The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

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The author of this blog, David T.S. Fraser, is a Canadian privacy lawyer who practices with the firm of McInnes Cooper. He is the author of the Physicians' Privacy Manual. He has a national and international practice advising corporations and individuals on matters related to Canadian privacy laws.

For full contact information and a brief bio, please see David's profile.

Please note that I am only able to provide legal advice to clients. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser cannot be considered to be solicitor-client privileged.

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The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.

Monday, March 14, 2005

Experiment: Tracking an anticipated privacy backlash 

This is just an experiment. I predicted in an earlier post that the mainstream media will likely pick up on the AOL Instant Messenger Terms of Use controversey that is ripping through the geek scene and the blogosphere (See: PIPEDA and Canadian Privacy Law: AOL makes users waive privacy and purports to own users' instant messages). I may be wrong, but I'm going to do an experiment. I'll try to stay on top of the story to see if the ordinary media pick up on it, if there is a backlash and to see how AOL handles it.

At the moment, the story is mostly confined to the Slashdot, FARK and blog scene. Google News search is showing at least nine stories on the sites it regularly spiders:

AOL Instant messenger users `waive right to privacy
PC Pro, UK - 25 minutes ago
AOL has raised some eyebrows - to say the least - over licence changes to its AIM instant messaging service. Under the revised terms ...

AOL's Terms of Service Update for AIM Raises Eyebrows
eWeek - Mar 12, 2005
America Online, Inc. has quietly updated the terms of service for its AIM instant messaging application, making several changes ...

N0 privacy 4 u, LOL!!!!!
Houston Chronicle - Mar 12, 2005

By DWIGHT SILVERMAN. . . . .by posting Content on an AIM Product, you grant AOL, its parent, affiliates, subsidiaries, assigns, agents ...

America Online updated TOS raises Privacy Issues
TechWhack, India - 9 hours ago
America Online quietly updated their terms of usage of the AOL Instant Messenger which included many changes big enough to upset privacy advocates. ...

AOL's TOS Change Sparks PR Crisis
WebProNews, KY - 21 hours ago
The blogosphere is buzzing this morning over a major privacy change to AOL Instant Messenger's ... The change is sparking outrage because of this quote... ...

No More Privacy For AOL Instant Messenger Users
Gear Live, WA - Mar 12, 2005
At a time when privacy on the Internet is of the utmost importance to many people, AOL has added a new provision to their AIM Terms of Service contract. ...

AIM's New Terms Of Service
Slashdot - Mar 11, 2005
acaben writes "AOL has posted new terms of service for AIM, that include the right for AOL to use anything and everything you send through AIM in any way they ...

AOL kills AIM privacy, Canada - 12 hours ago News:- You no longer have any right to privacy if you use America Online's AIM software downloaded on or after February 5 last year. ...

AOL's TOS Update for AIM hackles privacy advocates
GameSHOUT - Mar 12, 2005
The revamped terms of service, which apply only to users who downloaded the free AIM software on or after Feb. 5, 2004, gives AOL ...

AOL is already feeling the heat. The author of the Houston Chronicle Techblog, Dwight Silverman, had a bit of a back and forth with AOL over the topic: - AOL explains its privacy policy:

"America Online spokesman Andrew Weinstein responded to a request for more information about AOL Instant Messenger's terms of service, which I wrote about Saturday after spotting it on Slashdot.

The terms would appear to indicate that anything generated using AIM is fair game for AOL to use, which would mean private IM communications are not so private.

But Weinstein said that's not the case.

The clause in question specifically refers to something an AIM user might post in a public forum, Weinstein says. He writes:

The related section of the Terms of Service is called "Content You Post" and, as such, logically and legally it relates only to content a user posts in a public area of the service.

If a user posts content in a public area of the service, like a chat room, message board, or other public forum, that information may be used by AOL for other purposes. One example of this might be a user who posts a "Rate a Buddy" photo and thus allows AIM to post it for other AIM users to vote on it. Another might be AOL taking an excerpt from a message board posting on a current news issue and highlighting it in a different area of the service.


Update: Looks like Weinstein spent his Sunday afternoon hittin' the phones & e-mail, trying to put out this fire. His comments have shown up in several other places, including Steve Rubel's MicroPersuasion blog. Note that a Rubel reader responds there, and remains dubious:

Andrew I'm glad you posted here but what you are saying makes no sense. By using AIM it is implied I agree to the TOS. The TOS specifically state:
1) I waive my rights to privacy.
2) AOL can make money off of the content.

Content is defined as: Content - Information, software, games, communications, photos, video, graphics, music, sound and other materials provided by or through the AOL Services.

Communications includes email, does it not?"

This issue is already causing some problems for AOL. I'll keep you posted on where it goes next ...

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