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Access & Privacy Conference 2013 by forester401 (CC BY-NC-SA 2.0) https://flic.kr/p/eLS9xR

The Expansion of Personal Information Disclosure Without Consent: Unpacking the Government’s Weak Response to Digital Privacy Act Concerns

Bill S-4, the government’s Digital Privacy Act, was sent for review to the Industry Committee yesterday. The committee review, which comes before second reading, represents what is likely to be the last opportunity to fix a bill that was supposed to be a good news story for the government but has caused serious concern within the Canadian privacy community. While there are several concerns (I raised them in my appearance before the Senate committee that first studied the bill), the chief one involves the potential expansion of voluntary disclosure of personal information without consent or court oversight. Bill S-4 proposes that:

“an organization may disclose personal information without the knowledge or consent of the individual… if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province that has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation;

Translate the legalese and you find that organizations will be permitted to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law. This applies both past breaches or violations as well as potential future violations. Moreover, the disclosure occurs in secret without the knowledge of the affected person (who therefore cannot challenge the disclosure since they are not aware it is happening).

The government is clearly aware that this is a major concern as it attempted to answer the critics during debate over Bill S-4 in the House of Commons yesterday. Unfortunately, the responses were incredibly weak. I’ve identified at least six responses from government sources below.

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October 21, 2014 1 comment News
Patent Trolling by Ton Zijlstra (CC BY-NC-SA 2.0) https://flic.kr/p/djcCbF

How Corporate Canada Rejected the Canadian Government’s Plan to Combat Patent Trolls

The Internet Association, a U.S.-based industry association that counts most of the biggest names in the Internet economy as its members (including Google, Amazon, eBay, Facebook, Netflix, and Yahoo), recently released a policy paper on how Canada could become more competitive in the digital economy. The report’s recommendations on tax reform generated some attention, but buried within the 27-page report was a call for patent reform.

The Internet giants warned against patent trolling, which refers to instances when companies that had no involvement in the creation or invention of a patent demand licences or other payments from legitimate companies by relying on dubious patents. Studies indicate that patent trolling has a negative impact on economic growth and innovation and is a particularly big problem in the U.S., which tends to be more litigious than Canada.

Given those concerns, the Internet Association urged the Canadian government to enact reforms to “limit the ability of non-practicing entities [a euphemism for patent trolls] of exploiting patents to make unreasonable demands of productive companies and prevent crippling damage awards.”

While the Canadian government has yet to respond publicly to the recommendations, my weekly technology law column (Toronto Star version, homepage version) reports that according to documents recently obtained under the Access to Information Act, earlier this year Industry Minister James Moore launched a series of private consultations with Canadian business on intellectual property issues. The government came prepared to engage directly on the patent trolling issue, going so far as to identify several potential policy measures. Yet it was Canadian business that discouraged Moore from taking action, warning against the “unintended consequences” of patent reforms.

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October 20, 2014 0 comments Columns
TPP opposition chart By Julian Assange and Sarah Harrison https://wikileaks.org/tpp-ip2/attack-on-affordable-cancer-treatments.html

New TPP Leak: Canada Emerges as Leading Opponent of U.S. Intellectual Property Demands

This morning Wikileaks released an updated leaked version of the draft Trans Pacific Partnership intellectual property chapter. The latest leak dates from May 2014 (the previous leak was current to August 2013. I assessed it in posts here, here, here, here and here). The 77-page document provides a detailed look at the proposed chapter, complete with country positions on each issue. While a comprehensive assessment of the chapter will take some time, the immediate takeaway is that the U.S. remains fairly isolated in its efforts to overhaul patent and copyright law around the world with Canada emerging as the leading opponent of its demands.

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October 16, 2014 24 comments News
System Security Breach by Jeff Keyzer (CC BY-SA 2.0) https://flic.kr/p/bucTzM

Government Opens Door to Major Changes to Digital Privacy Bill

While it was overshadowed by the headlines over potential copyright reform, Peter Van Loan, the government’s House leader, disclosed last week that the government is planning to send Bill S-4, the Digital Privacy Act, to the Industry Committee for review prior to second reading. The bill, which has proven controversial due to a provision that expands the possibility of voluntary disclosure of subscriber information and relatively weak security breach disclosure rules, will be open to more significant reforms that previously thought possible (my remarks before the Senate committee can be found here). Under Parliamentary rules, referring a bill before second reading allows the committee to alter the scope of the bill.

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October 15, 2014 5 comments News
CBC News advertising board, CBC Broadcast Centre, Toronto, Southern Ontario, Canada by Pranav Bhatt (CC BY-NC-SA 2.0) https://flic.kr/p/9HBz23

Broadcaster Copyright Misuse and Collusion?: Why Criticism Over the Government’s Political Ad Copyright Exception May Be Pointed in the Wrong Direction

The Canadian Thanksgiving weekend featured escalating rhetoric over the government’s proposed copyright exception for political advertising with claims of fascism, censorship, expropriation, and more. The commentary bears almost no relationship to reality. The truth is that the government and the broadcasters both agree that the current law already permits use without authorization. For all the claims of “theft”, the copyright owner (broadcasters) and user (political parties) both agree that the works can be used without further permission or payment. As Ariel Katz points out this morning, the bigger issue may well be whether Canada’s broadcasters violated the Competition Act by conspiring to not air perfectly lawful political advertisements.

I wrote about the controversy in my weekly technology law column (Toronto Star version, homepage version), but the debate can be boiled down to three issues.

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October 14, 2014 21 comments Columns