Santa’s blatant disregard for Canadian privacy law

I was in the midst of my annual ritual of removing the undeserving from my Christmas card list (take that, opposing counsel who would only respond to the senior on the file! Et tu, client who revised a four-page affidavit 18 times on the Friday before a long weekend!) when it occurred to me that my list was a veritable gold mine of personal information. And I knew that I, being a competent lawyer appropriately terrified by both the LSUC and the Privacy Commissioner of Canada, was fully compliant with the privacy legislation protecting all that information.

Then it occurred to me that other people must have lists like mine…bigger, more detailed lists. Lists in the hands of others who might not be so compliant. In fact, I thought, the mother of all Christmas card lists must be Santa’s.

And Santa, I fear, is a lawbreaker.

Santa’s data collection practices are, frankly, scandalous. I attempted to bring them to the attention of Jennifer Stoddart, Canada’s Privacy Commissioner, but her office merely said it “would study the matter.” I may also have overheard the word “whackjob” as I was hanging up the phone. Clearly, they’re worried about lumps of coal in their stockings and have no faith in the federal whistleblower legislation.

Santa, having been declared a Canadian citizen, is subject to Canadian laws, including the privacy legislation, PIPEDA. PIPEDA applies to organizations that collect, use or disclose personal information in the course of their commercial activities.

I can already hear some of you grumbling. Santa isn’t about crass commercialism, you say; he’s about hope and joy and the spirit of the season. Sure, I know Santa’s branding team has pitched him that way, but make no mistake — he is in it for the money and sits atop a complex pyramid of trusts, charities, and off-shore accounts. Santa himself is judgment-proof, with his assets, notably Santa’s Workshop and Santa’s Helpers, protected in registered charities. He’s obviously had top-notch legal advice.

And he clearly collects personally identifiable information…without the required consents or permissions. It’s admittedly hearsay, but we all know “he’s making a list.” While Santa does document the purposes for which he seeks to collection personal information (“to find out who’s naughty or nice”), and I respect his commitment to accuracy (he claims he’s “checking it twice”), he nonetheless collects this information without consent. While consent can sometimes be implied, covert nighttime surveillance (“he sees you when you’re sleeping”) hardly qualifies.

PIPEDA also provides that upon written request, an individual shall be informed of the existence, use and disclosure of his or her personal information and has the right to challenge the accuracy of the information. Santa’s data gathering practices, however, seem immune from challenge. I wrote to Santa asking whether I had been assigned to the Naughty List or the Nice List and requesting that, if I was on the Naughty List, what steps I should take to correct this obviously erroneous designation. I received reassurances from Postal Elf Bob that Santa would respond:

Santa-Privacy-postal-elf-Bob

But when he did, Santa’s response was vague and just went on at length about his reindeer:

Santa-Privacy-email1-1

I also know a money-losing proposition when I see one. Santa flies around the world, delivering toys — for free. Anyone who has been on the wrong end of the billable versus non-billable debate knows that giving stuff away for free is not a sustainable business model, so I can only conclude he must be driving revenue somehow. It’s not through advertising, as I have yet to find a slick Santa marketing brochure under my tree. But Santa has been collecting children’s consumer data for years — he has a database of their preferences for toys and their behaviour, and it’s all tied to the child’s name, age and address. This is the real value in Santa’s operations, as Santa’s largest real estate asset, his workshop, is vast and technologically sophisticated, but is devalued due to its North Pole location and the various infrastructure, supply chain and distribution channel challenges. There is no doubt in my mind that Santa is peddling his database of information to Toys-R-Us or Walmart. I imagine this kind of information is worth millions to them.

With his shoddy data protection practices (yes, he lives in the North Pole in an impenetrable fortress/workshop guarded by the Abominable Snowman…but we live in a global digital economy now and anyone who has watched the Frosty TV special knows snowmen make lousy security guards when the heat is really on), Santa is bound to have a privacy breach sooner or later. And me, I’ll be there. With this new tort of intrusion upon seclusion, just think of the class action possibilities.

Of course, there’s little incentive to complain — the Big Guy trumpets defensively that he uses the information to help the kiddies, as though this justifies illegality (whether this is true in law is still up for debate — stay tuned for the results of Rob Ford’s appeal). If you want a Nintendo, you get one. If you want a drum kit, you don’t ending up sulking with a Furby. Who in their right mind would crash the Privacy Commissioner’s doors complaining about that?

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See my original post at Precedent Magazine.

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Court holds that research lawyers are vital to practice of law

Ok, I may be paraphrasing slightly, but Master B.M. Young in Worth v. Spelliscy, 2012 BCSC 1873  did say that legal research is probably almost always necessary, at least in sophisticated commercial cases.

This case arose as a result of a review under the provisions of the Legal Profession Act, S.B.C. 1998, c. 9, of eight legal accounts rendered by the solicitor to the applicant. The underlying matter was a failed investment scheme having to do with an RV development in the Shuswap region of B.C.

Master Young, in his review of the accounts, had this to say about the fees charged in respect of legal research on the matter (para. 91):

 The second area of criticism was that the solicitor spent 21 hours conducting legal research and charged the clients $5,250. I find this to be a reasonable use of time. It is to be expected that a skilled and experienced lawyer will conduct legal research prior to drafting a claim, in order to ensure that he addresses all of the elements of the claim that need to be proven. In simple pro forma claims, it may not be necessary, but in complex commercial litigation claims, I suspect that it is always necessary to determine the current state of the law.

Does this create a new standard of care? Is failing to bring a sophisticated legal researcher onto a commercial file courting a negligence claim? Unlikely – but I’ll be bookmarking this case and happily circulating it to those who grumble about why legal research is even necessary and how much it costs.

[Hat tip to Eric Gertner of McCarthy Tetrault, who brought this case to my attention].

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Zombie Law

I realize I could be applying my skill and talent to compelling issues in international trade arbitration or assisting with developing the jurisprudence on conflicts of interest. And I will. But right now, there’s Zombie Law – a piece I wrote for Precedent Magazine.

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The hidden threat of turkeys

Like many Canadians this weekend, I will be gorging on turkey and, shortly thereafter, falling into a food coma. This is the annual Thanksgiving tradition, and I give thanks for it (and for many other things, but that’s not the point of this blog).

The radical vegetarian faction of my friends give me grief around this time of year. Turkeys are living beings, beautiful in their creation, they say, and humans should respect that. And, apparently, the way we should respect that is by choosing Tofurky, the bird-free turkey. There is a certain truth to what my friends say; however, they are clearly oblivious to the dark side of turkeys.

The Royal Society for the Prevention of Accidents, a U.K. organization which keeps track of the ways the locals manage to maim themselves, has tracked a “representative sample of hospital attendances” to conclude that in 2002 (the last year for which data was available) “chicken, swan, duck etc.” injuries numbered 86 (broken down into 68 “household” injuries and 18 “leisure” injuries, a reporting strategy which, frankly, just raises a lot of questions). From this, they estimate that nationally, over 1700 poor sods suffer these types of injuries every year (for perspective, “wild fish” only caused 14 injuries; “bunches of flowers/bouquets/posies” caused 39 injuries). From this, it should be clear that turkeys are not docile, benign creatures. They are a national threat.

Turkeys concentrate their mayhem around Thanksgiving Day. Thanksgiving, at least in the U.S., is the leading day for cooking fires, with three times as many as on an average day, according to the National Fire Protection Association. While most Americans are counting their blessings, firefighters are putting out nearly 4,300 blazes.

More recently, turkeys have used their allure to tempt unsuspecting home cooks to deep fry them. These turkeys are the suicide bombers of the feathered set, and the Department of Homeland Security has finally recognized this, last year releasing this ominous tweet  that linked to this terrifying video.

Turkeys have traditionally broadly targeted the middle class, but are getting increasingly media savvy and have attempted to take out high-profile Canadian targets as well. William Shatner recounts his near-death turkey experience in this video.

He’s not alone in courting turkey peril. According to the Turkey Farmers of Canada website, Canadian households consumed a total of 9.6 million whole turkeys in 2008.  At Thanksgiving alone, 2.7 million whole turkeys were purchased by Canadians. That’s 39% of all Canadian households. We consume 4.5 kg of turkey per person; in the U.S., that number jumps to 8.0 kg per capita (it’s the highest in Israel, at 10.5 kg per capita).

This insidious infiltration of turkeys has had an effect on the social and cultural fabric of Canada, as government social programs strain under the cost of rehabilitating brave Canadians who have fallen as a result of turkeys.

For instance, CanLii (search terms: turkey and Thanksgiving) returned 23 hits, almost all having to do with workplace and safety proceedings. Satisfying Canadians’ hunger for turkey causes injuries – lots of them: elbow epicondylitis, cubital tunnel syndrome, impingement syndrome, just to name a few of the most common. Decision No. 490/11, 2011 ONWSIAT 1546 (CanLII) recounts a giblet-stuffing injury that clogged the courts for seven years until appeals were exhausted and benefits restored.

The Thanksgiving turkey onslaught is hardest on the frontline troops – the increase in turkey purchases increases the weight an average worker handles: WCAT-2010-00366 (Re), 2010 CanLII 22364 (BC WCAT). It causes labour strife related to pre-Thanksgiving vacation blackouts: Food and Commercial Workers, Local 1400 v. Sobey’s West, 2010 CanLII 77808 (SK LA).

Even where turkeys are given by employers as gifts, the courts have held that turkeys received by a taxpayer from an employer must be included in income pursuant to the Income Tax Act: McGoldrick v. Canada, 2004 FCA 189 (CanLII).

Turkeys have even undone claims for damages. In B.C. Teachers’ Federation v. Thorne, 2010 BCSC 953 (CanLII), a schoolteacher had claimed disability benefits from her employer and when the benefits were cancelled, she launched a claim for general, aggravated, exemplary and punitive damages seeking $950,000, a claim that was ultimately dismissed. Why? At para. 290: “…Ms. Thorne was filmed choosing a frozen turkey at the grocery store – bending over the freezer chest, picking up a turkey, putting it in her cart, bending over again to inspect and remove it, choosing another….”.

My friends, turkeys pose a clear and present danger to the people of Canada (and elsewhere, though the Americans may have brought some of that on themselves with the whole deep frying thing…). This Thanksgiving, I exhort you to ignore your vegetarian friends and turn your back on PETA. Instead, fight your family members for that drumstick, ask for second helpings and crack that wishbone without guilt – rest easy (probably with the top button of your pants undone) that your consumption of the wily turkey is completely justified.

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And now….robot-tunas

My last post about robot planes proved to be prescient. Not only should Canadians be concerned about the privacy and legal implications of surveillance by unmanned drones, it appears the authorities may also be playing peekaboo with our underwater activities.

That’s right – the US Department of Homeland Security has invented a robot tuna (they prefer the much sexier term BIOswimmer) which can swim about underwater and monitor harbours, bridges and so on.

Robot Tuna

Now, since Canada is surrounded on three sides by water, robot tunas might make some sense. But we should have a made-in-Canada solution: robot beavers.

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I, for one, welcome our new robot-plane overlords

It’s no surprise that I like information; it is, after all, my stock in trade. It is also a pitfall, as I have a tendency to tumble down obscure research rabbit holes and emerge, blinking, into the bright light of day several hours later (for the sake of my client’s bills, I indulge in these flights on my own time).

I stumbled into one such rabbit hole recently, and, having emerged, I’m smarter, but a great deal more paranoid. It turns out we are being watched.

Several weeks ago, with little (read: no) fanfare, Ontario’s Information and Privacy Commissioner (IPC) released a new paper on drones entitled, “Privacy and Drones: Unmanned Aerial Vehicles”.

Drones, or unmanned aerial vehicles (UAVs) are what you might think – essentially robot planes that fly under the control of an operator who isn’t actually on board. At their most innocuous, they are radio-controlled model airplanes that enthusiasts fly in my park on weekends, the mosquito-like whine disrupting my afternoon. At their most complex, they are associated with military activity and can be the size of a Boeing 737 and pack sophisticated communications, surveillance and weapons technology.

I am familiar with the use of drones in places like Afghanistan. But never having encountered any drones at King and Bay, I didn’t think this was a pressing issue in Toronto, or even Ontario.

Boy, was I wrong. First of all, drones are already in use in Ontario. And Saskatchewan and British Columbia. In fact, in 2007, the Kenora Police Service set a precedent when photographs of a homicide scene, taken from a UAV, were admitted as evidence in a trial for the first time. The Kenora police used a snappy little commercial number called the Draganflyer X6  made by, that’s right, a Canadian company.

Draganflyer-X6

Turns out we’re not only using them, we’re making them for a market that was US$6 billion in 2011, and expected to double in ten years.

Second, the IPC reports that are more than 220 UAV-related firms in Canada, with the sector supported by 38 postsecondary institutes and 60 government organizations that have an interest in UAVs. Feeling left out? That’s all right – for a mere US$ 330 at BestBuy, you can pick up the Parrot AR. Drone Quadricopter, which can be controlled using an iPhone or iPad and streams back live images from its camera. You, too, can upload realtime videos of your topless sunbathing neighbour to YouTube.

Parrot AR.Drone 2.0 QuadricopterI

Paranoid yet? (if the answer is no, then see how artists at Ars Electronica Futurelab have used this device, and be truly amazed its nimble otherworldliness . You can run, but it’s pretty likely you won’t be able to hide).

The IPC raises some fascinating legal and privacy concerns. Drones have unique vantage points and offer greater image-gathering capacity than fixed surveillance, and can create sharper video images at greater distances, often with infrared and thermal imaging capability. Combined with facial recognition programs, drones can be used to continuously track individuals in public and private. This disconnected surveillance (never mind advanced capabilities to deliver or retrieve objects) creates some interesting legal dilemmas.

The more sophisticated technology becomes, the more likely that it will be capable of intruding upon a reasonable expectation of privacy – with the result that a warrant ought to be required. This is the IPC’s view, and it recommends that the use of drones by the state (including law enforcement) should require a warrant if it will involve “sustained surreptitious surveillance”. This is consistent with the Supreme Court of Canada ruling in R. v. Wise, [1992] 1 SCR 527 that held that the warrantless installation of a tracking device on a vehicle on a public roadway raises Charter concerns). The IPC is calling for greater public debate and consultation in Canada.

The IPC has also recommended in most applications of UAVs, it may be appropriate to have software loaded on to the device that obscures faces (which would seem to defeat the whole facial recognition point), particularly if the video stream is being recorded.

In addition, the IPC advocates federal amendments to Transport Canada aviation regulations to require drone operators to obtain a special flight operations certificate that would involve a privacy protection program (today, much like in the early days of the automobile, pretty much whoever can afford one can fly one).

In terms of private use of UAVs, the Court of Appeal recently created the tort of “intrusion upon seclusion” in Jones v. Tsige [2012] ONCA 32. This would seem to open the door to some interesting drone-related lawsuits – for instance, do privacy interests and airspace intersect? Or is the air above my backyard considered public? Am I within my rights to shoot one of these things down? Just how close am I allowed to get to that police officer/movie star/nuclear reactor?

The report is only 30 pages and makes for some interesting reading, and even more interesting thinking.

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Playboy Bunny Manual 1968

What, I hear you mumbling, can the 1968 Playboy Bunny Manual possibly have to do with law? I was asking myself that same question, as I desperately searched for some connection which would justify posting it here. And – voila! – the Bunnies were given tax advice. It’s all there, on page 20:

This, frankly, is but the tip of the iceberg. Lest you think the Bunnies were little bits of inconsequential patriach-pleasing eyecandy, think again. The Bunnies had rules, were subject to the supervision of an eagle-eyed “Bunny Mother” and were metric’d to the hilt with a complex system of merits and demerits that could lead to eviction from the Bunny Mansion.

Frankly, the Bunny Manual is more complete than most associate handbooks and law firms could do far worse than adopt it (though the requirement of  “clean and fluffy cottontails”  (p. 23) for every event may require some modification lest the firm attract the ire of the Law Society).

The entire Bunny Manual is available on the Retronaut site.

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