Canada: Privacy Briefing - October 2004

Last Updated: October 26 2004

Edited by Michael Power


  • 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:

Text of legislation as enacted:

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:,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:

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:

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:

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:

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:

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:

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:

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

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

Events from this Firm
8 Nov 2016, Seminar, Ottawa, Canada

The prospect of an internal investigation raises many thorny issues. This presentation will canvass some of the potential triggering events, and discuss how to structure an investigation, retain forensic assistance and manage the inevitable ethical issues that will arise.

22 Nov 2016, Seminar, Ottawa, Canada

From the boardroom to the shop floor, effective organizations recognize the value of having a diverse workplace. This presentation will explore effective strategies to promote diversity, defeat bias and encourage a broader community outlook.

7 Dec 2016, Seminar, Ottawa, Canada

Staying local but going global presents its challenges. Gowling WLG lawyers offer an international roundtable on doing business in the U.K., France, Germany, China and Russia. This three-hour session will videoconference in lawyers from around the world to discuss business and intellectual property hurdles.

In association with
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.