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.
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.
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.
Saturday, April 17, 2010
Sunday, April 11, 2010
Simon Fodden, the head slawer over at http://www.slaw.ca/ has a great post to end the week (The Friday Fillip – Slaw), pointing to a great piece of photographic excellence "We're all gonna die". It's a 100m long photograph of people taken from Warshauer Strasse in Berlin. Go take a look at it, then come back here.
Simon notes that you can't go and see the location on Google Street View, presumably because of the supposed privacy issues that the German government has with street level imaging. That's too bad.
Simon brings up the broader topic of the privacy issues of photographing people, particularly in public places. It's an issue that has come up in all the discussions about Google Street View and other street imaging products out there on the 'net. I've given this topic a bit of thought, being simultaneously a privacy nerd, photo nerd and history nerd. Obviously, taking photos of people raises privacy issues but I don't have much of a problem when photos are taken in public places. People simply have diminished expectations of privacy on a public street. I like that Google and some others have allowed individual "vetoes", so that anyone who does not want to appear online can have the image taken down.
That's not to say that wholesale surveillance is ok, but when the images are being taken primarily of places and the people are incidental, I don't think this is what privacy laws were designed to protect us against. (The line can blur towards stalking or harassment if you follow a person in a public area and continue to take their photo, but that's not at issue here.)
Canadian privacy laws are meant to address commercial activity. To me, this sort of imaging is not "commercial" but fits under the exception of "journalistic, artistic and literary" expression, which is expressly excluded from PIPEDA.
My firm's property department has some great historical publications on the original property grants for Halifax. They include all sorts of info, like what was where, who owned what. For a history nerd, it is fascinating. It's a cool city with a neat history. I've spent hours looking at historical photos of Halifax. Many of them have people in them, which only adds to the value. I don't care who they, but what they are doing, where they are going and what they are wearing add so much to the historical significance of the photos.
I can't wait until the technology has been around long enough so that not only will you be able to stroll down a virtual street, but you'll be able to scroll back through history. Imagine looking at a downtown street in Street View and being able to choose to see what it looked like last year, five years go, ten years ago and fifty years ago. Not only will that be immensely cool, academics will have an incredibly valuable resource at their disposal.
Friday, April 09, 2010
RCMP changes rules for criminal records checks
Late last year, the RCMP changed its policy for access to criminal records information via the Canadian Police Information Centre (CPIC). Reputable companies, up until that point, had been able to obtain police records clearances through local police departments. These clearances were conditional upon the background checking company obtaining signed consent from the individual and making those consent forms available for spot audits. Provided the proper consent was obtained, background checking companies had been able to provide same-day results if the name, address and date of birth provided did not result in any “hits” in CPIC. In most cases, where there may be derogatory information, the individual would have to appear for fingerprinting so that his or her identity could be confirmed. This practice meant that those who had clear records could go on to the next stage of the process for their job application, volunteering application or whatever.
For records where a pardon has been granted for certain sexual offences, a notation is made in CPIC’s databases. It used to be that the police would provide, with the individual’s written consent, confirmation that no such notation exists provided that the person was being screened for working or volunteering with vulnerable populations.
These checks were facilitated by professional background screening companies, in cooperation with law enforcement, who would often be able to provide an “all clear” within the day.
Now, all screening requires fingerprints and about 120 days’ wait. The RCMP is saying that they are simply doing what the Criminal Records Act requires them to do. I don’t buy it. The Act says that the RCMP can disclose the existence of a notation if the person has provided written consent and the check is made for a paid or volunteer position that is one of authority or trust relative to children or vulnerable persons.
According to an article in today’s Globe & Mail, a number of volunteer-staffed organizations have cancelled programs because the 120 day wait cannot be accommodated. What may be worse, some organizations may be foregoing these checks and permitting unscreened people to work closely with vulnerable populations.
This is untenable, in my view. I’m not in favour of widespread criminal records checking where it is not relevant to the position, but these checks are very often relevant for certain employment or volunteer positions. Provided the person has provided clear, informed, unambiguous consent, there is no reason why an “all clear” can’t be given forthwith. I can understand that you would want to avoid the possibility of erroneously saying that a person has a criminal record or a pardoned sexual conviction, so the practice of fingerprinting should continue where there might be a “hit”. But where there is no reason to think a person has a record, that information should be provided right away.
Volunteerism is important. Silly policies should not have the effect of impeding volunteer efforts, nor should they discourage prudent screening that keeps predators away from the vulnerable.
Wednesday, April 07, 2010
One controversial aspect of health privacy laws, at least when they are implemented, is whether hospitals or supporting foundations can use patient information without consent for fund-raising purposes. It appears that Saskatchewan is about to amend the health privacy regulations for that province to permit solicitation after a sixty-day waiting period. See: Saskatchewan gives local health foundations the OK to contact former patients for fundraising purposes.
Thursday, April 01, 2010
A US Federal Court has declared that the Bush-era "warrantless wiretap" program was unlawful. The administration, up to and including the Obama administration, argued that in a time of war, it was lawful to eavesdrop on communications without a warrant, particuarly international communications. The decision is here: http://cryptome.org/alharamain-v-nsa.pdf and the New York Times' has an article on the decision here: Federal Judge Finds N.S.A. Wiretaps Were Illegal - NYTimes.com.
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