However, also in Spain, scores of people are fighting against the erasure of their country’s hideous past. They are seeking the right to “remember” the truths about the Franco-era crimes.?Stories about some of the victims of those crimes are featured in the award-winning documentary The Silence of Others, which was screened in Toronto at the 2018 Hot Docs International Documentary Film Festival.

The Silence of Others chronicles the story of the victims of Spain’s 40-year dictatorship under General Francisco Franco and their ongoing quest for justice. Filmed over seven years, their story is brought to life through magnificent cinematography and masterful storytelling. In the process, directors Almudena Carracedo and Robert Bahar amassed 450 hours of footage filled with voices of despair and hope.

“How unjust life is… Not life. We humans… we are unjust,” reflects an 80-something-year old woman by the name of as she sits by the roadside where her murdered mother’s nude body was ditched by Franco’s local militia eight decades ago. Ascención Mendieta, on the day of her 90^th birthday, flies from Madrid to Buenos Aires in her tireless mission to have her father’s remains unearthed from a mass grave. Also in Madrid, José María “Chato” Galante lives a stone’s throw away from his former torturer. What’s more, tens of thousands of women today are still searching for children stolen at birth, decades after Franco’s death.

The Silence of Others is not only a history lesson on the Franco era, it is also a lesson on the principle of universal jurisdiction in international law. Spanish courts have made use of universal jurisdiction to prosecute cases of crimes against humanity committed in Argentina, Chile, Guatemala and El Salvador. ?Eighty years on, however, Spain is reluctant to reckon with its fascist past. Franco died in 1975. Two years after his death, Spain passed an amnesty law, known as the “pact of forgetting,” that pardoned the crimes of the Franco regime. Today, victims and relatives of Franco’s crimes are seeking to annul the controversial amnesty law and to prosecute Franco’s surviving lackeys in Argentinian courts.

The Silence of Others won the Audience Award for Best Documentary at the Berlin International Film Festival. At the Hot Docs festival in Toronto, Carracedo and Bahar received standing ovations at their film’s screenings, where Osgoode Hall Law School's journalist in residence, caught up with them to ask a few questions.

How was The Silence of Others born?

Almudena Carracedo (AC): Firstly, on a personal level, this is a story that my generation in Spain had somehow left buried in the past. That bothered me a great deal and eventually I felt the time had come to confront it. Secondly, when the story of Spain’s “stolen children” began to come out in 2010, and it became clear that the story of those crimes had been occurring throughout the Franco era, we began to follow stories of mass arrests, torture, forced disappearances and extra-judicial killings.

Robert Bahar (RB): I’ll just add an international perspective. In the United States, we study a little about the Spanish Civil War. We learn about Guernica and Hemingway, but we really don’t know much about the dictatorship that took place forty years afterwards. And we certainly did not learn anything about the amnesty law and the decision to forget.

So, this kind of situation immediately made us think of the Truth and Reconciliation Commission in South Africa and truth and reconciliation processes in other countries emerging from repressive regimes. So, we wondered: how could it be that Spain had had no Nuremberg Trials, no Truth and Reconciliation Commission; that there had been no consideration for justice and reparation for the victims; that no one had considered what should happen to perpetrators; and, above all, how do we guarantee that these things will not be repeated? And so, if you have that frame and the fact that there had been no attempt to deal with the situation in Spain and that there were victims whose stories were unfolding in the film, there was a very powerful desire to tell that story. So, we began filming the process of the “Argentine lawsuit.”

Spain was instrumental in enabling the prosecution of cases of crimes against humanity in Chile, Argentina and elsewhere. Demands for justice for the victims of Franco’s crimes are being denied on the basis that there is a statute of limitations on those crimes. This appears to be a contradiction. How has the Spanish public reacted to this contradiction, which is very clearly illustrated in your film?

AC: Unfortunately, there is a tendency to judge other countries for their crimes – particularly countries of the global south – and to overlook crimes committed within your own territory… In Spain, people were absolutely scandalized about the case involving Argentina’s 500 stolen children, but in Spain we are talking about, at a very minimum, 30,000 cases which were registered up until 1952. Now, just imagine the number of cases registered from 1952 up to the 1980s!

Therefore, one of our goals in making this film is to let Spanish society find out what happened in their own country… What do we do about all this now, in 2018? What do we do about the tens of thousands of people who don’t know who their parents are or that they had even been stolen? What do we do about the more than 100,000 people that were secretly buried in mass graves? What do we do about the people who were victims of torture? And what do we do about their torturers who freely walk the streets?? We sincerely believe that people in Spain are democratically mature enough to face all this.

Many people argue it is time to turn the page and leave the past behind. So, why tell that story now?

AC: People who argue that it is time to turn the page and that one ought not reopen old wounds don’t suffer from those wounds to begin with. Let’s be clear, the surviving victims of Franco’s crimes are still suffering from those wounds as they were never afforded the chance to heal from them in the first place.

RB: In addition, the social movement that was growing and led to this movement -- which we were fortunate enough to document -- also reflects that this is the moment in which these questions can be addressed. Today, I think that young people in Spain are ready to reckon with its bloody, divided past… Many of them feel that they had been robbed of their own history.

There is also a sense of urgency. If you look at the ages of the victims and of perpetrators you realize that you probably have between five and twenty years to deal with this situation.

This is a story that will resonate in Spain and around the world… We have received requests to screen our film in Colombia, Algeria, Lebanon, the Balkans and Sri Lanka where there are transitional post-conflict kind of processes taking place. In many ways, the film tackles important questions about the search for truth, justice, reparation, non-repetition, and it offers a model of how a small group of victims can sit at a kitchen table – in this case, at the home of counsel Carlos Slepoy – to organize and use universal jurisdiction when their own government won’t pursue crimes committed in their own countries.

While the film’s protagonists appear to be fighting for the “right to remember,” there are many people in Spain who are currently fighting for the “right to be forgotten.” Indeed, the landmark “right to be forgotten” case originated in Spain. How does this story fit in with the so-called “right to be forgotten”? ???????

José María “Chato” Galante: There is absolutely no connection. As far as the “right to be forgotten” is concerned, the Spanish lawyer with unpaid debts appeared before the courts and went through the legal channels where he eventually received his sentence, etc. In our case, we are seeking access to justice. We are asking that our cases for crimes against humanity be heard in a democratic court; that our perpetrators be brought to justice to be tried and legally prosecuted; and, if found guilty, that they be convicted for those crimes.

After forty years of being denied access to justice, we are essentially being asked, or rather forced, to forget and even to forgive those who tortured us and those who committed heinous crimes against us. We are asked to do so even though the perpetrators of those crimes have not been tried in court. What’s more, we are being forced to forgive even though they have never asked for forgiveness.

Without considering the merits of the case involving the Spanish lawyer, his is one of common criminality. Our case involves crimes against humanity, not common crimes, and therefore they must be tried in court under the laws of universal jurisdiction for crimes against humanity. These crimes cannot be forgotten. Crimes against humanity must be prosecuted, and they must be recorded in history.

Roxana Olivera is currently a Journalist in Residence at Osgoode Hall Law School.

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Internet has changed the way information is communicated and these changes affect individuals’ right to privacy. Current privacy and personal information protection legislations, namely, Section 8 of the Charter, Privacy Act and Personal Information Protection and Electronic Documents Act along with its provincial variations, regulate gathering, use and disposal of personal information of individuals. Common law, also, provides complainants with cause of action in defamation, libel, misappropriation of personality and intrusion upon seclusion. However, in today’s digital age, these existing frameworks do not sufficiently address the issues and concerns of those who use Internet on a daily basis. The widespread use of the Internet and the consequential importance of online reputation, make it a necessity to either look for alternative ways to protect online privacy or improve the existing frameworks.

The right to be forgotten enables individuals to ask for their personal information to be removed from the Internet. This alternative solution has been at work in Europe, and if adopted in Canada, it would widen the scope of the current privacy frameworks. However, the differences between the structure of Canadian jurisprudence and European jurisprudence might impede the adoption of the right to be forgotten in Canada.

Legislations that embody the right to be forgotten, give individuals a right to demand erasure of their information. Arguably, then, these legislations have the potential to be suppressive towards freedom of expression and consequently, s.2(b) rights.

In the case that these legislations are found to be offensive to freedom of expression rights, section 1 of the Charter might be invokes to see whether or not they can be regarded as reasonable limits on rights and freedoms. However, since there are other ways to achieve the same goal as these legislations such as anonymizing published information, employing reputation systems, using expiration dates for personally identifiable data, contextualization and cognitive adjustments, the s.1 analysis might fail on the minimal impairment test.[2]

Further, public policy arguments in favour of adopting the right to be forgotten mostly focus on the rights and freedoms of one party and ignore the competing rights and freedoms of the other party to the dispute or the interest of society at large. Protecting privacy interests of individuals, societal reintegration, ability to redefine oneself and safeguarding one’s autonomy are amongst the reasons proposed for adopting the right to be forgotten.

Arguments against adopting the right to be forgotten focus on this exact shortcoming. These arguments hold that the right to be forgotten should not be adopted because in balancing individuals’ right to privacy against societal good, the latter should be upheld.

Discussion around right to be forgotten involve one prevalent question: Why should an individual have the right to decide what is relevant or irrelevant for other individuals to know or remember? And the answer would be: it depends of the circumstances. For example, in a case of revenge porn, there are strong public interest reasons that justify giving an individual, the complainant, the right to demand removal of such content.[3] However, it is more difficult to see why complainants should be given the same right in cases where, for instance, they have been given a bad online review because of the services they have provided.

Adoption of the right to be forgotten in Canada will be a radical departure from precedent. If the purpose of the right to be forgotten is to safeguard individual’s right to privacy on the Internet, then the right to be forgotten is unnecessary. This is because, as it was discussed, there are other ways to reach the same objective, which are less offensive to competing rights and freedoms.

?Nazli? Jelveh is a JD Candidate at Osgoode Hall Law School.

[1] George Bemis professor of international law at Harvard Law school, professor of Computer Science at Harvard School of Engineering and Applied Sciences and Co-Founder, Director, and Faculty Chair, Berkman Center for Internet & Society.

[2] Michael L. Rustad & Sanna Kulevska, “Reconceptualization of The Right to Be Forgotten to Enable Transatlantic Data Flow” (2015) 28:2 Harvard J of L & Technology 349 at 382-385.

[3] Gabrille Giroday, “Ontario court expands scope of privacy tort to include ‘revenge porn’” (1 February 2016), Legal Feeds (blog), online: < http://www.canadianlawyermag.com/legalfeeds/3104/ontario-court-expands-scope-of-privacy-tort-to-include-revenge- porn.html>.

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“Dear User, your Facebook account has been temporary deactivated”. This statement represents one of the typical Facebook (FB) notifications to users in the event of flagged content or general malfunctions. There could be a lot of reasons for receiving such a notification, of course. However, one of the most interesting situations in social media is represented by the conflict between Zuckerberg’s social network and part of its users who are used to creating accounts with pseudonyms, or “fake names”, different from their real identity.

Many social networking sites permit users to escape from their real-life identities. They have the possibility of creating a made up of photos, videos and other content, but do this by choosing and using their own online names. Nevertheless, this is not the case with Facebook, which has been cracking down on the names people are using on the website, and forcing individuals to use the names that are on their national ID cards.

An interesting research on the topic was conducted by as scholars at the Carnegie Mellon University in the USA. They observed the behavior of more than 4.000 university students who joined Facebook to keep in touch with colleagues. With particular interest in profile names, the research described three different possibilities when joining: 1. Real name (name appears to be real), 2. Partial Name (only a first name is given), and, 3. Fake Name (an obviously fake name). The results of the evaluation suggested that, on one hand, 89% of all names appear to be realistic, and likely the true names of the users. On the other hand, almost 8% of names seem to be obviously fake. In other words, the vast majority of Facebook users tend to provide their fully identifiable names, although they shouldn’t be obliged to do so by the site itself.

Among those affected by this “freezing effect” on their accounts was Micheal Williams, better known as and as a member of the Sisters of Perpetual Indulgence (an LGBT organisation renowned for drag performances), who became a symbol for people whose accounts continue to be suspended or deactivated, starting a real public campaign against Facebook’s policy. Sister Roma’s story represents just one of the many cases involved in the fight against FB’s name policy. As stated, with the exception of “Fan Page” account, the use of pseudonym or “fake name” is prohibited under FB policy and regulation. However, the thought of legal perspective in this area is still unclear, mainly that of the human rights. Thus, this raises the question: to what extent does the FB’s Terms and Conditions on name satisfy the law underlying the human rights principle?

?In line with the positions taken by international organisations such as the United Nations and the Council of Europe, the FRA (European Human Agency for Fundamental Rights) supports the view that, despite the specific challenges posed by the increasing use of digital technologies, it is essential to ensure that are promoted and protected online in the same way and to the same extent as in the offline world. We are mainly talking about right to privacy, freedom of expression and right to non-discrimination.

As a result, actual effort should be invested in order to improve the status quo, looking for appropriate use of digital social media and respect for diversity between people. Concretely speaking, some solutions can be proposed:

-?????? Need for Transparency: this represents the primary step. Rules, conditions and exceptions must be clear and respected. It goes without saying that different cases have to be considered differently as well as the similar cases must be treated equally;

-?????? New Terms and Conditions: rules and safeguards provided by FB should be respected by them. Actually, conditions for the appropriate use of the platform appear too vague, and inappropriate;

-?????? Modify the Option to Report: this proposal probably represents the most important and effective change. A very interesting solution has been put forward by Sister Roma. Infact, she thinks that a simple solution would be to remove the option to report an accound just for the use of fake names. In other words, reporting should be based on behaviour and not on identity.

If FB was not able to set this points, different social media would be ready for the competition challenge. A lot of people?leaving FB are looking for a smaller, simpler and safer social network. Though there are other Facebook-alternatives, including Diaspora and Google+, but many are now flocking to . There are why Ello has become the new trend social network nowdays. First of all, it is advertisement-free, secondly it takes care of its users’ privacy (no tracking activities nor selling personal information to third parties) and last but not least, freedom of expression: users can chose to represent themsleves freely using “fake names” as well as pseudonyms.

According to the facts, might we talk about a social media revolution against “Facebook’s supremacy” into the cyberspace? Let’s see next future developments.

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In last week, Berners-Lee was responding to recent revelations of state-based surveillance in the United States and elsewhere. The father of the web also contends that a ‘digital Magna Carta’ would need to address the often-conflicting rights of users and producers in online environments.

Calls for the calibration of competing rights are not new. At least since the early 2000s, legal scholars and social scientists such as , , and have articulated about reforming intellectual property (IP) laws for emerging realities. The proliferation of digital and networked technologies continues to facilitate social, economic, and political shifts. New transnational political economic arrangements are premised on the ability to employ information and communication technologies (ICTs) to coordinate global production chains. studying the impacts of the ICTs that decentralized, network technologies are transforming historic relations generated during industrial economic times. Advocates for the rights of creators point out how these changes are disrupting existing business models and threatening entire industries.

IP law regimes—most often in the forms of copyrights, patents, and trademarks—are used to incentivize creative endeavours and to protect the moral rights of creators. In doing so, these legal regimes help to convert knowledge—communicative and cultural resources that circulate within communities and contribute to their maintenance and growth—into marketable forms of rent-seeking information.

However, suggests that these systems have led to two contradictory outcomes: increasing returns for rights-holders and a “digital divide”, whereby there is increasing disparity between the ‘haves’ and ‘have-nots’ of contemporary capitalism. Scholars Tzen Wong, Graham Dutfield, and their contributors that IP law is regarded as playing various roles in the maintenance of this development disparity. From this perspective, the ‘digital divide’ is a symptom of the global political economy, within which growing inequality between and within states is exacerbated due to differing levels of access to and control over digital technologies and content.

Govindan Parayil, while knowledge-based economic activities generate growth and wealth for the owners of proprietary information; this also results in inequity for those with restricted or no access to this information and the ability to use existing knowledge in productive ways. A of transnational corporations conducted by Sean Starrs, a PhD Candidate at 91亚色, highlights how the contemporary political economy is marked by the concentration of wealth in developed states, particularly the United States.

Bridging the digital divide between and within states is becoming a key focus of international and domestic policy initiatives. Civil-society organizations as well as governmental and international organizations and forums have proposed ‘information-communication technologies for development’ (ICT4D) as a means of enabling greater connectivity for disadvantaged persons in post-industrial as well as industrializing states. ICT4D proposes that the proliferation of ICTs will alleviate poverty and inequality by providing new groups with the technological tools necessary to engage in capitalist activities. However, as Jan Nederveen Pieterse , this approach often fails to recognize that the digital divide is not entirely digital; instead, the digital divide entails socioeconomic considerations, including the ability to use ICTs as well as digital content for various purposes.

Human rights-based claims are becoming prominent in struggles to address economic inequality and bridge the digital divide. For example, Access to Knowledge (A2K) movements related to international intellectual property debates challenge the privileging of economic and proprietary rights over the rights of users, citizens, and consumers.

, Professor of Information Studies at Syracuse University, A2K movements focused on a number of areas—including life saving medicine, educational materials, biodiversity and the prevention of famine as well as knowledge circulation in digital contexts—have “become a master frame linking many formerly disparate elements of communication and information politics, business, policy, and law. As an intellectual and political movement, A2K is based on a reappraisal of the nature of property rights over information and networks” (p. 12).

As Internet governance and informational policies are adapted to meet contemporary realities, addressing and balancing these sets of rights will be important for bridging the digital divide and economic inequality.

Note: This post is based upon a paper that the author will present at the in Toronto, Canada and reflects the on-going work of his dissertation.

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at 91亚色, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.

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Whether you’re a law student interested in public sector law, regulated industries like banking or healthcare, technology trends or information management, this course is for you. IP Osgoode extends a warm thank you to Williams and Power for their time for the interview as well as their passion for the study of privacy and data protection.

What drew you into the privacy and big data field of law?

MP: While with the Department of Justice in the 1990s I served as Coordinator of the Department’s Electronic Commerce Secretariat. I was one of the principle authors of the Electronic Documents Act. When that bill was merged with the then Personal Information Protection Act, literally at the last minute, I had to learn about that statute. Later, when I left government for private practice, the information security aspects of my law practice found me explaining privacy obligations to clients and the privacy law practice evolved from there. Privacy law represents the legal side of a juxtaposition of consumer/human rights/civil liberties law with technological innovation, which I find fascinating. You can literally “wait a moment” and see new legal issues arise as the consequences of technology deployment play out.

JW: I became interested in this area through taking a privacy law course with David Loukidelis and Murray Rankin. Privacy is a very broad (and to some degree nebulous) concept that has attracted attention from a wide variety of disciplines, including psychology, philosophy, economics and computer science. In addition to being notoriously difficult to define, it is intertwined with other areas of law, including constitutional and commercial law. There are some very deep problems in this area, both in terms of theory and practice. It also turns out that privacy is very fertile ground for computer scientists. There is a rapidly expanding body of work in both industry and academia that presents techniques to address privacy risks posed by data aggregation, data mining, ubiquitous computing, social networks and other technologies. While some areas (e.g., anonymization methods for data) have advanced rapidly, a lot of work remains.

How do you feel Canada is doing compared to US/EU re: data privacy?

MP: In terms of law, generally I think we’re in a better position that the US in that our comprehensive approach can deal with evolving issues. The American “sectoral” approach may or may not be able to address something new. However there are aspects of American law — genetic privacy, for example, that are further ahead of Canada. I also think the European approach, while also comprehensive, is more regulatory in nature and more problematic in operational terms. In some respects, governments in Canada think “privacy” as a legislative issue is “done” and I don’t see that in Europe or the US. I think the future evolution of privacy law in Canada will occur at the provincial level because of the constitutional limitations of the federal government in this area. For example, “revenge porn” can’t easily be dealt with under a PIPEDA/PIPA framework aimed at commercial exploitation of personal information.

JW: That’s a tough question. Canada has really drawn inspiration from the US, not only from its jurisprudence but also for some of the fair information practices. Nevertheless, our data protection regime was really crafted in response to developments in the EU. As Michael mentioned, we have a comprehensive approach that is applicable across industries. There are some gaps and weaknesses in our law, of course. Select sectors in the US are definitely ahead of their Canadian counterparts, and I think that the FTC likely inspires more terror than our privacy commissioners. Comparing the two systems is difficult, and perhaps fertile ground for a paper.

Is "big data" hype all it's cracked up to be? Do we have the person-power capacity in Canada to properly utilize it?

MP: Data analytics, which is what “big data” is all about, is fine in theory, with a lot of benefits both at the institutional and individual level. However, we’re far from achieving those benefits in that organizations in Canada, whether large or small, have immature data management regimes. I suspect those benefits will come but not before a lot of time, effort and money is wasted figuring out how best to get them. The “cloud”, as a concept, first arose in the 90s and is only gained traction in the last few years. Data analytics may follow a similar timeline.

JW: One has to be careful with buzzwords. Data aggregation and analysis has been around for decades, and a brief look at the work of Arthur Miller and Alan Westin shows that legal scholars have been concerned about these activities since the late 60’s. Since then, computing power and availability has improved significantly, the amount of data collected has grown, and there are some novel techniques that complement traditional methods of statistical inference.

I do think large-scale data analytics is going to be very useful as a tool for disciplines like medical research, materials science, biology, urban planning and ecology. However, a lot of the techniques are not easy to deploy. There are major issues with data acquisition, data quality/cleansing, choosing appropriate methods, and validating the resulting models. Some techniques work best with massive amounts of data and computing power.

The firms that have the requisite resources (both human and computational) and tacit knowledge have a major advantage. As a result, most of the people with the background for large-scale, distributed machine learning and data analysis are being drawn to the US.

I think it will be difficult for Canada to compete. Innovation is unlikely to arise from those large firms (e.g., banks and insurance companies) or government agencies that have experience with traditional data analytics. Startups in Canada don’t have access to the scale of funding available in the US, and it doesn’t make sense for promising ventures to stay. This also affects human resources; while Canada has a few world-class statistics and computer science departments, the small number of industry-oriented PhD graduates from those programs will likely be lured south.

How effectively are federal and provincial privacy commissions protecting Canadians' personal data? What are some of their challenges?

MP: The effectiveness of Privacy Commissioners is constrained by the legislation we have in Canada, which defines their roles, and their budgets. I think they do the best they can but there are limitations and we should ask ourselves whether we our expectations are too high and whether we should rely too much on them. As for challenges, I suspect the answer varies depending whether you’re speaking about the public, private or healthcare sectors. Each has their own issues.

JW: I think they have had a lot of influence, but their effectiveness is circumscribed by their legal powers and budget. Given their limited resources, I think they have been quite effective at promoting awareness of privacy issues and investigating complaints. The federal commissioner has been particularly active in sponsoring relevant research. Apart from obvious challenges like resourcing, it is difficult to keep up with advances in technology. Another challenge arises from the fact that they have fairly limited powers to make orders or impose monetary penalties.

"Young people don't care about privacy" is a common retort to proponents of ethical and contentious data collection. Do you believe this to be true?

MP: True? Not at all. That is a general statement concerning a complex subject. How I define my “privacy interests” may be different from that of a 16-year-old. “Young people” may have different, more nuanced notions of privacy but they are there. And for both of us, our requirement/need for privacy evolves as we age. I tend to believe that privacy — in all its forms — is an inherent aspect of the human condition.? If we don’t have it when we need it, we’re somehow less than human.

JW: A fair amount of empirical research has been done on this issue, and while there are some pessimistic results, it is clear that young people do care about privacy. However, privacy is ultimately a social norm that is expressed through a variety of practices in a surrounding social context. The way that people interpret and achieve privacy differs according to such factors as culture, communication modalities and individual preferences. I don’t think young people care less about their physical privacy, but they do differ from older generations in the way that they think about online privacy.

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The internet is not a lawless wild west. Images on the internet are not automatically public property – copyright, personality rights and all other aspects of the law apply. This article will list out the most relevant areas of the law and then analyze the situations of international dating using Canadian headshots for dating or porn site advertisements according to the each legal point.

Relevant Canadian Law to Date – A Primer

Scraping in the Law

The issue of general material scraping arose in the 2011 Supreme Court of British Columbia case . The court struggled with defining scraping in order to apply the law to it.? The judgment included the opinion of law Professor and copyright expert in explaining that scraping content was allowable if it was indexed and transformative. Indexing is a broad term for the interconnectedness of the internet through hyperlinks and meta data that web crawlers use for searching and organizing internet material. Because the judge found the scraping in the Century 21 case qualified as a form of indexing, the issue of whether scraping was transformative was not relevant to his decision. Professor Trosow’s comment directly quoted in paragraph 53 of the judgment remains helpful,

“The relevant question in my view is whether the materials are being utilized in a transformative manner in order to provide a usable and informative aid for the end-user searching for information about listings.”

The judgement includes a thorough legal summary of the concept of transformation – which I will summarize as any change that adds something new to the original expression, thus creating a new work. The concept is used primarily in American law, but was also referenced and described in the 2002 Supreme Court of Canadsa?case, .

International Servers and the Law

The Supreme Court confirmed copyright liability for servers outside Canada. 2004’s stated, “A content provider is not immune from copyright liability by virtue only of the fact that it employs a host server outside the country.” This is a digital extension of of the ,

27. (2) It is an infringement of copyright for any person to […]?(b) distribute to such an extent as to affect prejudicially the owner of the copyright. […] a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it. [emphasis mine]

Responsibility Regardless of Intent

The Small Claims Court of Yukon disregarded the “accident” defence in a 2012 digital website photo theft case that closely mirrors the Rehtaeh Parsons one at hand. A tour operator photo ended up on the website of its direct competitor. As stated by the Court in paragraph 12 of ,

“At the end of the day, it remains unclear how the plaintiff’s aurora photo found its way onto the defendant’s computer and website.? However, it is not a defence to the present action that the copyright infringement was inadvertent.? The plaintiff is still entitled to damages equal to the loss he suffered from the infringement."

Personality Rights and a Person’s Image

Identity exploitation is also a tort that is potentially relevant to photos on the internet. As I’ve outlined in a prior about a recent digital extension of personality rights,

The Ontario Court of Appeal’s 1997 decision outlined that the two requirements to satisfy the tort are identity exploitation for commercial purposes, and exploitation that clearly captures the personality of the plaintiff. The test for commercial purpose was solidified in 1996 in , which outlined the need for the likeness to be predominantly connected with the sale of the consumer merchandise.

At the root of this issue is the principle from the 1977 Ontario Supreme Court Decision that stated

". . . it is clear that Mr. Athans has a proprietary right in the exclusive marketing for gain of his personality, image and name, and that the law entitles him to protect that right, if it is invaded."

Photo Privacy in Quebec

is not within the digital sphere, but it is applicable as with regards to personality rights issues. Here in 1998, the Supreme Court confirmed, using the Quebec Civil Code and the Quebec Charter, that there is privacy infringement whenever an image is published without consent if the person is recognizable. It is unclear if such a ruling would hold Canada-wide, but it is a possibility.

Fair Dealing

The Canadian law provides for copyright violation in cases of fair dealing in .?Research, private study, education, parody or satire, criticism or review, and news reporting are all justifications for works use that do not infringe copyright. Some recent court interpretations of fair dealing law were recently released by the Supreme Court in?,? and?. Taken as a whole, they confirm a generous interpretation of fair dealing that asserts the user right as a defence. This is particularly true of the enumerated education principle, which has now been broadly expanded to more closely match the US’ fair use exemptions for academic institutions.

User Waivers from 3^rd Party Photo Hosting

Some social media sites from which the photos are scraped require users to give up their personality or photo rights. There has yet to be a common law case in Canada or the US on the issue of personal social media site waivers. There are two closely related cases, decided divergently.

The 2012 US case , determined that website waivers are most valid when they require an affirmative acknowledgment of the contract. Conversely, in the 2011 Canadian case the Supreme Court of British Columbia determined that where there was an industry standard as such, proceeding into a website without express agreement could constitute a contract.

Application to Cases Like Parsons’

In my opinion, I don’t think dating or porn sites that use images of Canadian women have a strong legal case to defend themselves from potential legal action. Using the prior list of relevant legal issues, I will make a cohesive argument in favour of the Canadians whose images are used in these advertisings.

Scraping and the Law

The photos may be scraped off a prior website, but they are likely not indexed or hyperlinked to that prior website. The creators of these advertisements likely want there to be little link between the original source photo and the eventual advertisement featuring the photo. Thus, by the definition presented in Century 21, the photo reuse is a new type of non-indexed scraping.

Without indexing, the only remaining argument is transformative. The advertisement creators could argue that by adding in additional text – in the example of the Parsons case “"meet Canadian girls and women for friendship, dating or relationships” – that the addition is significantly transformative. I would argue that because the advertisement doesn’t change the photo, but just adds or overlays texts, the advertisement is arguably drawing attention to the original work rather than creating a new work.

International Servers and the Law

The Supreme Court statement from? is helpful because it keeps open the possibility that Canadians whose photos are in circulation on any server around the world can potentially use the Canadian legal system to defend their rights. In the case of the Parsons dating site, which was based out of Vietnam, it means that Canadian courts could go after the Vietnamese infringers.

Responsibility Regardless of Intent

The? case is an indicator of the direction courts might take in response to plaintiffs claiming ignorance. This is immensely important in regards to technology-based conflict. It’s important for court judges to demand parties in a conflict demonstrate a reasonable amount of understanding of and responsibility for their actions. In the case of dating site administrators, it’s my strongly held opinion that “I didn’t know it wasn’t okay to take photos of young women off the internet and put them in my Facebook ads” will not protect these parties as it is consistent with the general legal axiom that ignorance of the law is an unacceptable defence.

Personality Rights

Identity exploitation also presents a strong tort for Canadian victims of image scraping. To have one’s photo used in an advertisement without consent meets the Krouse and Gould threshold because the dating or porn site garners a commercial purpose. The advertisement facilitates traffic for new member signups on the porn or dating site. In the advertisement at hand, Parsons likeness is clearly captured; it is unmistakably her face.

Photo Privacy

Similarly there is a strong case when the? precedent is considered. That said, there is a chance it might not hold for victims outside Quebec, as indicated by the use of Quebec-specific law in the judgment.

Fair dealing

It’s my opinion that image scrapers would be hard-pressed to find any fair dealing justification for their activities in either the Copyright Act or even Supreme Court decisions expanding user rights via fair dealing.

I don’t believe companies trolling the internet for photos – with software or by hand – have the protection of a fair dealing defence. Writ large, I feel the culmination of all recent, major copyright cases in Canada makes clear this principle of application; whether the fair air dealing exception is applied broadly or narrowly based on the public good or commercial profits accrued. The more public good provided, the more broad the fair dealing exception. The more commercial profits provided, the more narrow the fair dealing exception. By this broad, over-arching principle, the use of Canadians' images by dating and porn sites provide us little public good but do provide the site administrators profits. Instinctively, the companies using these images would face a more narrow application of the fair dealing exceptions.

But this conceptual analysis is insufficient to discard fair dealing altogether. To dig into the heart of this legal matter, the companies engaging in this behaviour would have to prove that their dealing falls within one of the enumerated principles of fair dealing, and then would have to prove, by a contextual analysis of the facts, that their dealing is fair in accordance with the six factors as elicited in :

• the purpose of the dealing;
• the character of the dealing;
• the amount of the dealing;
• the alternatives to the dealing;
• the nature of the work; and
• the effect of the dealing on the work
  
  

It is my opinion that it is unlikely for the analysis to surpass the first stage of the fair dealing test, as the dealing does not fit into any of the (research, private study, education, parody, satire, criticism or review, and news reporting). However, if it were to pass this stage of the fair dealing analysis, it is my opinion that a contextual analysis of the facts would result in a finding that no fair dealing exists in this case. I would arrive at this conclusion by arguing that there are legitimate alternatives to the dealing (models could be hired and photoshoots done by the advertisers), that the amount of the dealing is unfair (pictures are being substantially reproduced), that the character of the dealing does not support fair use (pictures are being used for commercial gain), and that the effect on the work is prejudicial (the images and the reputation of those pictured are potentially harmed).

User Waivers from 3^rd Party Photo Hosting

Dating and porn sites may have a strong argument if they only scrape Canadians’ images from third party websites or social media networks with sign-up contracts that ask users to waive rights to their likeness. This legal reality may be unpopular in the court of public opinion. concerns about the tension between consumer rights and lengthy digital contracts. A movement is burgeoning to demand more proactive and legible terms to be disclosed to consumers. Services to of these contracts and rumours of apps in development to provide layperson translations to contract legalese showcase the problems that these contracts pose.

I would tend to agree. In my opinion, these contracts are unreasonable because they are extremely lengthy and overly legalistic. The majority of users are not able to understand these agreements, which is a big problem. It also points to potential invalidity due to the unconscionability doctrine.

To start, there are many seminal “ticket cases” in the UK that call into question contracts where one party does not adequately appreciate the terms of the contract such as the 1970 case . ?

Similarly, Canadian contracts can be set aside for inadequacy of consideration or unequal bargaining power ( and ). contains a lengthy list of factors to consider in order to properly assess bargaining power: a plaintiff’s ignorance of business, illiteracy, ignorance of language of the bargain, blindness, deafness, illness, developmental disabilities, and other similar challenges. is another foundational case in Canadian unconscionability law. A more holistic approach to bargaining inequality, recently emerged in , where the Supreme Court said there is no definitive list of factors; courts should be alive to conditions of the parties circumstances, unique pressures and situational vulnerabilities. Meanwhile, focused on the “distress of the weaker”, and ?used the word “disparity” in its analysis of unconscionability.

Whether the highest ranking or recent cases lay out a definition of unconscionability that would cover third party website waivers is uncertain. I do believe – for some more-vulnerable users – our growing reliance on the largest social media sites and their ubiquity in our day-to-day lives may meet the power imbalance threshold required for unconscionable bargaining. The more users depend on a service for the function of their day-to-day lives, the more the potential for imbalance and disparity in bargaining power. Dependancy creates bargaining weakness.

Two Systemic Criticisms: Statutory & Social Failure

In my opinion, lack of political action and social concern are failing young Canadians who don’t want to show up in an advertisement for an online dating or porn site.

I.?????????????? The Statutory Problem: Not Going After the Scrapers

There exist easy alternatives to image scraping. There are to access free images. Governments should take steps to protect individuals – both by demanding websites only accept advertising from companies who agree to ethical photo sourcing standards and by establishing a regime to police and crack down on scrapers. Scrapers operate with software and servers from countries around the world, so it would likely be necessary to create a global framework of international agreements to combat this activity. It would be onerous, but I believe it’s worth the work involved.

II.???????????The Social Problem: Blaming the Photo Posters

In observing the aftermath, the Rehtaeh Parson’s case has caused a rash of victim blaming mirrored by that seen in many cases of sexual violence. For instance, the of the Parsons image scandal ended with an inappropriate call-to-action for increased conservatism in photo posting. A media professor from Queen's University says the unfortunate use of Parsons' image in an ad could be a "teachable moment" for parents trying to instruct their children to be vigilant about uploading photos to the internet.

"We are in a new day where people think that if they find something on the web it's free to use, and that's not necessarily the case," she says. "In this case, we're seeing the hurt that that can cause."

In another instance, the included a similar warning from the Ontario Privacy Commissioner.

"Ann Cavoukian, Information & Privacy Commissioner of Ontario, described what happened with Parsons’s image as a 'strong reminder that we can rarely control the use of our pictures once we share them online.[']

'The unfortunate reality is that people give out far too much information about themselves, believing that their information is ‘private’ and they are safe behind their screen. You are not!' Cavoukian said in an email statement to the Star.

'We all need to take steps to protect ourselves online, especially on social networks,' she added. 'Young people must be especially careful to consider the potential risks, and make it a practice to only post photos that they want everyone to see, including strangers and prospective future employers.[']

'If not, don’t post it!'"

Given that Canada has not acted to regulate against scraping of its citizens’ photos, it’s disappointing to me that the go-to response to the Parsons photo misuse was to tell people to be more careful about what they post online rather than condemn and go after the wrong-doers. I believe it’s a particularly insensitive approach when you consider the root of the Parsons case. Rape culture tells young women to avoid walking alone, to watch what they wear, and to restrict their own liberties in order to avoid sexual violence. Rarely does it focus on .

Here, where we should have a vigorous call to go after those social media sites and scrapers who expropriate and commoditize photos of young women, we are instead turning to young women and telling them to restrict the images they put online.

I conclude this post with , Rehtaeh’s mother, written in response to uncovering the dating site photo. It makes the link between photos and human rights better than I can.

"It is disgusting that even in death, my daughter's image is still being exploited. When I see these violations, whether it be the singles ad stealing Rehtaeh's photos -- or the people who contact me and to say negative things such as she should not have been drinking, she was a troubled teen, she was in the wrong crowd -- I sit back and reflect on the reality of who Rehtaeh truly was. Then I think: So what if someone is a troubled teen or was drinking -- as if their behavior or emotional state somehow give permission for others to abuse them."

Denise Brunsdon?is an IPilogue Editor, a Western University JD/MBA Candidate, and researcher for GRAND (Graphics, Research and New Media) Centre and Commercialization Engine. She is also the social media volunteer at Sexual Assault Centre London.

The post Dating Sites Scrape Internet for Women’s Photos, Including Those of Deceased appeared first on IPOsgoode.

Stakeholders from all of the above-mentioned groups and more gathered at the in Indonesia, October 22-25, 2013, to discuss all manner of issues related to including online surveillance, privacy, big data, online child protection, youth perspectives, cybersecurity and cybercrime, freedom of expression, ?and?access to information, human rights in context of the Internet, jurisdictional conflicts and harmonization, international development, and of course, intellectual property (relating mostly to copyright and domain names). First convened by the United Nations in 2006, the IGF is the world's largest and highest-profile conference wholly dedicated to the betterment of the Internet and its continued governance and preservation. With no binding goals, negotiations, or decision , the ostensibly affair provides a platform for otherwise-rare direct dialogue between multiple cross-sections of society and mass cross-pollination of ideas, general principles, and best practices, which can be taken back by members to be used in their own decision-making processes.

This year, the Indonesian government—whose national population includes over 63 million Internet users—hosted approximately 2000 delegates from 111 countries, who explored this year's across 135 workshops, focus sessions, open forums, roundtables, and panels (with more participating remotely and millions checking in on Twitter). Organizers made a concerted effort to integrate into the sessions more tangible policy outcomes that participants could take away with them, as well as attention to initiatives. Meanwhile, “ ” and “” constituted an underlying all discussions, while “” and “” infused electric static into the air.

As providing complete coverage of all news, events, discussions, and ideas that emerged during the week-long IGF within one post would be impossible, this article will restrict itself to highlighting certain issues directly encompassed by intellectual property law, particularly those explored in a titled, “”.

1. Square Laws in Round Processes: Has Copyright Policy Gone Awry With Respect To Technological Reality?

This question challenges the notion that current and trending copyright legal frameworks are at all suitable for the way Internet infrastructures and associated technologies work today, suggesting increasing misalignment between laws designed in a more analog world and technological processes where copying is strictly incidental to otherwise legitimate use of the work. Glenn Deen of NBCUniversal asserted that technology should be “policy-neutral”, as in developed without any particular policy favoured or hindered by or coded into the technology itself. In other words, copyright policies should be created such that they fit the technology, rather than the other way around. Other panellists agreed but maintained this is currently not the case—technology has not been made policy-neutral, and through phenomena such as institutional capture of standards fora, it has in fact been designed to promote and enforce certain policies (examples of this are technological protection measures (TPM) and digital rights management (DRM) systems). , argues , takes the Internet for granted and distorts its basic architecture, such as by turning neutral online intermediaries into unofficial law enforcement entities with respect to user behaviour.

2. The Librarians Strike Back: This Isn't the Copying You're Looking For

of the made a compelling case for copyright law to pay closer attention to the kind of copying involved in different situations. Sharing others' concerns over unbalanced copyright frameworks, she explained how in a library research access context provides a clear illustration of copyright laws not fitting an Internet environment. According to Broad, text and data mining is one of several “productive, non-harmful uses” that operated freely outside the realm of copyright in a print environment, but are now captured by copyright frameworks purely through the incidental copying that occurs as part of Internet-enabled technological processes today. She compared licensing text and data mining, in essence the extraction of information, to “placing a toll on the information highway”.

While Article 5.1 of the exempts "[t]emporary acts of reproduction...which are transient or incidental [and] an integral and essential part of a technological process,” in transmitting content between computers, this is a narrow exception that will not encompass all cases that require protection, such as text and data mining. Furthermore, as Broad points out, such a framework presumes infringement unless proven otherwise; one must make an exception rather than find the use not infringing at all to begin with.

Lastly, e-books and their associated licensing regimes present “a huge challenge” in terms of access for consumers, academics, public libraries, and the visually impaired, among other user groups. With respect to the visually impaired, users must overcome obstacles by acquiring a right to remove from the content (recently enshrined in the universally lauded , the first-ever agreement to limit rather than expand copyright), and by possessing the technical ability to actually remove the TPM and access the content through assistive devices. In these respects, some at the IGF spoke of licensing regimes “defeating the purposes of the Internet”, particularly in the context of , where public libraries can play a valuable role in providing access to information.

3. Say It to Belie It: The Language of Limits and Exceptions in Copyright Law

One current problem that IGF 2013 participants identified with current copyright law is its unbalanced nature: in many jurisdictions and on an international level, rather than balancing copyright against user/access rights as if the latter were of equal weight, laws provide for overarching copyright with specific exceptions that are explicitly carved out. The starting point of the law is not one where the limits and exceptions hold the same weight as copyright; this is reinforced by their being referred to precisely as “limits” and “exceptions” to an otherwise default backdrop of established copyright. Speakers suggested instituting a new international norm that would conceptually elevate rights of access and other “limits” or “exceptions” to the same level as copyright in order to better protect them, as seen in the Marrakesh Treaty. As asserted, “We often talk about copyright substantive rights...and having carve-outs for limitations and exceptions.... [W]e should dispatch with that language and think about them as equal partners balancing each other.”

4. Meanwhile at WIPO: Additional Issues & Initiatives

Initiatives and ideas beyond those outlined above were featured in IGF 2013 presentations. These included - according to WIPO legal officer Paolo Lanteri - the ; a WIPO study on and a WIPO-compatible, world-standardized licence (to be released within the next few weeks). Regarding the latter, Ari Gema of Creative Commons Indonesia pointed out the need to educate the general population on the concept of copyright before introducing the Creative Commons license, hinting at cultural and regional differences in the significance and relevance of copyright, and the potential implications for corresponding law, regulation, and policy.

Lest the Marrakesh Treaty be a one-time in terms of internationally-accepted limitations to copyright, the IFLA is working on a , to establish “a binding international instrument on copyright limitations and exceptions to enable libraries to preserve their collections, support education and research, and lend materials”.

Lastly, in keeping with the spirit of IGF, a panel titled, "" that "multistakeholderism" was the preferred approach to formulating internet copyright policy and frameworks going forward, despite drawbacks such as being potentially inefficient, time-consuming, or inconclusive.

5. Say 你好?to язык.?????(aka Internationalized Domain Names)!

In a palpable boost to principles of multilingual access and globalization of the Internet, CEO Fadi Chehadé revealed at the IGF 2013 opening ceremony, to rousing applause, that Arabic, Russian, and Chinese i were delegated to the Internet root for the first time. This means that one can now register websites ending in “dot [insert Arabic, Cyrillic, or Chinese characters here]”, resulting in expanded online accessibility for those who use technology—including keyboards—exclusively in one of the three languages added. This will likely have an impact on trademark law in different parts of the world, in the context of branding and domain names, although trademark as managed by the (TMCH) currently provide for ASCII (English and Latin) characters alone.

Logging Out

As mentioned above, this was but a peephole into the ongoings of IGF 2013. Even live, it could only be experienced in self-tailored slices given how much was going on at any given moment. For those who are interested in learning more, are available on the IGF website and further comments and insights abound on the Twitter backchannel, not to mention the multitude of papers, articles, blog posts, updates, and analyses written throughout and in response to the forum. If we care about preserving, protecting, and bettering the Internet as we know it, the least we can do is start by getting to know it.

Cynthia Khoo is a JD Candidate at the University of Victoria. She is currently completing an exchange semester at the National University of Singapore, Faculty of Law.?

The post When the Internet Has a Party, Everyone's Invited: IP Law Issues at the Internet Governance Forum 2013 appeared first on IPOsgoode.

Background
The decision originates from an investigation to track down a home burglary suspect. On the day of the eventual arrest, police contacted T-Mobile to track a cell phone they believed the suspect was using. T-Mobile provided the information to police at three times throughout the evening. The police had a warrant for the arrest, but not for the three traces. The suspect was found using the T-Mobile device at a motel, along with some of the stolen goods.

The Supreme Court allowed the arrest and criminal charges to stand, however, the plain-view evidence seized as a result of the geolocation data that the police gathered without obtaining a warrant was not valid. The State attempted to use the "emergency aid doctrine," which would provide them an exception to the warrant requirement, but failed.

The Privacy Arguments
The privacy issues at work here break down into three key components. Firstly, mobile phones collect an incredible amount of personal information. Secondly, a reasonable person should not expect this private information to be distributed without consent. Thirdly, mobile phones could be seen as no longer a luxury, but a foundational part of one’s daily life. It is not reasonable to expect people to opt out of mobile phone use in order to maintain their privacy. These are enforced in the reasons for judgment,

With increasing accuracy, cell phones can now trace our daily movements and disclose not only where individuals are located at a point in time but also which shops, doctors, religious services, and political events they go to, and with whom they choose to associate. Yet people do not buy cell phones to serve as tracking devices or reasonably expect them to be used by the government in that way... Using a cell phone to determine the location of its owner can be far more revealing than acquiring toll billing, bank, or Internet subscriber records. It is akin to using a tracking device and can function as a substitute for 24/7 surveillance without police having to confront the limits of their resources. It also involves a degree of intrusion that a reasonable person would not anticipate... Finally, cell-phone use has become an indispensable part of modern life. The hundreds of millions of wireless devices in use each day can often be found near their owners -- at work, school, or home, and at events and gatherings of all types. And wherever those mobile devices may be, they continuously identify their location to nearby cell towers so long as they are not turned off.

The court also leaned on the , which states,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the papers and things to be seized.

This legislative right was interpreted by the court to include “a reasonable expectation of privacy in the location of their cell phones."

This is a natural extension and validation of the United States Supreme Court’s 2012 decision in . In this unanimous judgment, the court found monitoring of a vehicle’s GPS system to be a form of illegal search and seizure.

Canada's Privacy Policy
Though Canada has , the judiciary has been going in a distinctly different direction from the US courts when it comes to interpretation, as evidenced by some recent Ontario decisions.

In 2010, the Ontario Superior Court of Justice ruled on the admissibility of evidence seized during a search warrant in .? Similar to the New Jersey case, the police used Bell Canada’s GPS capabilities to locate a stolen cell phone in order to execute their search warrant.

Though the court did find a violation of the defendants’ Charter Section 8 “right to be secure against unreasonable search or seizure,” it did not find so because of the mobile phone GPS search. The court set a contribution threshold based on GPS-to-arrest timing and accuracy, which it then found had not been met.

Let me deal with the cell phone location evidence.? The Bell search found that the stolen cell phone was at the Pearson and Abelard area at about 10:35 p.m. It is only information as to where the cell phone was at a particular moment in time. The culprits might have been driving through the area at the time.? It might have been much more persuasive if Bell had found the cell phone there for an extended period of time and it could have been pinpointed with more accuracy.? This additional evidence was necessary given the lack of other evidence in this case. (Para 52)

In , the Ontario Court of Appeal passed on another opportunity to guarantee mobile phone privacy in . The court found it acceptable for police to search mobile devices without an additional phone-specific warrant if the phone had no password protection. In the case of smartphones, this ability for police to seize and explore the phone could certainly disclose the user’s locational data history among other types of personal, private information.

Commentary
The demand to recognize geolocational privacy is . It is the and we need in this area.

It’s disappointing that the Canadian courts have thus far leaned toward reducing protections on privacy and not increasing them. This is particularly true in the Canadian context because telecommunications are so heavily regulated and Canadians have fewer options when choosing a provider. When our choices are reduced, our consumer bargaining power to demand that these companies refuse police requests for our locational information is diminished.

When the courts refuse to step up, the legislators must. In my opinion, the federal government needs to pass privacy protections that restrict police power to use our mobile devices against us without the necessary warrants.

The post Canada and US Continue to Diverge on Geolocational Privacy appeared first on IPOsgoode.

The Protect America Act allowed the government to obtain data on foreign intelligence targets without a warrant. After its expiration in February 2008, it was replaced by the (“FISA”). FISA gives the FISC authority to order Internet companies to reveal user data but forbids publication with respect to whether the FISC has issued such an order. FISA was cited by the US government as the legal authority for seizing data from service providers under the PRISM program.

The recent directs the government to report to the court by July 29^th, 2013 and provides for redaction of information that the government considers sensitive to national security. More specifically, Judge Walton states, inter alia, that “[t]he Government shall conduct a declassification review of this Court’s Memorandum Opinion of [Yahoo’s case] and the legal briefs submitted by the parties to this Court in this matter. After such review, the Court anticipates publishing that Memorandum Opinion in a form that redacts any properly classified information.”? Judge? Walton also added that “priority should be given” to the review of the opinion.

Yahoo began its push to unseal the court proceedings soon after Edward Snowden leaked classified documents in June that provided details regarding the alleged involvement of nine major Internet companies, including Yahoo, in the NSA’s PRISM Internet surveillance program. Yahoo filed its motion seeking to clear its name.

The US government’s secret surveillance programs have caused intense debates around the world. In the US, in particular, recently, civil liberties groups before the FISC expressing their support to technology companies like Google and Microsoft that attempt to publish information as to the frequency of requests for user information for national security reasons made by the US government by invoking federal law. Those developments have also bolstered constitutional discussions as to the US government’s constitutional reasoning for using surveillance plans. Some legal scholars and practitioners have argued that such policies violate users’ Fourth Amendment rights against unreasonable searches and seizures. Most recently, the (“贰笔滨颁”) with the US Supreme Court challenging the NSA’s phone record surveillance program.

The reality in Canada, however, is somewhat different. Indeed, in Canada, we do have a secret court, the judges of which are? designated under the . The court deals with sensitive national security issues and other activities of the like. We also have (the Canadian equivalent of the NSA in the US) and the Canada Patriot Act is incorporated into the .

What we also have, however, is a certain level of transparency in how these procedures are followed - this is a very state of affairs when compared to the operation of the FISC in the US. Canadian privacy lawyer David Fraser has recently where amici curiae have assisted the secret court? by arguing positions in opposition to the Canadian government’s requests.

Yahoo’s victory is seen as a major one paving the way for increased transparency when decisions have a significant impact on peoples’ civil rights even if sensitive national security issues are involved. The road, however, is still long and it will take more than an incidental judicial decision like this one to achieve sufficient transparency. One thing is certain, Yahoo not only won a legal battle but also many more clients.

Georgios Andriotis is an IPilogue Editor and a law student at Université de Montréal.

The post Yahoo! Wins Twice At the US Foreign Intelligence Surveillance Court appeared first on IPOsgoode.

Max Schrems used??to request his personal user data from Facebook international headquarters in Ireland. The first round of disclosure from Facebook was??of much of the detailed information that the social network tracks. But more concerning was that when Facebook provided fuller user data,??that Schrem had deleted from his profile, such as automatic tags or chat messages; this was information that Facebook was legally required to remove from its database.

Schrem then successfully encouraged thousands of other Europeans to demand their user records and launched the organization??to raise awareness of and funds for his fight to demand greater privacy and disclosure from Facebook.

Facebook responded with – or coincidentally announced – proposed updates to its Data Use Policy and governance procedures under a letter posted in the Facebook Newsroom from Elliot Schrage, VP Communications, Public Policy and Marketing.

The letter, titled “”, allowed for user comments until 9 AM PST on November 28, 2012. In terms of privacy, the letter calls out pro-privacy and pro-disclosure changes like their new “Ask the Chief Privacy Officer” page, Facebook “Live Events” to answer privacy questions and additional Data Use Policy updates such as reminders “about what’s visible to other people on Facebook.” ?In terms of governance, the proposed changes??user voting rights.

Both sets of changes stimulated backlash. The privacy changes inspired a??of pseudo-legalese that users seemed to believe would protect them from privacy and copyright breaches by Facebook. The removal of member voting rights sparked uproar by??and??alike.

Putting aside the red herring that is disenfranchisement (a right that few people used anyway), the lack of substantive privacy and disclosure remains troubling.

The privacy changes put forward by Facebook are cosmetic and unnecessarily security-centric. In short, they are retail politics. As Schrems and those coalescing around him will tell you, users don’t need Facebook to protect them from privacy breaches by other citizens, they need governments to protect them from privacy breaches by Facebook.

The question for Canadians is whether, like the EU, we are entitled to request access to the full gamut of information collected about us, and whether sites like Facebook are obligated to purge information that we have chosen to delete.

Though slow and??freedom of information acts and???generally guarantee that government organizations provide information to citizens on demand. Private institutions like Facebook are not subject to these requests.

The??(PIPEDA) was constructed in a pre-Facebook world and focuses more on preventing an organization from releasing information about a citizen than it does laying out the depths to which an organization is obligated to provide information to citizens about their individual profiles on request.

Similarly, S.9 of PIPEDA prevents the release of personal information if doing so would reveal personal information about a third party. In the world of social networking, how many degrees of separation in Facebook data sufficiently satisfies this requirement, and could Facebook lawyers use this as a shield to prevent requests by Canadians to view their profile information?

PIPEDA establishes the Privacy Commissioner as the ombudsperson for complaints and concerns, but the Privacy Commissioner’s office seems slow to grasp the technologies of and data amalgamated by Facebook.??from the office shows they remained distracted by the same shiny security and retail politics material that populated the recent Facebook Newsroom post from VP Schrage.

Luckily, the Information and Privacy Commissioner is decidedly more in tune with privacy and disclosure needs, as evidence by last month’s white paper?.

Unfortunately, no wealth of suggestions from either privacy commissioners will fill the gap between the EU and Canada in terms of legal tools available to hold Facebook to account for what personal information it retains, for how long or how much it should disclose to users.

Denise Brunsdon is a JD/MBA Candidate at Western University.

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