La
DAVID
ELDER
Proposed “lawful access” legislation, recently reintroduced by the
federal Government, is raising serious concerns for many internet
users, who feel that the proposed
law inappropriately favours the
interests of law enforcement over
those of personal privacy.
The Protecting Children from
Internet Predators Act, introduced
on February 14, 2012 as Bill C-30,
is the fourth attempt by a Canadian
Government to pass legislation
intended to provide law enforcement and national security agencies with modernized investigative
tools to keep pace with evolving
digital technologies. Although little
has changed from the original lawful access bill introduced in 2005,
the latest incarnation is attracting
far more public controversy.
Unfortunately, some of the
controversy surrounding the proposed law can be attributed to
misinformation. For example,
contrary to much of the public
discussion, police surveillance
must still be carried out only
under judicial warrant.
Other concerns, leveled by both
Internet users and privacy advocates, seem to be more on point,
and appear to have garnered near
unanimous opposition from the
privacy community, including a
joint letter of concern last year
from all Privacy Commissioners
across Canada. Several advocates
have argued that the legislation
raises significant Charter concerns.
Perhaps the most controversial
aspect of the Bill are the provisions
that would require telephone com-
panies and Internet service provid-
ers (ISPs) to provide law enforce-
ment and CSIS with certain
subscriber information upon
police for many years under war-
rant, Bill C-30 would mark a fun-
damental shift in approach. For the
first time, telephone companies
and ISPs would be required to
design their networks to include a
specified number of “peep holes” to
allow for police interceptions — and
must absorb the costs of doing so.
An oddity in
Information
Technology Law Lawddities
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request — without judicial oversight, and without a requirement
for reasonable grounds. While the
list of data elements that may be
requested by police has been
reduced from the previous version
of the Bill, it continues to include
Internet Protocol (IP) addresses, a
fact that is at the heart of many of
the privacy concerns.
Critics of the bill argue that,
unlike the reverse telephone
number look-up service on which
the new provisions are based, the
extension of “reverse look-up” to
the Internet space would result in
far more than the simple identification of the individual behind
an account: it would also allow
police to link anonymous online
activity and communications to
an identified individual.
Unlike the case of telephony,
where police are unlikely to have
the calling records of a suspect or
know the content of his telephone
conversations at the time they
request the name and address
associated with a telephone num-
ber, the design of the Internet
allows a great deal of activity to be
observed, tracked and tied to an IP
address. By the time a request is
made for the identity of the user
behind an IP address, police may
already know a great deal about
the sites that a suspect has visited,
the comments he has posted or the
files he has transmitted.
Lawddities
The
litigious
cowboy
David Elder is counsel with the
Ottawa office of Stikeman Elliott
LLP, where he practises communications, competition and
privacy law.
Short range ads present legal hurdles
Marketing
Continued From Page 14
For implied consent to be valid,
the user’s reasonable expectations
in leaving the device on “
discoverable” should be determined. But it
remains an open question whether
a user who leaves a device in a “
discoverable” mode intended for his
or her personal information to be
gathered for purpose of directing
advertisements at them.
Another potential legal hurdle
is the Canadian Anti-Spam Law,
which was passed late last year.
Based on CASL’s draft regulations,
any commercial electronic mes-
sage that is sent to a recipient first
requires the recipient’s consent.
The draft regulations include
within their scope the initial mes-
sage, which means that even send-
ing a message requesting consent
to send a further message con-
taining an advertisement (a
“solicitation message”) is pro-
hibited. Because the regulations
are still in draft form, it remains to
be seen how advertisers using
short range advertising will work
around this problem (or whether
they will have the problem at all).
James Kosa is an associate of Deeth
Williams Wall LLP in Toronto. He
practises information technology
and intellectual property law with
an emphasis on patents, copyright
and licensing.
New York’s so-called “Naked
Cowboy” is a Times Square staple
and for more than a decade, a
registered trademark. More
amusing than Robert Burck’s
alter ego, though, is the US$1.5-
million lawsuit he filed against
CBS’s long-running soap opera,
The Bold and the Beautiful for
infringing on the Stetson-hatted,
underweared, cowboy-booted,
gee-tar playing “brand.”
Burck claimed the show’s
character Oliver ripped him off
right down to the tighty-whities.
He also accused CBS of posting
a video of Oliver’s appearance
on YouTube, causing people to
confuse his identity, the New
York Daily News reported.
Manhattan Federal Court
judge Barbara Jones dismissed
the suit, the latest in a string of
similar actions filed by Burck,
most recently against Mars Inc.’s
M&Ms, and a “Naked Cowgirl”
rival. If the lawsuits don’t make
you take him seriously enough,
the Naked Cowboy is reportedly
readying for another fight—as a
2012 U.S. presidential candidate.
—Anum Lateef
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