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Technology law column by Michael Geist

Jennifer Stoddart's Shot Across the Privacy Bow

By virtually every measure, 2010 was a remarkably successful year for Canadian privacy commissioner Jennifer Stoddart.  Riding the wave of high profile investigations into the privacy practices of Internet giants Facebook and Google, Stoddart received accolades around the world, while garnering a three-year renewal of her term at home.

Last week Stoddart used her first public lecture of 2011 to put the Canadian privacy and business communities on notice that she intends to use her new mandate to reshape the enforcement side of Canadian privacy law.  Speaking at the University of Ottawa, Stoddart hinted that she plans to push for order making power, tougher penalties, and a “naming names” strategy that may shame some organizations into better privacy compliance practices.

Canadian privacy law has quietly undergone some important changes in recent years. Legislation designed to implement changes to the broad-based private sector privacy law (PIPEDA) has been stuck in the slow lane, but the federal government has passed anti-spam and identity theft legislation, while several provinces have enacted health privacy and security breach disclosure reforms.

Canada's Grassroots National Digital Library Takes Shape

Last week, the European Commission released The New Renaissance, an expert report on efforts to digitize Europe’s cultural heritage. Europe has been particularly aggressive about its digitization efforts, developing Europeana, an online portal currently featuring more than 15 million works of art, books, music, and film, as well as the European Library, which provides access to 24 million pages of full-text scanned by 14 national libraries.

Several European countries have set very ambitious digitization goals.  The National Library of the Netherlands has committed to digitizing everything - all Dutch books, newspapers and periodicals dating back to 1470.  The National Library of Norway set a similar goal in 2005, setting in motion plans to digitize its entire collection that now includes 170,000 books, 250,000 newspapers, 610,000 hours of radio broadcasts, 200,000 hours of television and 500,000 photographs.

Building on those efforts, the report recommended that public domain works be digitized with public funding and be made freely available for access and re-use.  It also called on lawmakers to develop policies to facilitate the digitization of works still subject to copyright protection.

The Roadmap to a Compromise on Bill C-32

The last week of Parliamentary activity in 2010 struck many as a new low point for Bill C-32, the copyright reform bill.  The legislative committee examining the bill met only once, maintaining the lethargic meeting schedule that at the current rate could run into the fall if all stakeholders are given their moment in the sun.  

The day after the solitary hearing, Industry Minister Tony Clement and Canadian Heritage Minister James Moore held an impromptu press conference in an Ottawa shopping mall to confirm that they will not introduce an “iPod Tax” and warn that all three opposition parties support such a measure.  When the press conference was quickly followed a radio ad with the same message, Liberal MPs angrily responded that the Conservatives were lying, offering a statement on their C-32 position, including opposition to extending the private copying levy to iPods.

While the events generated considerable ill-will, they may ultimately be viewed as a crucial step forward.  Given the current minority government, it has always been clear that compromise with at least one opposition party will be needed to pass Bill C-32.  With Bloc MPs circulating petitions opposed to the bill, the Liberals and NDP are the obvious hopes for finding a solution.

Supreme Court Will Lead Tech Law in 2011

Predictions about the upcoming year in technology law and policy in Canada are particularly challenging given the prospect of a possible election.  While there is no shortage of potential new laws - bills on privacy, copyright, and lawful access are all before the House of Commons - an election call before the fall would likely mean that those bills would die on the order paper.

With political uncertainty clouding even the best crystal ball, the Supreme Court of Canada is set to emerge this year as the place where much of the action will take place.  Canada’s highest court has lined up a tech-heavy docket that will have a major impact Canadian law.

First up is a series of decisions arising from hearings last fall.  These include Masterpiece Inc. v. Alavida Lifestyles Inc., a trademark law case that raises questions about the standard for likelihood of confusion between two competing trademarks. There are also several cases involving access to government information under the Access to Information Act. With the mounting interest in open government and access to public documents, the cases will help identify how far the current legislation extends.

The Letters of the Law: 2010 in Tech Law from A to Z

 The past twelve months in law and technology were exceptionally active, with the passage of anti-spam legislation, record penalties for violating the do-not-call list, and relentless lobbying on new Canadian copyright legislation. A look back at 2010 from A to Z:

A is for the Anti-Counterfeiting Trade Agreement, which concluded in October with a watered-down treaty after the U.S. caved on several controversial Internet issues.

Canadian Education Faces Technology Tipping Point

Canadian universities and colleges have undergone a remarkable technological transformation over the past decade.  Ten years ago laptops were relatively rare in classrooms, yet today virtually every student comes to buildings outfitted with electric outlets and Internet connectivity at each seat equipped with one.  Course websites were once little more than places to post a syllabus and a list of readings, but today they feature podcasts, webcasts, the actual course readings, and space for ongoing discussion and debate. 

While technology has become a core part of the educational process, it has often been treated as a complement – rather than a replacement – for traditional educational materials.  Libraries still spend hundreds of millions of dollars on physical books and journals, some professors still generate paper-based coursepacks, and the schools themselves still pay millions of dollars in copying licensing fees. 

Location Matters Up in the Cloud

The Wikileaks disclosure of hundreds of U.S. diplomatic cables dominated news coverage last week as governments struggled to respond to public disclosure of sensitive, secret information. One of the most noteworthy developments was Amazon’s decision to abruptly stop hosting the Wikileaks site hours after U.S. Senator Joe Lieberman exerted political pressure on the company to do so.  

Amazon is best known for its e-commerce site, yet it is also one of the world’s leading cloud computing providers, offering instant website hosting to thousands of companies and websites. In recent years, the combination of massive computer server farms in remote locations and high speed networks have enabled cloud computing to emerge as a critical mechanism for offering online services and delivering Internet content.

After Amazon pulled the plug, Wikileaks quickly shifted to a European host, demonstrating how easily sites can shift from one cloud provider to another. Although it seems counter-intuitive to consider the physical location of cloud computing equipment when discussing services that by their very definition operate across borders in the “cloud”, the Wikileaks-Amazon incident provided an important reminder that location matters when it comes to cloud computing.

Canadian Courts Set High Bar for Privacy Damage Awards

When privacy violations occur, the first reaction for many victims is to search for a way to stop the offending conduct. The second response may be to invoke the law by filing a complaint with the Privacy Commissioner of Canada. Hundreds of complaints are filed every year and most are resolved with an explanation for what occurred, a change in corporate policy, or occasionally a formal apology.  A growing number of complainants have been left unsatisfied with this outcome, however, and are turning to the courts for damage awards.

Two recent Federal Court decisions grappled with the issue of damage awards for privacy violations and arrived at the same conclusion - personal privacy is not worth much when it comes actual compensation for privacy breaches or abuses.

In one case, a company employee attended a fitness club with the company paying half of the monthly fee as a workplace benefit.  Unbeknownst to the employee, his attendance at the club was regularly reported back to the company.  The employee argued that the fitness club breached his privacy rights by disclosing his activities without obtaining appropriate consent.

Separating Copyright Facts from Fiction Ahead of Legislative Hearings

Canadian copyright law promises to dominate discussion in Ottawa over the coming weeks as hearings on Bill C-32, the controversial copyright bill, are set to begin within a few days. If the past six months are any indication, Members of Parliament will be asked to sort through confusing rhetoric in order to understand the implications of the proposed changes.  Separating fact from fiction will not be easy, but getting straight answers to the following questions will be crucial:

1.    Will Bill C-32 give education institutions the right to engage in massive uncompensated copying?

No. The inclusion of education as a fair dealing category will not mean that any educational copying will be free.  It will only mean that educational copying will be eligible for analysis under a six-part test developed by the Supreme Court of Canada to determine whether the copying qualifies as fair dealing. The changes in Bill C-32 are more modest than often claimed as they merely fill some gaps in the existing list of fair dealing categories.

2.    Will Bill C-32 give consumers the right to make backup copies and view or read their purchases on the device of their choice?

Lawful Access Bills Would Reshape Internet in Canada

The push for new Internet surveillance capabilities goes back to 1999, when government officials began crafting proposals to institute new surveillance technologies within Canadian networks along with additional legal powers to access surveillance and subscriber information.  The so-called lawful access initiatives stalled in recent years, but earlier this month the government tabled its latest proposal with three bills that received only limited attention despite their potential to fundamentally reshape the Internet in Canada.

The bills contain a three-pronged approach focused on information disclosure, mandated surveillance technologies, and new police powers.  

The first prong mandates the disclosure of Internet provider customer information without court oversight.  Under current privacy laws, providers may voluntarily disclose customer information but are not required to do so.  The new system would require the disclosure of customer name, address, phone number, email address, Internet protocol address, and a series of device identification numbers.  


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