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  • – 2018-12-13 –

    Today, the Supreme Court of Canada issued R v Reeves, 2018 SCC 56, a decision that further entrenches Canadians' privacy expectations in computing devices while adding important nuance to the Court's jurisprudence regarding information privacy protections in shared. The decision under appeal questioned whether police can seize a shared computing device on the third party consent of a co-user.

    As CIPPIC noted in its intervention, ably prepared by our co-counsel, Jill Presser and Kate Robertson, shared access to computing devices is routine feature of modern life. Often this shared access occurs without explicit individual awareness -- a trend only likely to increase with the plethora of emerging smart home devices. Allowing one roommate, partner or other co-habitant to unilateral waive privacy protection could allow the state to intervene into highly private spaces with minimal safeguards in place. Low-income individuals [para 44] and individuals subjected to technology-facilitated abuse [para 23] by their intimate partners could disproportionately face the brunt of these negative impacts. In rejecting such a paradigm, Madam Justice Karakatsanis (writing for the majority) correctly held that privacy rights must survive the pragmatic risk associated with such routine living arrangements:

    I cannot accept that, by choosing to share our computers with friends and family, we are required to give up our Charter protection from state interference in our private lives. We are not required to accept that our friends and family can unilaterally authorize police to take things that we share. The decision to share with others does not come at such a high price in a free and democratic society. [para 44]

    Reeves contributes to a growing body of jurisprudence elaborating privacy protections in shared or semi-public situations, which includes last year's decisions in Marakah and Jones, as well as upcoming decisions in R v Mills, SCC File No 37518,R v Jarvis, SCC File No 37833, and R v Le, SCC File No 37971.

    Image Credit: Marco Verch, "Aufkleber mit Passwort auf dem Laptop", July 24, 2018, Flickr, CC-BY 2.0

  • – 2018-12-11 –

    CIPPIC's Submissions on Industry Canada's statutory review of the Copyright Act focus on the need to restore balance to the legislation in light of the expansion of owner rights and remedies in CUSMA, the Canada-United States-Mexico trade agreement signed in the summer of 2018.

    The 2018 review of the Copyright Act is an opportunity to address the needs of Canadian creators and Canadian content users, while strengthening the public domain. In light of the recent CUSMA treaty and its benefits for copyright holders and intermediaries, we ask the Committee to engage in this review with a view to restoring the essential balance at the heart of copyright policy.

    Read CIPPIC's submission:

  • – 2018-12-06 –

    CIPPIC appeared before the Supreme Court of Canada on Thursday, December 6, on day 3 of the joint hearing on the standard of review in judicial review of administrative decisions.  uOttawa law alumni James Plotkin and Alyssa Tomkins represented CIPPIC in this hearing, and Mr. Plotkin gave oral argument.  CIPPIC's intervention focused on whether the rule of law requires courts to apply a correctness or reasonableness standard to jurisdictional questions.

  • – 2018-11-27 –

    How do we measure bicycle traffic in a way that respects citizens' privacy? CIPPIC's team working on a Sidewalk Labs Small Grant presented its findings today. Great work, Keri Grieman, Johann Kwan and Stephanie Williams! Key findings on best practices:

    • Use technologies that limit the collection of personal information
    • Store data securely
    • Limit data collection to only that which is needed
    • Ensure that partners or contractors follow collection restrictions
    • Notify individuals that their data is being collected.
    • Install counting devices when creating a new space
    • Hide or mask sensitive locations
  • – 2018-10-18 –

    The Electronic Frontier Foundation (EFF) released a timely white paper this week examining the negative implications and chilling effects that various cybercrime provisions throughout the Americas can have on coder's rights and specifically on security researchers. Entitled "Protecting Security Researcher's Rights in the Americas", the analysis explores a range of cybercrime regimes nominally intended in principle to criminalize unauthorized access to or disruption of computer systems. However, these laws have been framed so broadly as to impose a serious chilling effect on vital activity of security researchers. Drawing on the Inter-American human rights framework (of which Canada is a partial adherent), some national jurisprudence, and principles of criminal law, the paper argues for cybercrime regimes that accommodate beneficial security work. There must be latitude for non-malicious security testing, for the dissemination of critical security tools and for the responsible publication of discovered security breaches.

    Sadly, current laws are framed so broadly that they have had a serious chilling effect on socially beneficial security work. Those who discover security breaches face severe legal threats and sometimes even criminal consequences for attempting to bring these to host organization's attention. The result is that security breaches are increasingly likely to remain unresolved until they are discovered by someone seeking to exploit, rather than to merely expose. The paper, to which CIPPIC provided substantive contributions, calls for clearer standards to remedy this situation.

  • – 2018-10-03 –

    At a time when our electronic devices contain an over-more detailed window every facet of our lives, international travel poses a growing challenge to privacy as the expansive powers granted to our border control agents are leveraged with increasing frequency to search our digital repositories. The BC Civil Liberties Association (BCCLA), with help from CIPPIC and under the generous auspices of CIRA's Community Investment Program, has updated its Electronic Devices Privacy Handbook, which outlines the types of intrusions individuals can expect when attempting to cross the Canadian border with electronic devices in hand and explains some of the legal and policy rationales which guide emerging legal rights in this context. Can devices be searched randomly? Must such a search be cursory or can it be extensive? Can devices be seized and kept? Can individuals be compelled to provide passwords to their devices? The Guide, a short version of which is available in 7 languages, also suggests some best practices for individuals who might be concerned that their sensitive photos, their legally privileged work documents or their list of journalistic sources might fall into the hands of the state simply because they need to travel in and out of Canada.

    Image credit: BCCLA, 2018

  • – 2018-10-02 –

    The CRTC rejected a proposal for a mechanism that could be used to block websites accused of copyright infringement, in a definitive victory for digital innovation and free expression in Canada. As we pointed out in our joint intervention with OpenMedia, the proposal was deeply flawed for its lack of effective procedural safeguards, which could have led to the censorship of websites and online services that were not engaged in copyright infringement. The proposal also disturbed a carefully calibrated series of trade-offs that sits at the heart of Canada's balanced copyright regime and conflicted with long-standing principles of net neutrality by compelling ISPs to interfere with customer access to content. On the other hand, claims advanced in justification of the website blocking proposal dramatically overstated the harm caused by online copyright infringement. While such infringement does continue to occur, its detrimental impact does not rise to such levels as to justify the adoption of an extraordinary remedy of this sort, with its many attendant unintended impacts.

    As CIPPIC/OpenMedia and many other public interest interveners urged, the CRTC denied the claim on the basis that it lacked legal authority to interfere with copyright policy by ordering extreme website blocking remedies. However, as both the government undertakes comprehensive reviews of Canada's telecommunications, broadcasting and copyright regimes, those who have most strenuously advanced this form of expedited website blocking mechanism are sure to continue to do so in these other fora.

    Image Credit: CIPPIC, CC-BY 4.0, 2018

  • – 2018-10-01 –

    Canada, the United States and Mexico have reached agreement on a new trade agreement to replace NAFTA.  Now called the United States-Mexico-Canada Agreement (the USMCA),  the Agreement includes both an Intellectual Property Chapter and a Digital Trade Chapter.  

    The digital provisions include gains and losses that will require changes to Canadian law, but also preserves the status quo on issues of importance to Canada:

  • – 2018-09-28 –

    CIPPIC has filed its intervener factum in the Supreme Court in Telus v Wellman, SCC No. 37722, an important case addressing the disparate impact of mandatory arbitration clauses on consumer and business customers.  CIPPIC's argument focuses on access to justice considerations and the differing way that consumer protection laws protect consumers and other vulnerable groups encountering standard form contracts in circumstances characterized by disparities in bargaining power.

    Profesor Marina Pavlovic and Cynthia Khoo (LLM Candidate and CIPPIC researcher) are acting for CIPPIC in this intervention.

  • – 2018-09-23 –

    CIPPIC has been granted leave to intervene in a trio of appeals in which the Supreme Court has invited submissions on standard of review:

    The Court is of the view that these appeals provide an opportunity to consider the nature and scope of judicial review of administrative action, as addressed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9, and subsequent cases. 

    Minister of Citizenship and Immigration v. Alexander Vavilov, SCC No 37748Bell Canada, et al. v. Attorney General of Canada, SCC No 37896 and National Football League, et al. v. Attorney General of Canada, SCC No 37897 will be heard together over a three day hearing from December 4-6.

    CIPPIC is working with University of Ottawa alumni James Plotkin and Alyssa Tomkins.  Justice Bastarache - co-author of the plurality decision in Dunsmuir, is of counsel.  CIPPIC's intervention will focus on the rule of law and limits on deference in judicial review.