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Blown Chances, Bogus Claims & Blatant Hypocrisy: Why Yesterday Was a Disastrous Day for Cdn ...

Michael Geist Law RSS Feed - Wed, 2014/06/11 - 00:35
Bills C-13 and S-4, the two major privacy bills currently working their way through the legislative process, both reached clause-by-clause review yesterday, typically the best chance for amendment. With Daniel Therrien, the new privacy commissioner, appearing before the C-13 committee and the sense that the government was prepared to compromise on the controversial warrantless disclosure provisions in S-4, there was the potential for real change. Instead, the day was perhaps the most disastrous in recent memory for Canadian privacy, with blown chances for reform, embarrassingly bogus claims from the government in defending its bills, and blatant hypocrisy from government MPs who sought to discredit the same privacy commissioner they were praising only a few days ago.


The blown chance for reform arose at the Senate committee conducting its review of Bill S-4.  The review of the bill was very short - I appeared before the committee last week, but very little time was devoted to a bill that was years in the making. Liberal Senator George Furey proposed an amendment to remove the most controversial provision in the bill that would massively expand the scope of voluntary, warrantless disclosures by allowing companies to reveal customer information to other companies. There appeared to be sufficient support for the amendment since one Conservative Senator supported it. However, when the chair of the committee, Liberal Senator Dennis Dawson, abstained, the committee was left deadlocked at 4 in support and 4 against. Dawson tried to change his vote, but it was ruled out of order. The government was likely ready to lose on the issue, but the amendment was defeated and with it, the best chance to remove the provision.

In fact, Industry Minister James Moore appears to have assumed that the amendment was adopted at committee. Later in the afternoon during Question Period, Moore responded to a question about the expansion of warrantless disclosure in Bill S-4 by stating "we dealt with this issue at the Senate. We adopted an amendment at the Senate committee and it will come to the House of Commons where we will move forward." In other words, the amendment was a done deal and the committee blew it.

The bogus claims were strewn over both committees. Conservative Senator Don Plett argued that the Furey amendment would impede self-regulating professional associations such as lawyers and doctors from investigating its own members. The reality is that the law currently permits these investigations with regulations that cover dozens of such associations. Bill S-4 seeks to expand the disclosures to anyone, but Furey's amendment was clearly aimed at stopping the expansion of voluntary warrantless disclosures, not rolling back those current powers.

Meanwhile, at the C-13 committee, government MPs were using the most incredible justifications for problematic provisions in the bill. Responding to concerns about a provision that expands voluntary warrantless disclosure to a wider range of public officials, Conservative MP Bob Dechert argued that the expanded approach was needed to allow fisheries officers to request data from telecom companies and to give military police the power to investigate soldiers overseas if they send cyberbullying images. 

Most troubling was the sheer hypocrisy taking place at both committees. Last week, Treasury Board President Tony Clement described Therrien as "an exceptional candidate" in the House of Commons, while Prime Minister Harper called him an "expert." That exceptional candidate and expert told the committee that Bill C-13 should be split, that a higher threshold should be used for metadata warrants, and that immunity for voluntary disclosures of personal information was likely to lead to a rise in such disclosures. With those criticisms in hand, Conservative MP Kyle Seeback was no longer impressed with Therrien's expertise, bizarrely asking if he had ever been a police officer or a crown attorney. Those comments came as part of a series of aggressive questions that surprised many observers.

Yet while Conservative MPs were dismissing any criticism of the bill and indicating that they would side with police testimony, consider that the police testimony involved representatives who were not even fully aware of the substance of the bill.  For example, when the Ontario Provincial Police appeared before the committee last month, their representative stated:

Under the proposed legislation, ISPs will be compelled to provide this information in a timely fashion and on a consistent basis. Access to this information will be strictly controlled and limited to law enforcement officials who would be fully trained in these procedures and subject to auditing and/or reporting processes. The outcome will be that the police can quickly and consistently gain access to information that makes a difference to our effectiveness in investigating and preventing criminal activity and victimization.

The problem with the testimony is that the refers to an old bill, not Bill C-13. This bill does not have mandatory disclosure provisions and the voluntary provisions expand the scope of who many have access to personal information. So Conservative MPs side with police testimony that did not accurately describe the substance of the bill.

Moreover, at the Senate committee, the only amendment to Bill S-4 that was approved was proposed by Conservative Senator Plett, who weakened police powers as part of the data breach disclosure rules. Plett and the Conservative senators removed a provision that would have allowed police to request delayed notification to the public if the notice might impede a criminal investigation. That seems like a sensible provision where police are pursuing a criminal hacking or data theft operation, yet it was the Conservatives that removed the provision.

That provided a fitting conclusion to a disastrous day for Canadian privacy in which a Senate committee blew the best chance for privacy reform and the government made it clear it thinks the privacy commissioner is expert except when he disagrees with them, that police concerns trump public and privacy concerns except when they don't, and the military has a cyberbullying problem that necessitate warrantless access to personal information.

Patent Infringement Lawsuits Against Software End-Users

IPBlog (Calgary) - Tue, 2014/06/10 - 18:00
- Are you a Canadian software vendor with customers in the USA? Let's say your US end-user customer is sued for patent infringement in the US based on use of your software, but the lawsuit avoids naming your company. In other words, your customers are sued, but you are not. Ok, so you ...

The Fear-Free Guide to Canada's Anti-Spam Legislation: Answers to Ten Common Questions

Michael Geist Law RSS Feed - Tue, 2014/06/10 - 00:32
The imminent arrival of Canada's anti-spam legislation has sparked considerable fear that might lead the uninitiated to think that sending commercial electronic messages will grind to a halt on July 1st, when parts of the law kick in. The reality is far less troubling. For any organization that already sends commercial electronic messages, they presumably comply with PIPEDA, the private sector privacy law, that requires organizations to obtain user consent, allow users to withdraw their consent, and provide the necessary contact information to do so.  Compliance with the new anti-spam law (CASL) involves much the same obligations.  While there are certainly some additional technical requirements and complications (along with tough penalties for failure to comply), the basics of the law involve consent, withdrawal of consent (ie. unsubscribe), and accessible contact information. 

This post is not legal advice, but it seeks to unpack the key requirements associated with the commercial electronic messages provisions in CASL by answering the ten questions organizations should ask (and answer). Note that there are additional rules associated with software that do not take effect until next year. While this is not designed to be comprehensive - some organizations will face unique issues - it provides a starting point for the key requirements, exceptions, and application of the law. The law itself can be found here. The Industry Canada regulations here and the CRTC regulations here.

The primary takeaways? If you send commercial electronic messages, you need explicit consent along with an unsubscribe mechanism and contact information. There are many common sense exceptions to this general rule, however, including personal messages, most business-to-business messaging, and most messages sent to recipients outside of Canada. Moreover, if you do not have explicit consent, the government has implemented a transition period that grants you three years to get it.



1.    What electronic messaging is covered by the law?

The starting point is to first identify whether your message is captured by the law. The law only addresses commercial electronic messages, but CASL takes a broad approach to what is included. The law states that "a commercial electronic message is an electronic message that, having regard to the content of the message, the hyperlinks in the message to content on a website or other database, or the contact information contained in the message, it would be reasonable to conclude has as its purpose, or one of its purposes, to encourage participation in a commercial activity." That covers a lot - so long as the content, links, or contact information appears to have as a purpose encouraging commercial activity, it is caught by the definition. Note that the CRTC has said that encouraging commercial participation refers to encouraging the recipient's participation.

2.    What are the "big three" requirements under the law?

Sending commercial electronic messages is subject to three requirements under CASL. First, the law prohibits sending messages (or causing or permitting messages to be sent) unless the recipient has consented to receive it. Second, it establishes form requirements for electronic messages that specify that they must identify who sent the message, include contact information, and contain an unsubscribe mechanism. Third, the contact information must remain valid for at least 60 days after the message has been sent. The law expands on each of these requirements, as discussed further below.

3.    Does my message qualify for an exception?

CASL features many exceptions to the general rule of having to comply with the big three requirements.  Even among the exceptions, there are two types: those exceptions that exclude the message from all the requirements and those exceptions that exclude only the consent requirements (but leave the form and contact information requirements).

General exceptions that exclude the message from all the requirements include:

  • messages between individuals with a personal or family relationship. The regulations indicate these messages involve direct, voluntary, two-way communications. They do not involve social-media only relationships (ie. likes or follows)
  • messages sent between employees within an organization
  • messages sent to a business (or person engaged in a commercial activity) where the message consists of an inquiry or application related to that commercial activity
  • messages sent in response to a request, inquiry or complaint
  • messages sent on an electronic messaging service (such as a social media direct message service) provided that there is adequate information and unsubscribe mechanisms on the service site
  • messages sent to a limited-access secure and confidential account to which messages can only be sent by the person who gave the account to the recipient
  • messages sent to satisfy or enforce a legal or juridical obligation
  • messages sent to recipients outside the country with qualifying anti-spam laws (see jurisdiction discussion below)
  • two-way voice calls, faxes, and voice recordings sent to a telephone account

The exceptions that exclude consent requirements but keep the form and contact information requirements include:

  • quotes or estimates sent to someone who has requested it
  • completion of commercial transactions
  • providing warranty, product recall or safety information
  • notifying the recipient of factual information about an ongoing product, service, subscription, membership, account, etc.
  • information directly related to an employment relationship
  • delivering a product, good or service (including product upgrades) if the recipient was entitled to receive it
  • one third-party referral message, subject to certain requirements (including naming who made the referral in the message)

4.    Does my organization qualify for an exemption?

The law features a number of exemptions for several types of organizations. First, registered charities are exempt provided that the primary purpose of the message is to raise money for the charity. Second, political parties and political candidates are exempt if the primary purpose of the message is to solicit a contribution. Third, telecom providers are exempt where their role in the communication is to merely provide telecommunications services.
 
5.    My messages or organization do not qualify for an exception. What consent is acceptable under the law?

The law identifies two kinds of consent: express and implied. Express consent requires identifying the purposes for why consent is being requested and identifying who is seeking consent. The law generally requires express consent.  Express consent may not involve pre-checked boxes. Rather, there must be an express, opt-in by the user to indicate their consent.

However, there are several exceptions that permit implied consent for electronic messaging:

  • there is an existing business relationship between the sender and recipient. This includes any purchase of a product, good or service within the prior two years, the acceptance of a business opportunity within the prior two years, a written contract between the two parties from the previous two years, or any inquiry within the prior six months.
  • there is an existing non-business relationship between the sender and recipient. This includes donations or volunteer work to or for charities, political parties, and political candidates, as well as membership over the prior two years in a club, association, or voluntary organization
  • the recipient's email address has been prominently published, there is no statement indicating the person does not want to receive messages, and the message itself is related to the person's business, role or duties
  • the recipient's email address was disclosed to the sender, there is no statement indicating the person does not want to receive messages, and the message itself is related to the person's business, role or duties


6.    Are my existing consents valid?

Express consents obtained before the law took effect remain valid. Implied consents are subject to the transition described below.

7.    What are the requirements for the unsubscribe mechanism?


The unsubscribe mechanism must allow the recipient to unsubscribe using the same electronic means that was used to send the message. There must also be a Web-based address that allows for unsubscribing.

8.    What are the jurisdictional limitations in the law?  Does it apply to non-Canadians sending messages to Canadians? To Canadians sending messages to non-Canadians?

The law applies to messages sent to Canadians and is invoked when a computer system in Canada is used to send or access the message. There are important exceptions in the application of the law to Canadian organizations that send messages outside the country. First, sending the message to a person in a country with comparable anti-spam laws means those local laws apply.  The government has identified 116 countries that qualify for this exception and the list includes virtually all major countries that are likely to have commercial electronic traffic with Canada. Second, merely routing a message through Canada (but not using a Canadian computer server to send or access the message) does not trigger the law.

9.    Does everything start on July 1st or is there a phase-in period?

While the law takes effect on July 1st, there is a three-year transition period.  Where there is an existing business or non-business relationship, consent is implied for the full three years. In fact, the CRTC has apparently interpreted the transition provision to cover any prior business relationship. In other words, as long as the organization has implied consent, it effectively has until 2017 to upgrade to an express consent.

10.    What are the penalties for violating the law?

The penalties are significant, which is why many people are paying attention to the law. The maximum penalty is $1 million per violation for an individual and $10 million per violation for a business.

Podcast: ‘Cybersecurity’ begins with integrity, not surveillance


Here's a reading (MP3) of a recent Guardian column, 'Cybersecurity' begins with integrity, not surveillance, in which I suggest that the reason to oppose mass surveillance is independent of whether it "works" or not -- the reason to oppose mass surveillance is that mass surveillance is an inherently immoral act:

The Washington Post journalist Barton Gellman and I presented an introductory session at SXSW before Edward Snowden's appearance, and he made a thought-provoking comparison between surveillance and torture. Some of the opponents of torture argue against it on the ground that torture produces low-quality intelligence. If you torture someone long enough, you can probably get him to admit to anything, but that's exactly why evidence from torture isn't useful.

But Gellman pointed out that there are circumstances in which torture almost certainly would work. If you have a locked safe – or a locked phone – and you want to get the combination out of someone, all you need is some wire-cutters, a branding iron, some pliers, and a howling void where your conscience should be.

The "instrumental" argument against torture – that it doesn't work – invites the conclusion that on those occasions where torture would work, there's nothing wrong with using it. But the primary reason not to torture isn't its efficacy or lack thereof: it's that torture is barbaric. It is immoral. It is wrong. It rots societies from the inside out.

MP3

Proposed Data Breach Disclosure Rules Leave Too Many Canadians in the Dark

Michael Geist Law RSS Feed - Mon, 2014/06/09 - 00:02
News last week of a stunning data breach at a Toronto-area hospital involving information on thousands of mothers places the proposed Digital Privacy Act squarely in the spotlight. Bill S-4, which was introduced two months ago by Industry Minister James Moore, features long overdue data breach disclosure rules.

My weekly technology law column (Toronto Star version, homepage version) notes the new rules would require organizations to notify individuals when their personal information is lost or stolen through a data or security breach. Most other leading economies established similar rules years ago, recognizing that they create much-needed incentives for organizations to better protect our information and allow individuals to take action to avoid harms such as identity theft when their information has been placed at risk.

While the mandatory data breach rules can be an effective legislative privacy tool, they only work if organizations actually disclose breaches in a timely manner. Bill S-4 establishes tough penalties for failure to notify affected individuals, but unfortunately undermines its effectiveness by setting a high notification standard such that Canadians will still be kept in the dark about many breaches, security vulnerabilities, or systemic security problems.


There are two major problems with the government's proposal, which appears to have been placed on a legislative fast track.  First, the standard for disclosing a data breach is set at "a real risk of significant harm to the individual." This standard is considerably higher than that found in some other jurisdictions.  

For example, the California breach notification law requires disclosure of any breach of unencrypted personal information that is reasonably believed to have been acquired by an unauthorized person. In other words, the threshold is whether an unauthorized person acquired the information, not whether there is real risk of significant harm. In Europe, telecom breaches must be reported based on an "adverse affect to personal data or privacy" standard, which is also lower threshold than the Canadian plan.

Second, earlier versions of the privacy bill envisioned a two-stage approach in which organizations would be required to notify the Privacy Commissioner of Canada of material data breaches (a far lower standard), who would then work with the organization to assess whether a wider notification to all affected Canadians was warranted. The two-stage approach is increasingly common with New Zealand announcing plans for a similar approach late last month.

The Digital Privacy Act removes the notification of material breaches to the Privacy Commissioner altogether. The bill requires organizations to maintain a record of all breaches, but only to disclose them if the Commissioner asks and no one seriously expects the Commissioner to regularly ask every organization about whether they have experienced any data breaches.

The elimination of notifications of material breaches is likely to result in significant under-reporting since organizations will invariably err on the side of non-reporting in borderline cases and the Commissioner will be unaware of the situation.  Rather than providing Canadians with the necessary information to take steps to mitigate against identity theft and misuse of their personal information, the bill will often leave them unaware of data breaches or security risks.

While there are other serious concerns with the Digital Privacy Act - notably the massive expansion of warrantless voluntary disclosures of personal information - the government promoted the data breach rules as the centerpiece of its effort to better protect Canadians against the misuse of their personal information. Yet the core requirements of that system actually provide less protection than earlier proposals and would be one of the weaker approaches in the developed world.

Privacy has emerged as dominant issue on Parliament Hill in recent weeks, with the focus on surveillance, lawful access, and the new Privacy Commissioner. The Digital Privacy Act has received less attention, however, its failure to keep Canadians informed about many data breaches should be added to the list of privacy disappointments.

Little Brother challenged in Florida high school


For the first time, one of my books has been challenged. The students at Booker T Washington High in Pensacola, Florida were to be assigned Little Brother for their summer One School/One Book read. At the last instant -- and over the objections of the head of the English department and the chief librarian -- the principal reversed the previous approval and seems to have cancelled the One School/One Book program outright. My amazing publishers, Tor Books, have volunteered to send 200 copies to the school for the students to read, and I'll participate in a videoconference with the students in the coming school year. Read all about it on Boing Boing.

Rogers' Shocking Admission: It Does Not Track Disclosures of Subscriber Information to Authorities

Michael Geist Law RSS Feed - Fri, 2014/06/06 - 04:57
Rogers surprised many yesterday by becoming the first major Canadian telecom provider to release a transparency report (TekSavvy, a leading independent ISP beat them by a few hours in issuing a very detailed report on its policies and activities). The company was rightly lauded for releasing the report, which seems likely to end the silence among all Canadian telecom companies. Telus now says it is working on a transparency report for release this summer and it is reasonable to guess that others will follow.

Much of the focus on the report came from its big number: nearly 175,000 requests for subscriber information last year. Yet requests for information is only part of the story. The report only contained data on requests for information with no numbers on how many times the company disclosed the information to the authorities upon request. The reason for the omission is shocking admission: Rogers says it has not tracked when it discloses subscriber information in response to these requests. When asked how often authorities' requests were granted, the company stated:


“We don’t keep track of it. Our tracking to date has really been for internal management purposes, not for creating a transparency report. So that's something we’re going to look to expand in the future and hopefully provide more information in the future."

By contrast, the TekSavvy report provides data on both requests and disclosures as do many other transparency reports (Google, Twitter, Microsoft).

The claim that Rogers only tracks in-bound requests and not out-bound data is hard to believe. The reason may be financial - the "internal management purpose" may be to charge a fee to law enforcement for the process. Further, the company says that if it considers an order too overbroad, it will "push back and, if necessary, go to court to oppose the request." Is it really possible that the company has no records of when it has gone to court to oppose a request?

[Update 7/6/14: Rogers has provided a private response in which it indicates that it does have records of individual responses to requests for subscriber information, but that it does not track aggregate numbers. Further, it does know the number of times it went to court, but did not include that information in the transparency report.]

Tracking disclosures of subscriber information should not be viewed as optional. Privacy law gives individuals a right of access to their information:

Upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information.

The statute continues at 4.9.3:

In providing an account of third parties to which it has disclosed personal information about an individual, an organization should attempt to be as specific as possible. When it is not possible to provide a list of the organizations to which it has actually disclosed information about an individual, the organization shall provide a list of organizations to which it may have disclosed information about the individual.

If Rogers is not tracking disclosures, the approach raises privacy compliance concerns. Moreover, this helps explain why it does not notify customers that their information has been disclosed since it does not seem to track the information itself.  title

Diving Into the Digital Privacy Act: My Appearance Before Senate Transport & Comm Committee ...

Michael Geist Law RSS Feed - Thu, 2014/06/05 - 00:22
Last night I appeared before the Senate Transport and Communications Committee, which is conducting hearings on Bill S-4, the Digital Privacy Act. I have posted on the bill's shocking expansion of warrantless voluntary disclosure, by pointing to a provision that would permit disclosure to any organization, not just law enforcement. This appearance provided the opportunity to discuss a broader range of issues, including positive elements in the bill (clarification of consent, expansion of the Commissioner publicly disclosing information, and a longer time period to bring a case to the federal court), the areas in need of improvement (security breach disclosure standards, voluntary warrantless disclosure, compliance agreements), and the glaring omission of stronger reporting requirements.

The surprise of the night came at the end, when the chair indicated that the committee did not plan to hear from any further witnesses. The bill will therefore move to clause-by-clause review next week.

Appearance before the Senate Transport and Communications Committee, June 4, 2014


Good evening. My name is Michael Geist.  I am a law professor at the University of Ottawa, where I hold the Canada Research Chair in Internet and E-commerce Law. I have appeared many times before committees on various digital policy issues, including privacy. I appear today in a personal capacity representing only my own views.

I'd like to structure my remarks by focusing on three welcome elements of Bill S-4, three areas in need of improvement, and one glaring omission.

The Welcome Provisions

First, the good news.  Bill S-4 importantly provides additional clarification for the standard of consent. Given that meaningful consent provides the foundation for the law, the clarification is much-needed, particularly for minors. Consent is meaningless if the person does not understand to what they are consenting. By clarifying the standard of consent, businesses will have greater certainty and a clear obligation to ensure that Canadians are better informed about the collection, use and disclosure of their personal information.

Second, the expansion on publicly disclosing information is also a welcome addition and long overdue. I have long argued that the Office of the Privacy Commissioner adopted an unnecessarily conservative interpretation of the current provision that allows for naming organizations subject to complaints. The expansion of the provision sends a signal that the Commissioner should not hesitate to publicly disclose any information if it is in the public interest to do so.  This would include poor organizational practices, well-founded complaints or public privacy risks.

Third, the extension of the deadline to take a complaint to the Federal Court is much needed as well, given that the current system represents an unnecessary barrier to potential pursuit of federal court review.

Areas in Need of Improvement

Let me now turn to three important aspects of the bill in need of improvement.  First, the long-awaited security breach disclosure requirements.  As you are aware, creating mandatory security breach disclosure requirements at the federal level is long overdue as it creates incentives for organizations to better protect our information and allows Canadians to take action to avoid risks such as identity theft. There are aspects of the Bill S-4 security breach rules that are better than those found in prior bills such as C-12 and C-29.  Most notably, the inclusion of actual penalties is essential to create the necessary incentives for compliance. 

However, there are problems with the standards for disclosure, some left over from the prior bill and some new to this bill.

From the prior bill, the standard for notification to individuals - "a real risk of significant harm to the individual" - should be lowered to ensure that the law captures more breaches. By comparison, the California breach notification law requires disclosure of any breach of unencrypted personal information that is reasonably believed to have been acquired by an unauthorized person. In other words, the only threshold is whether an unauthorized person acquired the information, not whether there is real risk of significant harm. In Europe, telecom breaches must be reported based on an "adverse affect to personal data or privacy" standard, which is also better than the Bill S-4 approach.  These are better approaches that make it more likely that Canadians will be informed when their information is caught up in a breach.

New to this bill is the removal of a two-stage process that involved first informing the Privacy Commissioner and then the individual where circumstances warrant it. Bill S-4 puzzlingly establishes the same standard - "real risk of significant harm" - for both notifying the Commissioner and individuals. This means there may be no notification for systemic security problems within an organization or technical standard vulnerabilities. I repeat - those kinds of breaches would not be disclosed to anyone. The bill requires organizations to maintain a record of all breaches, but only to disclose them if the Commissioner asks.

Why is this a problem?  Because it is likely to result in significant under-reporting of breaches since organizations will invariably err on the side of non-reporting in borderline cases and the Commissioner will be unaware of the situation since there is no reporting requirement to that office.

You have heard some suggest that all breaches should be reported to the Commissioner. This is the approach is some jurisdictions. For example, under a European Union regulation passed last year, all personal data breaches at telecom companies must reported to the national data protection authority.

I believe that the prior government bills (C-12 and C-29) offered a better, two-stage approach. The first notification to the Privacy Commissioner would occur where there is a "material breach of security safeguards".  Whether the breach was material depended upon the sensitivity of the information, the number of individuals affected, and whether there was a systemic problem.  It did not require a risk of significant harm.  The two-stage approach was far better, since it ensured notifications first to the Commissioner, including identifying systemic problems that may not be caught by the Bill S-4 approach.

I would therefore recommend two changes to these provisions: the California-style standard for notifications to individuals and the government's own approach in C-12/C-29 to notifying the Commissioner as a first step.

The second major area for improvement involves the expansion of warrantless disclosure. At a time when many Canadians are concerned with voluntary, warrantless disclosure, the bill expands the possibility of warrantless disclosure to anyone, not just law enforcement. The bill features a provision that grants organizations the right to voluntarily disclose personal information without the knowledge of the affected person and without a court order to other non-law enforcement organizations provided they are investigating a breach of an agreement or legal violation (or the possibility of a future violation).

While the government has claimed that this provision should not concern Canadians, the reality is that the broadly worded exception will allow companies to disclose personal information to other companies or organizations without court approval. This runs counter to recent Federal Court decisions that have sought to establish clear limits and oversight over such disclosures.

Moreover, the disclosure itself is kept secret from the affected individual, who is unlikely to complain since they will be unaware that their information has been disclosed. In fact, while a House of Commons committee may have recommended a similar reform in 2006, that recommendation was rejected at the time by both the Conservative government and the Privacy Commissioner of Canada.

The reform here is clear: the provision opening the door to the massive expansion of warrantless, non-notified voluntary disclosures should be removed.

Third, given the distinct lack of powers for the Privacy Commissioner of Canada, the creation of compliance agreements is a step in the right direction, but order-making power or at least some form direct regulatory action such as administrative and monetary penalties is needed. The inability to make well-founded findings 'stick' without first navigating an inaccessible and impractical trip to the federal court has been an enormous source of frustration for many Canadians.

The creation of compliance orders would have made sense if there had been some power to issue penalties or take regulatory action, as is the case in the United States where compliance orders are commonly used. Without such a threat, however, it is difficult to see why an organization would enter into such an agreement. Avoiding the federal court is something you do when you fear you might lose. That has not been the case under PIPEDA. Reforms are needed with real penalties to ensure compliance.

The Glaring Omission

The lack of transparency, disclosure, and reporting requirements associated with warrantless disclosures is a glaring omission from the bill and should be addressed. The stunning revelations about over 1 million requests and 750,000 disclosures of personal information - the majority without court oversight or warrant - points to an enormously troubling weakness in Canada's privacy laws.  Most Canadians have no awareness of these disclosures and have been shocked to learn how frequently they are used and that bills before Parliament propose to expand their scope.  In my view, this makes victims of us all - disclosure of our personal information often without our awareness or explicit consent.

This can be addressed through two reforms.  First, the law should require organizations to publicly report on the number of disclosures they make to law enforcement without knowledge or consent, and without judicial warrant, in order to shed light on the frequency and use of this extraordinary exception. This information should be disclosed in aggregate every 90 days.  Second, organizations should be required to notify affected individuals within a reasonable time period of the disclosure - perhaps 60 days - unless doing so would affect an active investigation.

The adoption of these provisions - which would be consistent with what we heard from Mr. Therrien yesterday - would be an important step forward in providing Canadians with greater transparency about the use and disclosure of their personal information.

Viacom v Google settled out of court (old news)

Recording Industry vs The People - Wed, 2014/06/04 - 16:59

I just found out about this today, thanks to an old tweet by Bill Rosenblatt H/T Bill.

Viacom v. YouTube has been settled out of court.



Ray Beckerman, P.C.

Humble Ebook Bundle adds Lawful Interception audio, From Hell Companion, Too Cool To Be Forgotten


The latest Humble Ebook Bundle has added four new titles: Alan Moore and Eddie Campbell's From Hell, the From Hell Companion (review), Too Cool to Be Forgotten (review); and my audiobook for Lawful Interception, the sequel to Little Brother and Homeland. They join a stellar lineup of other comics, novels and ebooks with work by Neil Gaiman, George RR Martin, Ed Piskor, Nate Powell, Paolo Bacigalupi, Tobias Buckell and Terry Goodkind.

Name your price for them -- all DRM free, and you can contribute to charity when you buy!

Humble Ebook Bundle

Commemorating D-Day’s 70th anniversary

Google Public Policy BLOG - Wed, 2014/06/04 - 10:33
Posted by Sixtine Fabre, Associate Program Manager, Google Cultural Institute

On June 6, 1944, the largest air, naval and military operation in history took place on the coast of Normandy. To commemorate the 70th anniversary of D-Day, we’ve partnered with a number of cultural institutions and veterans from the U.S., U.K. and France to help share the stories of the Normandy Landings through the Cultural Institute and a Google+ Hangout on Air today.
Technology allows us to bring together information from around the world to showcase different perspectives on one moment in time. This is possible thanks to partners including The National Archives, The George C. Marshall Research Foundation, The Imperial War Museum, and Bletchley Park codebreaker center.
This collection provides an in-depth look into the Normandy Landings with 470 new documents and images ranging from photos of important preparations, meetings of leaders, and soldiers in action to documents like FDR’s D-Day Prayer and a top secret progress report from General Eisenhower to General Marshall. These pieces have been curated into digital exhibits that present a timeline of events for those who want to be guided through the content. For visitors who have a specific photo or document in mind, the search function allows users to find specific archival material.
Not only will we honor this history through archival content, but you’ll also have the chance to hear the stories of veterans who made the mission possible. Today, we’re hosting a Google+ Hangout on Air from the Caen War Memorial with American, French and British D-Day veterans. The conversation will be hosted by French journalist Gilles Bouleau and Caen Memorial historian Christophe Prime will take part as well. The Hangout will begin at 12:00 p.m. EST.
Whether it’s through the Cultural Institute or Hangouts on Air, we hope you’ll take the chance to learn more about D-Day and remember this important piece of our history.
US Amphibious Force Training for Invasion, The George C. Marshall Foundation

Sent input on updated IPEG to Competition Bureau

Digital Copyright Canada BLOG - Tue, 2014/06/03 - 09:55

I made a submission to the competition bureau as part of their request for input. This was based on a submission I had made in 2003, updated to reflect new issues in the last decade including the passage of the C-11 Copyright bill.

C-11's "technological measures" components are presumed to protect encrypted media, which is better understood in a competition rather than a copyright sense. While there is no credible evidence that these measures help reduce copyright infringement, there is considerable evidence that they are being abused to manipulate separate markets as well as harm competitors in the same market.

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Why Has the Canadian Government Given Up on Protecting Our Privacy?

Michael Geist Law RSS Feed - Tue, 2014/06/03 - 03:39
In recent years, it has become fashionable to argue that Canadians no longer care about their privacy. Supporters of this position note that millions of people voluntarily post personal information and photos about themselves on social media sites, are knowingly tracked by Internet advertising giants, and do not opt-out of "targeted" advertising from telecom companies. Yet if the past few months are any indication, it is not Canadians that have given up on privacy. It is the Canadian government.

My weekly technology law column (Toronto Star version, homepage version) notes the public response to the tidal wave of stories regarding widespread surveillance, the 1.2 million government requests to telecom companies for customer information, and the growing number of security breaches suggest that many Canadians are deeply concerned about the protection of their privacy. However, many feel helpless in the face on recent revelations and wonder whether the government is prepared to tighten privacy rules and establish stronger oversight.


Unfortunately, the answer to that question is increasingly clear.  Not only has the government largely abandoned stronger privacy protections, but legislative proposals currently before Parliament seem certain to weaken the current legal framework even further.

For example, Bill C-13, the lawful access and cyberbullying bill, raises such serious privacy concerns that Carole Todd, the mother of cyberbullying victim Amanda, pointedly told Members of Parliament studying the bill that "we should not have to choose between our privacy and our safety."

Much like the government's divisive approach to the last lawful access bill (in which then-Public Safety Minister Vic Toews infamously stated that people could stand with the government or with child pornographers), Justice Minister Peter McKay is again forcing Canadians to choose.  

The latest bill grants telecom companies and other organizations legal immunity for the voluntary disclosure of their customers' personal information. Law enforcement officials have confirmed that this goes well beyond basic subscriber information and may include transmission and tracking data.

The bill also establishes a low threshold for warrants to access metadata, which numerous experts confirm may reveal private and sensitive information. Despite the concerns, no Canadian privacy commissioner will appear before the committee study the bill and groups such as the British Columbia Civil Liberties Association have been similarly excluded (I appeared before the committee last Thursday).

The situation is similarly grim with respect to Bill S-4, the Digital Privacy Act that is currently winding its way through the Senate. That bill expands the scope of voluntary warrantless disclosures of personal information by allowing for such disclosures to any organization, not just law enforcement.  

Moreover, the law does not require telecom providers to notify customers of these disclosures, meaning that hundreds of thousands of Canadians remain in the dark when their information is voluntarily handed over to officials.  In fact, telecom companies have thus far rejected calls for greater transparency on their disclosure practices, pointing to government rules that they claim prohibit them from opening up.

The government's decision to weaken privacy protection also extends to its unwillingness to rein in surveillance activities. While the U.S. has begun to reconsider its approach and to establish more effective oversight mechanisms, the state of Canadian surveillance remains shrouded in secrecy.  Repeated revelations about Canadian involvement in global surveillance programs, including programs that have involved domestic interceptions, have been met with a collective shrug from elected officials.

As if to emphasize the point, last week the government named a senior Justice lawyer for the Canadian surveillance agencies as the new Privacy Commissioner of Canada. While past performance does not guarantee future policies (Chantal Bernier, Canada's interim Privacy Commissioner, came to the office from Public Safety), the decision to pass over several well-qualified privacy experts with commissioner experience sends an unmistakable message about the government's general view of privacy.

The bleak state of Canadian privacy is difficult to reconcile with a government that has prioritized a consumer perspective on telecom, broadcast, and banking issues. Further, conservative government policies are often consistent with civil libertarian views that abhor public intrusion into the private lives of its citizens.  

But with Ottawa showing no signs of backtracking on its privacy reforms, Canadians can be forgiven for wondering how its government became so hostile towards their privacy at the very time that they woke up to the importance of the issue.

CBC's The Current on Canadian Privacy and the New Privacy Commissioner

Michael Geist Law RSS Feed - Tue, 2014/06/03 - 03:33
I appeared this morning on CBC's The Current to discuss the state of Canadian privacy and the nomination of Daniel Therrien as the new Canadian privacy commissioner. Audio of the segment, which includes George Radwanski and Wayne Easter, here.

Unilateral Changes to Online Terms: do they work?

IPBlog (Calgary) - Mon, 2014/06/02 - 18:00
- Consumers wonder what exactly has changed when they are confronted with a new set of online terms, in a cloud-based service, website terms or software license. We reviewed this issue in an earlier post, which looked at changes to online terms in the middle of the product lifecycle. Amendments are often ...

Podcast: How to Talk to Your Children About Mass Surveillance


Here's a reading (MP3) of a my latest Locus column, How to Talk to Your Children About Mass Surveillance, in which I describe the way that I've explained the Snowden affair to my six-year-old:

So I explained to my daughter that there was a man who was a spy, who discovered that the spies he worked for were breaking the law and spying on everyone, capturing all their e-mails and texts and video-chats and web-clicks. My daughter has figured out how to use a laptop, phone, or tablet to peck out a message to her grandparents (autocomplete and spell-check actually make typing into an educational experience for kids, who can choose their words from drop-down lists that get better as they key in letters); she’s also used to videoconferencing with relatives around the world. So when I told her that the spies were spying on everything, she had some context for it.

Right away, we were off to the races. ‘‘How can they listen to everyone at once?’’ ‘‘How can they read all those messages?’’ ‘‘How many spies are there?’’ I told her about submarine fiber-optic taps, prismatic beam-splitters, and mass databases. Again, she had a surprising amount of context for this, having encountered digital devices whose capacity was full – as when we couldn’t load more videos onto a tablet – and whose capacities could be expanded with additional storage.

Then I talked about not reading everything in realtime, and using text-search to pick potentially significant messages out of the stream. When I explained the spies were looking for ‘‘bad words’’ in the flow, she wanted to know if I meant swear words (she’s very interested in this subject). No, I said, I mean words like ‘‘bank robbery’’ (we haven’t really talked about terrorism yet – maybe next time

Mastering by John Taylor Williams: wryneckstudio@gmail.com

John Taylor Williams is a audiovisual and multimedia producer based in Washington, DC and the co-host of the Living Proof Brew Cast. Hear him wax poetic over a pint or two of beer by visiting livingproofbrewcast.com. In his free time he makes "Beer Jewelry" and "Odd Musical Furniture." He often "meditates while reading cookbooks."

MP3

Federal Ombudsman for Victims of Crime Confirms Victims Split on Bill C-13

Michael Geist Law RSS Feed - Mon, 2014/06/02 - 03:55
The federal government created the Office of the Federal Ombudsman for Victims of Crime in 2007 to ensure that victims concerns and voices were heard. Last week, Sue O'Sullivan, the current ombudsman, appeared before the committee studying Bill C-13, the lawful access/cyberbullying bill. Ms. O'Sullivan, a former Deputy Chief of Police for the Ottawa Police Service, confirmed what has become increasingly obvious. Despite the government's expectations that victims and their families would offer strong support for Bill C-13, that community is split on the bill:

I would like to touch briefly on what appears to be the most controversial aspects of the bill, those which relate to investigative tools and the balance of powers and privacy. Privacy matters and technical investigative tools do not generally fall within my mandate. It is worth noting that among the victims we have spoken to, there is no clear consensus on the element of the bill. I have spoken with victims who very much support further measures to assist law enforcement in their investigation, and find the tools included in this bill to be balanced and necessary. I have, like you, heard opposing points of views from victims who don't wish to see these elements of the bill proceed for fear they will impinge on Canadians' privacy rights. From my own perspective, I would say that there is a balance to be struck, and the dialogue that Canadians are having is a needed and valuable one.


The comments come after Carole Todd, the mother of Amanda, told the committee:

I don't want to see our children victimized again by losing privacy rights. I am troubled by some of these provisions condoning the sharing of the privacy information of Canadians without proper legal process. We are Canadians with strong civil rights and values. A warrant should be required before any Canadian's personal information is turned over to anyone, including government authorities. We should also be holding our telecommunication companies and Internet providers responsible for mishandling our private and personal information. We should not have to choose between our privacy and our safety.

The Boys and Girls Clubs of Canada, also expected to be a supporter of Bill C-13, expressed similar concerns:

We understand that Bill C-13 has also raised concerns on the respect of privacy. Young people deserve to be protected from cyberbullying, but they also deserve to be protected and respected for their privacy. Now, we're no experts on privacy, so our only recommendation on that is to encourage you to listen, obviously, to any concerns that are brought up, any considerations that are brought up, by the experts who are dealing with privacy, to make sure that we're protecting youth from cyberbullying but we're also protecting our children and youth and their privacy rights.

Despite the concerns - and the urging to listen to the privacy community - the committee will not hear from a single Canadian privacy commissioner as part of its study on the bill.

Government Rejected Its Own Committee's Preferred Candidate for Privacy Commissioner

Michael Geist Law RSS Feed - Mon, 2014/06/02 - 03:42
With Daniel Therrien, the government's nominee for Privacy Commissioner of Canada, scheduled to appear before the House of Commons Access to Information, Privacy and Ethics committee tomorrow, reports this morning provide new insights into the government's selection process. Josh Wingrove of the Globe reports that there was a short-list of six candidates, but that neither of the presumed leaders - Chantal Bernier and Liz Denham - made the final two short-short list. Treasury Board President Tony Clement ultimately made the final recommendation of Mr. Therrien to Prime Minister Harper, who approved the recommendation.

Stephen Maher reports that the selection committee's preferred candidate was Lisa Campbell, the Acting Senior Deputy Commissioner of Competition at the Competition Bureau. Maher reports that government officials derailed the recommendation by seeking a second finalist for the position. The report is noteworthy since it confirms that the selection committee's own recommendation was not followed. The delayed nomination means that no privacy commissioner will appear before the committee studying Bill C-13, the lawful access bill.

privacy in Canada – part two

Fair Duty by Meera Nair - Sun, 2014/06/01 - 22:23

The current legislative situation regarding privacy confounds many Canadians, given that Prime Minister Harper and key players in his coterie have staunchly argued on the principles of privacy to dismantle past measures of data collection, even when those measures were supported by Conservative allies. Specifically, the long-form census and the long-gun registry were discarded despite opposition from prominent experts in the areas of finance and law enforcement.

In 2010, amidst a firestorm of criticism, the Prime Minister cancelled the mandatory long-form census and replaced it with an optional household survey. Objections poured forth from the provinces, municipalities, communities, businesses, educators, social advocates, health organizations, and more, including a former Bank of Canada governor.

Most telling, Munir Sheikh resigned his position as Chief Statistician of Statistics Canada, rather than acquiesce to a decision that could only damage Canadian wellbeing. Effective policy cannot be made without reliable data. (Indeed, Prime Minister Harper is likely feeling that headache now, as he tries to combat the problems of the temporary foreign worker visa program, without accurate information concerning where needs can be filled without placing Canadians at a disadvantage.)

The Prime Minister viewed the census as an intrusion into Canadian privacy, despite the rigorous controls enforced by Statistics Canada with respect to disclosure of the data. (Individual information was never revealed; only aggregate information was provided through a controlled request system.) Writing for the Progressive Economics Forum at that time, Armine Yalnizyan explored the Canadian system in detail and in comparison to other systems, and made plain that while personal data is gathered, the results are never personal. No privacy commissioner had ever seen fit to question the operations of Statistics Canada. Yet discarding the census was clearly a matter of principle, or so it must be seen. Tony Clement, then-Minister of Industry, made these remarks to the Standing Committee for Industry, Science and Technology:

Our government’s reason for replacing the mandatory census with a voluntary national survey on the long form is clear. We do not believe it is appropriate to compel Canadians to divulge extensive private and personal information.

So despite compromising effective decision making in his own government, Prime Minister Harper stood resolutely on the issue of privacy.

For those who might still have doubts, the demise of the long-gun registry offers further illustration of our Prime Minister’s formerly adamant views on privacy. A dogged six year battle (from 2006-2012) was needed to remove the registry from use. And, not content to merely end the requirement of registration, Prime Minister Harper sought to ensure that all existing data be destroyed. According to Jason Kenney, then-Minister for Citizenship and Immigration:

… we can protect the privacy rights of Canadians, and there are hundreds of thousands of law-abiding Canadians who are legitimate firearms owners who believe that database undermines their privacy rights, and our commitment was, for that reason, to get rid of that data.

When the registry was eliminated in 2012, it was over and above the objections of Canadian law enforcement agencies. For instance, an RCMP evaluation of the registry argued that it served a vital function towards public safety:

The program is often misperceived by the media and the public as being solely a registry. The administration of this national public safety program might better be compared with a provincial Motor Vehicles Branch, which is also involved in safety training, licensing and registration and is an important resource to law enforcement. …  There continues to be public safety threats in Canada caused by both the deliberate and accidental misuse of firearms, mostly through non-restricted firearms (long guns). … Regulation of firearms provides for greater accountability for the firearm (p.17)

The Canadian Association of Chiefs of Police also came out forcefully in favour of the registry. Bill Blair, then head of the association, indicated that “officers use the registry up to 11,000 times a day, both to investigate and prevent crime.”

With the Prime Minister favouring a law-and-order agenda in Canada, it is more than odd that he chose to ignore the opinions of those involved in law-and-order. One can only infer that privacy reigned supreme among Prime Minister Harper’s principles and was not to be compromised, even for political gain.

Returning to current events, perhaps knowing that she would not be permitted to speak to the Standing Committee, Ontario Privacy Commissioner Dr. Ann Cavoukian does not mince words in a letter to the Committee Chair, dated to 16 May 2014. Calling for revision of the pending legislation, she concludes with:

Canadians have a constitutional right to be secure from unreasonable search and seizure, including with respect to personal information held by third parties. The expansive surveillance proposals and entrenchment of sweeping immunity for digital service providers brings this right into question.

Cavoukian, along with the Canadian Bar Association and others, have encouraged the Government to separate Bill C-13 into separate pieces of legislation, one to address cyberbullying and the other for lawful access. Minister MacKay has refused such proposals; perhaps Prime Minister Harper may yet see wisdom in such a move.

Update – June 3  Jill Clayton, Elizabeth Denham and Ann Cavoukian (privacy commissioners of Alberta, BC and Ontario, respectively) ask the Standing Committee to “… postpone hearings on Bill C-13 until such a time as the Privacy Commissioner of Canada can appear and speak to this Bill …” ; their letter (dated 2 June 2014)  is available here.

Update – June 13 — a tumultuous ten days  

The contested appointment of a new privacy commissioner, with a somewhat surprising outcome, the unwillingness of the government to amend either C-13 or S-4, and a timely reminder from the Supreme Court of Canada that Canadians have an expectation of privacy, means that there will be continued pressure upon the government to reconsider its actions. With unanimity, the Justices declared: “The two circumstances relevant to determining the reasonableness of … expectation of privacy in this case are the nature of the privacy interest at stake and the statutory and contractual framework governing the ISP’s disclosure of subscriber information.”

Josh Wingrove, writing for the Globe and Mail, solicited opinion from privacy expert David Fraser; he emphasizes that this alone does not “throw out” parts of S-4 and C-13, but “… adds to the ammunition critics have had with respect to a number of the provisions.” Fraser provides ongoing analysis at his blog; among his preliminary remarks was this gem: “Contrary to the views of most police agencies and the government of Canada, this information is not innocuous phone book information but, ‘rather, it was the identity of an Internet subscriber which corresponded to particular Internet usage.’”

 


privacy in Canada – part one

Fair Duty by Meera Nair - Sun, 2014/06/01 - 21:02

Over the last few months, Canadians have been presented with the sobering news of breaches of privacy committed on a massive scale. The revelation of over one million requests to telecommunications’ providers for subscriber records must provoke scrutiny of this government’s treatment of privacy. Scholars and privacy organizations are concerned that our government’s current legislative program will only make such breaches easier to carry out.

Currently, there are two bills under discussion in Parliament. Bill C-13 (Protecting Canadians from Online Crime Act) is before the Standing Committee on Justice and Human Rights; it offers incentives for disclosure of subscriber data by providing immunity to any telecommunications company that voluntarily supplies information when requested by law enforcement agencies. Bill S-4 (Digital Privacy Act) has arrived at the Senate chambers and extends that offer of immunity to any private organization that claims to be investigating a breach of contract, or a possible breach of contract.

After his participation in discussion of C-13 with the Standing Committee on 29 May 2014, Michael Geist posted his thoughts about the meeting itself, alerting Canadians to the spectacle of a bill so intertwined with privacy, moving forward without the involvement of a single privacy commissioner. Furthermore, “… leading privacy groups such as the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, and CIPPIC have all been told that there is unlikely to be spots for them at committee. … .”

Canadians may wish to know who has been permitted to speak to the Standing Committee so far. According to the records available to date, the Standing Committee began discussion of C-13 on 1 May 2014, has had six meetings so far, with one more meeting confirmed for 3 June 2014.

The first meeting was entirely given over to Peter MacKay (Minister of Justice and Attorney General of Canada) and members of his department. Through the next five meetings, law enforcement officials and families of victims were each allocated one meeting. In the remaining three meetings, the following organizations were involved: Boys and Girls Clubs of Canada, Canadian Association of University Teachers, Canadian Bar Association, Canadian Centre for Child Protection, Criminal Lawyers Association, Kids Internet Safety Alliance, and Office of the Federal Ombudsman for Victims of Crime. Interspersed among these organizations were four individuals: David Fraser,  Gregory Gilhooly, Steph Guthrie and Michael Geist.

With this weighting of participants, one might have expected testimony to be resoundly in favour of the government`s proposals. Yet the second meeting defied that expectation. The transcript for 6 May 2014 makes for interesting reading.

The witnesses of the day were representatives of Boys and Girls Clubs of Canada, Steph Guthrie and David Fraser. Notably, both Guthrie and Fraser have devoted considerable effort to representing the interests of victims of cyber-assault, see here and here. If the Committee expected unqualified approbation from all three parties, the MPs were quickly disabused of that notion. All witnesses gave comprehensive statements; each witness asked that attention be brought to bear on the privacy implications of the bill.

Fraser spoke first; immunity came in for conspicuous displeasure at the end of his prepared remarks:

I find this to be gravely problematic. I think it’s a very cleverly crafted provision. We’re told that this is simply for greater certainty, but it goes beyond that. Everything we know suggests otherwise.

It says that you will not be liable for handing over any data that you’re not prohibited by law from handing over, and if you do so you’re civilly immune. Now, only the criminal law and other regulations create prohibitions against handing over information, but you can hand over information when you’re not legally prohibited and still incur civil liability. Civil liability is there for a reason. I may not be legally prohibited from accidentally driving my car into yours, but if I do that, you’re entitled to damages from that. I should be paying for the harm that is caused.

If there were an immunity provision that said you could not sue me if I did something that was not legally prohibited, that would be squelched. That would go away. So this provision, I believe, should be removed. It can’t be fixed and will only encourage overreaching by law enforcement.

In conclusion, while we don’t have Bill S-4, the digital privacy act, in front of us, that fits together with the immunity provisions. I’m concerned that the two taken together will extend the amount of information not only available to law enforcement but will extend the information available to other civil litigants and others (emphasis mine).

Fahd Alhattab, an alumnus of Boys and Girls Clubs of Canada, added a plea with his request for protection of privacy:

Young people deserve to be protected from cyberbullying, but they also deserve to be protected and respected for their privacy. Now, we’re no experts on privacy, so our only recommendation on that is to encourage you to listen, obviously, to any concerns that are brought up, any considerations that are brought up, by the experts who are dealing with privacy, to make sure that we’re protecting youth from cyberbullying but we’re also protecting our children and youth and their privacy rights (emphasis mine).

On cue, Guthrie then drew attention back to the immunity offered for warrantless disclosure in C-13, noting that C-13 claims to bring scrutiny to the issue of consent in terms of cyberbullying, yet turns around and abandons consent in terms of privacy:

 Perhaps most of Bill C-13 isn’t  really about cybersexual assault, but I find it interesting that it violates some of the same privacy principles, such as freely given and specific consent. Most of us do not and would not give free and specific consent for the state to access any, and potentially all, of our data by way of our Internet service providers if we had any meaningful choice in the matter.

The consent we give is to our Internet service providers. If the police want our information because they suspect we are engaged in criminal activity, well, most of us would assume that is what search warrants are for. Bill C-13 enshrines the idea of transferable consent in law, immunizing anyone who shares our information and violates our privacy without adequate legal justification for doing so (emphasis mine).

While obviously different in many ways, the limitations on personal freedom imposed by Bill C-13  bear some striking similarities to those imposed by cybersexual assault. The state could be following us into our job interviews, on our first dates, or to the laundromat. The bill’s provisions will restrict Canadians’ ability to live life normally and comfortably because they are constantly living with the idea that the state, when they encounter it, may know intimate things about them that they didn’t consent to share. Even if they know they have done nothing wrong, they must still deal with the judgments, misperceptions, and intrusions of the state.

In the question and answer period that followed, a concerted effort by MP Bob Dechert to push Fraser into agreeing that immunity was necessary to combat the harms that have been inflicted on past victims came to naught. Dechert posed the hypothetical situation of a young woman, about to be victimized by widespread dissemination of a personal photograph thereby provoking a request from the police that an ISP should help identify the offender; Dechert asked if Fraser would advise the ISP to disclose the data:

Mr. David Fraser: In this scenario—again, I can only speak for myself—I believe there is a real harm attached to the dissemination of these sorts of images. I’ve seen first-hand the harm that they can do to a young person, and I’ve seen what they can do to an adult. My inclination would be to provide that information. That would be my impulse. I would know there might be possibly some risk in doing that, but for me, given the severity of what’s going on, this is a non-trivial matter, and my inclination would be to hand over that information.

Mr. Bob Dechert: In that circumstance, you would agree that the ISP provider should not bear any civil liability if it turns out that they were incorrect; there was no crime committed or about to be committed.

Mr. David Fraser: I wouldn’t grant them immunity.

Mr. Bob Dechert: You wouldn’t grant them immunity.

Mr. David Fraser: No. I would say that they acted in good faith and they wouldn’t be liable, but I wouldn’t grant them immunity.

Mr. Bob Dechert:  That would expose them to a lawsuit, would it not?

Mr. David Fraser: Certainly. Walking down the street exposes one to a lawsuit. There is a difference between not being liable and having immunity. Immunity is a blanket, saying that no matter what you do, nobody can raise an issue.

Immunity, of course, is only part of the problem of C-13.

There are significant concerns about the widening of data to be collected. What is benignly referred to as transmission data is not as innocuous as it sounds, despite the assurance of Minister MacKay at the first meeting on 1 May 2014:

…  the definition of transmission is narrowly defined and captures only data that relates to the act of telecommunication. The definition of transmission data is the modern equivalent of phone-call information, not what is actually contained in the conversation, and these proposals are meant to ensure consistent treatment of similar information.

Such language is, intentionally or otherwise, misleading. Turning again to Fraser’s opening remarks, he is explicit as to what transmission data entails:

With conventional telephony, transmission data refers to the number called from, the number called to, whether the call was connected, and how long that call lasted.   In the Internet context, the amount of information that’s included in the kind of out-of-band signalling information and what it reveals is dramatically different. It would include the IP address of the originating computer, the destination computer, information about the browser that’s being used, information about the computer that’s being used, information about the URL, the address being accessed, which can actually disclose content, even though the definition of transmission data is intended to exclude that.

It will also tell you what kind of communications are being done. Is it an e-mail communication? Is it an instant message? Is it peer-to-peer file sharing or otherwise? So it provides much more insight into actually what is going on than just phone number information.  An interception of transmission data would tell law enforcement agencies whether the target of surveillance was visiting a search engine, an encyclopedia site, a poker site, or a medical site. Furthermore, the data would provide greater insight into the likely physical location of the surveillance target. This is a dramatic expansion of the information that’s provided and available, compared to traditional telephone communications.

As anybody in this room knows, I expect, the way we use computers today is dramatically different from the way we used telephones 15 years ago. We use them as spellcheckers. We use them to find out facts. We use them for a much wider range of activities. With the disclosure of greater information through these transmission data orders, you’re revealing much more about an individual. Even though the definition excludes content, just the transmission data tells you a lot more about really what’s going on.

Geist raises what is perhaps the most perplexing aspect of the proceedings in “Why has the Canadian government given up on protecting our privacy?”, published by the Toronto Star on 30 May 2014. He notes: “… conservative government policies are often consistent with civil libertarian views that abhor public intrusion into the private lives of its citizens.” Our Prime Minister has shown great zeal in protecting privacy in the past.  A look back follows in privacy in Canada – part two.

 

 

 


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