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Privacy

Ontario Court of Appeal Issues Landmark Ruling on Privacy Tort

The Ontario Court of Appear issued a major new privacy decision, creating a new legal tort called “intrusion upon seclusion.” The decision, Jones v. Tsige, opens the door to lawsuits for breach of privacy based on circumstances involving an intentional intrusion on private affairs or concerns that is made in […]

January 19, 2012 — Comments are Disabled — News

How SOPA Could Affect Canadians

I appeared on the Lange & O’Leary Exchange on Jan 18, 2012 to discuss SOPA. This interview is available on YouTube and on CBC’s website. For the CBC video, skip to 46:55.

January 18, 2012 — Comments are Disabled — News Interviews, Tv / Radio

Dark Wednesday: The Internet Protests SOPA

I appeared on CBC News to discuss the internet protest against proposed U.S. anti-piracy legislation, SOPA. Watch my interview on Youtube or on CBC’s website, for better quality.

January 18, 2012 — Comments are Disabled — News Interviews, Tv / Radio

Why Canadians Should Participate in the SOPA/PIPA Protest

Some of the Internet’s leading websites, including Wikipedia, Reddit, Mozilla, WordPress, and BoingBoing, will go dark tomorrow to protest against the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). The U.S. bills have generated massive public protest over proposed provisions that could cause enormous harm to the Internet and freedom of speech. My blog will join the protest by going dark tomorrow. While there is little that Canadians can do to influence U.S. legislation, there are many reasons why I think it is important for Canadians to participate.

First, the SOPA provisions are designed to have an extra-territorial effect that manifests itself particularly strongly in Canada. As I discussed in a column last year, SOPA treats all dot-com, dot-net, and dot-org domain as domestic domain names for U.S. law purposes. Moreover, it defines “domestic Internet protocol addresses” – the numeric strings that constitute the actual address of a website or Internet connection – as “an Internet Protocol address for which the corresponding Internet Protocol allocation entity is located within a judicial district of the United States.” Yet IP addresses are allocated by regional organizations, not national ones. The allocation entity located in the U.S. is called ARIN, the American Registry for Internet Numbers. Its territory includes the U.S., Canada, and 20 Caribbean nations. This bill treats all IP addresses in this region as domestic for U.S. law purposes. To put this is context, every Canadian Internet provider relies on ARIN for its block of IP addresses. In fact, ARIN even allocates the block of IP addresses used by federal and provincial governments. The U.S. bill would treat them all as domestic for U.S. law purposes.

Second, Canadian businesses and websites could easily find themselves targeted by SOPA. The bill grants the U.S. “in rem” jurisdiction over any website that does not have a domestic jurisdictional connection. For those sites, the U.S. grants jurisdiction over the property of the site and opens the door to court orders requiring Internet providers to block the site and Internet search engines to stop linking to it. Should a Canadian website owner wish to challenge the court order, U.S. law asserts itself in another way, since in order for an owner to file a challenge (described as a “counter notification”), the owner must first consent to the jurisdiction of the U.S. courts.

January 17, 2012 — 36 comments — News

Are Canada’s Digital Laws Unconstitutional?

One of the first Canadian digital-era laws was the Uniform Electronic Commerce Act, a model law created by the Uniform Law Conference of Canada in the late 1990s. The ULCC brings together officials from federal, provincial, and territorial governments to work on model laws that can be implemented in a similar manner across all Canadian jurisdictions.
While a federal e-commerce law may have been preferable, the constitutional division of powers meant that it fell to the provinces to enact those laws.

The provinces took the lead on e-commerce legislation in the late 1990s, but over the past decade it has been the federal government that has led on most other digital rules, including privacy legislation, the anti-spam statute, and proposed digital copyright reform. Those efforts are now in constitutional limbo following the Supreme Court of Canada’s recent ruling that plans to create a single securities regulator are unconstitutional.

The December securities regulator decision concluded that the national approach to securities regulation stretches the federal trade and commerce clause too far into provincial jurisdiction. The court ruled that most of the securities regulatory activities deal with day-to-day contractual regulation within the provinces and that “these matters remain essentially provincial concerns falling within property and civil rights in the provinces and are not related to trade as a whole.”

My weekly technology law column (Toronto Star version, homepage version) notes the repercussions of that decision may be felt far beyond just securities regulation. For example, federal privacy law may now be particularly vulnerable to challenge since it relies on the same trade and commerce provision.

January 11, 2012 — 7 comments — Columns