RSS FeedWith Parliament Suspended, Harper Proceeds with Secretive Treaty Negotiations
I’m very glad to see that the NDP is taking notice of the Harper government’s participation in the ongoing Anti-Counterfeiting Treaty Agreement (ACTA) negotiations. Despite a lack of transparency and public consultation, some controversial details of the proposed agreement have been leaked.
The proposed agreement would include a “three strikes” policy on suspected illegal downloading. Under this policy, users would have their internet access cut off after being accused of copyright violations three times, whether or not those allegations are true. In contrast to our constitutionally-entrenched presumption of innocence, the “three strikes” rule would allow rights holders and service providers to sanction users in the absence of any credible evidence or proof. It would create an untenable imbalance of power between rights holders, service providers, and users by placing the onus of disproof on those least capable of defending themselves.
Loss of access to the internet would be a severe consequence for many users. As Cory Doctorow has pointed out, online communication has become increasingly essential for daily life in terms of employment, access to government services, etc.:
I mean, it’s not as though internet access is something important right?
In the past week, I’ve only used the internet to contact my employers around the world, my MP in the UK, to participate in a European Commission expert proceeding, to find out why my infant daughter has broken out in tiny pink polka-dots, to communicate with a government whistle-blower who wants to know if I can help publish evidence of official corruption, to provide references for one former student (and follow-up advice to another), book my plane tickets, access my banking records, navigate the new Home Office immigration rules governing my visa, wire money to help pay for the headstone for my great uncle’s grave in Russia, and to send several Father’s Day cards (and receive some of my own).
The internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It’s only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people (and growing every day).
This trivial bit of kit is so unimportant that it’s only natural that we equip the companies that brought us Police Academy 11, Windows Vista, Milli Vanilli and Celebrity Dancing With the Stars with wire-cutters that allow them to disconnect anyone in the country on their own say-so, without proving a solitary act of wrongdoing.
Beyond the troubling “three strikes” proposal, the ACTA has troubling implications for privacy, freedom of association, and the innovative potential of collaborative online projects.
Negotiations are taking place at a time when Parliament is suspended, preventing opposition MPs from holding the government accountable in question period.
Privacy is important. You should protect yours.
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.
See-through body scanners are not as bad as they sound
According to media reports on Friday, the federal privacy commissioner approved the see-through airport body scanners. These machines show your naked body in Casper-the-ghost 3D on the security officer’s screen. Although the officer can easily see if you are a bikini model or a beer belly, the procedure is subject to restrictions and rules that create a good balance between security and privacy. Don’t be afraid of see-through scanners unless we hear some bad news about their health effects down the road.
The scanners are supposed to speed up and improve that irritating extra screening at the airport. So the first rule is they will scan you only if security officers select you for extra screening. The second rule is you still have the option of a physical pat-down. The scanners give travellers a choice between physical touching and having your x-ray nude body on the screen. If this is the case, then scanners don’t make your life more miserable. You are already in humiliating extra screening, where the officers had had the right to strip-search you even before the scanners were proposed.
The Canadian Air Transport Security Authority promised the privacy commissioner that the officer viewing your body on the screen will be in a separate room. That’s another restriction on security to protect your privacy. But it works only if that officer can’t learn your name or store the image of your body. Unless you have a gun on you or some plastic explosive in your shoes, the officers should not connect your personal information to the image or retain the image in their computers.
Airport see-through body scanners can speed up the humiliating extra screening. They give people who don’t like pat-downs a choice. And scanners seems to be an excellent security tool. As long as they are not required in addition to pat-downs and as long as officers can’t keep your personal information and images without probable cause, scanners seem to balance privacy with security well. Hopefully, you won’t need to go through extra screening, but if you do, the scanners may be just the way to breeze through it, especially if you are late for your flight.
Facebook Agrees to Comply with Canada’s Privacy Laws
A triumphant Jennifer Stoddart, Canada’s Privacy Commissioner came out this morning and said that Facebook agreed to make changes to its privacy policy within a year. The following changes are being touted:
- Denying third-party application developers access to user information without the user’s express consent in each of the categories the applications wants to access (currently, a user clicks just one button and the application can access all info regardless of whether or not it needs it);
- Giving users the opportunity to provide meaningful consent to retain profile pages after their death (currently there is no such provision that I know of);
- Add information about the privacy of non-users;
- Allow users the option of deleting accounts and all information associated with the account from Facebook’s databases (currently, a user may “deactivate” their account, meaning that the info still stays on Facebook’s servers).
This is indeed a meaningful victory. However, it does raise some interesting questions. Facebook is not the only platform out there that indefinitely maintains the information of its users. Other platforms such as Myspace, twitter, countless small(er) sites such as meetmeinto and the ever expanding vacuum of information called Google.
Are the laws on privacy clear? How do they apply to non-Canadian companies? How can they be meaningfully enforced, especially outside borders? I see Facebook’s agreement to comply with laws as largely a goodwill measure. If the company wanted to dig in its heels and refuse to make any changes, what could the Privacy Commissioner have done? Let’s see if someone can answer this question.
Cross-posted on Lawyerling.ca
Passwords are the new guns
Your password is a gun. It can’t shoot but at least the government treats it like a gun. In the UK, they made it a crime to refuse to give up your password to the government. The US long considered encryption an armament. It means encryption has military uses like weapons, infra-red goggles, plutonium, and armoured cars. When the government forces you to give up your password, it can read your data. Then you can’t hide anything from the government. It can get what it wants by demanding your password. In the UK, you can go to prison for years if you say no. In this information age, there is a real public interest in giving the government electronic investigation powers. But the UK is doing it the wrong way. They breach your right not only to privacy but also to due process. If gun rights didn’t sound so silly today, I would call the encryption rights the new gun rights.
The UK government recently disclosed that two people had been convicted for refusing to give up their encryption keys. There is no word on the sentence, but the prison term for this offence can stretch to five years. The UK government has had a power to take passwords by force since October 2007. This is how it works. If the government believes it needs your password for national security, crime prevention, or for economic well-being of the UK, it can give you a section 49 notice, named after the authorizing section of the Regulation of Investigatory Powers Act. A permission of the court is not necessary for this notice. You have only “reasonable” time to comply. After that, prosecutors can charge you with a criminal offence if you “knowingly” fail to give up the password.
Don’t say you have nothing to hide because you didn’t do anything wrong. There is a good reason to hide anything you want and still be a good citizen. Governments consist of people, even democratic governments. No matter how much you feel your government represents you, there are two ways in which a government can go rogue. First, you stop being in the majority. Second, a government official figures the majority won’t notice or will forgive him for abusing only you. That’s why many modern democratic countries enshrine human rights in their constitutional law: the US, Canada, and the EU, for example. Our Charter of Rights and Freedoms lets you ask the courts for protection from rogue government officials no matter what the majority thinks. The Canadian Constitution is a curb on both the government and the will of the majority. It presumes that both of them can do bad things. No one is a saint.
There are two ways to protect yourself from the government’s or the majority’s abuse. One is the constitutional law. The other one is physical. Many, many years ago gun ownership was such a physical barrier to government abuse. In the 18th century, it was reasonable to think that if men had guns, the government would not abuse them for fear of an armed response. Today it doesn’t make sense, of course, because no armed band of neighbourhood dads will be a match for the modern state’s professional military machine. But things we want to protect with physical barriers from governments gone astray are different today. It’s not land, or crops, or not even our physical liberty or security (courts do a good job protecting those two from abuse, and if a day comes when they can’t, a higher being will be our only hope).
What we more and more often want to protect today is computer data. Our lives are online or on the hard drive. Emails, records of every website we go to, diaries, mad or creepy thoughts we share with the computer screen, political manifestos, ideas, inventions, art: it’s really anything that can change the world in a perfectly legal way but an official may want to censor, delete or use in some other way to harass you, charge you, or declare that you don’t look like your passport picture when you go abroad. Do we live in a dictatorship? Of course not. Does our government do things like that routinely? No, no, and no. Does it looks like it wants to? Not really. But like the Charter presumes that the government has the capacity for evil, every citizen must have a right to presume the same thing and to build impenetrable walls around his private life. Gun lovers in a certain country south of the border got a wrong target in their sights. They cling to the wrong tools. Guns are outdated, good-for-nothing protection of human rights. Passwords are the new guns.
The UK law wants to take your passwords from you. And like many things in the computer age, passwords are tricky. You can’t rip them from the owner’s arms and break them into pieces. You can’t even know for sure who has them or who the owner of the data they protect is. That’s a huge problem with the UK law. To overcome this problem, the law must make presumptions. First, it must presume that whoever has the hardware, owns the data on it. Unfair. Plug your computer and lots of stuff will land on your hard drive in the first five minutes without your knowledge. Second, the law must assume that whoever has the encrypted data, knows the password. Don’t ever forget passwords that the government wants. It’s may be a criminal offence in the UK. Finally and most scarily, the law must presume that every chunk of random data is encrypted. Without a password, there is no way to tell an encrypted Word document from a piece of an image file. Encryption works by making ordered data appear random. Sadly, much legitimate, unencrypted data on your hard drive looks exactly like that. Experts can even encrypt text by turning it into a jpeg of a cat.
There is a very thin line between enforcing the UK password law and letting cops wade through arbitrary computers under the cover of the today’s hottest flavour of the public interest. There are just too many legal fictions in this criminal offence. For this reason, I think Canadian courts would not let it stand if our Parliament passed a similar law. It’s just not necessary to force people to give up passwords to defend the absolutely legitimate public interest of safety or national security. The government can do its job without breaching human rights this much. Forcing people to surrender passwords will not minimally impair their Charter rights. The offence in the UK law is also too vague because any file with random data is potentially encrypted and subject to investigation. Giving up passwords may also be self-incriminating. No one should be punished for refusing to testify against themselves.
Let’s not kid ourselves. More and more criminals will encrypt the data used to commit crimes. But the way computer networks work makes it easy for that data to end up on an ordinary citizen’s computer. The government shouldn’t have powers to force us to give up passwords to any random heap of data that it believes to be connected to criminal activity. Passwords to our email or computer accounts will not be safe from such investigations either. Spammers bombard our computers with billions of attachments every year. There is a good chance spammers’ networks or computers are implicated in crime. That’s a real connection to our pretty Macs or drab PCs humming in our living rooms or bedrooms. And little can stop the police from suspecting that you know the password. This scenario doesn’t have to be common to cause alarm. It should cause alarm because of its potential for abuse. Making it an offence to refuse to give passwords justifies police involvement that can go beyond reasonable limits. That’s too much for our civil liberties, even in the name of fighting crime.
The UK password law is harsh and unreasonable. It can make too many law-abiding citizens targets of police interest. It will make them potential criminals when they refuse to take down barriers between their private space and the government. Someone said we increasingly lived online. If we take our affairs to the electronic realms, let’s make sure we take our civil liberties there too, even if we have nothing to hide.
Facebook and privacy
Ottawa takes on social media giant for violating Canada’s law
SCC: No Privacy Interest in Things We Throw Out
The Supreme Court of Canada today released its decision in R. v. Patrick, 2009 SCC 17, which concerns privacy interests in garbage and other abandoned items. The Court ruled that a police search of garbage abandoned at the curb does not require a warrant and can be done without violating the Charter.
Calgary police suspected that Mr. Patrick was operating an ecstacy lab in his house. Acting on this suspicion, the police attended at the house on six occaisions to retrieve and search through garbage bags, looking for any evidence of criminal activity.
The garbage bags had been placed inside garbage cans, which in turn had been left outside in a small shed for collection. The shed was on Mr. Patrick’s property, and the police had to reach over the property line to grab the bags.
As a result of these searches, police retrieved numerous incriminating pieces of evidence. The bags contained things like packaging for a digital scale, a receipt for muiatic acid, torn up chemical recipes, etc. Some of the items were contaminated with ecstacy.
Partly on the basis of the evidence collected in this way, the police were able to obtain a warrant to search Mr. Patrick’s home. After forcibly entering his home, they discovered precursor chemicals, scales, a pill press, and 2679 ecstacy pills.
Patrick argued that his section 8 Charter right to be free from unreasonable search and seizure had been violated.
The Court unanimously agreed that it had not.
The central issue in the case was whether Patrick, by placing his garbage bags outside to be picked up by municipal garbage collection, had abandoned any interest in those bags.
Thus, the case was was essentially resolved as a property law question.
The majority cited R. v. Dyment, [1988] 2 S.C.R. 417 for the proposition that abandonment of an item automatically disposes of one’s privacy interest in that item:
In R. v. Dyment, [1988] 2 S.C.R. 417, La Forest J. treated abandonment as fatal to a reasonable expectation of privacy. He held that when an accused abandons something, it is “best to put it in Charter terms by saying that he [has] ceased to have a reasonable expectation of privacy with regard to it.”
[Patrick, at para. 22.]
Next, they cited R. v. Stillman, [1997] 1 S.C.R. 607 as standing for the same proposition:
In R. v. Stillman, [1997] 1 S.C.R. 607, McLachlin J., in dissent, but not on this point, stated that “[t]he purpose of s. 8 is to protect the person and property of the individual from unreasonable search and seizure. This purpose is not engaged in the case of property which the accused has discarded.”
[Patrick, at para. 23.]
A finding that an accused person has abandoned an item seems, therefore, to be dispositive of any section 8 claim about that item. That’s a pretty narrow view of privacy.
Ironically, in Stillman, the seizure of a discarded tissue was held to have breached the accused’s section 8 rights. In that case, a young man was in custody at RCMP headquarters for five days. During the course of his detention, Stillman blew his nose into a tissue and tossed it out. The police retrieved the discarded tissue and obtained Stillman’s DNA.
The Supreme Court in Stillman focussed on the fact that the accused was in custody and had no real alternative to giving up his bodily samples:
[W]hen an accused person is in custody, the production of bodily samples is not an unforeseen occurrence. It is simply the inevitable consequence of the normal functioning of the human body. The police are only able to profit from the production of the samples because the accused is continuously under their surveillance. For this reason it is somewhat misleading to speak of “abandonment” in the context of evidence obtained from an accused who is in custody. … In those circumstances, how can the appellant assert his right not to consent to the provision of bodily samples? He would be required to destroy every tissue he used, to hide every spoon he ate from, to keep cigarette butts, chewed gum or any other potentially incriminating evidence on his person at all times in order to prevent the police from “retrieving” this “potentially useful waste”
[Stillman, at paras. 58-59.]
Why is the custody versus out of custody distinction so significant?
The reality of modern urban life is that the only realistic way to dispose of household garbage is through the municipal waste system. The production of household garbage is not an unforseen occurrence. It is simply the “inevitable consequence” of civilization. The garbage has to go somewhere. It is completely impractical (and probably illegal) to have to burn every piece of garbage that you want to keep private. Indeed, in Calgary, where Mr. Patrick lived, by-laws make it illegal to dispose of household garbage in any way other than by placing it in a waste container for collection.
Thus, whether you are in custody or at home, the waste you produce will eventually end up in the hands of the state.
(Incidentally, Calgary also has a by-law making it illegal to scavenge through someone’s garbage. The police violated the by-law, but I doubt whether anybody wrote them a ticket. Isn’t the existence of this by-law indicative of the important privacy concerns that we have in our waste? The majority dismissed the relevance of the by-law [Patrick, at para. 68].)
Despite recognizing the important privacy concerns with respect to the contents of a household garbage bag the Supreme Court simply could not get past the abandoment issue:
Residential waste includes an enormous amount of personal information about what is going on in our homes, including a lot of DNA on household tissues, highly personal records (e.g., love letters, overdue bills and tax returns) and hidden vices (pill bottles, syringes, sexual paraphernalia, etc.). As it was put by counsel for the Canadian Civil Liberties Association, a garbage bag may more accurately be described as a bag of “information” whose contents, viewed in their entirety, paint a fairly accurate and complete picture of the householder’s activities and lifestyle. Many of us may not wish to disclose these things to the public generally or to the police in particular.
…
[A]part from the key issue of abandonment, the circumstances in this case favour the appellant. The police were trying to find out what was “happening inside a private dwelling, the most private of places” (Plant, at p. 302). … The gathering up of the contents of the bags by the police provided them with a window into the appellant’s private life.
[Patrick, at paras. 30, 40; emphasis mine.]
So when exactly does household waste become abandoned such that the police can freely look into that window? The defence argued that the privacy interest in garbage should continue until the garbage becomes anonymous. The Court rejected this view outright:
The idea that s. 8 protects an individuals’s privacy in garbage until the last unpaid bill rots into dust, or the incriminating letters turn into muck and are no longer decipherable, is to my mind too extravagant to contemplate. It would require the entire municipal disposal system to be regarded as an extension, in terms of privacy, of the dwelling-house.
[Patrick, at para. 54.]
Is that actually “too extravagant to contemplate?” Is the defence’s proposal such a bad idea? I certainly think that the personal items I throw in the trash ought to remain private until they cease to exist. I bet a lot of Canadians would agree with me. The municipal garbage system, to me, is like an Orwellian memory hole.
The Court concluded that the moment we toss our garbage bags to the curb, our privacy interest in the contents of the bags is at an end. It doesn’t matter if the garbage bags are on your side of the property line. It doesn’t matter if you take pains to drive your garbage bags all the way to the dump site. The majority held that:
Given the “totality of the circumstances” test, little would be gained by an essay on different variations of garbage disposal. To take a few common examples, however, the rural people who take their garbage to a dump and abandon it to the pickers and the seagulls, the apartment dweller who unloads garbage down a chute to the potential scrutiny of a curious building superintendent, and the householder who takes surreptitious advantage of a conveniently located dumpster to rid himself or herself of the “bag of information” are all acting in a manner inconsistent with the reasonable assertion of a continuing privacy interest, in my view.
…
[T]he appellant had abandoned his privacy interest in the contents of the garbage bags gathered up by the police when he placed them in the garbage alcove open to the laneway ready for collection. The taking by the police did not constitute a search and seizure within the scope of s. 8, and the evidence (as well as the fruits of the search warrant obtained in reliance on such evidence) was properly admissible.
[Patrick, at paras. 64, 73.]
There was a brief concurring opinion by Justice Abella. Though she did not believe that a Charter breach had occurred in this case, her focus was not on the abandonment issue.
Abella J. found that abandonment alone should not automatically leave household waste open to police scrutiny. She was concerned that under the majority’s approach, the police would have unrestricted access “to information most people would never expect to be publicly accessible.” In her view, a person has a diminished, but not extinguished, expectation of privacy in respect of garbage which has been abandoned [Patrick, para. 90].
Given that there was some expectation of privacy, this expectation would have to be balanced against the legitimate interests of the state in investigating crime. Abella J. did not believe that prior judicial authorization in the form of a warrant would strike the appropriate balance. Instead, she felt that police must have a reasonable suspicion. “Reasonable suspicion” was not defined in the judgment, but it usually refers to some articulable grounds for believing that a crime has taken place. It is than a mere hunch, but something less than reasonable and probable grounds; a fairly low threshold.
“[I]n my view, with respect, the privacy of personal information emanating from the home, which has been transformed into household waste and put out for disposal, is entitled to protection from indiscriminate state intrusion. Such information should not be seen to automatically lose its “private” character simply because it is put outside for garbage disposal. Before the state can rummage through the personal information from this ultimate zone of privacy, there should be, at the very least, a reasonable suspicion that a crime has been or is likely to be committed.”
[Abella J., concurring, in Patrick, at para. 77.]
Certainly when we throw our garbage out we are giving up a proprietary claim to it. But I think that our proprietary claim has to be treated as distinct from our privacy interest. I think it’s an inherent expectation of Canadians that what we throw out will be free from scrutiny by other members of the public, and certainly by the state.
Abella J.’s decision is much more compelling in that it recognizes a legitimate (though diminished) expectation of privacy in things we throw out.
Unfortunately, today’s majority decision significantly abrogates our privacy rights in this country.
Online Privacy: The Noose Tightens
The scholars, captains of industry and champions of justice who compose Law is Cool’s readership will have long since scoured their online social networks for photos or other items tending to compromise their integrity — reports of “the dark side of social networking” are thick on the ground. But a recent court decision may renew paranoia that privacy is an artefact of the twentieth century, doomed to join its contemporaries (pagers, Chris Tucker, student activism, literacy, the Ark of the Covenant) in oblivion.
Just weeks after finding that Canadians have no expectation of privacy in their online identities, Ontario’s Superior Court of Justice has ruled that posts on Facebook and other online social networks may be discoverable against their makers, according to the Star’s Tracey Tyler.
Plaintiff John Leduc claims that injuries sustained in a car accident in 2004 have lessened his enjoyment of life. The court found that Leduc may be cross-examined on the contents of his Facebook account where such contents are relevant to his claim — despite the fact that security settings on his account restricted access to his profile to only his close friends.
If Leduc’s Facebook account contained evidence of him
- exerting himself,
- stopping to smell roses,
- “seizing the day” in any fashion, or
- otherwise engaged in merriment,
such evidence might undermine his claim. Pictures of him sitting on the roof of his car watching the sun set over a northern lake, or snowboarding through thick powder with the caption “Go for it!” beneath him, would be especially damning.
The decision overturns a Superior Court case management master’s ruling that forcing Leduc to produce the contents of his Facebook account amounted to a “fishing expedition”, since there was nothing — except Leduc’s opposition to disclosure — to suggest that any compromising photos in fact existed. Leduc’s profile consisted only of his name and picture.
A search of Facebook for accounts registered to “John Leduc” yielded 129 results — many of whom appeared to be enjoying themselves.
Court: No Expectation of Privacy in our Online Identity
The Ontario Superior Court of Justice has ruled that Canadians have no expectation of privacy in their online identity.
In a St. Thomas-area child porn case, the police asked Bell Canada for a customer’s name and home address based on that customer’s IP address. Bell Canada complied and handed over the information.
The customer’s husband was allegedly using the family computer to search for child porn. He was arrested.
The accused argued that the police search of Bell’s records should have required a warrant. Obtaining his details without a warrant, he claimed, was a violation of his s. 8 Charter right to be free from unreasonable search and seizure.
Justice Lynne Leitch disagreed, writing that:
“One’s name and address or the name and address of your spouse are not biographical information one expects would be kept private from the state.”
Her decision, though it represents an erosion of internet privacy, appears to be well founded. In a moot competition concerning s.8 of the Charter, Omar Ha-Redeye and I argued the exact same point on behalf of the Crown. (Ironically, Justice Leitch was one of the judges of our competition.)
In the appropriately named R. v. Plant, [1993] 3 S.C.R. 281, a marijuana grower sought s. 8 protection for his electricity consumption records. Justice Sopinka held:
… in order for constitutional protection to be extended, the information seized must be of a “personal and confidential” nature. In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. The computer records investigated in the case at bar while revealing the pattern of electricity consumption in the residence cannot reasonably be said to reveal intimate details of the appellant’s life since electricity consumption reveals very little about the personal lifestyle or private decisions of the occupant of the residence. [emphasis added]
If you’re interested, see also R. v. Tessling, 2004 SCC 67 at paras. 59-62.
In R. v. A.M., 2008 SCC 19 however, the Supreme Court tempered the “biographical core of personal information” requirement. Binnie J. explained that even where the information sought by police is not aimed at revealing intimate details of the lifestyle of the accused, the analysis does not end there. Simply, the privacy of the contents of a communication is protected if it was reasonably intended by its maker to be private [para 68].
In the present child porn case, Justice Leitch held that the information sought by the police was nothing more than a name and an address. She likened it to information in a telephone book. There were no contents of communications which were worthy of protection.
Ultimately, she found that a customer could not have expected such information to be kept private from the state.
Tech blog Ars Technica criticized the decision:
“Though it’s clear that the ruling in the case (which is still ongoing) was made with good intentions, privacy advocates know what the road to hell is paved with. Critics fear that such a precedent could open the doors to police asking for information on all manner of Internet activities, ranging from the embarrassing to the questionable-but-legal, without judicial oversight.”
Prof. James Stribopoulos, who teaches criminal law and evidence courses at Osgoode, joined the chorus of criticism:
“There is no confidentiality left on the Internet if this ruling stands…”
The reasoning of the judge misses the context of what police are seeking, suggested Mr. Stribopoulos.
“It is not just your name. It is your whole Internet surfing history. Up until now, there was privacy. An IP address is not your name; it is a 10-digit number. A lot more people would be apprehensive if they knew their name was being left everywhere they went.”
This information should require a search warrant by police if there is suspected criminal activity, said Mr. Stribopoulos. Judges are accepting the argument that this is “just your name” because “everyone wants to get at the child abusers,” he said.
The case itself is still ongoing after this Charter ruling.
I Spy with my Little Eye Something that is a Tort
The B.C. Supreme Court has awarded damages to a Vancouver woman whose landlord installed, without notice, a hidden video camera in the hallway outside of her suite.
According to the ruling judge, Justice Paul Walker, at issue in the case was the competing rights of the two parties: the tenant’s ‘right to quiet enjoyment’, including the right to ‘reasonable privacy’, as entitled by Section 28 of the Residential Tenancy Act, and the landlord’s right to “protect its property and its obligation to protect the interests of other tenants in a residential apartment building.”
In his ruling, Justice Paul Walker wrote,
As far as I am aware, there is no reported decision in Canada dealing with the issue.
Without a direct precedent or evidence as to the actual damages caused, the judge awarded the plaintiff a nominal amount of $3,500 plus court costs in compensation.
Ms. Heckert, the plaintiff, testified that she found it “very creepy” and an invasion of her privacy to have the video camera installed outside her suite.
It is clear from the video shown to me that any person watching the video images from the 12th-floor camera is able to see a very close-up and detailed image of anyone entering and exiting Ms. Heckert’s suite,
Justice Walker said.
This view is quite intrusive of personal privacy.
Law is Cool – Podcast #9
Show Notes
Total running time 21:15
0:16 Jacob Kaufman and Omar Ha-Redeye introduce themselves.
0:44 Jacob and Omar discuss final exams.
2:10 Omar introduces Lisa Feinberg of UofO Law and the Canadian Interest and Public Policy Clinic (CIPPC), who is one of the law students that filed a complaint with the Privacy Commissioner over Facebook.
3:19 Lisa describes the 22 violations of PIPEDA that the students identified.
4:12 Lisa explains the effort that went into developing the project
5:01 Lisa tells us how the Privacy Commissioner creates and issues recommendations
5:50 Lisa relates the implications for Facebook users, even outside of Canada
7:39 Even though Lisa uses Facebook, she tells us how much more she learned about the site through the project.
9:11 Lisa expresses her interests in social networking, and how she got involved in the project.
11:23 Jacob shares some Facebook policies that demonstrate their attitude to privacy.
11:45 Jacob quotes James Grimmelman, who likens Facebook to a virus. Omar says it sounds like something out of The Matrix.
12:24 Omar introduces an interview with Khurrum Awan, complainant in a case against Maclean’s.
13:30 Khurrum describes the turnout at the Tribunal by members of the media, and the importance of independent coverage.
15:10 Khurrum explains the procedural elements of the Tribunal, when we can expect a decision, and where the case can potentially go from here.
16:32 Jacob talks about the different ways that law students apply their legal education towards advocacy work in real life.
17:08 Jacob shares some of the things he learned from the Facebook complaint, such as how applications can obtain your information without your explicit consent.
17:45 Jacob mentions Robert J. Sawyer’s theory in Maclean’s that notions of privacy are themselves outdated, and that we should have chips implanted in us at all times to track our movements.
18:40 Jacob mentions David Lat, a former American prosecutor who left the law to blog on Above the Law, and how he documented his weight-loss program online. Omar relates how this could be used in the potential trend of obesity lawsuits we could see in the future.
19:54 Jacob describes a New Brunswick case on the disclosure of Facebook materials, Knight v. Barrett, [2008] N.B.J. No. 102.
20:34 Omar and Jacob sign off.
(Look for an upcoming post on a recent Ontario decision regarding Facebook)
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