"We heard you had a baby..."

BY NITIN PARDAL, LAWYER, WISE LAW OFFICE

A warning to mothers who gave birth at Rouge Valley Centenary Hospital - Big Brother may be watching you.  

Or just trying to sell you a Registered Education Savings Plan ("RESP").

Between 2009 and 2013 confidential personal data of maternity patients at Rouge Valley Centenary Hospital was allegedly distributed to one or more RESP dealer representatives.

As reported by the Toronto Star:

Shaida Bandali, a former clerk at Rouge Valley Centenary Hospital, was charged by the Ontario Securities Commission (OSC) with the “quasi-criminal” offence of “misusing” as many as 8,300 records, mostly of mothers who gave birth between 2009 and 2013. It’s the first time anyone has been charged in relation to a slew of privacy breaches revealed over recent months at numerous hospitals in the GTA...

She is accused of creating investor lists from the stolen records of new mothers, providing them to RESP dealers and receiving payment for this without informing the hospital or the patients, according to the OSC.

In recognizing the tort of intrusion upon seclusion, the Ontario Court of Appeal specifically mentioned "intrusions into matters such as one's ... health records" in the seminal decision of Jones v. Tsige.

This begs the question, can the families affected by this breach sue the hospital and the alleged individual wrongdoer for damages under the tort of intrusion upon seclusion?

The answer, as my subsequent blog post will describe, may not be so straightforward.

- Nitin Pardal, Toronto

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Blurred Lines – Privacy and the Work/Personal Computer

BY ANA KRALJEVIC, LAWYER, WISE LAW OFFICE

In today’s computer age, almost all of our actions, from banking to online shopping to private communications with loved ones can be accessed and viewed with just a few clicks and single successful password attempt.  

And while this naturally raises security concerns regarding privacy in our private lives, is our expectation of privacy diminished when it comes to computers in the workplace? 

Does it make a difference if the computer issued by the workplace is also permitted for personal use?

This was precisely the question that was addressed by the court in the decision of R. v. Cole.  This ruling shed some light as to when an employee has a right to a reasonable expectation of privacy and under what circumstances this right can be curtailed.  It recognized that the intersection of law with technology in today’s modern workplace requires that we define who can be privy to the sensitive information accessible by computers and how the expectation of privacy must be harmonized with competing interests. 

The Facts

The accused, a high-school teacher, was supplied with a laptop computer by the school where he taught communication technology.  The computer was for work purposes as well as for personal use.  The teacher was also a sitting member of the school’s technology committee which conferred him with domain administration rights to the school network.  The appellant was authorized to remotely access the data stored on student computers connected to the school network for the purposes of policing and monitoring. This was how he was ultimately able to access a student’s e-mail account and view nude, sexually explicit photographs of an underage female student.  The appellant then copied the nude photographs onto the hard drive of his school-issued laptop.

A computer technician employed by the school board accessed the contents of the accused’s laptop while monitoring the integrity of the school network and performing a virus scan.  The technician discovered a hidden folder on the appellant’s hard drive that contained the images of the underage student.  The technician took a screen shot, verified that the girl was a student and promptly informed the principal.  The principal instructed him to copy the images onto a disc.  A school board official then searched the laptop and copied temporary Internet files from the accused’s browser history onto a second disc.  The teacher was suspended from school and the computer was seized by school officials.  The two discs and laptop were handed over to the police who searched them without a warrant.  The accused was charged with possession of child pornography and authorized use of a computer. 

The accused successfully applied to exclude the evidence of the images under s. 24(2) of the Canadian Charter of Rights and Freedoms on the grounds that the searches violated his rights pursuant to s. 8 of the Charter.  The summary conviction appeal court overturned that decision and sent the matter back for a retrial.  The accused appealed.

The Key Issues

On appeal, there were a number of issues that the court turned its mind to:

1)   Did the technician’s access of the teacher’s hard drive for maintenance purposes violate the teacher’s s. 8 Charter rights?

The accused had no expectation of privacy with respect to access to his hard drive by his employer’s technician for the limited purpose of maintaining the integrity of the school’s information network.  Section 8 of the Charter was not invoked by either the technician’s or the principal’s actions.  The principal acted reasonably and lawfully in instructing the technician to copy the images onto a disc and in seizing the laptop from the accused.  The accused’s rights under section 8 of the Charter were not infringed by the principal’s search of the computer or the school board’s search of the computer.

2)  Were the teacher’s rights under s. 8 of the Charter infringed when police searched the computer without a warrant?

While the court did not flinch in affirming that the school board had a right to access the appellant’s hard drive for certain limited purposes, the warrantless police search of the laptop crossed the proverbial line and triggered a Charter violation.

The court found that the police search of the computer was too broad in scope and constituted a significant breach of the appellant’s privacy.  The school board was not vested with the authority to authorize the search or seizure of the private files which contained his browser history and included photographs of his wife that he had specifically requested remain private.  

Moreover, the court’s truth-seeking function, as well as the Crown’s case, would not be defeated by excluding the computer and the mirror image of the hard drive. 

Consequently, the evidence was excluded under s. 24(2) of the Charter.  The court held that there were no exigent circumstances that precluded obtaining a warrant before the search was conducted.  There was no potential harm to the students as the teacher had already been suspended and the computer was in the custody of school officials.  Also, it was unclear as to what specific purpose would be served by including the use of the temporary internet files. 

This decision demarcates the boundaries of privacy interests when the boundaries of work and private life seemingly blur together.  Its practical implications demand that we shift or re-orient our expectations of privacy.  As R. v. Cole teaches us, information that we subjectively believe to be subject to privacy may not be accorded privacy from a legal standpoint. 

- Ana Kraljevic, Toronto

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Proposed California Law Tackles Social Media, Privacy Concerns

A proposed new law in California would have radical implications for Facebook and other major social media sites:

The bill, which would apply only to users in California, would prohibit sites from displaying users' home addresses or telephone numbers without their consent and would mandate services remove of any information about a user within 48 hours of the request, or face a $10,000 fine.

Under the proposed law, social networking sites would be required to have all users choose their privacy settings--explained in "plain language"--as part of the registration process. It also spells out a privacy setting that would be mandated to serve as the default on all sites and that would prohibit "the display...of any information about a registered user, other than the user's name and city of residence, without the agreement of the user."

Perhaps predictably, Facebook has already commenced lobbying against the bill, claiming it is a "serious threat" to "California consumers' choices about use of personal data." However, their argument essentially hinges on the idea that consumers of social media products won't be able to give up their privacy until after they've become familiar with the service they're using.

This seems to be an odd complaint, but from Facebook's point of view it's quite obvious: the site's growth is dependent on users being able to easily and rapidly find their friends and family on it, and if users don't enter personal information relatively early on in the signup process it becomes much less likely that they'll do so later on (since once one is a member of the site, people tend to dismiss additional requests for personal information - which is exactly why sites like Facebook ask for it up front), and thus impede Facebook's core usability.

The question, then, is whether the facility granted by being able to use Facebook (and for all that we say "sites like Facebook," we of course are really only talking about Facebook at this point, as most other social media services aren't nearly so personal-information-dependent for their use) is of more benefit, from a public policy perspective, than the privacy that one inherently must give up to use those sites effectively.

At this point, the question of Facebook's social utility is one that requires more serious debate. Facebook's use as a platform for collective action is only starting to be exploited, whether it is for political action or even modifying Facebook's design and policies thereof. On the other hand, "Facebook-stalking" has entered our lexicon for a reason: the site makes it exceptionally easy to cyber-bully people, and even to do so anonymously.

Does Facebook's "power for good" outweigh the dangers it can create with its relatively invasive standard privacy setting? Does it at least balance it enough that a law like the one proposed in California is needless? This writer is genuinely not sure; on the one hand, laws like this do seem somewhat nanny-statish, but on the other hand firmly reminding people that their privacy can be at risk when participating in social media seems to be an obvious good.

- Christopher Bird, Toronto

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This Week At The Ontario Court of Appeal: 11-02-18

Each week, Wise Law Blog will review recent decisions by the Ontario Court of Appeal.

Love v. cuity Investment Management Inc. Appeal of a wrongful dismissal ruling. At trial the Plaintiff, a chartered accountant working as an investment manager, was awarded five months' pay in lieu of notice and damages for loss of value of shares he was contractually required to sell back to his employer upon termination. The plaintiff felt that the trial court undervalued his notice period and appealed.

At trial, Mr. Love was found to be a "short service employee," having worked for his employer for about two and a half years. The trial judge characterized him as a "senior-level sales" worker and found that he did not manage or supervise others. These factors, combined with his period of service, led to the decision of five month's required notice.

The Court of Appeal disagreed with this assessment, pointing out that Mr. Love's short period of service (which served as the trial judge's major reference point) was not the solely relevant factor. The Court found that referring to Mr. Love as a senior-level salesperson made light of his position as a senior vice president reporting directly to the CEO, and noted that unlike the circumstances in other cases cited, he was in fact a partial owner of the company while he was employed there.

The Court further found that the trial judge had not adequately taken into account the Bardal factor of potential for similar employment, and noted that Mr. Love's opportunity for finding another senior, equity-owning position in investment management was low. This required a higher period of notice, and the Court increased the applicable notice period to nine months from the original five.

The Court also considered two other issues in the appeal. Firstly, it characterized a second settlement offer made by the employer as revoking its first offer; the employer had suggested that since the second offer was merely the first offer discounted by the amount of a payment made to Mr. Love, it was in essence the same offer in modified form. The trial judge agreed; the Court did not, and stated that this was indeed a second offer, although it did not merit an increased costs payment to Mr. Love.

Secondly, the Court considered a cross-appeal by the employer, who took issue with how the damages for lost share value were calculated. At trial, the trial judge accepted the Plaintiff's argument that the increase in share value should be calculated from date acquired through to the end of the period of reasonable notice.

The employer cross-appealed, arguing that the termination date should instead have been the appropriate valuation date. The Court agreed with the employer, holding the share agreement between Mr. Love and the company required that he offer to sell back shares to the company as soon as he was not an employee of the company, and that the agreement anticipated a termination without notice in this regard. Read-the-whole-case rating: 4 for the portion dealing with the notice period; 1.5 for the balance.

R. v. Manley. A criminal case dealing with three elements: identification evidence, section 8 Charter rights dealing with the searching of stored data on a cellphone, and judge instruction.

Mr. Manley was accused of robbing a Mr. Sub and a music store at gunpoint while wearing a T-shirt with holes cut in it for a mask. (DNA on the shirt matched Mr. Manley's.) A confidential informant identified him as the suspect in the robbery, and police arrested him, seizing among other things a cellphone on his person. They searched the cellphone's data and found a picture of Mr. Manley carrying a sawed-off shotgun, which was the same sort of weapon that was used in the music store robbery. This photo was introduced as evidence at trial.

At trial, the Mr. Sub employee present at the robbery - who had not been able to identify Mr. Manley as the robber at the preliminary inquiry and had never been shown a lineup - was asked as to the robber's general features. She was then asked about Mr. Manley's eyes, and if they were "for sure" the eyes of the masked robber. She said yes, and when asked if she was certain that those eyes could not have belonged to anyone else reiterated her yes. Similarly, the owner of the music store, after testifying as to a general description of his robber, said that he had since recognized Mr. Manley as the robber by his "profile." Finally, the judge, in his instructions to the jury, reminded them that simple robbery was an included offence to armed robbery, and that they could find Mr. Manley guilty of the former even if they could not find him guilty of the latter.

Mr. Manley was convicted and sentenced to eight years' imprisonment, and appealed his sentence in three respects: that the witnesses' testimony and identifications were not properly discounted by the judge's instructions, that the photograph from the cellphone should not have been admissible as evidence at trial due to it being an illegal search, and that the judges' instructions were erroneous when he spoke about simple robbery being an included offense.

The Court denied all grounds of appeal. In respect to the witnesses' identification testimony, the Court found that while a stronger warning as to the reliability of the witnesses' purported semi-identification of Mr. Manley and an instruction stating that in-dock identification generally lacks value as a reliable identification would have been preferable, ultimately the judge conducted himself properly and gave the jury a general warning about identification evidence. Given that both witnesses qualified their in-dock identifications, the Court found the impact of those identifications was lowered, and with, it the potential for judicial error.

In regard to the cellphone search, at trial the judge found that the search and seizure was conducted for three reasons: safety of the police, checking the ownership of items in the suspect's possiession, and to preserve evidence. The third element was satisfied because an officer at the scene felt that if the phone, which had a low battery, powered down the photo might be lost, which was why he downloaded it to his phone and then to a police computer. Mr. Manley argued that the police were not entitled to search the data in the phone without warrant as an incident to arrest, citing R. v. Polius,, where a Superior Court judge ruled that the Crown did not have the power to examine the contents of a lawfully seized cellphone without a warrant. The Crown responded to the appeal arguing both that under the circumstances, the police were entitled to a cursory warrantless inspection of the phone, and that more broadly Polius was bad law and that the police are entitled to conduct warrantless searches of cellphones.

Although the Court agreed that Polius was good law and that generally warrantless searches of cellphones, which often contain personal and private information, should not be allowed, they agreed with the Crown that in this case the search was lawful since the police had a legitimate interest in determining whether the cellphone was stolen or owned by the suspect, and did not know the number (and the Court stated that if they had indeed had access to the number, further search of the phone's data would have been unlawful).

Finally, in regards to the robbery instruction, the Court felt that the instruction was justified. The Crown argued that the wording of the judge's instruction did not limit the Crown to a specific mode of robbery; the inclusion of the sawed-off shotgun as the specific weapon in this instance was not to particularize the offence but rather to establish a threshold for the minimum sentence for robbery where a firearm was used. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto

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This Week At The Ontario Court of Appeal: 11-01-07

Each week, Wise Law Blog reviews recent decisions by the Ontario Court of Appeal.

Ontario (Labour) v. Enbridge Gas Distribution. Regular readers of Court of Appeal decisions know that Justice Watt's Hemingwayesque introductions to his decisions are frequently lyrical, so before we discuss the decision, enjoy the introduction:

[1] Explosions damage and destroy things. Sometimes, their victims are people. Like here. An explosion damaged and destroyed several buildings. Hurt some people too. And killed others. This explosion was preventable. If only...

[2] A contractor using a backhoe displaced a natural gas pipeline. Natural gas crept into the basement of a two-storey commercial plaza. A source of ignition entered the mix. An explosion and fire followed. Buildings were damaged and destroyed. People were injured. And seven people were killed.

The action in question deals with the province's subsequent action against Enbridge (and the company hired to accurately locate the existing pipelines, Precision Utility) in regards to the gas explosion. At trial, the defendants moved for a summary dismissal, which the trial judge granted. The province successfully appealed that dismissal to Superior Court and got a new trial. The defendants then sought leave to appeal.

The defendants' dismissal argument was that prosecution was barred under the Occupational Health and Safety Act because the information was not laid within the time required by the Act. They further argued that there was no statutory duty on them under the Act as they were not "employers" by the relevant definitions. Finally, they argued that the shifting theory of guilt advanced by the prosecutors merited dismissal. The motion judge accepted these arguments; the Superior Court appeal judge did not.

The Court declined to grant the defendants leave to appeal for multiple reasons. Firstly, Justice Watt stated that the basis of liability advanced by the prosecutor did not amount to a new theory of liability even if some facts may have changed over the course of the initial trial. Secondly, he stated that since Enbridge and PUL had contracted with one another to perform services, both were considered "employers" under the Act, and that therefore the Superior Court's decision was neither obviously wrong nor of doubtful correctness. Thirdly, he stated that the the question of the limitation period was a mixed one of both fact and law, and therefore this weakened the ground for appeal. Finally, he stated that the grounds for appealing based on Enbridge's providing of information to the digging company were too specific to take a potential appeal into the realm of generally important law. Read-the-whole-case file: 4, both for Watt's entertaining style and his easily followed explanation of what constitutes a worthy appeal.

Citi Cards Canada v. Pleasance. Citi Cards obtained a credit card-related judgement against Mr. Pleasance for approximately $11,000 and sought to enforce it through a sheriff's sale of Mr. Pleasance's home. However, the sheriff would not conduct the sale without mortgage discharge statements from TD Canada Trust, who owned the note on the home, and who refused to provide those statements to Citi. Citi applied for an order requiring the bank to produce the documents. The application judge dismissed their application on the basis that the documents contain personal information and therefore the bank was barred from releasing the information due to the Personal Information Protection and Electronic Documents Act. (Which was, in fact, the bank's reason for refusing to disclose.) The judge also noted that Citi had an alternate remedy available to it: it could move to examine Mr. Pleasance's wife. Citi appealed.

The Court dismissed the appeal, finding that the Act did in fact apply in this instance. The Court reaffirmed that financial information disclosed to a mortgagor qualified as personal information under the Act, and agreed with the application judge that the exemptions available under s. 7(3) of the Act did not apply to Citi's request. Citi had argued that the wording of the act meant that personal information could be disclosed whenever the organization [i]or[/i] the individual whose information could be collected was legally obligated to provide it. The Court disagreed wholly with this argument, suggesting that the language used plainly suggested that this was not the case and the legal obligation exemption only applied where the organization, not the individual whose information was at question, was required to disclose. Read-the-whole-case rating: 2.

Simmons v. Hamber. Hamber, a partner at Harrison Pensa LLP, was retained to do the necessary legal work for two transactions between the L.J. Simmons Group and Anchordale Holdings, the personal holding company of John Simmons. Mr. Simmons chose to declare personal bankruptcy, and as a part of this the Simmons Group and Anchordale Holdings agreed to a deal where the Group's existing debt to Anchordale would be converted into non-retractable, non-voting preference shares with no value. Mr. Hamber prepared the transaction, having been hired by another member of the Simmons Group, and was retained by both the Group and Anchordale. Seven years later, Mr. Simmons came to a dispute with his partners in the Group and was terminated, and subsequently brought action against Mr. Hamber for breach of professional duty in failing to discuss with Mr. Simmons the need for independent legal advice or alternatives to the transaction. The trial judge dismissed the action and Mr. Simmons appealed.

The Court of Appeal agreed with the trial judge. Citing the Rules of Professional Conduct of the Law Society of Upper Canada, they found that in the circumstances of this situation there was no obligation on Mr. Hamber to recommend independent legal advice to Mr. Simmons. Mr. Hamber had been informed by Mr. Simmons' partner that shares in the Group had no value in and of themselves, and that the debt owed to Mr. Simmons was of no substance, and was entitled to rely on that since he was informed by the individual who he normally dealt with in regards to the Simmons Group's affairs. Further, Mr. Simmons' position as an experienced businessman who had been through previous share restructurings rightly gave Mr. Hamber the view that he understood the simple transactions that were taking place.

The Court also agreed with the trial judge that Mr. Hamber did not have a duty to discuss alternatives with Mr. Simmons, as that action was rooted in Mr. Simmons' claim that he and the other partners had an additional agreement of which Mr. Hamber was unaware. As the transactions Mr. Hamber were aware of were relatively straightforward, there was no breach of duty to discuss alternatives. Read-the-whole-case rating: 3 for a readable examination of lawyer's duties in these circumstances.

- Christopher Bird, Toronto

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Social Media in 2010 – No Surprises, Just Evolution

The Scoop, JD Supra's legal marketing blog, has today published its annual year-end summation, What Surprised You In 2010? Perspectives from Legal Professionals.

Today's Scoop post contains excerpts from many, varied contributors to this annual legal thought-fest. The complete, extended commentaries can be downloaded here, in PDF and MS-Word formats.

Canada's representatives this year include Steve Matthews, Jordan Furlong, and myself. Thanks to Adrian Lurssen and the good folks at JD Supra for including my thoughts once again in 2010.

My contribution to the mix, 2010 – No Surprises, Just Evolution, is reproduced below.

- GJW

****

2010 – No Surprises, Just Evolution

There were no great surprises in 2010 for lawyers who’ve had their fingers on the pulse of the social media world - just a natural progression.

The once-radical thought that there is a bona fide professional use for social media in the legal profession has been mainstreamed and normalized. Lawyers’ participation online has exploded into an ever-increasing offering of blawgs, tweets, and social media updates.

In fact, as I suggested in an October 2010 post, Social Media and the Legal Profession: Where are We Today?, the primary challenge ahead is no longer about participation; rather, it’s about integrating our multi-platformed online presentations:

Once you have a website and blog, are on Facebook, LinkedIn, Twitter, YouTube, Digg, etc., how do you tie it all together - with the least amount of extra hands-on effort - into a cohesive, seamless and consistent presence that establishes a brand or identity that is both authentic and digestible for readers?

In a natural, logical evolution, the modern world continues to pull lawyers and our courts into this tech-centric 21st century.

Within the last year or so, courts in Canada, the UK, Australia and the USA have permitted journalists to live blog, text-message and tweet from the courtrooms. Canada’s Supreme Court has recognized that bloggers are afforded “responsible journalism” free-speech protections; similarly, bloggers have been held accountable for defamatory publications that have crossed the line.

In some cases, courts have authorized service of legal documents via Facebook. Facebook, itself, has responded to document-retention and electronic discovery requirements by introducing a Download Your Information feature, enabling retrieval and local storage of each user’s Facebook content. Privacy advocates won a series of public battles over the protection of private information on social media sites. Courts have ordered “virtual child visitation” via Skype. And, in Ohio, judges received a green light to “friend” lawyers on social media sites. In South Carolina, Florida and other jurisdictions, it is not so clear.

Looking ahead, this evolution will no doubt continue in 2011.

In the legal profession, greater attention will be focused on the ethical do’s and don’ts of lawyers’ social media participation. We will consider whether blawging should count toward lawyers’ mandated CLE requirements. And our courts and governments will struggle with (and attempt to draw defined lines in the sand) in this brave new world of instant communications, democratized access to publication tools, and blurred distinctions between the public and the private.

Finally. the emerging WikiLeaks debate – is it journalism or espionage? - is likely to be the spark at the center of a crucial, dramatic discussion ahead that will do much to define where we, as a society are heading, online and offline.

It will continue to be fascinating to watch the developments unravel in real time.

- Garry J. Wise, Toronto

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Jennifer Stoddart, Canadian Privacy Commissioner, Reappointed

The Globe reports today on the reappointment of Jennifer Stoddart, Canada's Privacy Commissioner who has established an international profile in her successful quest to require Facebook to address its chronic privacy concerns.

She has also taken on Google Street View, Google Buzz, and Canada's Veteran's Affairs Department over privacy breaches in recent months.

Ms. Stoddart has been appointed by the Prime Minister for a further three-year term.

- Garry J. Wise, Toronto

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Ontario Judge Orders Google, Bell to Release Blog IP Information

Ontario Superior Court Justice Nancy Mossip has ordered Google and Bell Sympatico to produce IP and other information to enable the identification of individuals associated with an allegedly defamatory political blog published from Meaford, Ontario.

Owen Sound Sun Times reports:

A court order Friday has moved Meaford another step closer to finding whoever was behind a blog the municipality's lawyer claims defamed the mayor and staff and disrupted the recent election.

The order requires both Google Inc. and Bell Canada to provide by next Friday documentation Toronto-based lawyer Adam Ezer has requested on behalf of Meaford. Superior Court Justice Nancy Mossip made the order in Owen Sound court Friday morning.

...Meaford council has directed lawyer Adam Ezer to find out who was behind the blog, which became an issue in the recent Meaford mayoral race between incumbent Francis Richardson and Coun. Jim McPherson.

- Garry J. Wise, Toronto

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Can You Facebook If You Want To?

The old story about the person who made the mistake of friending her boss on Facebook and then complaining about him on it is widely known at this point, but a couple of recent events point to a trend where social media messaging may be given more leeway rather than less.

Firstly, a recent decision by the National Labor Rights Board in the USA:

The labor relations board announced last week that it had filed a complaint against an ambulance service, American Medical Response of Connecticut, that fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.

Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.”

And secondly, recent guidelines issued by the provincial government of British Columbia:

"Instead of saying you can't use [social networking tools], we are now saying you can use them where appropriate. But you have to keep in mind you can't breach confidentiality and you can't breach privacy law in doing so," Seckel said.

David Eby, executive director of the B.C. Civil Liberties Association, said it's encouraging that the government is increasing its transparency and creating opportunities for social engagement. However, he is concerned that the government doesn't control the platforms it might use.

Obviously these are far from ironclad decisions - and neither one of them would have necessarily protected that hapless Facebooker who made the truly terrible decision to add her boss as a contact - but together they do point to a trend that governments are willing to tolerate personal use of social media sites to a greater extent than previously and allow employees more freedom in using them. That's a welcome development, because if people can't use Facebook without constantly fearing for their jobs, there isn't much point to the site for anybody over the age of twenty-five.

Of course, it doesn't automatically follow that this tolerance will extend to potentially libelous or defamatory complaints about your employer made to the general public. The BC regulations are about using social media in the context of your job; the NLRB ruling reinforcing the rights of workers to "discuss" the circumstances of their employment with other workers. And of course, although American labour standards might give Canadian governments pause for consideration, they're hardly binding upon our own labour environment.

(That having been said, the NLRB ruling concerned a woman who mocked her boss and referred to him as a psychiatric patient in a derogatory manner, so who knows? Maybe Facebook bashing will be the new-age coffee-and-complaints break.)

- Christopher Bird, Toronto

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Privacy Commissioner Stoddart Zooms in on Google Street View

As anticipated, fresh off a year of resounding success in tackling Facebook for shortcomings in the protection of user privacy, Canada's Privacy Commissioner, Jennifer Stoddart, now has Google Street View squarely in her crosshairs:

City News reports:

Jennifer Stoddart says Google broke Canadian privacy laws when it accidentally collected personal information from unsecured wireless networks while putting together its Street View mapping service.

An investigation by Stoddart's office found complete emails, addresses, usernames, passwords and even a list that provided the names of people suffering from certain medical conditions was collected.

Also see CTV News: Google mapped more than addresses: privacy czar

- Garry J. Wise, Toronto

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Pennsylvania School Webcam Spying Case Settled

We reported in February, 2010 on a federal lawsuit that alleged a Pennsylvania public school used video cameras in school-issued laptop to spy on its students at their homes.

Philly.com now reports the case has been settled:

The Lower Merion School District will pay $610,000 to settle lawsuits over its tracking of student laptop computers, ending an eight-month saga that thrust the elite district into a global spotlight and stirred questions about technology and privacy in schools.

School board members voted unanimously Monday night to pay $185,000 to the two students who claimed the district spied on them by secretly activating the webcams on their laptops.

The bulk of the money, $175,000, will be put in trust for Blake Robbins, the Harriton High School junior whose family brought the issue to light in February. Jalil Hasan, who filed his lawsuit this summer after graduating from Lower Merion High School, will receive $10,000.

The district will also pay $425,000 in legal fees to their attorney, Mark S. Haltzman.

Also see this report from CBS Philly: Lower Merion School District Settles Webcam Spy Lawsuits For $610K

- Garry J. Wise, Toronto

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Facebook's Zuckerberg - A Reformed Man?

Meet the new Mark Zukerberg, describing Facebook's updated "philosophy" on privacy and user controls, as the web behemoth unveiled enhancements yesterday to its privacy and information mobility features:

It's our core belief that people should own and be able to conrol their information in Facebook,' Zuckerberg said. 'We view this as a philosophical thing.'

Canada's privacy commissioner, Jennifer Stoddart, may have more than a little to do with how Mr. Zuckerberg has come to see the light.

- Garry J. Wise, Toronto

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Privacy Commissioner Responds on Veterans Affairs Investigation "Request"

Canada's Privacy Commissioner, Jennifer Stoddart, has announced her office will conduct a privacy audit of the federal Veterans Affairs department, after last week's shocking reports that confidential medical records regarding a critic of the department were widely circulated in ministerial briefing notes.

The Privacy Commissioner's office made it clear Wednesday that its audit of the Ministry's privacy policies was commenced at its own intiative, and not due to any request from the Ministry, as had been suggested by the Veterans Affairs Minister, Jean-Pierre Blackburn.

An email received Tuesday sets out a statement by the Privacy Commissioner:

I understand that the Veterans Affairs Minister made public earlier today the fact that he has asked our Office to conduct a broader investigation of privacy issues within his department.

I know you’ve been following this issue and wanted to provide the following update from our Office:

The Privacy Commissioner welcomes the minister’s invitation to conduct a systemic investigation into the privacy policies and practices of his department.

The Commissioner has advised Minister Blackburn’s office that her investigation into a complaint about the handling of one veteran’s personal information has raised concerns about the possibility of systemic privacy issues. As a result, she had already decided to initiate an audit of the department’s privacy practices.

Investigations are an important tool used to examine specific incidents. An audit will examine whether there are systemic issues that need to be addressed.

As part of this audit, the Privacy Commissioner’s Office will examine the department’s policies and practices against federal privacy requirements. We are still in the process of determining the scope of this audit and the timeline for its completion.

Our Office’s investigation into the individual complaint is in its final stages and we will be in a position to comment on our findings shortly.

Regards, Valerie


Valerie Lawton
Senior Communications Advisor /
Conseillère principale en communications
Office of the Privacy Commissioner of Canada

More on the controversy from CTV: Veterans Affairs facing privacy investigation

- Garry J. Wise, Toronto

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Google Street View and Privacy

Barred from the Czech Republic and under review in Germany, will Google Street View be next in Canadian Privacy Commissioner Jennifer Stoddart's crosshairs?

Also see Web Pro News: Google Street View Stopped Again By Czechs.

- Garry J. Wise, Toronto

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Canada's Privacy Commissioner: I ♥ Facebook

According to Canada's Privacy Commissioner, Jennifer Stoddart, Facebook's privacy protections have come a long way, indeed.

The Office of the Privacy Commissioner of Canada published a news release today, Privacy Commissioner completes Facebook review, setting out its findings, after a review of the social media site's controversial privacy policies and practises:

OTTAWA, September 22, 2010 – The Privacy Commissioner of Canada has finished reviewing the changes that Facebook implemented as a result of her investigation of the social networking site and has concluded that the issues raised in the complaint have been resolved to her satisfaction.

Privacy Commissioner Jennifer Stoddart today issued the following statement:

The changes Facebook has put in place in response to concerns we raised as part of our investigation last year are reasonable and meet the expectations set out under Canadian privacy law.

The investigation has resulted in many significant changes. Facebook has put in place measures to limit the sharing of personal information with third-party application developers and is now providing users with clear information about its privacy practices.

Read more....

- Garry J. Wise, Toronto

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“Totally, Totally Illegal” under the Federal Privacy Act

Canadian Press reports on an emerging scandal centered on Stephen Harper's Conservative government:

Confidential medical and financial information belonging to an outspoken critic of Veterans Affairs, including part of a psychiatrist's report, found its way into the briefing notes of a cabinet minister.

Highly personal information about Sean Bruyea was contained in a 13-page briefing note prepared by bureaucrats in 2006 for then-minister Greg Thompson, a copy of which was obtained by The Canadian Press.

...Mr. Bruyea has filed a formal complaint with the federal privacy commissioner, whose investigation continues. He has also filed a court challenge, claiming a breach under the Charter of Rights and Freedoms.

...Retired colonel Michel Drapeau, a lawyer and expert in privacy law, expressed shock on viewing the documents. Mr. Drapeau said it was the worst breach of privacy he'd seen in decades of practising law, calling it “totally, totally illegal” under the federal Privacy Act, which allows for the collection of information for specific purposes.

“The way I read the briefing note, it clearly comes across that this is a way to impugn his reputation and to come across as someone who is less than stable, less than able to speak confidently and accurately about veteran's issues,” Mr. Drapeau said in an interview Tuesday.

(h/t - Rick Mercer on Twitter)

- Garry J. Wise, Toronto

Update:

More on this from CTV: Psych report of veterans critic improperly accessed. Galloping Beaver also weighs in: What?!!!

- GJW

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On Facebook and Privacy:

Quotable:

"Facebook needs to have a few very simple high-level controls" so users can keep data private, said Peter Eckersley, senior staff technologist at the Electronic Frontier Foundation. The company, he said, should stop acting as if "they have a mission to make all of our private lives public."

- Garry J. Wise, Toronto

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Open Book: Site Searches Unsecured Facebook Posts

A new search service, Open Book, demonstrates the privacy threat arising when Facebook users fail to carefully adjust their security settings. Among other concerns, their status updates become publicly searchable.

While the Open Book search for "toronto lawyer" doesn't yield too much embarrassing personal detail, other searches certainly do.

(Bottom line: if you feel the need to broadcast that your boss isn't so grand, ensure your privacy controls are adjusted to limit who might view your epic prose)

New York Daily News has just published a good, step-by step guide to changing Facebook privacy and security levels. Social media users take note.

- Garry J. Wise, Toronto

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A Victory for Free Speech?

A Washington State jury finds that First Amendment protections shield a high school newspaper that published intimate details of four current students' sexual histories - and named names.

- Garry J. Wise, Toronto

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