RSS FeedAccess Copyright: Outrageous and Unnecessary
As a UWO student (and at many other Canadian universities,) you automatically pay an annual fee to an organization called Access Copyright. An item is included in your student activity fee, and it used to be $3.38 per student per year, plus an amount based on the number of photocopies made at library photocopy machines. However, when the licence agreement expired last year, Access Copyright did not seek to renegotiate with UWO. Instead, it applied to the Copyright Board for a massive restructuring of the agreement. If the Board approves the request, Access Copyright would receive $45 per student per year. With 30,000 full-time students, this amounts to $1.35 million annually. But that’s not all. Access Copyright would also have the right to surveillance: Section 14 (4) of the proposed licence agreement states that:
The Educational Institution shall give Access Copyright, on reasonable notice, right of access through-out the Educational Institution’s premises in order to organize and carry out an audit, including full access to the Secure Network and all Course Collections.
This would include access to university email accounts.
There are a number of problems with the Access Copyright regime. First of all, every university student is presumed to be infringing copyright and this seems very unlikely given the Fair Dealing rights in the Canadian Copyright Act that expressly permit the copying of non-substantial portions of a work for the purpose of private study. As well, the university is presumed to be responsible for the presumed copyright infringement by students. This is contrary to the Supreme Court of Canada’s decision in CCH Canadian Limited v. Law Society of Upper Canada, [2004] 1 S.C.R. 339.CCD, which held that a library is NOT responsible for copyright infringement merely by providing access to photocopiers.
What is more troubling, though, is that by paying Access Copyright, our fair dealing rights become meaningless.
Free Internet to Citizens of Oppressed Nations: Genuine Interest in Democracy or Attempts to Monopolize Information?
Uncle Sam has $30M to bypass Chinese, Iranian ‘Net filters
By Nate Anderson
Need to get around a Chinese government firewall? Burning to smuggle your samizdat writings past Iranian Internet censorship? Hoping to blog with impunity in Burma? Uncle Sam wants to help. The US government has a $30 million pot of money to spend on “Internet freedom” programs around the world, and it’s not afraid to make a few enemies.
Secretary of State Hillary Clinton last year gave a major speech on Internet freedom and the new “Information Curtain” of censorship that has fallen in some parts of the world. In that speech, she said that State would support development of tools that can bypass Internet censorship. She also outlined a program in which State would fund mobile phone apps that allow people to rate government ministries on responsiveness and efficiency and that can ferret out corruption through crowdsourcing. The hardware is already in the wild, she said; all what’s needed is some money to make it worth developers’ time.
This year, State has $30 million for such projects, and it’s asking interested parties to apply for the cash. Top on its list of wants: “counter-censorship technology” that can bypass firewalls and filters. Such tools may be general (like Tor) or can be specific to individual governments. China and Iran can probably look forward to some US-funded encryption and circumvention tools coming their way in the near future.
The grants will focus on “East Asia, including China and Burma; the Near East, including Iran; Southeast Asia; the South Caucasus; Eurasia, including Russia; Central Asia; Latin America, including Cuba and Venezuela; and Africa.” North America and Western Europe get a pass.
In addition to circumvention tools, State wants to fund secure mobile communications tech that can make mobile phone usage safer. The government will also help nonprofits and digital activists build communication platforms, and it wants to establish “virtual open Internet centers” that exist outside of closed countries and provide a spot to post and archive censored content.
If you’re part of a nonprofit or a university (and are not an affiliate of a “designated terrorist organization”), you have a month to submit an online statement of interest.
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Interesting comment by a reader:
“govt, doesnt give anything away to anyone (except themselves and their filthy bosses).it smells like a trick to start the censorship and as usual in the name of democracy.
I had heard many years ago that they are planning to introduce the Internet 2 and shut this one down.in any case the problem in USA and the West is Not the censorship the problem is Monopoly on info!
the rest of the world gets its info from this monopolized source!”
Julian Assange: Why the world needs WikiLeaks
Call for Participation: Cyber-Surveillance in Everyday Life: An international workshop
Call for Participation
Cyber-Surveillance in Everyday Life: An international workshop
May 12-15, 2011, University of Toronto, Canada
Digitally mediated surveillance (DMS) is an increasingly prevalent, but still largely invisible, aspect of daily life. As we work, play and negotiate public and private spaces, on-line and off, we produce a growing stream of personal digital data of interest to unseen others. CCTV cameras hosted by private and public actors survey and record our movements in public space, as well as in the workplace. Corporate interests track our behaviour as we navigate both social and transactional cyberspaces, data mining our digital doubles and packaging users as commodities for sale to the highest bidder. Governments continue to collect personal information on-line with unclear guidelines for retention and use, while law enforcement increasingly use internet technology to monitor not only criminals but activists and political dissidents as well, with worrisome implications for democracy.
This international workshop brings together researchers, advocates, activists and artists working on the many aspects of cyber-surveillance, particularly as it pervades and mediates social life. This workshop will appeal to those interested in the surveillance aspects of topics such as the following, especially as they raise broader themes and issues that characterize the cyber-surveillance terrain more widely:
- social networking (practices & platforms)
- search engines
- behavioural advertising/targeted marketing
- monitoring and analysis techniques (facial recognition, RFID, video analytics, data mining)
- Internet surveillance (deep packet inspection, backbone intercepts)
- resistance (actors, practices, technologies)
A central concern is to better understand DMS practices, making them more publicly visible and democratically accountable. To do so, we must comprehend what constitutes DMS, delineating parameters for research and analysis. We must further explore the way citizens and consumers experience, engage with and respond to digitally mediated surveillance. Finally, we must develop alliances, responses and counterstrategies to deal with the ongoing creep of digitally mediated surveillance in everyday life. Read more
Canadians have a constitutional right to government-held info: SCC
According to a recent ruling of the SCC, the right to access to government records is now protected by the Charter. In a unanimous 7-0 ruling in Ontario (Public Safety and Security) v. Criminal Lawyer’s Association, [2010] S.C.J. No. 23, the SCC decided that if the information is needed to promote “meaningful public discussion on matters of public interest”, Canadians have an access right to that information, guaranteed by s. 2(b) of Charter under the heading “Fundamental Freedoms”.
The Criminal Lawyer’s Association (CLA) called this “an epic win”, that ensued after a decade-long battle for access to a 300-page review conducted by the OPP with regards to how the Hamilton and Halton police “handled the investigation of the 1983 murder of Toronto mobster Dominic Racco. Mr. Racco was shot and killed on December 1983 and his body was dumped on a Milton rail line. Two Hamilton men, Garaham Court and Dennis Monaghan were charged consequently by Hamilton Police. They had the charges stayed in 1997 after Justice Stephen Glithero of the Ontario Superior Court found evidence of “flagrant and intentional misconduct” by the Crown and Halton and Hamilton police in the process. An investigation by the OPP ensued that resulted in the review but it was not made public despite CLA’s request. The denial of the government to force the OPP to release the review was basically what fuelled the legal action taken by the CLA that was eventually granted the right to appeal by the SCC.
Although, the CLA found the ruling, an epic victory, it was not granted the right to access the information in the OPP review. The SCC, in turn, held that right to access could only be triggered when the information sought “is necessary for meaningful public discussion on matters of public interest”. In matters where the release of information may “interfere with the proper functioning of the governmental institution in question”, or where they are shielded by solicitor-client privilege, such rights are not guaranteed to the public.
For one, the SCC held that the review may contain information about the parties that are protected by the solicitor-client privilege. Furthermore, it was decided that CLA has failed to demonstrate that “meaningful public discussion of shortcomings in the investigation and prosecution could not take place without making the OPP report public”. Yet, the Supreme Court sent back the CLA’s request to the information commissioner for a fresh review. Yet, the ruling was described as “a baby step toward recognizing that access to information is a constitutional right” by Paul Schabas of Blake, Cassels & Graydon LLP.
Many countries including UK and US have similar laws implemented in their laws. Sweden, embedded access to information laws in their legislation in 1766 via their Freedom of the Press Act. The British Freedom of Information Act (2000), implemented such rights into the country’s legal system. In Canada, the Access to Information Act grants citizens access to records held by federal bodies and Freedom of Information and Protection of Privacy Act is the legislation that governs matters that come under the scope of the Ontario provincial government. The significance of this “baby-step” is of course in having the access to information right established as constitutional rather than statutory.
Read this article by Dan Michaluk and Paul Broad of Hicks Morley for further analysis of how this case impacts the government institutions.
Photo: Dominic Racco
Privacy Issues in the Workplace
Warman v. Fournier et al: Balancing Disclosure, Privacy, and Freedom of Expression Interests in Internet Defamation Cases
While the internet provides users with an environment in which socially valuable anonymous speech can flourish, it also provides users with an opportunity to defame others behind a shield of anonymity. If these users can be identified, they may be held liable for defamation. Unfortunately for plaintiffs, the identities of these individuals are usually known only by the website or internet service provider (“ISP”) through which the statements were made, and these entities generally decline to disclose a user’s identity in the absence of a court order compelling them to do so. Faced with a growing stream of plaintiffs who seek these kinds of orders, courts have sought to craft approaches to evaluating applications for disclosure that strike an appropriate balance between the privacy interests of anonymous internet posters and the reputational interests of plaintiffs.
Yesterday, the Ontario Divisional Court released its decision in Warman v. Fournier et al, 2010 ONSC 2126 (Div. Ct.) rev’g (2009), 309 D.L.R. (4th) 227, 76 C.P.C. (6th) 155 (Ont. S.C.J.) (“Warman”). At issue was whether the disclosure provisions of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) automatically entitle plaintiffs in internet defamation cases to obtain the identifying information of anonymous posters from websites and ISPs, or whether courts must balance the interests of plaintiffs with the freedom of expression and privacy interests of anonymous posters. The decision is now the leading authority in Ontario for the proposition that the objectives of the disclosure obligations under the Rules must be balanced with the right of freedom of expression in internet defamation cases. This article discusses the background, holding, and implications of Warman.
1. Background
The Respondent commenced an action against the Appellants, the operators of an internet message board, and eight anonymous message board participants with respect to a series of allegedly defamatory postings. After commencing the action, the Respondent brought a motion for an order compelling the Appellants to comply with Rule 76.03 of the Rules which required the Appellants to file an affidavit of documents that disclosed the email and internet protocol (“IP”) addresses of the anonymous posters in order to allow the Respondent to identify the posters and serve them with the statement of claim.
The motions judge rejected the Appellants’ submission that the Respondent was required to establish a prima facie case of defamation before disclosure could be ordered. Instead, Justice Kershman concluded that Rule 76.03 of the Rules required the Appellants to disclose all documents in their power or control and that such disclosure should be automatic upon the issuance of a statement of claim because the information was relevant and not protected by privilege.
This decision stood in stark contrast with earlier cases that offered some protection to the privacy interests of internet users by requiring plaintiffs to demonstrate a bona fide or prima facie case of defamation before ordering disclosure (see: previous posting). The motions judge distinguished these cases on the basis that the Respondent was seeking to compel the Appellants to follow the Rules as required by named parties to the action, whereas the other cases involved discretionary orders for the production of documents from third parties.
2. Holding on Appeal
The Divisional Court unanimously allowed the appeal and remitted the matter to a different motions judge for re-consideration, recognizing that the anonymous posters’ right of freedom of expression under the Charter should have been taken into account in considering the Respondent’s request for disclosure under the Rules. Moreover, the Court noted that the posters’ express decisions to remain anonymous gave them a reasonable expectation of privacy that weighed in their favour.
In rejecting the notion that disclosure should be automatic, the Court also expressed concern for the ease by which a plaintiff could abuse the Rules by filing claims in a spurious manner simply to identify an anonymous poster:
If disclosure were automatic, a plaintiff with no legitimate claim could misuse the Rules of Civil Procedure by commencing an unmeritorious action for the sole purpose of revealing the identity of anonymous internet commentators, with a view to stifling such commentators and deterring others from speaking out on controversial issues. For this reason, the commencement of a defamation claim does not trump freedom of expression or the right to privacy.
[Warman, at para. 33]
After surveying previous decisions, Justice Wilton-Siegel set out four considerations, aimed at preventing abuse of the Rules and respecting the privacy of internet users, that should have been considered by the motions judge in deciding whether to order disclosure under the Rules:
- whether the unknown alleged wrongdoer could have a reasonable expectation of anonymity in the particular circumstances;
- whether the Respondent has established a prima facie case against the unknown alleged wrongdoer and is acting in good faith;
- whether the Respondent has taken reasonable steps to identify the anonymous party and has been unable to do so; and
- whether the public interests favouring disclosure outweigh the legitimate interests of freedom of expression and right to privacy of the persons sought to be identified if the disclosure is ordered.
[Warman, at para. 34]
In concluding that plaintiffs should be required to meet a prima facie standard rather than a lower bona fide standard, the Court emphasized the importance of protecting freedom of expression and noted that there was no concern that the higher standard would deprive applicants of a remedy:
In para. 34 of BMG [2005 FCA 193], the Federal Court of Appeal expressed the concern that, in that case, imposition of a prima faciecase standard would effectively strip an applicant of a remedy because the plaintiff could not know the actual case it wished to assert against the defendants until it knew not only their identities but also the nature of their involvement in the [internet] file-sharing activities. Because the present proceeding is a defamation action, that concern does not arise. Unlike BMG, the respondent knows the details of precisely what was done by each of the unknown alleged wrongdoers.
In addition, because this proceeding engages a freedom of expression interest, as well as a privacy interest, a more robust standard is required to address the chilling effect on freedom of expression that will result from disclosure. It is also consistent with the recent pronouncements of the Supreme Court that establish the relative weight that must be accorded the interest in freedom of expression. In the circumstances of a website promoting political discussion, the possibility of a defence of fair comment reinforces the need to establish the element of defamation on a prima facie basis in order to have due consideration to the interest in freedom of expression. On the other hand, there is no compelling public interest in allowing someone to libel and destroy the reputation of another, while hiding behind a cloak of anonymity. The requirement to demonstrate a prima facie case of defamation furthers the objective of establishing an appropriate balance between the public interest in favour of disclosure and legitimate interests of privacy and freedom of expression.
[Warman, at paras. 41 - 42]
3. Implications
Warman represents an important recognition that while internet users’ anonymity ought not to be protected absolutely, the mere commencement of a defamation action should not give rise to an automatic entitlement to information identifying a previously anonymous poster without a consideration of the interests of privacy and freedom of expression.
Nevertheless, there is still uncertainty with respect to the degree of protection that courts will afford to anonymous posters in the future. Under Canadian law, plaintiffs have two ways to seek disclosure in internet defamation cases. Apart from identifying anonymous defendants by seeking pre-action discovery or production of relevant information under procedural rules, as occurred in Warman, plaintiffs may also bring independent actions for disclosure of the identity of anonymous defendants by way of an equitable bill of discovery known as a “Norwich order”. Norwich orders were introduced in the decision of the House of Lords in Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.) in which it was held that where a third party becomes involved in the tortious acts of others, that third party has a duty to disclose the identity of the tortfeasor so that the plaintiff may pursue its remedies. The Norwich factors were recently confirmed by the Ontario Court of Appeal in GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619 and applied in the internet defamation context by the Ontario Superior Court of Justice in York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.) (“York University”):
- whether the applicant has provided evidence sufficient to raise a valid, bona fide or reasonable claim;
- whether the applicant has established a relationship with the third-party from whom the information is sought, such that it establishes that the third party is involved in the acts;
- whether the third party is the only practicable source of the information;
- whether the third party can be indemnified for costs to which it may be exposed because of the disclosure; and
- whether the interests of justice favour obtaining the disclosure.
[York University, at para. 13]
Although the second and fourth Norwich factors were not relevant in Warman because they apply only to third party respondents rather than co-defendants [see Warman, at para. 39], some of the other Norwich factors are similar to the considerations set out in Warman that are now applicable to the question of whether a court should order disclosure under the Rules. However, an important difference remains. While the approach under Warman requires plaintiffs to demonstrate a prima facie case of defamation, Norwich jurisprudence has required plaintiffs to meet the lower bona fide standard. For example, even though the plaintiff in York University managed to establish a prima facie case of defamation, the court did not require the plaintiff to demonstrate more than a bona fide case. Although Warman provides compelling reasons to prefer the higher prima facie standard where the plaintiff seeks disclosure through a Norwich order, it remains open for courts to require plaintiffs to meet the lower standard instead.
Originally posted on Defamation Law Blog
Better than Body Scanners
Despite all the hype about body scanners, there are some very significant limitations to their use.
One issue is limitation of use on children, which can violate child pornography laws. Statements by Canadian officials that there haven’t been any incidents involving children yet is not very reassuring, especially in this industry where mitigation and prevention are the appropriate benchmarks.
A more significant concern is that body scanners is that they are not very effective for ingested or internally placed hazards (i.e. other cavities).
Wired has a technological solution that would address these concerns, without the same privacy issues, through diffraction-enhanced X-ray imaging (DEXI).
Although some may protest the additional radiation exposure, it’s a valid trade-off in my opinion. Depending on the duration and frequency of flights, many travelers would have more radiation exposure from flying than these machines. My radiation exposure working in diagnostic imaging was frequently lower than commercial airline employees.
Criteria for Body Scan Screenings
We seem to be getting mixed messages today about the use of body scanners in Canada.
The Privacy Commissioner of Canada conducted two Privacy Impact Assessments (PIAs) for the Canadian Air Transport Security Association (CATSA) to assess the impact of whole body scanners.
Assistant Privacy Commission Chantal Bernier said in a speech in Ottawa on October 30, 2009,
…we consider this technology to be inherently sensitive as it reveals an outline of the traveller’s body. Many people may perceive it as privacy invasive.
Pulat Yunusov has noted earlier that the personal privacy issues may not necessarily be as significant, given the low resolution and identity controls around the imaging.
Of greater concern is which individuals are selected for body scans. Bernier allayed these concerns as well in the same speech,
…the technology will be used only for secondary purposes, after an individual has already passed through the metal detector. What’s more, the scans will be voluntary, with passengers given the option of going through them, or having a physical pat-down.
Bernier repeated these criteria today in comments to the press, stating that it is only for those who have failed the metal detector test.
However, Rob Merrifield, Junior Transport Minister, stated in a joint conference with John Baird,
Travelers who are selected for secondary screening will be asked to walk through the wave scanner…
[emphasis added]
Although Merrifield did mention the alternative physical search, the metal detector is conspicuously absent – at least in media reports of the conference.
Removing the metal detector component of secondary screening makes the scans no longer voluntary. It also introduces a significant amount of arbitrariness and discretion into their use, making them subject to abuse.
Anyone compelled to go through a body scan without failing a metal detector test, or not informed of the alternative physical search if they do, should issue a complain while citing the PIA guidelines. At the very least, the Ministers should clarify what the criteria are for using the body scanners to avoid confusion among the public and by security officials.
Ministers of the opposition parties have noted that typically an issue like this would go before a Parliamentary committee, where such clarification would likely be sought.
But that’s right, we can’t do that because with have a Prime Minister that would prorogue politics over our safety.
Maricopa County Officer Refuses to Apologize
By now, regular readers are very familiar with this ongoing saga out of Maricopa County, Arizona: it all began back in October when, during a sentencing hearing, Maricopa County Sheriff’s Officer Adam Stoddard stepped up behind defence attorney Joanne Cuccia, searched through her file, and retrieved a document – all while she was making arguments and her back was turned.
In a highly anticipated decision, Judge Gary Donohoe later ruled Stoddard had not acted with reasonable justification, despite the officer’s argument that his suspicion had been triggered by his glimpse of certain “keywords.” He had also argued that a heightened state of alert was required due to incidents where defence attorneys had helped smuggle contraband and other items to their defendants. Nevertheless, Judge Donohoe had rejected these arguments and had ordered Stoddard to publicly apologize before December 1, or face jail time.
Last night, Stoddard did indeed hold a news conference. At 8:30 pm, down to the very end of Judge Donohoe’s deadline, a defiant Stoddard refused the judge’s order.
Do CRU emails show FOIA wrong-doing?
There’s been a lot of hype in the past few days about a batch of emails that were either hacked or leaked from the University of East Anglia’s Climate Research Unit (CRU). In the view of some opponents to climate change legislation, these emails depict collusion and conspiracy among leading climate change scientists. Other contrarians accuse at least one scientist of outright illegal conduct: violations of UK’s Freedom of Information Act (FOIA).
Hundreds of emails spanning well over a decade were released, but the ones important for allegations of illegal conduct are those where some of the scientists discuss the implications of the newly (in the UK) enacted FOIA, those that discuss how to deal with FOIA requests, and one that directs the deletion of certain emails.
I’ve learned a little bit about the US’s version of FOIA, so I thought that it would be interesting to examine this accusation of illegal conduct – at least, to the extent that a Canadian studying law at an American law school can explore British information and privacy law. Read more
Court officer ordered to apologize
In the latest developments of this bizarre case in Maricopa County, Arizona, Judge Gary Donohue has ruled that detention officer Adam Stoddard acted inappropriately when he removed and photocopied a document from the file of defence attorney Joanne Cuccia. Judge Donohue has ordered Stoddard to apologize, however Maricopa County Sheriff Joe Arpaio has responded that such an apology is unlikely to happen.
The case began when, during a sentencing hearing, the defendant alerted his attorney to the fact that court officers had removed a document from her file, behind her back while she was making arguments.
Bailiffs behaving badly: Detention Officer Adam Stoddard (officer on the right)
Previously, Stoddard had argued that he was justified in searching the file and removing the document because certain keywords had made him suspicious. It has been revealed that those keywords were “going to”, “steal”, and “money”.
In his ruling, Judge Donohue held that Stoddard had no reasonable justification for believing a crime was taking place. He found:
At issue was also the effect that Stoddard’s argument had on the reputation of defence attorney Cuccia. The Maricopa County Sheriff’s Office had issued multiple public statements in which they claimed to have been on “high alert” because of two incidents where defence attorneys had helped smuggle drugs and other items to their defendant – a member of the Mexican Mafia. Since Cuccia’s defendant was also a documented member of the same organization, Stoddard felt he needed to be on “high alert”.
However, absolutely no evidence has been presented that Cuccia – a ten year member in good standing with the Arizona state bar – has ever committed or been associated with any such wrongdoing. Cuccia was therefore concerned that her professional reputation would be unduly tarnished; she felt she was herself being accused of a crime.
In his ruling, Judge Donohue agreed. He found false suspicion had been cast on Cuccia, and he framed this as the central issue. “This case is not about disobeying a court order. It is about protecting a defence attorney from misbehaviour and harassment by another officer of the court.”
As a result, he ordered that Stoddard would be required to hold a press conference where he would publicly apologize to Cuccia. The press conference is required to take place before Dec. 1, and must contain a “sincere verbal and written apology for invading her defence file and for the damage that his conduct may have caused to her professional reputation.”
The ruling threatens jail time if Stoddard does not apologize, or if Cuccia determines that Stoddard’s apology is insufficient.
Sheriff responds defiantly
Yesterday, however, Maripoca County Sheriff Joe Arpaio sounded defiant, stating that he “stands behind” his officer.
“Superior Court judges do not order my officers to hold press conferences. I decide who holds press conferences and when they are held.”
Whether this issue will be put to rest therefore remains to be seen. Sheriff Arpaio’s statement suggests Stoddard may defy Judge Donohue’s order. As for the original defendant, Antonio Lozano, his sentencing hearing has been pushed back to Dec. 14, and he is now represented by new counsel.
