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The Supreme Court Eviscerates Voluntary Disclosure, Part 1: Comparing Spencer With the Govt's Claims

Michael Geist Law RSS Feed - Mon, 2014/06/16 - 04:06
For weeks, the government has been claiming that the provisions in Bill C-13 and S-4 were compatible with the law. Last week, the Supreme Court of Canada disagreed, issuing its decision in Spencer on the legality of voluntary warrantless disclosure of subscriber information. The court ruled that there was a reasonable expectation of privacy with subscriber information and that voluntary disclosure to police may constitute an illegal search.

The court's comments are particularly striking when contrasted with claims from government ministers, MPs, and officials, who have defended C-13 and S-4 at committee.  Consider what the court said about subscriber information:

in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

In contrast, Bob Dechert, the Parliamentary Secretary to the Minister of Justice, argued at committee that subscriber information was similar to a licence plate on a car:

Sure, it's kind of like akin to, as I think Officer Pardy said, if you see a car driving down the street and you suspect that the driver is impaired, you copy down the licence number and provide that to police. I assume the police can also ask you for it. If I see, today, somebody harassing one of my neighbours on their front porch, and there's a car in the driveway, I assume I can note down that licence number and provide it to police, and by the same token the police can come to my door and say, “Did you see somebody harassing your neighbour; do you have any information that would lead us to that person's identity?” That's true? Okay.

When Industry Minister James Moore appeared before the Senate Transport Committee to defend the expansion of voluntary disclosure of personal information, his Assistant Deputy Minister Lawrence Hanson told the committee:

So the existing provisions of PIPEDA do allow voluntary disclosure to law enforcement without a warrant, but there are a couple of really important things to note.  First of all, it is voluntary; they are not compelled to do that.  Secondly, the types of information that law enforcement could request would have to identify their lawful authority to request it, and they would be receiving what we would call basic subscriber information. This basically ties into the charter, the reasonable expectation of privacy.  In the sense of basic subscriber data, that could be obtained without a warrant.  I would distinguish that from something more intrusive like transmission data or about an electronic intercept, for example, which would require a warrant.

Hansen later added:

In the instance of PIPEDA, because of the type of information provided in a pre‑warrant phase such as basic subscriber information, it would be consistent with privacy expectations and therefore it's not really putting telecoms, for example, in some unique position in terms of police investigations.

The court was also dismissive of arguments that consumers had consented to the disclosure of their information in their ISP user agreements:

Whether or not disclosure of personal information by Shaw is “permitted” or “required by law” in turn depends on an analysis of the applicable statutory framework. The contractual provisions, read as a whole, are confusing and equivocal in terms of their impact on a user’s reasonable expectation of privacy in relation to police initiated requests for subscriber information.


Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” (s. 3), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA’s general prohibition on the disclosure of personal information without consent.

But that isn't what Moore emphasized to the Senate committee, when he argued that consumers may have agreed to the voluntary disclosures in their user agreements:

Well, if you agree to a contract, for example, with a telecommunications company, and as part of that contract you can surrender some of your capacity to have your information shared under certain circumstances, that can exist in a number of contractual situations, but that's an individual signing a contract and agreeing to that openness in the case of a criminal investigation.

Justice Minister Peter MacKay said much the same thing when asked about immunity for voluntary disclosure at the Justice Committee hearing on C-13:

That really is an issue that is covered under the PIPEDA. It is really as well an issue of potentially contract law between the individual and the service provider, the company. But the provision provides protection for those who are voluntarily assisting police in an investigation where such assistance is not otherwise prohibited by law. So, the element of protection, if you will, or immunity has to respect the common law provision of voluntary disclosure as well as any existing contractual obligations that may exist. It must be done in a way that complies with section 25 and this other section that you're referring to 47.

In other words, the government's key defences for C-13 and S-4, namely that there is no reasonable expectation of privacy and that users consent to the disclosure in their agreements, were both soundy rejected by the Supreme Court of Canada.

Interviewing Leila Johnstone about Hack Circus

My latest Guardian column is an interview with Leila Johnston about her Hack Circus project, which includes a conference, a podcast and a print magazine, all with a nearly indefinable ethic of independence and art for its own sake.

The opposite of useful is not always useless, as such. The opposite of reportage is not always silliness, and the opposite of consumer messaging is not always fooling around. Playboy is one of the most successful media enterprises of all time, so presumably people don't want entertainment for functional reasons. Perhaps fooling around can be a very effective business model.

The events are fun, but they are reality-distorting rather than "comedy". They are funny because the clever, strange people who like Hack Circus are naturally funny and have done such wonderfully surprising things, not because they've written a routine. I don't want to do a science comedy night for sceptics and atheists – there's plenty of that around. I'm far more interested in, and identify far more strongly with, the credulous than the sceptical, and I'm consciously working against the resistance to imagination that scepticism presents.

Leila Johnston: 'Digital culture has created a new outsider'

Coming to Salt Lake City and Portland, OR

I'm about to hit the road again, starting in Salt Lake City, where I'll be a Guest of Honor at Westercon (Jul 3-6), and will follow it up with an appearance at the SLC library (Jul 7); then I'm doing a three-day library tour around PDX, with stops in Beaverton (Jul 8), Tigard (Jul 9) and Hillsboro (July 10) (here's a complete list of my scheduled upcoming public events).

second circuit stays on message

Fair Duty by Meera Nair - Sun, 2014/06/15 - 16:54

Last week, the United States Court of Appeals for the Second Circuit added to an already-healthy body of American affirmative decisions concerning fair use. In this instance, Authors Guild, Inc. v. HathiTrust, the scanning of entire books to allow for a full-text search of the content was given resounding support. In the process, the judges further explored the nuance of the commercial and transformative considerations inherent to discussion of fairness. Moreover, as Pamela Samuelson observes and Kevin Smith draws explicit attention to, the decision shows a coalescing of opinion with respect to transformative use among multiple circuits. The end result is strong guidance in the United States, and a discussion which benefits any jurisdiction that must mediate between control and use of copyrighted works, via the language of fairness.

Like the Google Books project (see here for my coverage of that district court decision), the roots of this case were established in 2004 with a scanning project in partnership with Google. Briefly, several American research universities arranged to have their library book holdings scanned and stored in electronic form. HathiTrust was established to operate the HathTrust Digital Library (HDL); currently, over 80 colleges, universities and non-profit organizations can apply full text search capability to over 10 million works spanning a myriad of languages and subject matter. But, unlike Google Books, snippets of content are not made available; instead, members can only obtain bibliographic and referential information. Exception is made only for the print-disabled; under such circumstances, content is provided.

It is more than curious that authors and their representatives should take issue with this venture; any project that enables people to find information about books, become interested in them, and possibly acquire them, would seem to be of benefit to authors. Apparently not so. The Authors Guild and its allies brought litigation forward. Losing on the grounds of fair use at the district court in 2012, the Guild pressed on with an appeal. And now that too has been declared a loss. James Grimmelmann, (Professor of Law, University of Maryland) succinctly evaluates the decision:

… mass digitization to make a search engine is fair use, and so is giving digital copies to the print-disabled. The opinion on appeal is sober, conservative, and to the point; it is the work of a court that does not think this is a hard case.

But the fun is in the details. As readers likely know, four factors come into consideration with fair use.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

Consistent with other fair use decisions of the past few years, transformative use is a key determinant. As such, the meaning of transformative was the necessary starting point. The judges turned to the American standard bearer of fair use case law, Campbell v. Acuff-Rose (1994) which draws from the writings of Pierre Leval (attorney and subsequent judge):

A use is transformative if it does something more than repackage or republish the original copyrighted work. The inquiry is whether the work “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message . … [T]he more transformative the new work, the less will be the significance of other factors that may weigh against a finding of fair use” (p.16-17).

Set upon this language, the analysis gets off to a brisk start:

The creation of a full‐text searchable database is a quintessentially transformative use. …  the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn (p.18).

The decision includes a plethora of examples of transformative uses, taken not only from the corpus of the Second Circuit but also from the Ninth and Fourth Circuits (p.19).

(2) The nature of the copyrighted work

This factor can be troublesome by virtue of the vagueness of the language. Whether the source of copying was unpublished or published, whether the work was creative or utilitarian, have been fodder for discussion. But as fair use has evolved, this factor is likely to be set aside when transformative use is established (p.20).

(3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole

The Judges remind their readers that the position of the Second Circuit is: “[t]here are no absolute rules as to how much of a copyrighted work may be copied and still be considered a fair use (p.20).” As sufficient precedent exists which sanction the copying of entire works; they do not have to dwell too much upon this issue:

In order to enable the full‐text search function, the Libraries, as we have seen, created digital copies of all the books in their collections. Because it was reasonably necessary for the HDL to make use of the entirety of the works in order to enable the full‐text search function, we do not believe the copying was excessive (p.20-21).

Adjudication of fairness sets bounds to words like necessary and reasonable by virtue of the use the source work was put to. It is increasingly unlikely that any future court will be swayed by mere quantification of the amount used.

However, as the Guild took issue with the copies made to achieve technological efficiency and disaster preparedness, the Judges were required to devote some time to what ought to be routinely accepted by now – that copying happens when infrastructure is predicated upon digital technology:

 HDL’s services are offered to patrons through two servers, one at the University of Michigan (the primary server) and an identical one at the University of Indiana (the “mirror” server) … According to the HDL executive director, the “existence of a[n] [identical] mirror site allows for balancing the load of user web traffic to avoid overburdening a single site, and each site acts as a back‐up … in the event that one site were to cease operation (for example, due to failure caused by a disaster, or even as a result of routine maintenance).” (p.21)

The use of two encrypted tape backups was also deemed an appropriate precaution, should disaster bring about large-scale data loss at both servers.

(4) The effect of the use upon the potential market for or value of the copyrighted work

Here, the judges’ language bodes particularly well for fair users, but not so well for the larger avarice of some copyright holders:

…  it is important to recall that the Factor Four analysis is concerned with only one type of economic injury to a copyright holder: the harm that results because the secondary use serves as a substitute for the original work…. In other words, under Factor Four, any economic “harm” caused by transformative uses does not count because such uses, by definition, do not serve as substitutes for the original work (emphasis mine, p.22).

Thus, despite the Guild’s claim that the use of each book represents a lost license-to-search-the-book, the judges determined that no economic harm has been inflicted as full-text search capability is not a substitute for the original works.

Grimmelmann observes the lack of reference to American Geophysical (1996) but its ghost is there. That case contributed greatly to fair use’s dysfunctional period in the United States, when any use was deemed unfair because it could have been licensed. (Canada has avoided such circular reasoning; our Supreme Court nipped that in the bud with its insistence during CCH Canadian (2004) that the presence of a license was irrelevant to a decision of fair dealing.)

The route by which the Court rebuts the lost-license argument is puzzling. In the initial explanation of the four factors (p.16-17), the fourth factor is deemed the “most important” (citing Harper & Row v. Nation (1985)—the famous scooping from Gerald Ford’s as-of-then-unpublished memoir). But in its analysis, the Court quickly invokes Campbell’s reminder that only secondary uses that poach the market for the original are subject to censure. Given, as Smith notes, that Campbell is the leading Supreme Court decision, the Second Circuit took an odd route to get there.

But it is hard to believe that the trio of judges were casual or careless in the composition of their decision. In judicial opinion, words are chosen with the utmost of care. Which invites the question: why this route?

Campbell also ushered in a change in procedure; when examining potential fair use, judges must avoid imposing a hierarchy among the four factors. To return to a hierarchy of factors would seem either dangerous, or at least ill-advised. Or, this might be a calculated effort on the part of the Second Circuit to irrevocably consign any apparition of American Geophysical to the dustbins of history.

The Second Circuit has worked diligently towards rehabilitating fair use, to make it a robust exception. Notably, in two key decisions in 2006 (Bill Graham Archives v. Dorling-Kindersley and Blanch v. Koons), less attention was paid to market consideration, with a conspicuous disinterest in adding to licensing revenue even when mechanisms of licensing existed. Yet, that message does not appear to have been widely received. Perhaps the Second Circuit has decided to make their message more explicit by deliberately invoking the earlier edict that the market reigns supreme, but under the strict boundary of the original market.

Given that Second Circuit’s jurisdiction includes the nerve-centre of American publishing, this could have significant ramifications. At the very least, it ought to give the Authors Guild something to reflect upon before the Guild moves ahead on the Google Books Appeal. [see update below]

With a nod to the late Lyman Ray Patterson, the events that gave rise to copyright and fair use were the competitive (or anti-competitive) actions of professional publishers. Copyright’s reach only extended to the regulation of sales of substantially similar works. Effectively, the Authors Guild gave the Second Circuit a reason to offer up language that ensures future market consideration must expressly reject rent-seeking behavior and only support copyright holders when a new work trespasses into the same market as that of the original work.

The four factor analysis concerning the provision of works for the print-disabled was also handled well and the provision deemed fair use. It would be nicer though, if everyone could simply say it is the right thing to do, and leave it at that. With the anniversary of the Marrakesh Treaty approaching, there is more to come on the subject of making copyrighted works accessible to print-disabled communities everywhere.

Update July 11 The Authors Guild appears intent on pursuing the appeal against Google Books. Readers may recall that this scanning project was deemed fair use at its district court hearing. The Authors Alliance has a nice post describing their support for Google Books (with a link to their amicus brief).

2nd Circuit OK's scanning whole books for research as fair use in Authors Guild v HathiTrust

Recording Industry vs The People - Fri, 2014/06/13 - 17:38

In Authors Guild v. HathiTrust, the US Court of Appeals has ruled that scanning whole books for research purposes is fair use.

In HathiTrust, a group of universities took digital scans prepared by Google and stored them in a "digital library".

The library permitted 3 uses of the material:
(1) The public was allowed to search by keyword. The search results showed only the page numbers for the search term and the number of times it appeared; none of the text was visible.
(2) People with disabilities which prevented them from holding books and/or turning pages could be provided access to the full texts.
(3) Members could create a replacement copy of a lost, stolen, or destroyed book if a replacement was not obtainable in the market at a "fair" price.

The Court held the search function to be a fair use, finding that
-the creation of a searchable, full text database is a "quintessentially transformative use";
-it was "reasonably necessary" to make use of the entire works, and to maintain 4 copies of the database;
-the library did not impair the market for the works.

The Court likewise found it to be a fair use to make copies available to the disabled who are unable to access print books.

The Court declined to rule on the replacement book issue, on the ground that the plaintiffs lacked standing to raise that question.

June 10, 2014, Decision, US Court of Appeals, 2nd Circuit Ray Beckerman, P.C.

Audio from today’s keynote on digital publishing

This morning, I gave the keynote speech the 2014 conference of The Literary Consultancy in London, about the future of publishing. They got the audio up with lightning speed (I'm in the auditorium, listening to the follow-on panel).

MP3 Link

Supreme Court Delivers Huge Victory for Internet Privacy & Blows Away Gov't Plans for Reform

Michael Geist Law RSS Feed - Fri, 2014/06/13 - 04:52
For the past several months, many Canadians have been debating privacy reform, with the government moving forward on two bills: lawful access (C-13) and PIPEDA reform (S-4). One of the most troubling aspects of those bills has been the government's effort to expand the scope of warrantless, voluntary disclosure of personal information.

Bill C-13 proposes to expand warrantless disclosure of subscriber information to law enforcement by including an immunity provision from any criminal or civil liability (including class action lawsuits) for companies that preserve personal information or disclose it without a warrant. Meanwhile, Bill S-4, proposes extending the ability to disclose subscriber information without a warrant from law enforcement to private sector organizations. The bill includes a provision that allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. I appeared before both committees in recent weeks (C-13, S-4), but Conservative MPs and Senators were dismissive of the concerns associated with voluntary disclosures.

This morning another voice entered the discussion and completely changed the debate. The Supreme Court of Canada issued its long-awaited R. v. Spencer decision, which examined the legality of voluntary warrantless disclosure of basic subscriber information to law enforcement. In a unanimous decision written by (Harper appointee) Justice Thomas Cromwell, the court issued a strong endorsement of Internet privacy, emphasizing the privacy importance of subscriber information, the right to anonymity, and the need for police to obtain a warrant for subscriber information except in exigent circumstances or under a reasonable law.

I discuss the implications below, but first some of the key findings. First, the Court recognizes that there is a privacy interest in subscriber information. While the government has consistently sought to downplay that interest, the court finds that the information is much more than a simple name and address, particular in the context of the Internet. As the court states:

the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users. Browsing logs, for example, may provide detailed information about users’ interests. Search engines may gather records of users’ search terms. Advertisers may track their users across networks of websites, gathering an overview of their interests and concerns. “Cookies” may be used to track consumer habits and may provide information about the options selected within a website, which web pages were visited before and after the visit to the host website and any other personal information provided. The user cannot fully control or even necessarily be aware of who may observe a pattern of online activity, but by remaining anonymous - by guarding the link between the information and the identity of the person to whom it relates - the user can in large measure be assured that the activity remains private.

Given all of this information, the privacy interest is about much more than just name and address.

Second, the court expands our understanding of informational privacy, concluding that there three conceptually distinct issues: privacy as secrecy, privacy as control, and privacy as anonymity.  It is anonymity that is particularly notable as the court recognizes its importance within the context of Internet usage.  Given the importance of the information and the ability to link anonymous Internet activities with an identifiable person, a high level of informational privacy is at stake.

Third, not only is there a significant privacy interest, but there is also a reasonable expectation of privacy by the user.  The court examines both PIPEDA and the Shaw terms of use (the ISP in this case) and concludes that PIPEDA must surely be understood within the context of protecting privacy (not opening the door to greater disclosures) and that the ISP agreement was confusing at best and may support the expectation of privacy.  With those findings in mind:

in the totality of the circumstances of this case, there is a reasonable expectation of privacy in the subscriber information. The disclosure of this information will often amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounts to a search.

Fourth, having concluded that obtaining subscriber information was a search with a reasonable expectation of privacy, the information was unconstitutionally obtained therefore led to an unlawful search. Addressing the impact of the PIPEDA voluntary disclosure clause, the court notes:

Since in the circumstances of this case the police do not have the power to conduct a search for subscriber information in the absence of exigent circumstances or a reasonable law, I do not see how they could gain a new search power through the combination of a declaratory provision and a provision enacted to promote the protection of personal information.

There are several important implications that flow from this decision. First, with a finding that police need a warrant for subscriber information (except in exigent circumstances), the practice of obtaining information on a voluntary basis should come to an end.

Second, the government's plans for expanded voluntary, warrantless disclosure under Bill C-13 must surely be reformed as it is unconstitutional. Just yesterday, Conservative MP Bob Dechert relied on R. v. Ward to support the C-13 approach with respect to immunity for voluntary disclosure. The court has effectively rejected the Ward decision and Dechert's defence of the provision no longer stands.

Third, the government should remove the expansion of voluntary disclosure in S-4. With the Supreme Court emphasizing the privacy importance of subscriber information, the government should not be seeking to expand warrantless disclosures. In fact, immediate reports indicate that the Senate has delayed debate on the bill to consider the ruling. 

Fourth, Internet providers need radical reform of their current approach to disclosure of subscriber information. The Supreme Court examined Shaw's terms of service policy and found it provided "a confusing and unclear picture of what Shaw would do when faced with a police request for subscriber information."  The same can be said for virtually every ISP in Canada. While ISPs have been regularly disclosing this information hundreds of thousands of times, the Court ruled:

Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” (s. 3), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA’s general prohibition on the disclosure of personal information without consent.

The court notes that ISPs are not required to disclose this information and this case reaches the conclusion that they are not permitted to do so absent a warrant either.  This means ISPs must change their practices on voluntary warrantless disclosure. Much more to come on a decision that seems likely to define Internet privacy for many years to come.


My ZOMGTERRISTSGONNAKILLUSALLRUNHIDE TSA tee-shirt (of Poop Strong fame) is available in tote-bag form, a fact I had somehow missed!

Are you a Canadian business running an #onlinecontest?

IPBlog (Calgary) - Wed, 2014/06/11 - 08:00
Social media is not just a marketing novelty - it has become the essential tool for running a promotional contest. Have a look at any big brand contest and you're hard pressed to find one without a social media component. Many Canadian businesses also seek to extend their reach into the ...

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.


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.

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.

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.

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.
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