Jury out on what Digital Privacy Act does to privacy, copyright

The Digital Privacy Act, the government’s most recent attempt to update the Personal Information Protection and Electronic Documents Act (PIPEDA), has experts disagreeing about the effect it could have on disclosure of information by telecommunications companies and whether the legislation would open the door for “U.S.-style copyright trolls.” The act, also known as S-4, was tabled in the Senate last week, and allows an organization to disclose "personal information without the knowledge or consent of the individual ... if the disclosure is made to another organization and is reasonable for the purposes of investigating a breach of an agreement or a contravention of the laws of Canada or a province,” Michael Geist, Canada research chair in Internet and e-commerce law at the University of Ottawa, said in a blog post. That stipulation applies to a breach or contravention that “has been, is being or is about to be committed and it is reasonable to expect that disclosure with the knowledge or consent of the individual would compromise the investigation.” In a phone interview, Geist said that under the current legislation, PIPEDA currently forbids this type of disclosure. He said that, currently, companies such as internet providers are allowed to disclose this type of information to law enforcement “but there is no exception … for other private organizations, and this would open the door to those kinds of disclosures as part of any actual or potential or anticipated breach of a contract, breach of an agreement or breach of a law. … It’s very wide-ranging.” Currently, companies will disclose this type of information if ordered to do by a court, he said, as in a recent Federal Court decision ordering ISP TekSavvy Solutions Inc. to turn over the names and addresses of about 2,000 subscribers to Voltage Pictures LLC. “This would actually potentially side-step that entire process,” Geist said, adding that the new legislation would allow organizations to disclose information to other organizations “with virtually no limitation.” David Christopher, communications manager for OpenMedia, said in a phone interview that the legislation threatens to open the door for “U.S.-style copyright trolls,” who on the behalf of media companies send out “thousands” of letters to people they accuse of having violated copyright. Christopher said the letters give recipients the option of paying a certain amount of money to “make all this go away.” “So the business model doesn’t revolve around actually successfully taking people to court, because that would be too expensive for the copyright trolls. It’s basically an effort to scare people into handing over money without any of this going through the judicial process,” he said. If the Digital Privacy Act were to become law, Geist said some ISPs in Canada would not see the need for a court process in such a situation. “You’d get the troll coming along and saying, ‘Provide us with the subscriber information. We believe there is, say, copyright infringement taking place,’ and it would be open to the ISP to do so,” he said. “Now, I don’t know that all ISPs would, but certainly over time we’ve seen that there are some ISPs that have been particularly friendly to the content industry and copyright lawsuits and so might not hesitate to provide that kind of disclosure.” Barry Sookman, a copyright expert and partner with McCarthy Tetrault in Toronto, said arguments that the legislation would precipitate that kind of copyright trolling are “hogwash” and “pure rhetoric.” He pointed out that the economics of those kinds of actions are very different in the U.S. than in Canada. While statutory damages in the U.S. can reach $150,000, those numbers are much lower in Canada, where cases of statutory damages for non-commercial filesharing are between $100 and $5,000. Additionally, he said, Internet subscribers in Canada have already agreed to allow the ISPs to disclose information they’re asked for in cases of violation of terms of service, including copyright infringement. “The reality is, every ISP already has the right to disclose subscriber details if they want to, and if they don’t want to, then they can force the copyright holder to go to court,” he said. “So in practice, nothing is going to change.” Geist disagreed, saying that typically, telecommunication companies, including ISPs, “may include the right to disclose as part of a legal process, but this goes way beyond that.” “Is it possible that there is a telecom company or an ISP that has a policy that permits them to do this? It’s entirely possible. But it’s incredibly privacy unfriendly, and runs counter to the spirit of the law if they do,” he said. David Elder, a communications lawyer at Stikeman Elliott LLP in Ottawa, said that different organizations take different approaches to disclosure. When it comes to civil cases, including copyright, “by and large, I think a lot of service providers tend to take the position that they won’t disclose unless they’re provided either with a warrant or a subpoena or some kind of court document compelling them to disclose.” Elder said that the bill wouldn’t change much for telecommunications providers because CRTC regulations forbid them from disclosing. “They’re all subject to CRTC restrictions on confidentially of customer information, which basically says that you can’t disclose confidential customer information to anyone unless you’re legally compelled to do it,” he said. He said changes in the Digital Privacy Act provide “latitude to do it, but it wouldn’t fit in the definition of legally compelled.” Elder noted that the regulations apply to all telecommunications service providers and resellers, including ISPs. “One of the objectives of the Telecommunications Act is to protect the privacy of persons. And so that has always been an issue to telecommunications service providers, but obviously the same couldn’t be said of other types of businesses this law would give the ability to hand over that information, theoretically,” he said. In an emailed statement, Rogers Communications Inc. spokeswoman Patricia Trott said that the company only discloses customer information if it has a “properly executed warrant, or an order to produce information as required by law.” “We are reviewing the legislation and will continue to monitor the debate as the legislative process unfolds, but we don’t anticipate any changes to our policy,” she said. BCE Inc. and Telus Corp. did not respond to a request for comments. The Digital Privacy Act marks the government’s most recent move to update PIPEDA, something it has attempted in the past. An NDP PIPEDA reform bill was defeated in the House of Commons in January. In a posting on his website Tuesday, Industry Minister James Moore said the act “will not force companies to hand over private information to the police, 'copyright trolls' or anyone else,” and noted that companies that disclose personal information must follow rules outlined in the act, including “that information is only released when there is a reason to believe the law has been broken, the investigation would be compromised by notifying the individual, and that only information needed in the investigation is released.” The posting added that the privacy commissioner can take legal action against companies that break these rules, and that the bill is supported by interim Privacy Commissioner Chantal Bernier. Moore said the act offers “a balanced approach to protecting Canadians’ personal information, while still allowing for information sharing when illegal activity has occurred.” — With reporting by Anja Karadeglija at akarad@thewirereport.ca and editing by Derek Abma at dabma@thewirereport.ca

Jury out on what Digital Privacy Act does to privacy, copyright

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Jury out on what Digital Privacy Act does to privacy, copyright

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