Canada: Developments In Technology - Oct 2004

Last Updated: October 25 2004

Edited by Louis R. Benoit

Contents

  • Part Of Patriot Act Unconstitutional
  • Cybersecurity Act Discussed By U.S. Congress
  • U.S. Copyright Office Intorduces New Induce Act
  • U.S. Federal Courts Propose Rules For E-Discovery
  • Ontario Proposes Amendments To Consumer E-Commerce Regulations
  • Schwarzenegger Discards Privacy Bills
  • NET Piracy Still Under Attack
  • California To Post Information About Sex Offenders Online

Part Of Patriot Act Unconstitutional

A key section of the U.S. Patriot Act that allows the FBI to secretly demand information from Internet providers has been found to violate the U.S. Constitution by a federal judge. The law requires Internet service providers and other types of communication providers, including telephone companies, to comply with secret "national security letters" from the FBI asking for information about subscribers, including home addresses, what telephone calls were made, e-mail subject lines and logs of what Web sites were visited. The recipient of such security letters is forever restrained from disclosing its existence to anyone.

The judge barred the FBI from invoking that section of the law in the future, saying the mandatory gag orders amount to an "unconstitutional prior restraint of speech in violation of the First Amendment." The U.S. Department of Justice recently announced it would appeal the federal court ruling.

More information available at:

http://news.com.com/2100-1028_3-5388764.html

http://www.internetnews.com/xSP/article.php/3415501

Cybersecurity Act Discussed By U.S. Congress

The Department of Homeland Security (DHS) Cybersecurity Enhancement Act of 2004 was recently presented to the United States Congress. The act's main objective is to improve the department's capacity for protecting critical cybersystems. The bill would broaden the definition of cybersecurity to include not only computers and computer networks but also "wire communication." This would grant authority to the department over protecting not just networks but also telecommunications. In addition, the Department of Homeland Security Science and Technology Enhancement Act of 2004, was also introduced, which is aimed at assisting the department develop new cutting-edge technologies needed to combat terrorism. The likelihood of either bill passing as standalone legislation is unlikely since Congress plans to adjourn at the end of September. Nonetheless, some elements of the bills could be added to future cybersecurity bills and initiatives.

More information available at:

http://www.internetnews.com/security/article.php/3408841

U.S. Copyright Office Intorduces New Induce Act

A new version of the Induce Act drafted by the U.S. Copyright Office has been released. Aimed at making file-swapping networks such as Morpheus illegal, the bill was drafted after a meeting with representatives from IBM, Apple, Hewlett-Packard, the Business Software Alliance, the RIAA and the Motion Picture Association of America. The criticism of the original Induce Act is that it could in theory ban devices like the iPod. The new version appears to back away from the broad sweep of the original act by making it more difficult for companies to be found liable for copyright violations. However, many critics are still sceptical. For example, one section states that companies who "actively interfere" with a copyright holder's efforts to identify pirates could be liable. Internet service providers are concerned this may mean that objecting to a demand from the recording industry to obtain the names of subscribers could be a violation of the act.

The act recently failed to advance in the Senate because lawmakers said there was too much opposition. One Senator said negotiators would meet to try to come up with a bill that would satisfy the entertainment and technology industries, and that the bill would be taken up again before Congress is scheduled to adjourn for the fall elections.

More information available at:

http://news.com.com/2100-1027_3-5345528.html

http://www.internetnews.com/bus-news/article.php/3404461

http://www.reuters.com/newsArticle.jhtml;?storyID=6380512

U.S. Federal Courts Propose Rules For E-Discovery

The U.S. Federal Judiciary has published a set of proposed rules to govern electronic discovery and addressing issues such as inadvertent disclosure of privileged information, treatment of information that is not reasonably accessible and consequences of loss or destruction of electronic data. Perhaps the most controversial of the proposed rules is an amendment that could create a narrow "safe harbour," protecting a party from sanctions for failing to provide electronically stored information in some circumstances. Under this new rule, a party would be protected if it took reasonable steps to preserve the information after it knew or should have known the information was discoverable and the failure resulted because of the routine operation of the party's electronic system. This amendment is meant to deal with the fact that electronic data can easily disappear in cyberspace without anyone trying to destroy it, through programs that automatically recycle data, overwrite deleted information and discard data that has not been accessed for a period of time.

On the issue of inadvertent disclosure of privileged material, a new rule provides that a party who produces privileged material without intending to waive the privilege, may "within a reasonable time," notify the recipient, who would have to "promptly return, sequester, or destroy the specified information and any copies."

The third major area addressed by the proposed rules involved how to deal with the discovery of data that is not readily accessible such as information deleted from a computer hard drive on an employee's departure, which can be recovered but it takes time and money. This new rule would provide that such information need not be reviewed or turned over. But if an adversary moves for disclosure, the party would have to show that the information was "not reasonably accessible." The court could then require disclosure only for good cause and on specified terms and conditions.

More information available at:

http://www.law.com/jsp/article.jsp?id=1094073248317

Ontario Proposes Amendments To Consumer E-Commerce Regulations

The Ontario government has released proposed amendments to its consumer e-commerce regulations. The revised rules narrow several information disclosures in response to complaints from industry. Three specific information disclosures appear in the revised draft regulation:

  1. The requirement to disclose technical specifications in the original regulations was intended to refer to those specifications that are related to the intended use of a good or service, such as system software requirements, rather than all technical specifications. The revised regulations are clearer on this point.
  2. A business' means of delivery and the identity of the person to perform services for a consumer will only need to be disclosed if they are actually specific terms of the agreement. For example, if the consumer is specifically paying for express delivery, this will need to be disclosed.
  3. Consistent with the Internet Sales Contract Harmonization Template, restrictions, limitations and conditions only need to be disclosed if they are within the contract with the consumer. A business is not obliged to disclose limitations that arise outside their contract with the consumer. These limitations may include manufacturers' limits on warranty or intellectual property limits.

More information available at:

www.cbs.gov.on.ca/mcbs/english/5WYMJF.htm

The revised regulation can be found at:

www.cbs.gov.on.ca/mcbs/english/pdf/CPA_Regs_Fall04.pdf

Schwarzenegger Discards Privacy Bills

California Governor, Arnold Schwarzenegger, recently vetoed three bills aimed at improving e-mail privacy at work as well as safeguard private medical and financial information. One bill would have limited information that medical firms can send abroad for processing without a patient's consent. Gov. Schwarzenegger said the bill was unnecessary since existing laws already prohibit the sharing of an individual's medical information. Another vetoed bill would have required consumer consent before financial institutions could outsource or share personal information on clients. Schwarzenegger said the law could conflict with present state financial privacy laws. The Governor also rejected a bill requiring state employers to give workers written notification if e-mail and other Internet activity was being monitored at work. Critics said the bill would burden employers and is unnecessary because most employees already assume their online activities at work are monitored.

More information available at:

http://www.reuters.com/newsArticle.jhtml;?storyID=6372217

NET Piracy Still Under Attack

People who illegally share copyrighted music and movies over the Internet could be jailed for up to five years under a bill recently approved by a congressional panel. The Piracy Deterrence and Education Act of 2004 targets the practice of Internet file sharing, which record companies blame for playing a part in a significant decline in yearly CD sales since 2000. This measure would make it a crime to make $1000 US or more in copyrighted works available for download. The bill would also make it illegal to use camcorders to record movies in theatres, a practice commonly used by bootleggers looking to distribute the latest hits. Under this proposed legislation, file-swappers could be jailed for three years for file sharing or five years if they do it for private financial gain. Second offenders could be jailed for twice that long. The House Judiciary Committee approved this measure by voice vote, clearing it for further debate in the full House.

In the meantime, California Governor, Arnold Schwarzenegger, signed a bill last week requiring file-swappers who sends copyrighted work such as music and movies without permission to at least 10 other people must include their e-mail address and the title of the work, or risk being charged with a misdemeanour. The law goes into effect in January. Critics argue the law is a tricky way for copyright owners to get at file-swappers since individuals are not targeted for copyright violations; rather, they are nabbed for not adding their e-mail address to a shared file.

More information available at:

http://www.washingtonpost.com/wp-dyn/articles/A6091-2004Sep8.html

http://news.com.com/2100-1028_3-5387682.html

http://www.wired.com/news/politics/0,1283,65062,00.html

California To Post Information About Sex Offenders Online

Governor Arnold Scharwzenegger signed a bill that will enhance Meghan's Law and ease the concerns of parents and other citizens asking for better protection for themselves and their children against sex offenders. Meghan's Law was enacted in 1996; it was named after a seven-year old who was raped and murdered in a New Jersey town by a sex offender neighbour. While Meghan's Law encouraged states to set up sex offender registries for public review, the registries that have been set up in different states vary greatly in accessibility.

Under the new legislation, the sex offender's home address, name, alias, photograph, physical description, gender, race, date of birth and criminal history will be accessible via the Internet.

More information available at:

http://www.reuters.com/newsArticle.jhtml;?storyID=6331011

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions