Modified: 2007-10-23T13:21:00ZCopyright: Copyright (c) 2007, Kris Klein
2007-10-23T13:21:00ZOkay, okay… It’s still a few months away from the Holiday season and the New Year. Regardless, they’ve given me the pen for this spot and I’m making a list. I figure if I get my wish list in...
Okay, okay… It’s still a few months away from the Holiday season and the New Year. Regardless, they’ve given me the pen for this spot and I’m making a list. I figure if I get my wish list in early this year, maybe I’ll get a few of the things I want!
So, here’s my wish list for a few things we need in the privacy world:
1. Laws that break through or work around the limitations imposed by our constitution (I mean, provincially regulated employees have no privacy protection in legislation unless their information is used as part of a commercial activity or unless they live in Alberta, B.C. or Quebec).
2. Speaking of commercial purposes… can we please have a better definition that doesn’t involve someone circling and circling and circling? I mean a commercial activity is something of a commercial nature. Gee, thanks for that clarification.
3. Less restriction on the publication of the federal Commissioner’s Reports
4. A version of PIPEDA where the French and English versions translate properly (some sections even have different paragraph numbering)
5. An Act that contemplates that if you go to court on a matter that involved a violation of an individual’s privacy, the Court would be given explicit power to put controls in place that would allow the protection of privacy during the Court process.
6. A recognized ability to get real compensation when your privacy is invaded. Getting a “well-founded and resolved” report is only going to motivate people for so long to stand up for their rights.
7. A recognition that we are in a surveillance state. Question is, are we going to let it get worse, tolerate it the way it is, or fight back?
8. A Privacy Act that is written based on our understanding of computing and database technology in 2007. Not 1977.
9. A recognition that the Privacy Commissioner cannot oversee ALL of government and that it’s high time the government itself takes some responsibility for privacy (yes, they should have Chief Privacy Officers in many departments).
10. Privacy Impact Assessments… oh wait, we do have those, sometimes! (But not nearly enough – and even when they’re done, nobody knows about them.)
11. One more very good conference and then an acknowledgement that we need to actually get the work done and not just talk about it.
Things we probably don’t need:
1. Another privacy lawyer… ooops, well don’t check out www.krisklein.com then.
2007-10-16T14:05:58ZI’ve always wanted to write my own autobiography. Maybe it’s narcissistic, but I thought it would be a good chance for me to think back, reflect, introspect, and remember both the good and bad things that happened to me... I’ve always wanted to write my own autobiography. Maybe it’s narcissistic, but I thought it would be a good chance for me to think back, reflect, introspect, and remember both the good and bad things that happened to me throughout my life. I could then maybe figure out what went right, and in some cases, what went horribly wrong. But I told myself that I would save this personal task until I was older and also until I had enough stories and experiences to share and write about. Otherwise, if I wrote my autobiography today, it would be a story about a girl named Cynthia, who went to school, who then decided to go to more school. I then came across McAdams’ “Life Story Theory” of identity  and realized that I didn’t have to wait until I was old and experienced to write my autobiography. I was already in the midst of writing one and in fact, I had been writing and contributing to this autobiography my whole life. According to McAdams, the individual is the primary author of his or her autobiographical narratives and the individual’s memories link together the past, the present, and the future in order to provide a sense of identity and also to provide a sense of purpose for one’s thoughts and behaviours. This means that all the memories that I formed (both consciously and unconsciously) have helped to provide me with my sense of identity and that I’m continuously evaluating my experiences and integrating them into the larger narrative of my life. But what would happen if I experienced something so horrifically terrible that I didn’t want it to form part of my life story. Would I have the option of ensuring that I no longer remember this event and that the memory of the event no longer forms part of my autobiography? If so, and I can start actively meddling with my autobiography, would this change who I am? Memory and Drugs Because of the importance of memory and its role in defining one’s identity, scientists in the realm of psychology, neurology, and neuroscience have been investigating methods of enhancing or preserving different types of memory.  More recently, scientists have started to focus on developing pharmacological agents that inhibit or dampen the strength of memory formation and recall. These memory dampening agents are currently being investigated for the treatment of post traumatic stress disorder (PTSD). PTSD and Autobiographical Memories PTSD is a psychiatric anxiety disorder that can develop in response to traumatic experiences.  One hallmark characteristic of this disorder is the alternation between re-experiencing and avoiding trauma-related memories. In some cases, the disorder can be so debilitating that the individual can no longer function in society due to the involuntary and continuous recall of the horrific event. Currently, researchers are investigating the interaction between autobiographical memories and PTSD. According to Bernsten (2001), traumatic memories are important in that they become reference points to other experiences in one’s autobiographical memory database. More specifically, traumatic memories become significant landmarks, which represent a major threat that is perceived by individuals with PTSD.  By inhibiting the formation of certain autobiographical memories with the use of these memory dampening agents, the potential formation of these important landmarks may be circumvented. Pharmaceutical Forgetting Research has shown in both animal and human studies that emotionally arousing experiences are better remembered than those that are emotionally neutral.  Arousal is dictated by the level of adrenaline in the body; a higher level of adrenaline results in increased arousal, and therefore, stronger memory formation. Propranolol, which is alread[...]
2007-10-09T13:52:28ZI recently, for the first time in my life, set up my own wireless router in order to connect my laptop, as well as my roommate’s, to the Internet. This was not a user-friendly experience, and my stress level... I recently, for the first time in my life, set up my own wireless router in order to connect my laptop, as well as my roommate’s, to the Internet. This was not a user-friendly experience, and my stress level was heightened by my need to safeguard my wireless signal from outside intruders. I was creating a code of identity for my actions through my computer network: I had to name my signal and trust that it will safeguard my IP address which is now, through my actions online, an extension of my self and identity. By giving a name to my Internet network, I was sending a secure signal of my own personal identity out into cyberspace. This is a name that anyone in my physical world close enough to pick up on my Internet signal will be able to see. The Internet, as a social system, is a lot less anonymous than many people seem to still think; whether consciously or unconsciously, we are constantly sending out signals of our identity online. From postings on a blog to a wireless network name, our physical life-based identities seep out to the cyber world. It’s an alarming trend to notice how oblivious people are to their cyber identities, and how careless they are with cyber information that can have a massive affect in their physical world. The online psyche is now a permanent aspect of most people’s lives. With such a plugged in world, people live and communicate endlessly via online routes. However, like an unguarded Internet signal, many people leave themselves open to cyberintrusions that endanger both their cyberidentites and their physical life identities. Two women have recently been in the news for such open intrusions into their private lives through seemingly safe online channels. Neither Jessica Coen, nor Allyson Stokke intended to victimize themselves through innocent online actions, yet both had their identities and privacy victimized and destroyed through the very avenues they left open to the cyberworld. Jessica Coen is an online blogger who is now deputy online editor for Vanity Fair magazine. In a previous job, however, she was a popular blogger on the snarky Manhattan-based gossip website, gawker.com [I]. Coen wrote aggressive observations about people’s looks, loves and lives in New York City through the online medium. Coen wrote to receive a reaction, which she received in hordes. Emails, phone calls, letters in the mail, false email accounts set-up under her identity were just some of the reactions she caused from her caustic writing. All were, of course, anonymous. All were invasions of her privacy. None of which would have been so easily acted upon in the physical world. What was a wake-up call to Coen and her lifestyle should be a wakeup call to us all. Just because the anonymity of online actions makes it easier for many people to do or act in ways they are not comfortable in the physical world, does not mean the actions do not have an affect in the physical world. Voyeuristic tendencies have increased in popularity of negative online actions. The Internet has increased many people’s freedom of expression, both positive and negative. In this “me” generation, where the staged reality show, “The Hills,” is a hit, men and women not only feel that it is alright to comment and act as they desire in the online world, but seemingly get approval of their actions through physical world reactions such as media social relations. In today’s world, it is just as common to end a relationship through online or cellular means as it is in a physical world situation. It is interesting to note that Coen is still active online. She is currently working online and still maintains a blog. A quick search on Facebook brings up a profile that appears to be hers as well. While Coen has been awakened to the threats that are online r[...]
2007-10-02T13:37:23ZAs the duly elected Liberal government currently serving the Province of Ontario stands poised to infuse one of the largest revenue collection and fine levying agencies in the Western hemisphere—the Ontario Provincial Police—with $2 million (Can) to fund the... As the duly elected Liberal government currently serving the Province of Ontario stands poised to infuse one of the largest revenue collection and fine levying agencies in the Western hemisphere—the Ontario Provincial Police—with $2 million (Can) to fund the operation of a state-of-the-art spy plane ostensibly required to identify “racers” or “stunt” drivers using the King’s Highways (Cockburn & Greenberg 2007), all while police in Britain continue to append audio-video recording equipment, or “Bobbie-Cams,” to the helmets of their patrol officers in the vein of Paul Verhoeven’s dystopic 1987 film Robocop (Satter 2007), one is prompted to take a look back at the corpus of police surveillance devices suborned by modernity, that have in aggregate given way for what might be called the golden age of voyeurism. The mechanical metamorphosis from Althusser’s (1971) Ideological State Apparatus, into the more palpable “technical apparatus” (Ellul 1964: 101) of the police as we know them today, has been achieved in large part through a process of technological determinism, or the means by which human culture and history are simultaneously rendered and reified by our machines. In other words, the ubiquity of those police surveillance and reporting tools that have pervaded urban life for well over a century, has in turn propagated a mimetic response in occidental consumer culture whereby the general public is increasingly enamored by the “democratization of surveillance” (Staples 2000: 155) made possible by portable, affordable, and elegant devices that, through their egalitarian accessibility, make “coercion embedded, cooperative, and subtle, and therefore not experienced as coercion at all” (Ericson & Haggerty 1997: 7). As public and private interests ultimately converge through a phenomenon I call wikisurveillance, the denizens of this self-supervising panoptic state cooperatively pen the requiem for once valued tenets of privacy through the normalization, even fetishization, of corporate and private data mining, cell phone videography, security camera ubiquity, home “monitoring” systems, the proliferation of spy stores, and systemic Facebook cultism. As such, I define wikisurveillance as the manner in which the community at large has been seduced by, or at the very least summarily acceded to, the idea of watching, recording, reporting, and even the expectation, or exhibitionism, of being watched, as the new de facto social contract for the post-industrial age. Ergo, the computing neologism “wiki” is an appropriate prefix to denote and describe this present Zeitgeist of freelance information brokering in which we presently live, as not unlike any open-source wiki-based text that is publicly inclusive, accessible, modifiable, and even corruptible in its design, the commercial surveillance technologies that define the new historicism of Western media have fostered an age of consensual spying and reporting perhaps best described as the Vichy state of late-capitalism. As conventional law enforcement’s monopoly on surveillance has consequently been muscled out by a veritable coup d’état spearheaded by free unlimited video messaging, Dateline hidden camera specials, and “how’s my driving?” bumper stickers, we must to some extent acquiesce to the troubling truism that Orwell was wrong: that “[t]here is no Big Brother…we are him” (Staples 2000: 153). From the discreet distribution of “Constable keys” in the early 20th century to select citizens who could then access locked police signal-boxes and secretly report on the activities of their neighbors, illegal or otherwise, through to the efforts of the Ontario Green Ribbon Ta[...]
2007-09-26T13:44:40ZIn this particular historical moment of fetishized “security” and state-sponsored surveillance carried out “for our own good,” it is tempting for some of us to think that we are reaching some low point in the history of privacy, where... In this particular historical moment of fetishized “security” and state-sponsored surveillance carried out “for our own good,” it is tempting for some of us to think that we are reaching some low point in the history of privacy, where new technologies already allow the deployment of an Orwellian omniscience by states and corporations. This may indeed be so, but some research I did some years ago on the history of nursing education (of all things) has inclined me (a privacy advocacy neophyte) to wonder if the drive for total surveillance is neither novel nor dependent upon new technologies. In the spirit of Heritage Canada’s iconic television spots, I offer my own “Privacy Heritage Minute,” with all the skeletal theoretical framework, carefully-selected facts and simplistic moral that such an approach implies. Prior to the 1950s, most Canadian nurses (who were predominantly young, white, unmarried women) were trained through an apprenticeship system, learning their craft by working for three years unpaid on hospital wards. This training was extremely arduous and strictly regimented, and was overseen by a limited number of paid nurse overseers and by senior nurse apprentices. The vast bulk of nursing labour in hospitals was completed by students, who lived on the hospital campus and seldom left the site until their training was complete. Beginning in the late 19th century, it was understood that moral rectitude (read virginity) and feminine deference (read unquestioning obedience) were key characteristics of the ideal nurse. In part this was because prevailing models of health contained an unmistakably moral component (as arguably they still do – see the rhetoric around obesity, heart disease, HIV, etc.). Likewise hospitals, which were in competition for the dollars of wealthy patients and donors, used the image of the physically and morally clean (female) student nurse as advertising to convince the well-to-do of the safety and efficacy of institutional health care.  Hospitals posted extensive lists of rules intended to ensure the proper behaviour of their student nurses. Obedience was far too important to be entrusted simply to sets of rules, however. As was explained in one nurses’ orientation manual, each individual would be “carefully watched to ensure strict obedience.” Surveillance, embodied in the policies, procedures, and the very architecture of the training school and Nurses’ Home, provided the disciplinary backbone for nursing training. Michel Foucault described similar developments with respect to 18th-century reform schools and prisons in Discipline and Punish: “We have here a sketch of an institution ... in which three procedures are integrated into a single mechanism: teaching proper, the acquisition of knowledge by the very practice of the pedagogical activity, and a reciprocal, hierarchised observation.” Surveillance of student nurses began from the moment they applied to their training. Candidates underwent gynecological screening tests, which allowed hospital management to determine whether the candidates showed signs of sexually transmitted diseases, previous pregnancy, or loss of virginity. Applicants who showed evidence of such indiscretions were likely to be rejected as “not suitable to become a nurse.” This managerial anxiety over sexuality permeated the apprenticeship program. Of particular concern in these all-female spaces was homosexuality, a “vice” that dared not speak its name but that nevertheless attracted careful scrutiny by managers and hospital trustees. As one former nurse explained to me, A rule was posted that ‘only one may bathe at a time’. We didn’t have time to wait in the morni[...]
2007-09-18T18:07:55ZI recently received news that my friend Kelly was found dead in her single room occupancy  hotel in Vancouver, several days after she had died.  I knew Kelly as a great force working to improve the lives... I recently received news that my friend Kelly was found dead in her single room occupancy  hotel in Vancouver, several days after she had died.  I knew Kelly as a great force working to improve the lives of street level sex workers in Vancouver’s Downtown Eastside (DTES). Feeling far away and alone in my grief, I googled her to see whether anything had been written about her death. To my surprise, I found a handful of references to her (full name included) as a participant in a free heroin trial program, and identifying her as a woman living out of a shopping cart in Canada’s poorest postal code. I was frustrated and angry that this one-dimensional sketch of Kelly, involving incredibly private details about her life, was so accessible. My first instinct was to wonder whether she had consented to having her name published in these articles. But then a different, and rather more pressing set of questions struck me. Why, when so few people took notice of her daily existence and suffering, when she was allowed to die almost invisibly – was it possible for me to access information about her health,  her poverty and her homelessness on the World Wide Web? I couldn’t shake the idea that Kelly had too much of the wrong kind of privacy. Kelly didn’t need the state to be kept “out”.  She needed the state and society more broadly to be let “in”, to actively participate in her existence by recognizing her humanity and not remaining indifferent to her poverty. The privacy she needed is that which comes from access to private property and adequate housing. The privacy she needed was that which would have enabled her to develop her identity and sense of self outside of the apathetic public scrutiny that happens on the street where the privileged are indifferent voyeurs of suffering. What is privacy, anyways? I write this with the qualification that it is not entirely clear to me what privacy is. I am puzzled about what it means for something to be “private”, what it means for someone, or some identifiable group, to have a right or an interest in “privacy”, or what exactly happens when this peculiar thing known as “privacy” is lost. Warren and Brandeis famously quoted Judge Cooley’s definition, describing privacy as a right “to be let alone”.  Westin is most frequently attributed with informing us that privacy is about a right to control information about ourselves.  Judith Jarvis Thompson said privacy is a reductive concept that essentially consists of clustered property rights and rights to ones own person.  Ruth Gavison and Anita Allen have identified privacy as a limitation of access to individuals.  Richard Bloustein outlined privacy as integral to human dignity.  Jeffrey Reiman offered a notion of privacy as critical for personhood formation.  Many other wise theorists have offered still more accounts of privacy, more attempts to define what remains, in many senses, opaque. Legally, the concept of privacy has largely developed in the context of rights of the individual accused as against the state. The Supreme Court of Canada has ruled that privacy is an instrumental right – integral to the realization of fundamental entitlements such as liberty, security of the person, and equality.  Section 8 Charter jurisprudence instructs that there is a distinction to be drawn between public and private space – fostering the notion that we are, at least in some ways, entitled to less privacy in public.  So what’s the problem? Almost all of this theorizing and analysis seems to take for granted that everyone has access to private space. It assumes a means to limit or control access to oneself. It fu[...]
2007-09-11T14:08:54ZBeing recently married, I still haven’t quite adjusted to the idea that you can’t change certain traits in your spouse. For example, my other half tends to view cell phones as a leash, and he regularly “forgets” to call... Being recently married, I still haven’t quite adjusted to the idea that you can’t change certain traits in your spouse. For example, my other half tends to view cell phones as a leash, and he regularly “forgets” to call me when he’s going to be late, or going out after class or work. As a result, I end up panicking, thinking he has been in a terrible accident and is unconscious somewhere, and I promptly begin my routine of repeatedly calling his cellphone (which is usually off or at the bottom of his bag on silent mode). By the time he finally gets to the phone and sees 18 missed-calls from me, I’m usually anxiety ridden and he calls me laughing, telling me I’m crazy, and that he’s on his way home. This conversation is usually followed by certain expletives and ends with my threat that I’m going to implant him with a GPS tracking device. Of course, when I raised this idea, I was completely joking. For the sake of fantasy, my ideal device would be a microchip and to my knowledge, the Verichip doesn’t operate as a GPS device for commercial use (yet). Such a use would also run contrary to my convictions as a privacy advocate, but at times, I feel as though my sanity is at stake. I decided to inquire further into the practical aspects of my GPS threat (after all, there’s no point in a threat without any substance), and to examine the idea of spousal surveillance in general. [i] The Newly Married or Soon-to-be-Married I first looked to an online forum that is geared towards wedding planning and is frequented by brides-to-be and newer brides. I visited this forum quite a bit back in the wedding-planning days. I posted a simple 3-question poll. My questions weren’t intended to examine the moral implications of surveillance; rather, I was just trying to get a basic overview of what people would do. My first question was “Have you ever used any type of surveillance on your spouse?” Out of 154 responses, 10 people (0.6%) answered Yes, with the remaining 144 (93%) answering No. The types of surveillance, whether electronic or not, were not specified. My second question was “Have you ever read your spouse’s email without him knowing?” Of 155 replies, 92 (59%) answered Yes and 63 (40%) answered No. A few people, however, chose to comment on this question stating that they have their spouse’s implicit consent to check their email. Finally, my third question was “If given the opportunity, would you use GPS tracking or an RFID chip to track your spouse?” Out of 155 replies, 21 (13%) answered yes, and 134 (86%) answered No. Some people who chose “Yes” commented that they only chose “Yes” because they would want the option in case of an emergency situation and not because of a lack of trust. Others confirmed that they would not want to so much “track” their spouse, but would want to be able to “find” them when necessary. And, of course, some users pointed out if you got to the point where you needed to resort to tracking your spouse, your relationship was in serious trouble. One user relayed a story of a past relationship where reading her boyfriend’s emails, and trying to find out what he was doing, confirmed that he was cheating on her. From this small poll I learned that (a) I’m not the only one who has little fantasies about wanting to know where her spouse is and (b) More spouses than I’d expected have read their partner’s emails. Marriage, Surveillance, and Privacy This lead to my next finding -- a major target audience of surveillance software, surveillance devices and GPS products is married spouses. As I was searching for various products, it see[...]
2007-09-04T13:54:56ZCredit cards and databases/data-mining/data aggregation. How does the database nation get affected by a cashless society? I recently had the opportunity to dwell upon the loss of anonymity as we continue the path to cashless-ness. It was on one... Credit cards and databases/data-mining/data aggregation. How does the database nation get affected by a cashless society? I recently had the opportunity to dwell upon the loss of anonymity as we continue the path to cashless-ness. It was on one of those west coast road trips that seem like the perfect way to cap off a summer. Driving to South Bay This August, a couple of friends and I drove down to the Bay Area of California from Vancouver to visit with friends working there. An interesting exercise we got caught up in was to see how difficult it would be to “stay off the radar”. Although we realized that giving out personal information itself is not dangerous, but rather simply provides a possibility for misuse, the recent discourse on domestic spying and the Patriot Act in the US got us to think deeper about sharing our spending habits with US businesses and the US government. Like any good conspiracy theorist, travel begins by taking large wads of cash out from under the mattress - or a Canadian bank, if your mattress is rather thin. Minimizing our use of credit cards was the obvious step. This was also facilitated (others say caused) by the midsummer drop in the Canadian dollar and our desire not to be gouged by Visa’s exchange/conversion rate.  So we used cash, and lots of it. All of our food, hotel rooms, and activities were anonymous transactions. When we stopped for gas, we prepaid the attendant in $20s. As Canadians, we had never seen so many green bills. Because realistically, although not quite to the level of a wheelbarrow or a duffel bag, carrying enough money for three guys on an 11 day trip is a significant task in itself and more than a little inane. For the most part, our experiment was successful. Although frustrated by the inefficiency of their monotone bills, our system seemed to work as cash equalled anonymity in most situations encountered. But one time it didn’t was when we came up against the dreaded loyalty card. Safeway and the Loyalty Card Loyalty cards are a common occurrence in today's consumer driven world. It seems like everything from airline tickets to cups of coffee have a mode of tracking your purchases and collecting detailed information regarding your personal shopping habits.  But loyalty systems also seem to “work”. The collection of points almost seems like a North American sport. Canadians seem to do anything for their points.  And sometimes using the loyalty system is almost forced upon you. While at the local Safeway trying to buy some supplies in California, we encountered an insidious ploy to force shoppers to self-identify. It has always been part of the loyalty system to offer discounts to those who sign onto the system; discounts of 5% to 10% are not uncommon. But at this particular Safeway, oranges were over $1/lb cheaper for those showing a Safeway card. 1$/lb or more than 30%! With this kind of price differential, how can you resist? How can you compare the intangible benefit of remaining anonymous with the prospect of saving money on fresh fruit? Although I knew about the privacy implications and why Safeway was operating in such a manner, my biggest concern wasn't about data mining but rather me not having an American Safeway account to be able to take advantage of this offer! Luckily, or scary depending upon your point of view, the Safeway databases in the United States and Canada are linked and my Canadian account worked just fine. And on top of that, I didn't even need my physical card. Supplying my phone number was enough for the clerk to identify me by name and recite m[...]
2007-08-28T13:37:19ZPrivacy law is increasingly important in litigation in Canada. Contemporary litigants routinely file requests for access to their personal information under PIPEDA and its provincial counterparts. Such requests can give a party a partial head-start on litigation discovery, or... Privacy law is increasingly important in litigation in Canada. Contemporary litigants routinely file requests for access to their personal information under PIPEDA and its provincial counterparts. Such requests can give a party a partial head-start on litigation discovery, or aid a party in rooting out information held by an opponent or potential opponent. That said, with some possible room for improvement (at least in the case of PIPEDA),  data protection law in Canada takes a relatively hands-off approach when it comes to legal proceedings. Parties in legal proceedings are generally required to disclose information in accordance with long-standing litigation rules and are largely exempted from restrictions that might otherwise be applicable under data protection laws in other contexts. Yet, this does not mean that privacy considerations are not relevant or applicable to discovery in legal proceedings. This short article identifies some existing and emerging privacy-based limits in litigation discovery at the intersection between privacy interests and the need for full disclosure in litigation. I. The Implied Undertaking Rule As a starting point, it is important to note that privacy protections are built into discovery at a fundamental level. Information obtained through discovery is generally subject to an implied undertaking of confidentiality. This prohibits parties from using or disclosing information obtained during discovery for purposes outside of the litigation. The implied undertaking rule is based on a recognition by Canadian courts of the general right of privacy that a person has with respect to his or her own documents.  Many Canadian decisions cite the English text Discovery by Matthews & Malek for the principle behind the rule: The primary rationale for the imposition of the implied undertaking is the protection of privacy. Discovery is an invasion of the right of the individual to keep his own documents to himself. It is a matter of public interest to safeguard that right. The purpose of the undertaking is to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party’s documents.  A party may apply for relief from the implied undertaking rule where a party's interest in using information outweighs the privacy interest protected or where the document is otherwise available. However, the courts do not take the principle of privacy behind the rule lightly, as such applications for relief are frequently denied, for example, on the basis that it would be “an unwarranted intrusion on [the party’s] privacy rights”.  Privacy has similarly been invoked as a limitation in defining what is and is not reasonable in discovery. For example, in Fraser v. Houston, the court declined to order production of the plaintiff’s financial documents on the basis of privacy concerns, despite concluding that the documents had “at least marginal probative value” to an allegation of economic duress: I am satisfied that this line of questioning, […] could result in a detailed exploration of a man’s state of wealth or state of non-wealth as the case may be, and that that is a major invasion into a man's privacy which is generally only allowed in matters of execution on judgments that are not paid and perhaps, in some other circumstances. However, in the present case I am of the view that to allow an exploration of the nature that is requested by the defendants has a potential prejudicial effect upon Mr. Fraser's privacy which well outweighs any apparent probati[...]
2007-08-22T20:33:19Z“Those who worry about the perils women face behind closed doors in the real world will also find analogous perils facing women in cyberspace. Rape, sexual harassment, prying, eavesdropping, emotional injury, and accidents happen in cyberspace and as a... “Those who worry about the perils women face behind closed doors in the real world will also find analogous perils facing women in cyberspace. Rape, sexual harassment, prying, eavesdropping, emotional injury, and accidents happen in cyberspace and as a consequence of interaction that commences in cyberspace.” - Anita Allen, “Gender and Privacy” (2000) 52 Stan. L Rev. at 1184. In 2006, the University of Maryland’s Clark School of Engineering released a study assessing the threat of attacks associated with the chat medium IRC (Internet Relay Chat). The authors observed that users with female identifiers were “far more likely” to receive malicious private messages and slightly more likely to receive files and links.  Users with ambiguous names were less likely to receive malicious private messages than female users, but more likely to receive them than male users.  The results of the study indicated that the attacks came from human chat-users who selected their targets, rather than automated scripts programmed to send attacks to everyone on the channel. The findings of this study highlight the realities that many women face when they are online. From the early days of cyberspace, women who identify as female are frequently subject to hostility and harassment in gendered and sexually threatening terms.  These actions typically stem from anonymous users. Recent news articles from around the world have chronicled the latest spate of online misogyny.  Not only have the women bloggers in these cases been personally threatened, their images distorted and disseminated, in some cases their blogs and websites have also been subject to denial of service (DoS) attacks. Feminists  and women who blog about contentious political or social issues are not the only women who are singled out for abuse. Similar patterns of violent threats have also been directed toward women who blog about the daily life of a single mother,  computer programming,  and a variety of ordinary interests on sites with a female following, but no feminist content or agenda. The effects of repeated online harassment has profound consequences for women’s equality online and in the real world. Online threats and attacks can have had a chilling effect on women’s expression.  Some women may either stop participating in open online forums, unless under the cloak of anonymity or pseudonymity, or self-censor their speech, rather than risk being the subject of violent threats or DoS attacks. These choices reduce a woman’s online identity to being the invisible woman, or a quieter, edited version of herself. Fortunately, women actively continue to blog and participate in cyber-life in the face of threats and harassment, with the support of both women and men in online communities. Women’s retreat from the Internet can also have an economic impact on those seeking entry into technology-based labour markets. One prominent technology blogger observed: “If women aren’t willing to show up for networking events [because of harassment], either offline or online, then they’re never going to be included in the industry.”  Women’s absence from the creative process also has implications for equality in terms of influencing what kinds of technology are made, and what societal interests those innovations ultimately serve.  To date, the law has provided a limited response to harms directed against women online. Traditional torts such as defamation are available, but are difficult to pursue against multiple, anonymo[...]
2007-08-15T14:02:35ZIn this Google Era of unlimited information creation and availability, it is becoming an increasingly quixotic task to advocate for limits on collecting, use, disclosure and retention of personally-identifiable information ("PII"), or for meaningful direct roles for individuals to... In this Google Era of unlimited information creation and availability, it is becoming an increasingly quixotic task to advocate for limits on collecting, use, disclosure and retention of personally-identifiable information ("PII"), or for meaningful direct roles for individuals to play regarding the disposition of their PII "out there" in the Netw0rked Cloud. Information has become the currency of the Modern Era, and there is no going back to practical obscurity. Regarding personal privacy, the basic choices seem to be engagement or abstinence, so overwhelming are the imperatives of the Information Age, so unstoppable the technologies that promise new services, conveniences and efficiencies. Privacy, as we knew it, is dying. Privacy advocates are starting to play the role of reactive luddites: suspicious of motives, they criticize, they raise alarm bells; they oppose big IT projects like data-mining and profiling, electronic health records and national ID cards; and they incite others to join in their concerns and opposition. Privacy advocates tend to react to information privacy excesses by seeking stronger oversight and enforcement controls, and calling for better education and awareness. Some are more proactive, however, and seek to encourage the development and adoption of privacy-enhancing technologies (PETs). If information and communication technologies (ICTs) are partly the cause of the information privacy problem, the thinking goes, then perhaps ICTs should also be part of the privacy solution. In May the European Commission endorsed the development and deployment of PETs(1), in order to help “ensure that certain breaches of data protection rules, resulting in invasions of fundamental rights including privacy, could be avoided because they would become technologically more difficult to carry out.” The UK Information Commissioner issued similar guidance on PETs in November 2006(2). Other international and European authorities have released studies and reports discussing and supporting PETs in recent years. (see references and links below) PETs as a Personal Tool/Application Are PETs the answer to information privacy concerns? A closer look at the European and UK communiqués suggests otherwise - for all their timeliness and prominence, they reflect thinking about PETs that is becoming outdated. The reports cite, as examples of PETs, technologies such personal encryption tools for files and communications, cookie cutters, anonymous proxies and P3P (a privacy negotiation protocol). Not a single new privacy-enhancing technology category here in seven years. Other web pages dedicated to promoting PETs list more technologies, such as password managers, file scrubbers, and firewalls, but otherwise don’t appear to have significantly new categories of tools.(3,4). The general intent off the PETs endorsements seem clear and laudable enough: publicize and promote technologies that place more controls into the hands of individuals over the disclosure and use of their personal information and online activities. PETs should directly enable information self-determination. Empowered by PETs, online users can mitigate the privacy risks arising from the observability, identifiability, linkability of their online personal data and behaviours by others. Unfortunately, few of the privacy-enhancing tools cited by advocates have enjoyed widespread public adoption or viability (unless installed and activated by default on users’ computers, e.g. SSL and Windows firewal[...]
2007-08-07T14:26:18ZA short story on the ID Trail ********** Incorrect username or password. Please try again. He tried again. ********** Incorrect username or password. Please try again. He tried again. Incorrect username or password. Your ID is now locked. Please... A short story on the ID Trail ********** Incorrect username or password. Please try again. He tried again. ********** Incorrect username or password. Please try again. He tried again. Incorrect username or password. Your ID is now locked. Please proceed to the nearest SECURE ID Validation Center for formal authentication. The nearest location can be found using the GoogleFED Search Tool. After sitting stunned for a couple moments, Ross began to appreciate the full gravity of the situation. His ID was frozen. Everything was frozen. He just couldn't remember his damn PIN and that was the end of it. No PIN. No renewal. No ID. No authentication. No anything. Since the government had launched the Single Enhanced Certification Using Reviewed Examination [SECURE] initiative, he really hadn't thought too much about it. Aside from a couple of headlines describing massive budget overruns and the usual privacy geeks heralding the end of the world, the New Government had pushed everything through without much fanfare. That was four years ago. Since Ross already had a passport, the conversion to SECURE ID was pretty painless. He vaguely remembered something to do with a strand of hair and that they didn't even give him a card or anything, just read him his reauthorization PIN, thanked him for his time, and took his passport. Since the carbon rationing system came into place in 2012, Ross really hadn't traveled anywhere off-line. There was no way he was going to save up carbon credits just to take a damn flight to some 45° cesspool. Plus, Google Travel could put him anywhere in the world in two clicks. A couple weeks ago he made some sangria and hit-up all the top clubs in Spain. He even bought a t-shirt at one which arrived in the mail two days later. That's why the SECURE ID renewal caught him off guard – it just rarely came-up for someone in his position. Ross was just trying to buy a new snowboard for his Third Life avatar when things went wrong. He was notified that the transaction could not be processed because his GoogleCash account had been frozen pending authorization of his SECURE ID. Like just about everything else on or off-line, his identity was always confirmed back to this single source. While his ID Keychain supported a Federated identity management system in which he currently had 47 profiles (male, female, and gecko), they were all meaningless without reference to the master ID. The SECURE system required multiple layers of redundancy. The PIN component would be required in addition to variable biometric authenticators. He had specifically written his 10 digit reauthentication PIN on a piece of paper and put it somewhere “safe.” So much for high-tech. That was four years ago and now, “safe” could be anywhere. The idea behind the routine expiry of SECURE IDs was to prevent identity theft from the deceased using stolen biometrics. Grave-robbing had been rampant for the first couple years of the program. Ross grabbed his jacket and headed off to the SECURE ID Validation Center downtown knowing full well that he was as good as useless until he could authenticate himself. >>>>>>>>>>>>> The SECURE ID Validation Center was run by Veritas-SECURE, a public-private-partnership born of the New Deal 3.0. The idea was to exploit private-sector efficiencies while delivering top-notch public services. This P3 mantra had been something of an ongoing joke for years now but the government was unlikely to admit the error of its ways any tim[...]
2007-07-31T13:33:26ZTechnological advances are making genetic testing and screening easier and more accessible. My concerns are that the ease and accessibility are masking the fact that these are not straightforward decisions that should be made quickly. Such decisions may include... Technological advances are making genetic testing and screening easier and more accessible. My concerns are that the ease and accessibility are masking the fact that these are not straightforward decisions that should be made quickly. Such decisions may include whether or not to terminate a pregnancy if your fetus has Down syndrome, whether to have prophylactic surgery if you test positive for breast cancer genes, whether to be tested for a late onset disease that may have no treatment or cure, and whether or not to submit to genome testing without knowing what the future will hold in terms of discrimination and possible privacy threats. The reasons for genetic testing have real world consequences that are often not spelled out before the testing takes place. A recent article in the Globe and Mail discusses new recommendations that pregnant women over the age of 35, but under the age of 40, should no longer undergo routine amniocentesis. It has been standard practice that amniocentesis be available to women over the age of 35 because the probability of conceiving a child with a disability or genetic condition increases with maternal age. New non-invasive screening tests such as maternal blood tests and the nuchal translucency test (a detailed ultrasound taken at 11-13 weeks gestation that measures the fluid levels behind the fetus’s neck) can now indicate whether further testing is indicated or whether the risk of abnormalities is low. This development is very positive as amniocentesis is invasive and carries with it a risk of miscarriage. However, the article states, “40 is the new 35 when it comes to being labelled a high-risk pregnancy.”  The implication here that is repeated several times throughout the article is that pregnant women who are over 35 no longer have the same risks associated with this maternal age; it seems that somehow their risks have decreased, which is not true. As well the article quotes a physician stating, “Even if you’re over 40, your risk may be that of a 20-year-old. Screening is making you different from your age.”  Obviously the screening tests are a positive medical advance. Yet coupled with the misleading implication that risks have somehow decreased, what we see here is often the case: the language of genetic discoveries and genetic technologies seems to support a “wait and see” attitude – find out what the testing tells you, then decide what to do. It sometimes appears a bit like a lottery. Francis Collins, direction of the National Human Genome Research Institute has mentioned that genetic technologies are much like new drugs – we must see what the general reactions are to them after they are first introduced. And many authors advocate that we should work to address concerns as they appear, as opposed to limiting technological advances with unnecessary policies. This is not to confuse the “wait and see” attitude of the researchers developing the technology with the “wait and see” attitude of the doctor performing the testing – they seem to be on a continuum. Sonia Mateu Suter notes from her research as a genetic counsellor for prospective parents, “little emphasis is placed on the many emotional and psychological ramifications of undergoing such testing, leaving patients unprepared for certain choices and emotional reactions.”  She feels that this has “impoverished the informed consent process”.  Likewise, a “wait and see”[...]
2007-07-24T13:36:50ZAndre Picard, writing in the Globe and Mail on June 14, made a poignant plea for speeding up the move to electronic health records for all Canadians. He says: It’s not enough to create health records; it must be... Andre Picard, writing in the Globe and Mail on June 14, made a poignant plea for speeding up the move to electronic health records for all Canadians. He says: It’s not enough to create health records; it must be done right. That means including information on visits to physicians, hospital stays, prescription drugs, laboratory and radiology tests, immunization, allergies, family history and so on. It also means integrating all these records and making them compatible in every jurisdiction… Picard points out that medical records should be accessible to all health professionals we consult, from the pharmacist close to home through the emergency room at the other end of the country. And then he adds, in parentheses: “With the requisite protection of privacy, of course.” And there’s the rub. Just what is the requisite protection of privacy, and how should it be implemented? For example, in British Columbia a few years ago there was a huge, and quite public to-do about the contracting out of the Medical Services Plan databases to a U.S. company, and the need to protect the information from unwarranted access through the Patriot Act. The B.C. Privacy Commissioner, David Loukidelis, played a very visible role in helping to achieve a reasonable understanding of what would be appropriate in this case. But it turned out that, a year after contracting out the information collection and management to EDS Advanced Solutions, an employee of the company spent several months improperly and repeatedly surfing the files of sixty-four individuals, including the file of a woman whose ex-husband had claimed he could find out where she lived, despite her efforts to keep her location secret. And the source of that information, apparently, was to be the employee who had been doing the surfing. As it happened, none of this had anything to do with access through the Patriot Act. EDS performed an audit that revealed “some unexplained accesses”, and then claimed there had been no privacy violations because they found no evidence that the information had actually been disclosed to anyone! Furthermore, it took nine months before the woman who had complained received notification about what had actually happened and what lay behind her ex-husband’s claims that he could find her. Various safeguards were subsequently put in place, but one can’t help wondering how much “snooping” of electronic health records might take place without being detected, especially considering the access that vast numbers of employees of pharmacies, hospitals and physicians’ offices would have to such information. Meanwhile, British Columbia has embarked on a major effort to digitize all medical records, including providing electronic medical records technology to groups of doctor’s offices, much along the lines advocated by Picard. Indeed, B.C. plans to be a leader in Canada in this area of moving from paper records to electronic ones. It is clear that such a project could have the effect of improving medical care enormously by integrating records so that each physician or nurse or pharmacist with whom we interact has access to an overview of our medical histories and records. Advantages may include the fact that tests don’t need to be repeated endlessly, that many errors can be avoided, and that some diagnoses can be made without requiring patients to travel long distances. All good. But since many people are quite concerned about preserving their medical privacy[...]
2007-07-18T14:12:12ZPlanning to litter, hang around looking intimidating, or just generally be a public nuisance in England? Careful where you do it. This past spring, Britain, already host to more video surveillance cameras than any other country in the world... Planning to litter, hang around looking intimidating, or just generally be a public nuisance in England? Careful where you do it. This past spring, Britain, already host to more video surveillance cameras than any other country in the world , rolled out a new crime prevention measure: ‘Talking CCTV’ (closed-circuit television). Government officials describe the new development as “enhanced CCTV cameras with speaker systems [that] allow workers in control rooms to speak directly to people on the street.” The ‘Talking CCTV’ initiative is just one component of the British Home Office’s Respect Action Plan a domestic program designed to tackle anti-social behaviour and its causes.  What this means in practice is that when staff, operating from an unseen central control room, observe an individual engaged in anti-social behaviour they can publicly challenge the person using the speakers. At the moment the one-sided conversation is relatively unscripted, although workers are expected to be polite. The first time a member of the public is spoken to about her behaviour, she hears a polite request. If she complies, she is thanked. If not, she can expect to hear a command . If she fails to correct her behaviour, the anti-social individual may find surveillance footage of her alleged infraction splashed across the evening news. While ‘Talking CCTV’ may be novel, video surveillance is nothing new in Britain. It is estimated that a person living and working in London is photographed an average of 300 times a day.  One commonly quoted figure is that there is one surveillance camera for every 14 people in Britain.  This year the government is spending half a million pounds to set up ‘Talking CCTV’ in twenty communities and it is likely that the program will be expanded in future funding cycles. Critics of the program argue that the money spent adding speakers to existing surveillance cameras is being wasted. The human rights organization Liberty contends that 78% of the national crime prevention budget in the past decade has been spent on CCTV equipment without proper studies conducted to assess whether or not the expenditure is effective. The organization argues that spending the same percentage of the budget to increase the number of law enforcement officers on patrol would go a lot further to improving public safety.  ‘Talking CCTV’ supporters, on the other hand, cite statistics that would please any elected official. In Middlesbrough, where the pilot program took place, officials claim that the system adds an “additional layer of security”: At the bottom end of the scale, we use the talking CCTV for littering offences, for which it's proven to be absolutely a 100% success. Middlesbrough's cleanliness has improved dramatically since the speakers were installed.' he said. 'As you move up the scale a bit on public order offences - like drunkenness or fighting - we're proving the speakers are coming into their own, and we're recording about 65% to 70% success rate for those kinds of offences. But measured against what? In their 1999 study of CCTV in Britain, Clive Norris and Gary Armstrong demonstrated how government and law enforcement officials often present CCTV as a panacea without proving it provides the dramatic results attributed to it. Their review of the numbers suggested that, throughout the 1990s, publicly-quoted figures about the benefits of CCTV w[...]