition, the Office has responsibilities under the Telecommunications Act 1997 (the Telecommunications Act) in relation to telecommunications industry Codes and Standards (Part 6) and monitoring compliance with the record-keeping requirements under that Act (Part 13 Division 5).

Contributions by this Office

The Office welcomes the opportunity to make a submission to the Australian Communications and Media Authority (ACMA) on the consultation draft of the Telecommunications Integrated Public Number Database Scheme 20071 (the Scheme).

The Office has previously commented on the issue of access arrangements for the Integrated Public Number database (IPND) in its May 2004 submission2 to the (then) Australian Communications Authority's Who's Got Your Number? Regulating the Use of Telecommunications Customer Information Discussion Paper. The Office also made a submission to ACMA on the draft Telecommunications (Use of Integrated Public Number Database) Industry Standard 20053.

IPND access arrangements and the scheme

The Office notes that the amendments to section 285 (1A) (d) of the Telecommunications Act, which received Royal Assent on 8 December 2006, require ACMA to develop a Scheme for granting authorisation enabling access to and use of the information in the IPND for specified purposes. Currently, those purposes include the production of public number directories (PNDs), and undertaking research of a kind specified by the Minister. The scheme is supported by a range of Ministerial Instruments including instruments which specify:

  • Requirements for a public number directory
  • Permitted research purposes
  • Criteria for deciding authorisation applications under the scheme
  • Conditions for authorisations under the Scheme.

The development of the Scheme is an important step in clarifying how producers of PNDs (directory producers) and researchers will be authorised to access and use the IPND data under the amended access arrangements in the Telecommunications Act.

The Scheme provides for the making of applications, the assessment of applications, the granting of authorisations and the conditions that may be imposed on an authorisation.

The ACMA IPND Scheme

Overall the Office believes that ACMA have taken account of the privacy issues that could arise in relation to the use of IPND  information by directory producers and researchers, and have embedded appropriate privacy protections into the Scheme rules and accompanying application forms.

The Office considers that it is important that the Scheme works as efficiently as possible. At the same time, the Office considers that it is also important to protect the information held in the IPND because individuals have limited control over how their information is used once it has been collected into the IPND.

With this objective in mind, the Office has reviewed the draft Scheme rules and the accompanying applications forms and have made suggestions where we believe that the draft Scheme and application forms could be enhanced.

Conditions for authorisation

The Office notes that ACMA has included a variety of requirements in the Scheme, particularly under the conditions of authorisation for both researchers and directory producers to ensure that a consistent approach is taken by authorised users to protect customer information. However, the Office has identified some areas where these requirements could be improved to enhance the protection of individuals' personal information.

Relationship between authorised users and the IPND Manager

The Office notes that a number of requirements of the Scheme seem to rely on effective interactions between the authorised user and the IPND manager, including the requirements for handling unlisted numbers, updates, corrections to information and extensions of authorisations granted by ACMA under the Scheme. In particular sections 3.5(3), 3.12(3) and 4.5(3) of the Scheme rules require the authorised user to notify ACMA in writing when the IPND Manager provides provisional or final access to IPND data.

The Office believes that the agreement between each authorised user and the IPND Manager must be sufficient to ensure that the authorised user is able to fulfil all the requirements of the Scheme, particularly updating information about unlisted numbers and also correcting any inaccurate information they hold.

The Office acknowledges that ACMA cannot compel the IPND manager to provide authorised users with access to the IPND data or impose conditions on the form of that access. The Office also understands that ACMA would not wish to interfere in the business arrangements between the authorised users and the IPND manager. However, the Office would like to suggest that if possible ACMA extend the conditions for authorisation at 3.5, 3.12 and 4.5 to include that when authorised users notify ACMA of the date when they first gain access to IPND data, as per their arrangements with the IPND Manager, they also provide ACMA with a written assurance that their agreement with the IPND Manager is such that it will not hinder them from fulfilling their other obligations under the Scheme, such as maintaining the accuracy of personal information used by them under the authorisation.

Release of sample PND

The conditions for provisional authorisation at section 3.5(5) require that the directory producer "must not release the sample PND to the public unless ACMA has given the directory producer a final authorisation under Division 3". In contrast, section 3.5(6) stipulates that the public number directory producer "must not disclose information held in the provisional IPND data source or the sample PND to any person other than (a) ACMA; or (b) another person who is assisting with the development of the sample PND".

The Office believes that section 3.5(5) may suggest that a directory producer may be able to publish a PND which has been developed using sample IPND data after it has received final authorisation from ACMA.

The Office would suggest that ACMA amend section 3.5(5) to make clear that it is not ACMA's intention to authorise the publication of PNDs produced using sample IPND data. This would have the effect of preventing the possibility of confusion and removing any tension between sections 3.5(5) and 3.5(6) of the Scheme.

Access to PNDs

Section 3.12(7) deals with ACMA's ability to access the directories published by an authorised directory producer. The Office suggests that this section should include a requirement for the directory producer to provide ACMA with access to each of its PNDs including access to all formats of the PND such as online and paper-based copies or any PND in development.

This would assist ACMA in situations where it requests access to a PND for the reasons of investigating concerns raised in relation to the way the PND is being or has been developed, or the way in which IPND data is handled by a directory producer.

Release of a new PND

The office believes it would be helpful if more information relating to the nature of a "new PND" was to be included under section 3.12(8). While the current note suggests this condition relates to a new publication rather than a publication that is being updated, it might be helpful to provide examples. For instance, ACMA may note that a new annual version of a published hard-copy directory is not a new publication, but an update to or new version of an existing publication. Similarly, ACMA could point out that a monthly update of an online publication is not a new publication.

Authorised User's Privacy Impact Assessments

The Office is very pleased to see that the completion of a privacy impact assessment (PIA) by each applicant is a requirement of the Scheme. The Office believes that the completion of a PIA in relation to gaining access to and using IPND data is essential in ensuring that this data is handled by the authorised users in ways that protects the privacy of individuals' personal information.

In relation to the format of the PIA designated by ACMA, the Office suggests that the "Instructions and definitions" section on the cover sheet of each PIA include information about when the PIA will be required for each type of authorised user; namely at application, at acquittal and with annual compliance reports.

Use and Disclosure

The Office suggests that it may be useful for the PIAs to merge the questions regarding use and disclosure of IPND data into one set of questions under the heading "Use and Disclosure". This will assist in providing a consistent approach for the handling of personal information and will prevent any confusion that arises in regard to whether certain activities and information handling practices are considered a "use" or a "disclosure". For example, sometimes organisations have difficulty determining whether transferring information to a contractor employed to undertake specific services in relation to that information is a use or disclosure. In this case, the applicant may not include details about this particular handling practice because they do not consider it a disclosure.

Another approach to avoiding confusion in this area may be to ask if the use and disclosure of the information, or the information handling practices will include "passing" or "transferring" information on to a third-party such as a contract service provider in relation to the purpose of creating a PND or undertaking allowed research.

Outsourcing, contractors and transborder data flows

Also in relation to use and disclosure, the Office would suggest that questions 4 and 6 of the PIAs, for directory producers and researchers respectively, should include the term "contract service providers" or another similar term to make it clear that applicants should list any person or organisation they intend to outsource any part of the directory development or research related work to.

The Office notes that ACMA has included in questions 5 and 7 of the respective PIAs for directory producers and researchers a requirement for data users to demonstrate how they intend to ensure that the privacy of IPND data continues to be protected if they chose to outsource part or all of the function/activity for which the IPND is to be used. The Office notes also that similar questions have been included in relation to transborder data flows in questions 22 and 28 of the separate PIAs. The Office believes that these questions are very positive and essential steps towards the ongoing protection of IPND data and individuals' personal information.

Anonymity and de-identification

The Office is of the view that wherever possible, individuals should be given the choice of dealing with an organisation anonymously. For organisations this is reflected in NPP8. This principle provides that personal information should only be collected if necessary and that individuals should be given the opportunity not to provide personal information if it is not required in the course of their interaction with an organisation. Unnecessarily requiring individuals to be identifiable results in a reduction of the choice and control an individual is able to exercise over their personal information.

As such, it is important that an organisation considers whether it needs to identify an individual for its required purposes. The Office believes that promoting anonymity related questions to a prominent position in the PIA will help researchers consider whether their research could be based on a model using anonymity.

Whilst the Office recognises that there will be instances when it is necessary to be able to identify research participants, we suggest that the authorisation conditions for researchers in the Scheme includes that researchers, where possible, must design their research to allow anonymity of participating individuals.

The Office suggests that the anonymity question, currently question 26, in the PIA for researchers be altered to ask if the research will be carried out on the basis of anonymity and if not, why not. Anonymous research would include a model where the staff undertaking the research via phone calls would not be aware of the identity of the individuals they are contacting. This could be achieved by providing a list of phone numbers only to staff making research calls, without any other information about the individual.

Question 26 currently asks "Will customers responding to research surveys have the option of having their responses recorded anonymously wherever it is lawful and practicable for them to do so?" The Office would argue that this question refers to the de-identification of data, rather than anonymity. However, de-identifying information before recording it is an important step in protecting the privacy of personal information and the Office believes this question should be included as part (c) of question 25 which relates to de-identification.

Other issues

Stamp of approval

In relation to ensuring that the IPND access arrangements in the Telecommunications Act, the associated legislative instruments and the Scheme all work together to regulate the way in which public number directories are produced and maintained, the Office suggests that a system for identifying directories that have been authorised by ACMA, through its authorisation of the directory producer be introduced. One way to achieve this would be to provide a Scheme logo, which directory producers could place on their paper-based or online directories to indicate that they have adhered to the requirements in the Scheme.

Publish a list of directories and research

The Office also suggests that ACMA should investigate a suitable format in which to publish a list of all public number directories produced by IPND data users authorised under the Scheme. The list could also include the name of the producer and an indicative cost for purchase of a copy of the directory in each format that it is offered. The same concept could also be applied to research, where ACMA publishes a list of the researchers authorised under the IPND Scheme and the types of research undertaken by each.

The Office is aware that ACMA will publish this information in its future annual reports, along with other information about the operation of the Scheme. However, the Office feels that this would be an important source of information for consumers wanting to contact organisations such as directory producers and researchers to enquire about or request access to the personal information those organisations hold about them.

Key Recommendations

The Office believes it is important to protect individuals' information held in the IPND. For this reason we suggest that the protections in the Scheme could be enhanced by:

  • Extending the conditions for authorisation so that authorised users provide ACMA with a written assurance that their agreement with the IPND Manager is such that it will not hinder them from fulfilling their other obligations under the Scheme;
  • Clarifying that it is not ACMA's intention to authorise the publication of PNDs produced using sample IPND data;
  • Directory producers providing ACMA with access to each of its PNDs including access to all formats of the PND such as online and paper-based copies or any PND in development;
  • Providing more information relating to the nature of a "new PND".

Further, the Office suggests that the PIA forms could be improved by ACMA:

  • Amending the "instructions and definitions" section on the cover sheet of each PIA to include information about when authorised users will be required to submit a PIA; namely at application, at acquittal and with annual compliance reports;
  • Merging the questions regarding use and disclosure of IPND data into one set of questions under the heading "Use and Disclosure";
  • Using the term "contract service providers" or another similar term in questions 4 and 6 (respectively for directory producers and researchers);
  • Amending the anonymity question in the PIA for researchers to ask if an option for anonymity will be provided and if not, providing reasons, rather then the current form of the question which asks researchers to identify when an option of anonymously recording information will be provided.

The Office also suggests as that ACMA could consider:

  • A logo or stamp system for identifying directories that have be authorised by ACMA;
  • Investigate a suitable format in which to publish a list of all public number directories produced by IPND data users authorised under the Scheme.

Endnotes

1 Available at the ACMA website at http://www.acma.gov.au/webwr/_assets/main/lib310012/draft_ipnd_scheme_final.pdf

2 Available on our website at http://www.privacy.gov.au/materials/types/download/9086/6737.

3 Available on our website at http://www.privacy.gov.au/materials/types/download/8699/6537