News

  • Federal Court Finds Fair Dealing in Blacklock’s Reporter v AG Canada
    - 2016-11-10 -

    The Federal Court of Canada has found that obtaining, reading and distributing paywalled articles for the purposes of assessing and responding to the contents of those articles constituted fair dealing under the Copyright Act.

    In a tightly drafted judgement, Justice Barnes found that the Finance Department employees exercised their fair dealing rights for research purposes in receiving a pair of articles from a Blacklock's subscriber, and reading and sharing those articles internally with other Department employees.  Justice Barnes rejected Blacklock's arguments that its terms of use barred such dealing, noting that it was not Blacklock's practice to explicitly bring such terms to the attention of users, and, in any event, those terms contained an ambiguity permitting reproduction and distribution for non-commercial, personal or educational purposes.

    Given the outcome of its fair dealing analysis, Justice Barnes saw no need to address the Government's claim that Blacklock's practices constituted copyright misuse, although he did note that there are "certainly some troubling aspects to Blacklock's business practices".  The Court awarded costs to the Government.

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  • Canada’s National Security Consultation I: Digital Anonymity & Subscriber Identification Revisited… Yet Again
    - 2016-10-05 -

    Last month, Public Safety Canada followed through on commitments to review and consult on Canada’s national security framework. The process reviews powers that were passed into law following the passage of Bill C-51, Canada’s recent controversial anti-terrorism overhaul, as well as invite a broader debate about Canada’s security apparatus. While many consultation processes have explored expansions of Canada’s national security framework, the current consultation constitutes the first modern day attempt to explore Canada’s national security excesses and deficiencies. Unfortunately, the framing of the consultation demonstrates minimal direct regard for privacy and civil liberties because it is primarily preoccupied with defending the existing security framework while introducing a range of additional intrusive powers. Such powers include some that have been soundly rejected by the Canadian public as drawing the wrong balance between digital privacy and law enforcement objectives, and heavily criticized by legal experts as well as by all of Canada’s federal and provincial privacy commissioners. The government’s framing of the issues are highly deficient. Specifically, the consultation documents make little attempt to explain the privacy and civil liberties implications that can result from the contemplated powers. And while the government is open to suggestions on privacy and civil liberties-enhancing measures, few such proposals are explored in the document itself. The consultation documents also fail to provide detailed suggestions for improving government accountability and transparency surrounding state agencies’ use of already-existent surveillance and investigative tools. 

    In light of these deficiencies, we will be discussing a number of the consultation document’s problematic elements in a series of posts authored in conjunction with Christopher Parsons at the Citizen Lab, beginning with today's installment (after the jump, or in PDF format) regarding the government’s reincarnation of a highly controversial telecommunication subscriber identification power.

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  • Blacklock’s Reporter v AG Canada Wraps Up
    - 2016-09-21 -

    The trial in Blacklock’s Reporter v Attorney-General Canada ended today with the parties’ closing arguments.

    Justice Barnes opened the day inviting the parties to make submissions focusing on the legal implications of what happened between the parties.

    Plaintiff’s counsel opened argument with a brief review of the documentary evidence, and suggested that there were four issues:  (1) infringement, (2) fair dealing, (3) copyright misuse, and (4) damages.

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  • CIPPIC Testimony Calls for Greater Transparency, Proportionality in Update of Federal Privacy Act
    - 2016-09-20 -

    CIPPIC appeared today before the House of Commons Standing Committee on Access to Information, Privacy & Ethics (ETHI) in its ongoing review of Canada's aging Privacy Act. The Act regulates the federal government's handling of personal information, comprising a central component of Canada's privacy framework. However, it has not received any substantial updates since its introduction in the early 1980s, despite tectonic shifts in the incentives animating government data-related objectives as well as in the technological capability to achieve these objectives. In addition, the government has introduced numerous laws designed to update and expand its ability to collect, use and share private data since the 1980s, including laws specifically designed to address technological developments. In the face of this one-sided expansion of state capabilities, the Privacy Act has simply not kept pace, and is in serious need of modernization if it is to continue to effectively meet its objectives to protect individual privacy rights, facilitate government accountability and safeguard public trust.

    CIPPIC's recommendations sought to address key gaps in the Privacy Act, while adding principled protections that will help the Act stay relevant in the future. This includes the addition of principled limits on how long data can be reasonably kept by the government. There is currently no such explicit obligation in the Privacy Act, despite the fact that retention limitations are a hallmark of data protection regimes. An over-riding reasonableness obligation is also necessary, as it would ensure government data practices remain proportionate and in alignment with Charter values. CIPPIC also called for addressing central shortages in the Act's transparency framework, including the incorporation of statistical reporting obligations attaching to all law enforcement electronic surveillance powers, and a general 'openness' obligation compelling the government to proactively explain its privacy practices. Additional recommendations addressed the need for mandating reasonable technical safeguards, a mandatory data breach notification regime and formalizing privacy impact assessment requirements.

    UPDATE: In December 2016, ETHI released the results of its study in a report entitled "Protecting the Privacy of Canadians: Review of the Privacy Act". The Report adopts many of CIPPIC's recommendations.

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  • Report Calls for Greater Transparency, Proactive Control of IMSI Catchers
    - 2016-09-13 -

    CIPPIC and the Citizen Lab, released a report today that describes and analyzes a class of covert electronic surveillance devices called cell site simulators (typically referred to as IMSI Catchers or by brand names such as 'Stingray'). IMSI Catchers operate by impersonating cell phone towers in order to trick mobile devices within range into transmitting digital identifiers, which are then used to track mobile devices or identify the otherwise anonymous individuals associated with them. The report (Executive Summary, FR) argues that the devices are inherently invasive. The geo-location and identification they facilitate engages sensitive privacy interests and, moreover, they are inherently coarse - for each target they are deployed against, the privacy of thousands of non-targeted mobile devices within range is collaterally affected. IMSI Catchers are also intrusive for their interference with the operation of mobile devices, which cannot receive or transmit any phone, text or data communications while engaged with an IMSI Catcher. This can include interference with critical communications such as emergency 911 calls.

    Exacerbating the intrusive features of this electronic surveillance tool has been the cloud of secrecy that pervades its use. The report describes significant efforts by journalists and civil society, in Canada and abroad, which sought to uncover use of this device in Canada and the heavy and unnecessary yet persistent resistance these efforts have experienced. The resulting secrecy, which appears to be encouraged by non-disclosure agreements imposed on Canadian agencies by IMSI Catcher vendors, has delayed important public policy debates regarding the appropriate use of these devices, while eroding public confidence. The report calls for the imposition of a range of transparency, proportionality and mitigation measures, modeled on regulatory frameworks adopted by other jurisdictions for IMSI Catchers, by Canadian courts and legislatures for comparably intrusive electronic surveillance tools and by international normative frameworks for digital privacy protection.

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  • Supreme Court to Hear Online Privacy Jurisdiction Appeal
    - 2016-08-26 -

    CIPPIC's application for leave to intervene has been granted in Douez v Facebook Inc, SCC File No 36616, an appeal that raises fundamental questions regarding the nature of online jurisdiction, e-consumer protection and privacy. Specifically at issue is a forum selection clause imposed by Facebook onto all of its customers, on a take it or leave it basis, mandating that all disputes be brought against it in California. On the basis of this clause, it was held that a class action launched against Facebook in BC and alleging violations of BC privacy laws cannot proceed.

    Managing online jurisdiction-where services can have significant global presence and impact on a largely virtual basis-has strained digital policy since the early days of the world wide web. However, CIPPIC's proposed intervention intends to argue that forum selection clauses are ill-suited as a means of navigating the challenges posed by global online services. A mandatory, non-negotiable forum selection clause effectively opts a service provider out of Canadian standards and laws as foreign courts tend to apply their own rules and standards. As forum selection clauses are ubiquitous and non-negotiable in online services, their universal enforcement could effectively deprive Canadians from domestic protections in relation to digital activities that are increasingly critical to their daily lives. In addition, it could force any Canadian individual embroiled in a dispute with a global online platform to undertake the expense and inconvenience of suing in a foreign court.

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  • Voltage Obtains Norwich Order in Reverse Class Action
    - 2016-07-28 -

    Voltage Pictures and its litigation partners - the applicants in a file-sharing "reverse class action" - have been granted a Norwich Order in respect of a single John Doe. The Court limited its Order to the name and address of the Rogers subscriber (the Applicants had sought additional information such as email address) and required payment to Rogers at its hourly fee for providing the subscriber data (the Applicants had argued that the new notice and notice provisions of the Copyright Act meant that Rogers had to provide this information for free). CIPPIC intervened in the motion on the narrow issue of the privacy protections and limits that might be required of any such order. It is possible that Voltage and its partners might appeal the decision on the issue of paying ISP costs. However, with the Order in hand, Voltage and its litigation partners are in place to begin discovery against the Doe with the goal of having the Doe appointed as the representative defedant and moving towards certification of its controversial reverse class proceeding.

    UPDATE: On Friday, August 5, 2016, Voltage filed a Notice of Appeal, FCA File No A-278-16, with the Federal Court of Appeal, challenging the Federal Court's conclusion that it cannot pass the cost of enforcing its rights on to Rogers' customers. Voltage did not seek a stay of the Proposed Class Action Proceeding and, as a result, it appears as though the class proceeding and the appeal will proceed in parallel.

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  • CIPPIC, CGRC Publish TK Open Licensing Proposal
    - 2016-07-11 -

    CIPPIC and Carleton University’s Geomatics and Cartographic Research Centre have proposed the creation of a Traditional Knowledge open licensing scheme to help overcome some of the challenges associated with granting and obtaining permission for the use and sharing of traditional knowledge.  The scheme envisions a series of open licenses - similar to Creative Commons licenses -  responsive to the needs of granting communities that help overcome some of the obstacles parties routinely encounter in granting and obtaining permission for the use and sharing of traditional knowledge.

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  • Canada Post v Geolytica Lawsuit Settled
    - 2016-06-03 -

    Canada Post has agreed to discontinue it's copyright infringement lawsuit against Geolytica.  The case involved a claim that Geloytica's use of a crowd-sourced database of postal codes mapped to geographic addresses infringed intellectual property rights Canada Post alleged that it enjoyed in those postal codes.

    While the terms of settlement are confidential, the parties have prepared an agreed statement:

    Canada Post commenced court proceedings in 2012 against Geolytica Inc. for copyright infringement in relation to Geolytica Inc.'s Canadian Postal Code Geocoded Dataset and related services offered on its website at geocoder.ca. The parties have now settled their dispute and Canada Post will discontinue the court proceedings. The postal codes returned by various geocoder interface APIs and downloadable on geocoder.ca, are estimated via a crowdsourcing process. They are not licensed by geocoder.ca from Canada Post, the entity responsible for assigning postal codes to street addresses. Geolytica continues to offer its products and services, using the postal code data it has collected via a crowdsourcing process which it created.

    While undoubtedly a good outcome for Geolytica, the settlement leaves unaddressed the legal claims advanced by Canada Post.

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  • Vancouver Police Cannot Hide Records Confirming Use of Surveillance Tool
    - 2016-03-23 -

    Cell-site simulators, colloquially referred to as IMSI Catchers or by brand names such as "Stingrays" or "King Fisher" are surveillance tools used by state agencies to identify or track mobile devices (and, of course, the individuals associated with such devices). Compared to other surveillance devices, IMSI Catchers are inherently invasive. They are designed to impersonate cell towers, in both functionality and appearance. As a result, IMSI Catcher surveillance is broad and indiscriminate -each time an IMSI Catcher is deployed against a specific target, it interferes with all devices in range. Each time an IMSI Catcher is used against one specific target, it can interfere with the privacy of thousands, collecting the digital identifiers (IMSI, IMEI) of all mobile devices within range. With these identifiers, otherwise anonymous individuals can be geo-located or tracked. In addition to the privacy interference, IMSI Catchers interfere with the functionality of mobile devices in range, preventing them from sending or receiving phone calls, text messages or data, including emergency 911 calls.

    The secrecy surrounding the use of these devices has been significant, with law enforcement agencies in Canada generally refusing to acknowledge, or even deny, whether they have ever made use of such a device. The Vancouver Police (VPD), for example, have refused to respond to a freedom of information demand from the Pivot Legal Society for any records relating to its use of these devices. CIPPIC and Christopher Parsons from Citizen Lab represented an intervener in the appeal of that refusal, OpenMedia. VPD defends its decision on the basis that acknowledging any IMSI Catcher would undermine their utility as surveillance tools. However, as we pointed out in the intervention, a lot of information is already in the public record regarding the capabilities of these devices and their use by state agencies, and there is a compelling public interest in publicizing use of these devices, to facilitate public debate regarding the appropriate parameters of their use. UPDATE: On May 25, 2016, after reviewing the record of the appeal, VPD issued a response, indicating that they do not own an IMSI Catcher and have no records relating to the use of such devices. However, ongoing questions remain regarding whether VPD has used these devices in past investigations through the aegis of the RCMP.

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