All About Information

A lazy day today spent hiding from the heat with Hugo, with Seanna heading up to the Rogers Cup to see Nadal get swarmed by fans.  Tomorrow I’ll paddle five hours, the last long paddle before I cross Lake O (Niagara-on-the-Lake to Toronto) in a couple weeks with Max from Halifax and P.J. from L.A., both who I connected with through this blog. Turns out Max from Halifax is a friend of a friend, which is exactly why I like Halifax so much.

Here are some readings that you might find interesting.

• Dean Jobb, “Courts Struggle to balance privacy and openness in giving access to court files over the internet.“  This is a good news story on electronic filing and access to court documents in Canada.  (The Lawyers Weekly)
• Ralph Losey, “More ‘Must Read’ 2008 Cases - Part One in a Three Part Series.”  Ralph Losey normally does very in-depth analysis of e-discovery cases.  Here, he’s started in on a three-part series of posts featuring bottom-line summaries of the top American cases of 2008.  (E-Discovery Team)
• Tracey R. Rich, “Find Evidence on Your Opponent’s Web Site.”  This is a great article on some fancy internet intelligence tactics, and has some citations to case law on the use of information from the Wayback Machine as evidence. (Law.com)
• John F. Burns, “Decision is Near in Sensational London Trial of Privacy Suit by a Consenting Adult” and “A Trial About Privacy in Which None Remains.”  A fascinating privacy trial regarding International Automobile Federation President Max Mosley, who’s suing The News of the World for breaking a story (and publishing a secretly-taken video) about a sadomasochistic “party” he had with a five prostitutes.  If that wasn’t interesting enough, apparently a spoliation issue has now been raised. According to the Times, there’s a concern that relevant e-mails containing key evidence sent by Mr. Mosley to the other partygoers have been deleted.  (New York Times)
• Jonathan Glater, “At the Uneasy Intersection of Bloggers and the Law.” About a criminal subpoena filed (and ultimately withdrawn) in an attempt to identify the authors of anonymous posts on a political blog called Room Eight. (New York Times)

Enjoy!

Good morning.  Not many posts lately.  I’ve been busy, but have still been trolling for cases and haven’t found too much of interest.  Maybe this whole information and privacy thing is a fad

Here’s what I’ve read recently that you might enjoy.

• Neil Richards, “Intellectual Privacy.” Professor Richards argues that the United States’ First Amendment should protect “intellectual privacy” - “the ability to develop ideas and beliefs away from the unwanted gaze or interference of others.”  He shows that the First Amendment (with its protection of speech and the press) has for the most part been seen to be at odds with privacy protection, but that the core values underlying the First Amendment are not in conflict privacy protection when one considers the value of intellectual privacy.  This value, he further argues, is more threatened in recent times given the recording of our thought processes in databases owned by entities like Google.  He makes a simple, reasonable argument that resonates. (SSRN)
• Matt Richel, “What’s Obscene?  Google Could Have an Answer.” This is a news story about a criminal case in Florida and defence counsel’s plan to introduce evidence from Google Trends in support of an argument on “contemporary community standards.” Apparently people in Pensacola search the term “orgy” more than “apple pie” but less than “surfing.”  Go figure.  (New York Times)
• Anthony Lin, “Malpractice Suit Against Kay Scholer Alleges Discovery Foul-Ups.”  A news story.  The title speaks for itself.  (Law.com)
• Jordan Furlong, “Core competence:  6 new skills now required of lawyers.” This has nothing to do with information and privacy, but I think it’s quite smart.  (Law21)

Nicest weekend for weather this year here in Toronto.  I’m looking forward to a good paddle today, though am sure that dealing with the gong show at the beach will have me yearning for the solitude of winter on the water, 6mm mittens or not.

Enjoy!

Happy Canada Day!  We had a great weekend on Wolfe Island.  There’s no better place than Kingston in the summer, and Canada Day across the harbour with family and friends is also an ideal.  

Here are some things I’ve read lately that you may find interesting:

• Drake Bennett, “Stopping Google.”  This is a very good article that identifies the range of policy issues raised by Google’s amazing success and power.  Hat tip to Professor Frank Pasquale (who’s quoted in the article) and the Concurring Opinions blog.
• Orin Kerr, “Updating the Foreign Intelligence Surveillance Act.”  The most recent University of Chicago Law Review has published 13 essays from a surveillance symposium it recently ran.  The essays are very technical and policy-oriented and not about general information and privacy concepts (which was what I was hoping for).  They are interesting though, and as an uninformed outsider attempting to understand the debate about domestic surveillance, this essay provided a nice and fairly accessible overview.  This is no slight to Professor Kerr, who also makes a solid argument on FISA reform.
• Ryder Gilliand, “Fair Comment and Freedom of Expression in Simpson v. Mair.”  This is Mr. Gilliand’s comment on Friday’s Supreme Court of Canada decision on the fair comment defence.  

In Simpson, the majority not only laid down the law on fair comment, it gave an odd teaser on “the public interest defence of responsible journalism,” presently queued up to be heard by the Court next January in Cusson v. Quon. Though Binnie J. specifically marked this part of his majority decision as obiter, he also showed the majority’s openess to recognizing a special defence for those who publish news and suggested the real debate should be about its nature and scope:  

While the legal position in both Australia and New Zealand was influenced by statutory provisions that have no direct counterpart in Canada, the Canadian law of qualified privilege will necessarily evolve in ways that are consistent with Charter values.  At issue will be both the scope of the qualified privilege (Reynolds is broader) and whether the burden of proof of responsible journalism should lie on the defendant (Reynolds) or irresponsible journalism on the plaintiff  (Lange v. Atkinson).

Enjoy!

Hope you all enjoyed the summer solstice and/or International Surfing Day. Here’s some things I’ve read lately that you might like.

• Peter Lake, “Still Waiting:  The Slow Evolution of the Law in Light of the Ongoing Student Suicide Crisis.” Professor Lake’s latest comment on post-secondary education institutions’ duty of care.  Although he argues that administrators would benefit from development in the duty of care case law, he also suggests that Virginia Tech and its three major reports make the need for action-oriented policy clear.  The idea:  questioning the duty to help individual students at risk can be paralyzing (and the case law doesn’t help), but the link between suicide and the risk of violence perpetrated against others brings a far more clear duty to bear. 
• Anita Kumar, “Judge Agrees to Va. Tech Payout.”  Some related news on last week’s Virginia Tech settlement approval for claims brought by families of 28 of the 32 people killed in April 2007.  The settlement has a public interest component that allows the families to meet with Governor and university and other state officials. (Washington Post)
• Paul Ohm, “The Fourth Amendment Right to Delete.”  Professor Ohm argues that “collect/copy now, analyze later” law enforcement tactics involve the “seizure” of evidence.  Interesting comments on the nature of the proprietary interest in information:  ”Cases like Hicks view dispossession as a simple matter of rivalry:  if you have my locked box, I can’t have it too.  But in the age of nonrivalrous, perfect digital copying, this view of dispossession seems tautological and unhelpful.” (Harvard Law Review Forum)
• Clifford Davidson, “The Wrath of Quon?”  A Proskauer Rose comment on Quon v. Arch Wireless, in which a California court recently held that a communications company violated the Stored Communications Act for allowing an employer to do a non-consensual audit of employee text messages. There is a mention of “operational reality” overriding a clear language in a computer use policy, but Mr. Davidson says nothing in the case appears to restrict employers who give clear notice to employees in order to limit their expectation of privacy.  Includes a link to the decision.  (Proskauer Rose)

Enjoy!

Crazy weather here.  Nearly got fried on Sunday.  Getting stuck out on a paddleboard as a lightening storm rolls in is pretty terrifying eh.  Nothing you can do but paddle like mad for shore and have faith.  It’s warm though, and I’m loving some long paddles.  If this is hard for you to understand check out this picture and you might get it.  Pure magic.

Here’s what I’ve read lately that may be of interest.

• Joel Stashenko, “Split Panel Affirms Warrantless Use of GPS Device.”  About a very interesting search and seizure case from New York.  Questions whether police can lawfully track a vehicle by means of a battery operated GPS device without a warrant. Have not tracked down and read the case. (Law.com)
• Peter Winn, “The Guilty Eye:  Unauthorized Access, Trespass and Privacy.”  This is an academic article I came across while browsing the SSRN.  Mr. Winn, from the University of Washington School of Law, argues that the trespass doctrine is suitable to protect access to information stored on computer systems.  Very interesting and very relevant.
• Darby Dickerson, “Lessons in Collaboration:  Learning from the Post-Virginia Tech Task Force Reports.”   An inspirational essay geared to student affairs administrators by Ms. Dickinson, who’s Vice President and Dean at Stetson University College of Law.

Enjoy!

Seanna’s off in Halifax for a five day sales conference and I’m a single parent for the time being. Hugs walked for the first time today too (pretty much all at once). I’m going to have him doing headstands by the time Seanna gets home.

Here’s what I’ve been reading lately.

• Privacy Commissioner of Canada, “Leading by Example: Key Developments in the First Five Years of the Personal Information Protection and Electronic Documents Act.” There are no new policy statements in here, but it is a great single-source resource for the key jurisprudence on PIPEDA.
• Cathy Delzeil, “Clamping down on discovery: the new rules of civil procedure.” A really nice summary of the impending changes to the Nova Scotia civil rules. (The Lawyers Weekly)
• Ralph Losey, “The lessons of Qualcomm: A wake up call for the legal profession.” Mr. Losey argues that Qualcomm is a reminder that litigators have a duty to the court to ensure their representations about document preservation and retrieval are accurate. He also argues, despite how hard it is to get a handle on our clients’ records as externals, that this duty can’t be avoided by retainer agreements that lay the burden at clients’ feet. (E-Discovery Team)
• Canadian Broadcasting Corporation, “Search Engine” (5 June 2008). Jesse Brown talks to a representative of Proofpoint, a vendor of automated e-mail monitoring solutions, about a study it commissioned on corporate data loss. I haven’t bothered to download the report, but here’s what you pick up from the interview and Proofpoint’s press release: 41% of companies with over 20,000 employees that were surveyed hired people to manually monitor employee e-mail in the last year, 44% of all companies surveyed investigated an e-mail leak of confidential information in the last year and 26% of all companies surveyed fired an employee for breach of an e-mail policy in the last year. Proofpoint commissioned Forrester Consulting, who surveyed 301 American companies with more than 1000 employees. (CBC)

Enjoy!

Finally a beautiful weekend in Toronto!  Here are some things I’ve read recently that you might find interesting.

• Alan Finder, “At One University, Tobacco Money is a Secret.” This is about a restrictive research funding agreement at Virginia Commonwealth University. It includes abnormally strict confidentiality provisions that have drawn some criticism. (New York Times)
• Peter Timmins, “NSW ADT sticks to ‘disclosure to the world’ but policy needs rethinking.” Mr. Timmins lays out some Australian law on the “disclosure to the world” principle, a privacy-protective principle raised in access to information law that deems the good intentions of a requester to be generally irrelevant. (Open and Shut)
• Information and Privacy Commissioner/Ontario, “2007 Annual Report.” Most interesting for me is the comment on privacy versus security in light of Virginia Tech and other recent events. Ms. Cavoukian says, “And our attention is drawn away from real issues at hand: bureaucratic inertia, misguided policies, inefficient practices, and poor judgement.” I don’t think this comment was meant to be a critique of our own educational institutions, who all can be seen to be working hard on this issue, but is nonetheless quite a pointed call to action!
• Linda Greenhouse, “Supreme Court Upholds Child Pornography Law.” A news report on the United States Supreme Court freedom of expression case (R. v. Williams) from last Monday, which the Times has also criticized. (New York Times)

I made contact with Peter Timmins through this blog, and have since been following his Open and Shut freedom of information and privacy blog.  I like the idea that blogging can help build a contact with someone almost exactly half-way around the world with similar interests. I also have a soft spot for Australia because after I articled Seanna and I spent a year there travelling around and camping. We had this idea that we could live on a $5 a day food budget, and still remember standing outside of a MacDonald’s debating about whether we should treat ourselves to an ice cream cone. We also drank a few $4 boxes of wine on that trip! An experience I’ll never forget, and an extremely beautiful country. Check out Open and Shut sometime.

See ya!

Today was a windsurfing day in Toronto.  Philip Soltysiak was out at Cherry Beach, and I tailed him around watching for a while.  It seems like Philip went from being a ten year old that came up to my waist to to an absolute super-ripper overnight.  He’s competing on the freestyle world tour this year and will no doubt do Canada proud.

Here are my most notable reads of the week:

• Sam Bayard, “Crazy Legal Battle Between Newspapers Settles, But Leaves Worrisome Fair Use Decision Intact.”  A report on a now-settled departing employee and free speech case rolled into one.  It details a November 2007 California decision no a summary judgement motion that dealt with whether an article written by a departed journalist and not published his newspaper could be fairly used by another newspaper in reporting on the journalist’s departure.  (Citizen Media Law Project)
• Ralph Losey, “The Days of the Bates Stamp Are Numbered.”  This picks up on an great law review article Mr. Losey wrote last fall and some recent commentary on Law.com, both about the use of hash values in e-discovery.  (E-Discovery Team)
• Peter Applebome, “Trying to Flesh Out the History of a Family That Was Minus One.”  This probes at an FOI policy issue that has recently been addressed in our Ontario FOI legislation with the addition of a new “compassionate reasons” exception  - the right of an individual to seek personal information about a deceased relative. (See here for more on the exception.) Our health privacy legislation also has a slightly narrower exception to permit (but not necessarily require) health information custodians to disclose the circumstances surrounding the death of an individual.  (New York Times)

Enjoy!

Here are a couple links for this week.  The second article is a must-read for those who are interested in the privacy issues raised by Web 2.0.

• Floyd Abrams, “Foreign Law and the First Amendment.” An op-ed on how the British law of defamation values free expression less than American law and supportive of current American legislative initiatives to give courts the jurisdiction to grant declarations that certain speech is protected under American law.  Our own law on this question is arguably in flux after the Ontario Court of Appeal’s decision in Cusson v. Quan, on which leave to appeal to the Supreme Court of Canada was granted in early April.  (Wall Street Journal)
• Hal Niedzviecki, “The Spy Who Blogged Me.”  This is an excellent article from this month’s edition of The Walrus.  Mr. Niedzviecki argues that we don’t balk at surveillance because it is now “woven into the fabric of our culture,” a phenomenon he says is partly due to what television has told us about a the benefits of a new type of celebrity that is accessible to the average Joe and Jane.  He speaks with our federal Privacy Commissioner Jennifer Stoddart about self-surveillance and peer surveillance, and through the dialogue you get the impression that Ms. Stoddart’s significant tool - the Personal Information Protection and Electronic Documents Act - misses the most complex and significant privacy challenges that we face today.  As Mr. Niedzviecki says, “The rules don’t apply to the multitudes of cellphone-camera-pointing bloggers, social networkers, YouTube uploaders, and nanny cam enthusiasts - you have to sue.”  (The Walrus)

What a great weekend here.  Even the rain on  Saturday made for a cozy afternoon.  Possibly even better because I decided to purge the backlog of materials in my RSS reader.  Kind of liberating eh?

Enjoy!

Spring has sprung in Toronto eh? We always seem to time our holidays so we totally miss the winter-summer and summer-winter transitions. If this sounds intriguing, it only takes two weeks of well-timed vacation to generate this special experience.

Here’s what I’ve been into recently during balmy evenings on the back porch.

• Craig Ball, “Time to Catch the ‘Science of Search’.” Mr. Ball addresses the importance of keyword search, the need for search expertise on a litigation team and argues that lawyers should step up. (Law.com)
• Leonard Deutchman, “Steer Clear of the Perils of Self Collection.” Mr. Deutchman writes to litigators who are advising clients who do not opt to use turn-key, professional data collection services. His article is highly relevant and highly practical. (Law.com)
• David Ardia, “Judge Quashes Subpoena to Blogger Kathleen Seidel, Orders Lawyer to Explain Justification for Subpoena.” Mr. Ardia reports on developments in the Seidel subpoena. (Citizen Media Law Project)
• Yuh-Sung Soh, “RBC Dominion Securities: Show me the Money!” Mr. Soh summarizes a departing employee case heard by the Supreme Court of Canada last Friday and that’s one to watch. (The Court.ca)
• Michael Fitzgibbon, “Blawg Review #157.” I didn’t know about the Blawg Review until reading this labour and employment carnival by long-time “blawger” Micheal Fitzgibbon. People like Michael - who points out that he’s maintained his Thoughts From a Management Lawyer blog for five years - led the way for people like me, so thank you Mike and keep up the good work! (Thoughts From a Management Lawyer)