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.
Sunday, June 01, 2008
According to Computerworld Security, Google has started collecting images of European streets for its Street View feature, but is holding off putting the data online until it has figured out the local privacy law challenges. See: Google takes Street View snaps in Paris; lawsuits could follow.
Thursday, May 15, 2008
According to the CBC, Google has started implementing an algorithm to automatically blur peoples' faces in Google Street View. This follows complaints that the online service violates privacy by showing people without their consent. See: Google starts blurring faces on Street View.
Saturday, April 05, 2008
(I couldn't resist.)
Mr. and Ms. Boring of Pittsburgh is suing Google for intentional invasion of privacy since Google's Street View feature shows a picture of the home despite the fact that their street is marked as a private road. The Smoking Gun has the facts and their pleadings:
Couple Sues Google Over "Street View" - April 4, 2008If you look at the pictures of their property, you might think that if the Borings were concerned about their privacy they would have put a fence around their pool. I'm just saying ...
APRIL 4--A Pittsburgh couple is suing Google for invasion of privacy, claiming that the web giant's popular "Street View" mapping feature has made a photo of their home available to online searchers. Aaron and Christine Boring accuse Google of an "intentional and/or grossly reckless invasion" of their seclusion and privacy since they live on a street that is "clearly marked with a 'Private Road' sign," according to a lawsuit the couple filed this week in Allegheny County's Court of Common Pleas. A copy of the April 2 complaint can be found below. According to the Borings, they purchased their Oakridge Lane home in late-2006 for "a considerable sum of money," noting that a "major component of their purchase decision was a desire for privacy." But when Pittsburgh was added last October to the roster of cities covered by Google's "Street View" feature, the Borings allege, their "private information was made known to the public," causing them "mental suffering" and diminishing the value of their home (which cost the couple $163,000, according to property records). The Borings are seeking in excess of $25,000 in damages and want a court order directing Google to destroy images of their home. Click here for some photos of the Boring property, which is now even easier to locate via Google Maps, since the plaintiffs included their home address on the lawsuit's first page. And while they are litigating, perhaps the Borings should consider suing Allegheny County's Office of Property Assessments, which includes a photo of their home (which was built in 1916 and sits on 1.82 acres) on its web site. Here's a screen grab. (8 pages)
UPDATE (2008.04.06): The Wall Street Journal's Law Blog has a response from Google:
There is no merit to this action. It is unfortunate litigation was chosen to address the concern because we have visible tools, such as a YouTube video, to help people learn about imagery removal and an easy-to-use process to facilitate image removal.
As a matter of policy, imagery for Street View is taken in public streets and what any person can readily capture or see in the public domain. Street View is a popular, engaging feature that allows people to easily find, discover, and plan activities relevant to a location.
What's most interesting -- at least from my perspective -- is that this argument doesn't hold much water in Canada. Up here, there are two different privacy laws. There is some caselaw that's similar to tort law in the US suggesting that you can sue for invasion of privacy, if there's been an "unreasonable invasion of privacy". In the US, there is no expectation of privacy in the streets or in a public place and, other than in Quebec, that's probably the law in Canada. The second law is PIPEDA, which is a separate statute that governs all collection, use and disclosure of personal information in connection with commercial activity. Since Google's doing commercial activity, the law requires consent for the collection and disclosure of personal information. (There's some serious doubt that the photo of your house without any other information would be your personal information.) Since street view often includes photos of people, Google would require consent to use those photos for commercial purposes. Since the Google street sweepers do not get consent, there's no easy way to have street view in Canada.
I expect that Google will have technology to blur out individuals so they can take street view to Canada and other jurisdictions where privacy laws would prohibit photos of pedestrians.
Monday, September 24, 2007
According to the Globe & Mail, Google is looking into blurring faces and license plates in its Canadian version of Street View to satisfy the requirements of local privacy laws. This is in the wake of earlier reports that the Canadian Privacy Commissioner, Jennifer Stoddart, had written to Google and Immersive Media with her view that rolling out the service would likely infringe Canada's Personal Information Protection and Electronic Documents Act. (See: Canadian Privacy Law Blog: Privacy Commissioner questions legality of Google Street View in Canada.)
globeandmail.com: Google: we hear (and see a fuzzy rendition of you), Canada
Peter Fleischer, Google's global privacy counsel, said in an interview from Montreal on Monday the company understands Canada has "struck a different balance" than the U.S. has in terms of what is public and what is private, and that Google is sensitive to those differences.
Street View, which has data available from seven U.S. cities but does not yet include any Canadian sites, is a tool that shows users street-level photographs of the addresses they are searching for. Some of the photos, which are being taken by a fleet of cars belonging to Immersive Media of Calgary, show individuals entering adult-video stores and urinating in public.
In comments earlier this month, Ms. Stoddart said that she had contacted Google and Immersive Media to express her concerns that taking photos of people -- even in public -- for such a service might violate Canadian privacy laws.
The United States has "a long tradition of saying that it is legal and appropriate to take pictures from public spaces and publish them," Mr. Fleischer said. "But clearly, we're aware that different countries around the world strike a different balance between this idea of a public place on the one hand and people's expectation of privacy."
Mr. Fleischer said the Internet company doesn't have "an exact timeline" of when Street View might be available in Canada, but said Google is working on it now. Altering the quality of the photos "makes it a little harder for us [to launch Street View in Canada], because it takes a little more work," he said.
Thursday, September 13, 2007
The CBC has a lengthy piece on the quiet consultation I referred to the other day (Canadian Privacy Law Blog: Public Safety Canada Quietly Launches Lawful Access Consultation):
Government moving to access personal info, sparking privacy fears
Government agencies are moving to gain access to telephone and internet customers' personal information without first getting a court order, according to a document obtained by CBCNews.ca that is raising privacy issues.
Public Safety Canada and Industry Canada have begun a consultation on how law enforcement and national security agencies can gain lawful access to customers' information. The information would include names, addresses, land and cellphone numbers, as well as additional mobile phone identification, such as a device serial number and a subscriber identity module (SIM) card number.
The consultation also seeks input on access to e-mail addresses and IP addresses. An IP address is a number that can be used to identify a computer's location.
The document says the objective of the consultation is to provide law enforcement and national security agencies with the ability to obtain the information while protecting the privacy of Canadians.
The document says that under current processes, enforcement agencies have been experiencing difficulties in gaining the information from telecommunications service providers, some of which have been demanding a court-issued warrant before turning over the data.
"If the custodian of the information is not co-operative when a request for such information is made, law enforcement agencies may have no means to compel the production of information pertaining to the customer," the document says. "This poses a problem in some contexts."
It says enforcement agencies may need the information for matters other than probes, such as informing next-of-kin of emergency situations, or because they are at the early stages of an investigation.
"The availability of such building-block information is often the difference between the start and finish of an investigation," according to the document.
Privacy advocates, however, expressed displeasure over both the content and the process of the consultation.
Criticizes short consultation time
Michael Geist, chair of internet and e-commerce law at the University of Ottawa, said the process is not being conducted publicly as two previous consultations have been, in 2002 and in 2005.
The consultation has not been published in the Canada Gazette, where such documents are normally publicized, or on the agencies' websites.
Interested parties have been given until Sept. 27 to submit their comments, which is a short consultation time, Geist said. Several organizations and individuals contacted by CBCNews.ca only received their documents this week.
More pointedly, a number of parties that took part in the previous consultations, including privacy and civil liberty advocates — and even some telecommunication service providers — have not been made aware of the discussion, he said.
"It's really disturbing particularly in light of the fact that they've had two prior consultations on lawful access in the past, so it's not as if they don't know the parties that are engaged on this issue," Geist said.
Officials with the Canadian Civil Liberties Association were not aware of the consultation.
All about appearances?
Jacqueline Michelis, an Ottawa-based spokeswoman at Bell Canada Inc., the country's largest telecommunications provider, said the company was aware of the consultation but would not comment further. Rogers Communications Inc. and Telus Corp., the country's next biggest providers, did not have immediate comment.
Geist said the other problem with the consultation is that it appears as if the government agencies have already made up their minds on how to proceed and are simply conducting it for appearances' sake.
"The fear is that law enforcement knows what it would like to do — it would like to be able to obtain this information without court oversight — and so it has pulled together this consultation in the hope that they can use that to say they have consulted, and here are the safeguards that the consultation thought was appropriate."
Denies document secrecy
Mélisa Leclerc, a spokeswoman for Public Safety Minister Stockwell Day, said the government was not trying to keep the consultation secret and would post the document on the internet on Thursday. The deadline for submissions would also be extended, although no decision on a date has been made yet.
Colin McKay, a spokesman for the privacy commissioner of Canada, said the government agencies have not yet proven that accessing information without a court order is necessary. The commissioner will be making a submission to the consultation on that matter.
"We'd like to see some proof that this is a necessary step because at the moment there is provision in privacy law if necessary and if presented with a legal authority to do it, in most cases that's a court order," McKay said. "That gives Canadians some level of protection."
The Information Technology Association of Canada, which will also be making a submission, agreed and said it would like to see details on instances where telecommunication providers have refused to co-operate with authorities.
"This is about transposing to new technology the same kind of law enforcement we used to have on wire-line phone networks," said Bernard Courtois, president and chief executive officer of ITAC. "Conversely, just because you're going to do law enforcement on new technology people should not lose any of their privacy protection or rights in terms of the nature of investigation."
Canada's move is in contrast to one by the United States, where last week a federal judge overturned a part of the Patriot Act that allowed the Federal Bureau of Investigation to secretly obtain personal records about customers from internet providers, phone companies, banks, libraries and other businesses without a court's permission.
Speaking on the phone from Paris, Peter Fleischer, global privacy counsel for internet search giant Google Inc., told CBCNews.ca that even in the security-conscious United States, courts have moved to curtail excessive attempts by the government at extracting personal information.
A year and a half ago, the Department of Justice obtained a warrant demanding Google turn over users' personal information as part of an investigation into the effectiveness of anti-pornography software that was being tested. Google refused and a judge ending up siding with the company.
"The order we had from the U.S. Department of Justice was a valid legal order under the U.S. legal system, but even then it was excessive and infringed privacy, and was curtailed by a U.S. court when we challenged it," Fleischer said.
Companies operating in Canada, and their customers, should have the same rights here, he said.
"There should be judicial authorization and a valid legal process before a government should be able to compel companies to hand over information about their users."
Ironically, Google on Wednesday came under fire from Privacy Commissioner Jennifer Stoddart for its Street View web photo application. The commissioner said many of the images used by the application could break Canada's privacy laws.
Fleischer would not comment on the matter, but said he would address it when he visits Canada later this month.
Tuesday, September 11, 2007
This is interesting ...
The Privacy Commissioner of Canada has written to Google, asking for comments on the proposition that Google Street View may violate Canadian privacy laws.
Letter to Mr. David C. Drummond, Senior Vice President, Corporate Development and Chief Legal Officer, Google, regarding 3D online mapping technology
Our Office considers images of individuals that are sufficiently clear to allow an individual to be identified to be personal information within the meaning of PIPEDA. The images contained in Immersive Media’s GeoImmersive Database appear to have been collected largely without the consent and knowledge of the individuals who appear in the images. These images now appear in your company’s Street View application. I understand that there is a function within Street View which allows viewers to request that certain images be removed. This is only a partial solution, however, given that individuals may not be aware that images relating to them are on Street View. As well, by the time individuals become aware that images relating to them are contained in Street View, their privacy rights may already have been affected.
I am concerned that, if the Street View application were deployed in Canada, it might not comply with our federal privacy legislation. In particular, it does not appear to meet the basic requirements of knowledge, consent, and limited collection and use as set out in the legislation. I would appreciate your response to the issues that I have raised as soon as possible, given the importance of these questions to the privacy rights of Canadians. Please contact me if you have any questions.
There's been loads of coverage of this issue in the mainstream media. See:
Friday, June 15, 2007
Yesterday, it was reported that people who wanted their photos off Google Street View had to provide a copy of photo ID and a sworn statement. There was also concern that there was no limit to how the info provided could be used. Now, they're backing off all of that and are confirming that the info will only be used for this process. See: Threat Level -- Wired Blogs.
Methinks this is a sign that Google is listening to how its privacy practices are perceived and is taking action.
Friday, June 01, 2007
It seems there's nothing that Google can do without raising privacy concerns.
Yesterday, Boing Boing was buzzing with a number of postings about the newly introduced feature in Google Maps: Google Street View. A similar feature has been around for a while by other providers, but the resolution of the pictures posted by Google are the best I've seen. So good you can look in peoples' windows to (g)oogle their cats, see cats in blankets, see folks taking out the garbage (scroll down a little and click on the little man or the green arrow), scope out sunbathers (more sunbathers) and check out a homeless guy sleeping in an alley. I bet none of them thought they'd end up on the internet.
Is there a reasonable expectation of privacy when you're in a public area or at least visible from the street? Does this change the rules or should the rules be changed?
The Canadian Privacy Law Blog is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 2.5 Canada License.