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.

Wednesday, October 24, 2007

Apparently, it's as simple as one word 

The National Post has been running a series of articles on child abuse and child pornography. The last instalment delves into (just sticks its toe into, really) some of the debate that has been swirling around on "lawful access". The article is entitled "Words get in way of saving children" and the word being discussed is "may" in Section 7(2) of PIPEDA. If we could just change "may" to "shall" -- requiring ISPs to identify their customers -- the world would be a safer place for children. If only life were that simple. There really needs to be a much more nuanced debate about this.

Words get in way of saving children

Adrian Humphreys

National Post, with files from Allison Hanes, National Post

Wednesday, October 24, 2007

With a proliferation of horrific allegations in the headlines, Canadians can be forgiven for thinking that child molesters are everywhere. But what is the actual prevalence of the problem, and how should we be dealing with it? In this, the final instalment of a four-part series, the National Post looks at what the law-and-order approach prescribes and how the current system could be fixed.


Changing a single word in a seven year-old piece of legislation -- that was designed to support and promote electronic commerce in Canada -- could help save children from horrific sexual abuse, police officers and child protection advocates say.

It suggests that not all solutions to the problem of child sexual exploitation need to be buoyed by millions in capital infusion, backed by sweeping new laws, clouded by medical debate on effectiveness or spark public controversy over whether being soft or hard on pedophiles best helps curb their urges.

Experts who investigate pedophiles and work to help their child victims say that much more can be done in the realm of law and order to reduce the impact of the sexual predators among us. One of their targets is changing a three-letter word: "may."

Simply swapping the word "may" to "shall" in Section 7, Subsection 2 of the Personal Information Protection and Electronic Documents Act (PIPEDA) would be an easy step towards helping police intercept child molesters and pornographers, child advocates say.

The distinction may seem irrelevant to non-lawyers, but in the backrooms of some of Canada's Internet service providers and in the squad rooms of police forces across Canada there is a world of difference.

"The problem is, these cases move at the speed of light. Files are sent around the world, copied, downloaded and erased in seconds --by the time you get a search warrant it can be too late," said Paul Gillespie, who recently retired as the pioneering head of the Toronto police's Child Exploitation Section.

The existing guidelines on electronic documents state: "an organization may disclose personal information without the knowledge or consent of the individual," under certain circumstances, one of which is to police "carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law."

Police have found that when they have evidence of someone trading in child pornography over the Internet and they want to know where the activity is coming from, not all Internet service providers are forthcoming.

When some providers read the regulations, they see the disclosure of the customer's name and address as an option, not an obligation, and tell officers to come back when they have a court-authorized warrant.

Changing the rules from allowing ISPs to give a customer's name and address to police to requiring them to provide it would help, say police.

Staff Sergeant Rick Greenwood, manager of the RCMP's National Child Exploitation Coordination Centre, understands there are privacy concerns.

"All we care about is the starting point. We're after the customer's name and address," he said. The ISPs are not being asked to turn over billing records or credit card information; they are not giving police access to email in-boxes or Internet histories.

He likens it to a licence plate on a car.

"If you jump in your car and race off along a highway and hit a child, there is something we can do to investigate it. Someone can get a licence plate number or a description of the car," said Staff-Sgt. Greenwood.

"The same should be true for the Internet. If you jump onto the information freeway, you need to be accountable. "

Police would still need to get court authorization for any invasive investigation, such as reading email or tracking Internet activity, officers say.

However, red tape, a lack of resources, and poor enforcement of existing laws all help child abusers escape detection, or at least successful prosecution, activists say.



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