Canada: Privacy Briefing - October 2004

Last Updated: October 26 2004

Edited by Michael Power

Contents

  • Alaska: Court Chooses Privacy Over Pot
  • British Columbia: PATRIOT Act Report Delayed
  • California: Consent for Wireless Directory Required
  • California: Law Sealing Victim, Witness Data Takes Effect
  • Canada: CRTC's Reverse Directory Search Policy Addresses Privacy Advocates' Concerns
  • Canada: Generating "No Fly" List
  • Canada: Rodgers v. Calvert
  • U.S.: New Technology Permits Employee Tracking
  • U.S.: Privacy Complaint Against Airline Dismissed
  • U.S.: Senate Votes for Privacy Study on Agencies' Data-Mining Use
  • U.S.: Video Voyeurism Prevention Act Passes both Houses

ALASKA: Court Chooses Privacy Over Pot

The Alaska Supreme Court denied on September 9, 2004 a petition by the state attorney general's office seeking reconsideration of a decision allowing personal marijuana in the home.

The Supreme Court upheld last year's Court of Appeal unanimous ruling in Noy v. State of Alaska that solidified the argument a person's constitutional right to privacy is greater than a voter initiative making marijuana illegal.

The Court of Appeals decision was based largely upon a controversial 1975 Alaska Supreme Court opinion handed down in Ravin v. State allowing adults to possess marijuana for personal use in their home.

BRITISH COLUMBIA: Patriot Act Report Delayed

British Columbia's privacy commissioner has again delayed release of a report into how the U.S. Patriot Act could affect the province.

It's the second time the commission has said it needs more time to wade through a massive number of submissions on whether the anti-terrorism American law could force B.C. companies with U.S. head offices to hand over information about British Columbians.

The commission received more than 500 submissions from individuals, governments, other privacy commissioners, businesses, unions, technology associations, non-profit associations, civil liberties groups, health-care bodies and seniors' organizations.

The report was supposed to be completed by the middle of September. Commissioner David Loukidelis now plans to release his report by the end of October.

CALIFORNIA: Consent For Wireless Directory Required

Governor Arnold Schwarzenegger signed a bill requiring consumer permission before putting cell phone numbers in a directory (AB 1733). The bill requires a separate permission slip. In a signing statement, Schwarzenegger asked the Legislature to fix this "burdensome" requirement by allowing permission to be granted digitally or over the phone. AB 1733 requires wireless telephone companies to obtain express written opt-in consent from customers before publishing wireless phone numbers in a directory.

Current California law permits traditional landline phone companies to make residential and business customer phone numbers available through both a printed directory and "411" telephone directory assistance. However it doesn't restrict wireless telephone companies from including customer wireless phone numbers in a public directory.

This bill requires wireless telephone companies to obtain express written opt-in consent from customers before selling lists of customer numbers or publishing wireless phone numbers in a directory. The consent has to be on a separate document in at least 10-point type, and that it be signed and dated by the subscriber.

Full press report available at:
http://www.mercurynews.com/mld/mercurynews/9757818.htm?1c

Text of legislation as enacted:
http://www.leginfo.ca.gov/pub/bill/asm/ab_1701-1750/ab_1733_bill_20040826_enrolled.html

CALIFORNIA: Law Sealing Victim, Witness Data Takes Effect

Governor Arnold Schwarzenegger signed a bill on September 14 that allows prosecutors to keep an unlimited amount of personal information about crime victims and witnesses from the public.

Under Senate Bill 58, which goes into effect immediately, prosecutors and courts in California's 58 counties are required to establish policies to black out certain identifying information about witnesses and victims in public court files. That information includes birth dates, addresses, telephone numbers, places of employment, Social Security numbers, mothers' maiden names, employee ID numbers and bank account and credit card numbers. Defence attorneys will still have access to the information.

Proponents say its intent is to protect witnesses and victims from harm and identity theft, and strikes a fair balance between the public's right to know and an individual's right to privacy.

Opponents argued, and several legal scholars agreed, that the bill's language did not limit the types of personal information that could be kept confidential, leaving too much room for prosecutors and the courts to decide what should be kept secret and how the files should be sanitized.

Full press report available at:
http://www.latimes.com/news/local/la-me-secret15sep15,1,16114.story

CANADA: CRTC's Reverse Directory Search Policy Addresses Privacy Advocates' Concerns

The Canadian Radio-television and Telecommunications Commission (CRTC) recently established a framework for the provision of Reverse Search Directory Assistance (RSDA) offered by incumbent local exchange carriers (ILECs). RSDA is an expanded directory assistance service that provides the listed name and address associated with a specific telephone number. The Commission has decided to allow ILECs to perform information searches when presented with telephone numbers under certain conditions.

As part of the public process leading to the current CRTC decision, the ILECs stated that none of objectives of the Telecommunications Act would be adversely affected if they provided RSDA. On the other hand, groups such as the Anti-Poverty Organization and the Information and Privacy Commissioner of Ontario, argued that this service contravenes the privacy protection provided by the Act.

The Commission determined that RSDA could be considered appropriate but that they had to balance the respective interests of both the calling party and the called party. The people making the calls could feel their privacy was being eroded if their identities and locations were disclosed. On the other hand, called parties may want to know who is calling them before answering the phone or returning a call.

Full press report available at:
http://www.itbusiness.ca/index.asp?theaction=61&lid=1&sid=56646&adBanner=Networking

CANADA: Generating "No Fly" List

The airline industry says Ottawa is currently working on a "no fly" list in an effort to keep potential terrorists off domestic flights.

A Globe and Mail report says the Canadian Security Intelligence Service would provide the list of people considered a security risk to the airlines. The list would be used exclusively for domestic flights, which require less documentation than international flights. It would be distributed in printed or electronic form to airline agents who check passengers' tickets.

According to the Globe, Transport Canada has assured the industry that the list will be small. Warren Everson, the vice-president of policy for the Air Transport Association of Canada, said Transport Canada informed his group in May that they would be compelled to implement the list.

Full press report available at:
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1094215979831_14/?hub=Canada

CANADA: Rodgers V. Calvert

In the context of a question as to whether a recreational shooting association could be compelled to disclose its member list, an Ontario court has issued a decision to examine the meaning of "commercial activity" within the context of PIPEDA.

In conlcusion, Mackenzie J. wrote:

Although the dictionary definitions assist somewhat in interpreting the term "commercial activity" in s. 2(1) of PIPEDA, I rely more heavily on the interpretation from the Privacy Commissioner's website noted above wherein it is stated that collecting membership fees, organizing club activities, compiling a list of members' names and addresses and mailing out newsletters are not considered commercial activities."

On the record before me, it is not feasible to set out criteria or facts as to what constitutes a commercial activity for a not-for-profit organization. I am nonetheless persuaded there is nothing in the record that indicates that the activities of the Association at large and the production of the membership list in particular in this case would be considered a commercial activity for purposes of PIPEDA. In light of these findings I do not find it necessary to address to address the contention of the Association that the words "required by law" in s.7(3)(i) of PIPEDA do not apply to s.307 of the Corporation's Act but only to case law. In similar fashion I find it unnecessary to give effect to concerns expressed on behalf of the Association that if the list of members were to get into "the wrong hands" it could result in dangerous consequences since the members own firearms and ammunition. The applicant in receiving the membership list for the Association is governed by the provisions restricting the use to which the membership list can be put and will be subject to the sanctions contained in the Act for any non-compliance with those restrictions.

An order shall go directing the Association through its proper officers to produce and deliver forthwith to the applicant a list of the members of the Association in accordance with the provisions of s.307 of the Act.

Full decision available at:
http://www.canlii.org/on/cas/onsc/2004/2004onsc12118.html

U.S.: New Technology Permits Employee Tracking

Cell phones are giving employers new ways to check up on employees in the field—and raising fresh workplace privacy concerns as a result. On the leading edge of the trend is Nextel Communications. The wireless provider began selling its Mobile Locator service last November, giving bosses an easy way to find employees who carry GPS-equipped cell phones.

Earlier this month, mobile tracking firm Xora showed off the latest version of its Nextel GPS (global positioning system) phone software. The company says 1,600 corporate customers have signed up for its services, including "geofences" technology that sets off an alarm at the office when field workers go to preprogrammed off-limits sites, such as a bar or a park.

Employee-tracking devices are gaining steam thanks to ever-more-accurate GPS technology and a U.S. mandate requiring wireless companies to develop ways for emergency workers to find the physical location of people who dial 911 on a cell phone.

One of the earliest examples of how an employer can walk this fine line is in Chicago, where about 500 city employees now carry geo-tracking phones, mainly as a tool to increase their productivity. The phones were distributed to employees only after their unions won several concessions, including allowing workers to shut down geo-tracking features during lunchtime and after hours.

Full press report available at:
http://news.com.com/Big+boss+is+watching/2100-1036_3-5379953.html?tag=need.lede

U.S.: Privacy Complaint Against Airline Dismissed

Northwest Airlines did not violate its own privacy policy and did not mislead customers when it shared passenger records with the government as part of a secret airline security project after the terrorist attacks in 2001, the Department of Transportation has ruled.

The department dismissed a complaint filed this year by a Washington privacy rights organization, Electronic Privacy Information Center, and the Minnesota Civil Liberties Union alleging that the carrier committed unfair and deceptive trade practices in sharing the information with the National Aeronautics and Space Administration without informing its customers. The agency has the authority to review business practices of companies in the transportation industry, for example, such as whether an airline actually provided fares to customers as advertised. It was the first time the transportation agency had reviewed a case involving an airline's privacy policies, the Sept. 10 decision said.

Northwest's policy posted on its Web site said the airline would not sell information about its customers to third parties and that it shares information about its passengers only in limited, specific cases. Northwest shared three months' worth of travel records with NASA's Ames Research Center, following a December 2001 request by the agency.

<>The Transportation Department said it dismissed the complaint because the language of the policy says only that the airline won't sell the information and it did not address sharing information with the government. "Ultimately, and most convincingly . . . there does not appear to have been any actual or likely harm to Northwest's customers," the decision said.

Full press report available at:
http://www.washingtonpost.com/wp-dyn/articles/A21559-2004Sep14.html

U.S.: Senate Votes For Privacy Study On Agencies' Data-Mining Use

Federal agencies that use data-mining technologies will be required to submit a report to Congress on the privacy impact of their activities under the Senate-passed fiscal 2005 Homeland Security Department spending bill.

An amendment offered by Sens. Patrick Leahy, D-Vt., and Russ Feingold, D-Wis., was unanimously accepted. The Senate passed the bill, H.R. 4567, on Tuesday, September 28, on a 93-0 vote. The House version of the bill, passed in June, does not contain such an amendment.

The amendment essentially adopted the approach of S. 1544, a Feingold-Leahy bill that would have required annual data-mining reports. As amended, the appropriations bill would only require a single report to Congress, within 90 days of the end of fiscal year that ends on September 30, 2005.

Full press report available at:
http://www.govexec.com/dailyfed/0904/091604tdpm1.htm

U.S.: Video Voyeurism Prevention Act Passes Both Houses

The U.S. House of Representatives joined the Senate on September 21, 2004, in passing privacy protections against video voyeurism. The House bill makes it a crime to engage in illicit photography or "cyber peeking" on federal property.

The legislation calls for maximum fines of $100,000 with possible jail time of up to one year. Bill author Mike Oxley (R-Ohio) said the legislation is narrowly limited to federal lands to serve as a model law for states.

Similar legislation has already passed the Senate. Minor differences between the two bills are expected to be quickly resolved and the legislation sent to President Bush.

Full press report available at:
http://www.internetnews.com/bus-news/article.php/3411121

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