The Canadian Association of Law Libraries (CALL) has just published summaries of many of the sessions at its most recent annual conference held in late May in Winnipeg. Here are a few of the sessions for which CALL has prepared summaries (the list is not exhaustive):
The nation’s colleges and libraries have a message for the Federal Communications Commission: Don’t mess with net neutrality.
Echoing almost a decade of pro-neutrality sentiment in academe, 11 higher-education and library groups released a set of 11 principles on Thursday that promote the notion that all Internet content, regardless of origin, should be treated equally.
The 11 principles—meant to guide the FCC as it considers new open-Internet rules—include recommendations to prohibit the blocking of legal websites, ensure neutrality on public networks, forbid paid prioritization in the transmission of some content over others, and adopt enforceable policies.
Before adopting enforceable policies, though, the FCC will have to find some that stand up in court. In January the U.S. Court of Appeals for the District of Columbia Circuit vacated the commission’s existing net-neutrality rules. The FCC responded in May by saying it would propose new rules that could permit telecommunications companies to charge extra for high-speed delivery of content. Net-neutrality advocates worried then that the new rules, if unchanged, could prove detrimental to cybereducation and research collaboration, among other uses of the Internet.
In a news release accompanying the principles, the 11 organizations said the scheme proposed by the FCC would allow Internet-service providers to “give enhanced or favorable transmission to some Internet traffic, block access to certain websites or applications, or otherwise discriminate against certain Internet services for their own commercial reasons, or for any reason at all.” The organizations worry that a paid-prioritization model would shut out many nonprofit institutions.
“Libraries and higher-education institutions that cannot afford to pay extra fees could be relegated to the ‘slow lane’ on the Internet,” they said.
The public-comment period for the most recent FCC proposal runs until July 15. Although the principles laid out on Thursday do not constitute an official filing with the commission, several of the organizations that signed the statement of principles will also submit a more detailed and legally oriented response to the FCC before the comment period expires.
The organizations that signed Thursday’s principles are:
Quebec’s new government wants to ensure that all farm workers have the right to unionize and collectively negotiate working conditions with their employers. Minister of Labour Sam Hamad has introduced Bill 8, An Act to amend the Labour Code with respect to certain employees of farming businesses, which would require small farms to let a union represent their employees.
The Bill would apply to “farming businesses,” which are defined as:
“An enterprise that is operated by a producer within the meaning of subparagraph j of the first paragraph of section 1 of the Farm Producers Act (chapter P-28) and ordinarily and continuously employs fewer than three employees.”
The Bill includes the following key provisions:
This is an important step towards full recognition of the freedom of association of migrant farm workers. This Bill is also in line with a judgment of the Quebec Superior Court rendered March 11, 2013 that invalidated a provision of the Quebec Labour Code restricting access to unionization in small family farms.Brief commentary on Quebec’s Superior Court judgment rendered March 11, 2013
In March 11, 2013, based on a decision by the Québec Superior Court, farm workers, those employed on small farms in Québec, won the right to bargain collectively. The ruling by Justice Thomas M. Davis found that Section 21 (5) of the Québec Labour Code, which stipulates that agricultural workers are excluded from collective bargaining on farms that have three employees or less working on a year-round basis, is constitutionally invalid.
The decision stems from a Charter challenge by the United Food and Commercial Workers (UFCW) Canada filed at the Québec Labour Commission in July 2008 where it was seeking certification of a bargaining unit constituted exclusively of migrant workers from Mexico. UFCW Canada argued the section of the Code violated freedom of association rights under both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms because it denies agricultural workers employed on farms that have three or less employees, the right to join a union and bargain successfully. The challenge also argued the legislation violated the equality section (15) of the Canadian Charter in that it was discriminatory towards farm workers, and particularly, migrant workers. Section 15 of the Charter provides that individuals have “the right to the equal protection and equal benefit of the law without discrimination”.
Justice Davis ruled that,
“in relationship to agricultural workers who work on farms which ordinarily and continuously employ less than three workers, Section 21 of the Code is discriminatory as being a significant hindrance on their ability to exercise their fundamental right of freedom of association.”
However, Justice Davis upheld the Commission’s decision to rule against UFCW Canada’s Charter Section 15 argument, ruling
“any differences in treatment does not arise as a result of their status as migrant workers, but rather as a result of the nature of the industry in which they work.”
Following this judgment, the Quebec government had a year to make changes to the Quebec Labour Code; instead the government decided to render inoperative section 21 (5). And this year, proceeded to introduce in Bill 8 special provisions into the Quebec Labour Code for employees of farming businesses that ordinarily and continuously employ fewer than three employees.
We have reviewed a lot of iPad keyboard cases. Here are some of them:
In the end, Randall picked the Logitech cases as the best. But I recently received a Brydge+ with Speakers to review. The Brydge+ is a full-size, all-aluminum Bluetooth keyboard that basically turns your iPad into a small laptop. Build quality is excellent, although you might notice that the lines on the Brydge+ make it look more like a MacBook Pro than an iPad.
Since I no longer have a full-sized iPad, I delegated the testing to my wife, who is a staff attorney for the educator’s union in Minnesota. Her offices uses Windows, but Jess almost never uses a regular computer when she isn’t at work, even for doing work. She has my old ThinkPad, but I bet she hasn’t powered it on more than twice in the last three months. Instead, she uses her iPad 2 for almost everything she does when she is not in her office.
Here is what she liked and didn’t like about the Brydge+ with Speakers.
First she says it is really great for typing. She really likes the keyboard as a keyboard. And battery life is great (without the speakers turned on, anyway). She’s charged it maybe once in the last month. If battery life is a concern, though, you will want to keep the speakers off (there is a hard switch for this, so it’s easy to keep them off until you need them). They are nice if you want to listen to a voicemail or play some music in the background, but they do drain the battery quite a lot faster.
Jess mainly attaches the keyboard when she is actually doing work (answering emails, taking it to meetings, and using the iPad more like a laptop). She especially liked it during a three-day conference, because she was able to keep up with her work without any major compromises.
And the weight of the keyboard means the iPad isn’t tippy. It stands up well, like a laptop ought to, instead of tipping over from the weight of the iPad like many lighter-weight keyboard covers have an annoying tendency to do.
On the negative side, Jess said the Brydge+ isn’t easy to get on and off of the iPad. She doesn’t like leaving it on all the time because she still likes to use her iPad as a tablet most of the time — for reading her favorite blogs, catching up on email, and other stuff. She doesn’t actually want a laptop all the time, after all. Just when she needs to get work done.
(When I mentioned the Logitech Ultrathin cover, she said “oh, I’d love one of those” because all you have to do is drop the iPad into a slot instead of maneuvering it into the grabber things on the Brydge+. Of course, the Logitech Ultrathin is less laptop-y, as well.)
It doesn’t actually protect the iPad very well, either, since it’s just a cover and not a case. And if you want to want to take the Brydge+ off of your iPad, you have no protection at all. It means you may want to carry a protective sleeve or a case with you, if you are worried about your iPad. But that means extra bulk, which seems silly when you are carrying an iPad.
All in all, Jess really likes the Brydge+ with Speakers. It lets her get more done with her iPad so she doesn’t need a laptop.Summary
The Brydge+ with Speakers is a full-size, all-aluminum Bluetooth keyboard that basically turns your iPad into a small laptop.
Rating: 4 (out of 5)
Brydge+ with Speakers, reviewed by Sam Glover on July 10, 2014.
It’s National’s turn (finally!) to host a Twitter Chat with CBA Futures. The topic: What will it take for lawyers to learn to play with others?
It might strike some as an odd choice of topic. Lawyers are a versatile bunch, capable of representing clients in a variety of industries. They’re good at learning about different businesses and the challenges they face. Inevitably, in practicing their trade, they regularly come into contact with a wide array of professionals.
But that doesn’t mean that they listen to diverse points of view when it comes to running their own affairs.
Part of the reason for this is the regulatory framework that governs the profession. Law firms stand out from other businesses in that they have to be entirely owned and controlled by lawyers (though in Quebec it is possible to set up a professional corporations where up to 50 per cent of the firm is owned by non-lawyers.) And to the extent that non-lawyers provide services within a law firm, lawyers must directly supervise them. What’s more, there are rules that prohibit fees from being shared by lawyers and non-lawyers.
These rules, over time, have shaped how lawyers view working with others.
Market forces are also behind this state of affairs. Over the years, lawyers have tended to focus on specialized practices and, as a result, don’t make much of an effort to get a holistic understanding of a situation.
And yet, clients want greater choice in the provision of legal services. They are seeking more complete solutions to their problems. Why shouldn’t they be able to approach a law firm for both legal counsel and accounting or tax advisory work? What’s wrong with a family law practice offering financial planning advice as a complement to legal services?
Defenders of the status quo point to regulatory concerns – namely those surrounding solicitor-client privilege and the potential for conflicts of interest that can arise from multi-disciplinary service offerings. But can’t we come up with solutions that will assuage these concerns?
Beyond the regulatory issues, the divide between lawyers and non-lawyers is also deeply rooted in firm culture, though to be fair, there are examples of law firms out there slowly coming around to the idea that multi-disciplinary thinking might not be a bad idea.
Still, learning to play with others is a complex skill that develops over time. It requires treating others as equals and letting them take turns. It also involves negotiation, cooperation and concession. In a team setting, it means knowing when to defer to the proper experts as circumstances may require. It involves a shift in culture.
So here are a few questions for those of you who will join us on the next Twitter chat:
We’d love to hear from you.
Join Yves Faguy for a CBA Futures Twitter Chat (#cbafutureschat) on Tuesday, July 15 at 1 p.m. ET. Follow us @CBAnatmag.
See more at: cbafutures.org.
The business of law is increasingly competitive and success requires us to challenge long held beliefs that could be hurting your practice. See how many of the following myths you’ve been holding on to and consider if you’re ready for a new perspective.
I know my clients well enough – Surveys and client interviews tell us differently. The gap between what a lawyer knows about the client and what the client reveals to a third party (best if it’s someone other than the client’s lawyer) varies, but the gap is ever-present. The gap in and of itself is not so worrisome if lawyers would accept it and instead, dig a little deeper where opportunities among exceptional clients may exist. I had one very business savvy managing partner tell me recently that he was knocked over when he discovered a long term client had other business interests that suggested a significant business development opportunity. That was probably a month ago and that managing partner is still shaking his head.
For your most active clients and referral sources, ask questions, be curious, do your research, stay in touch and discover what you don’t know yet. In the meantime, always mind the gap.
Your website is your online presence – It’s not. Others are talking about your lawyers and your firm online in other formats. We are no longer in control of our own online reputation or profile. Good or bad, others are influential in the decision-making of some of your clients. Online listening strategies will help reveal how your firm has been evaluated and what clients (and others) are discussing about your lawyers. This is just one reason why your firm should be participating in social media.
At a recent law firm retreat, I presented a favourable Yelp review of the firm and one of its lawyers. I took a small risk that most of the lawyers in the room already knew of this review and might even be able to recite some of the amusing parts of this review. Aside from the lawyer celebrated in this review, none of the other lawyers had seen it before. It might have been just one review, but the “reviewer” had more than 800 people following her. Influential indeed.
Using free online materials such as massive open online courses in traditional classes can help colleges teach more efficiently without harming students, according to a long-awaited report from Ithaka S+R, an education-technology nonprofit group, and the University System of Maryland.
However, the report notes practical barriers that might make it difficult for professors to incorporate MOOCs or similar materials into their classes without incurring other costs. Those costs might limit any gains in efficiency, according to university officials.
In their study, researchers closely tracked 17 courses at universities across the Maryland system that incorporated “interactive online learning platforms” into existing courses, including 14 that used MOOCs from Coursera. (Some courses used online software from the Open Learning Initiative and Pearson.)
In seven of the experimental courses, the researchers compared the student outcomes with those in sections without MOOC components; in the other 10, the researchers prepared case studies detailing the experiences of instructors as they attempted to meld the MOOCs with their own teaching.
Several of the experimental courses reduced the amount of time students spent in class with professors—an attempt to gauge whether interactive materials might allow universities to chip away at the cost of holding face-to-face sessions. Another goal of the study was to examine the costs of having professors teach their courses with online content that had been created by professors at other institutions.
The findings were largely positive. In the side-by-side tests, which involved large, introductory courses, students in the hybrid sections “did as well or slightly better than students in the traditional sections in terms of pass rates and learning assessments,” wrote the researchers. That finding “held across disciplines and subgroups of students.”
Faculty members, meanwhile, reported a number of benefits that came with using MOOCs, including “the ability to redesign classes without creating online content from scratch,” and “replacing textbooks with more engaging content.”
Not everything went smoothly. Using pre-made MOOCs spared the Maryland professors from recording videos and designing content of their own, but they “had to work through many types of implementation challenges, including fitting sometimes poorly matched content into their courses and technology-integration problems,” according to the researchers.
Redesigning courses to incorporate MOOCs ended up taking more than 150 hours in some cases, suggesting that making existing online materials dovetail with the needs of existing professors can take as much time and effort as building a MOOC from scratch.
There were also effects on students that, while hard to quantify, were arguably harmful. Students in the experimental sections often reported being less satisfied with their experiences, even if they learned the material just as well as students in the traditional sections. Many of them said they wished they’d had more time with their professors. “Students place a high value on their personal experiences with faculty,” the researchers wrote.
The authors nonetheless struck a positive tone over all, noting that using the online materials and reducing face time with professors did not seem to affect the academic performance of “disadvantaged or academically underprepared students.”
“Our findings add empirical weight to an emerging consensus that technology can be used to enhance productivity in higher education by reducing costs without compromising student outcomes,” they wrote.
Many Subjects, Many Students
The Bill & Melinda Gates Foundation announced the Maryland study in late 2012, as the MOOC wave was beginning to crest. The foundation committed $1.4-million to the project. Ithaka S+R, a nonprofit research group that has produced several influential reports about technology and higher education, led the project.
The final report arrives, more than 18 months later, as MOOCs have mostly receded from conversations about how online technologies might transform higher education. Professors continue to create and teach free online courses on the side, but there is scant evidence to suggest that MOOCs have changed much, if anything, about credit-bearing courses at universities.
The results of the Maryland study suggest that MOOCs can be useful resources for professors teaching a range of subjects to students with varying academic backgrounds. The case studies detailed in the Ithaka report include upper-level electives in English and studio art, a midlevel genetics course for biology majors, and general-education courses for first-year students.
In most of those cases, students and instructors found the MOOC material helpful. In a studio-art elective at Bowie State University, students were assigned to watch all the videos and complete all the assignments in a Coursera course called “Critical Thinking in Global Challenges,” created by professors at the University of Edinburgh. The course met just as often as it normally did, but class discussions and the final project revolved around the content of the MOOC.
Students complained that the MOOC “seemed like a separate course.” But they also reported that they “learned more in this course than a usual lecture course,” and the professor was left with the impression that her students “had better critical-thinking skills in this course than usual.”
Marguerite Weber used a MOOC from Duke University, “Think Again: How to Reason and Argue,” to teach an entirely different group of students: first-year students at the University of Baltimore, an urban institution with an “access mission.”
Ms. Weber is the university’s director of student academic affairs and academic initiatives, but she also teaches. Last fall she taught two courses, “Introduction to Literature” and “Introduction to University Learning,” to a group of just over 20 students, many of whom had been required to complete a “bridge” program the previous summer as a condition of being accepted by the university.
The professor held classes for each course once a week, which is less than usual. In addition, the students were asked to attend a weekly “MOOC session” at which they would watch videos and complete exercises for the MOOC under the supervision of a student assistant.
It went well. Ms. Weber reported that her students’ papers and oral examinations were better than they had been in the past, although she credited the coaching provided by her student assistant as much as she credited the Duke professors and their MOOC.
Asked in an interview if she thinks using MOOC materials might allow professors to teach more course sections by reducing the amount of time they spend with each one, Ms. Weber said, “I don’t think there’s enough evidence for that.” She added: “I think it’s theoretically possible, but I think the best use of a professor’s time is really giving more thorough feedback, especially for first-year students.”
MOOCs That Aren’t Free
For the Maryland system, the usefulness of Coursera’s MOOCs might be a moot point.
The company and its university partners allowed the professors to use their course materials free during the Ithaka study, but Coursera forbids people to use its courses “as part of any tuition-based or for-credit certification or program for any college, university, or other academic institution without the express written permission from Coursera,” according to its terms of service.
If a university wanted to use a MOOC from Coursera as part of a tuition-based program, it may have to pay a fee.
MJ Bishop, director of the center for academic innovation at the Maryland system, said in an interview that whether the professors continued to use the Coursera materials in their courses depended upon “whether we’re going to have access to the materials or not.”
Coursera was generous during the experiment, said Ms. Bishop, waiving licensing fees and providing lots of technical support. But she does not think it is “within Coursera’s business model to provide the kind of support they provided this time around” in future semesters. It is difficult to predict how such a change would affect the cost of using MOOCs at Maryland in the future, said Ms. Bishop, except that it’s likely to be higher.
The lessons of the Ithaka study are not really about MOOCs but about open educational resources, said Ms. Bishop. The Maryland system is now discussing how to continue incorporating online materials that its professors can use free.
One access point is the EU Open Data Portal: https://open-data.europa.eu/en/data/dataset/iate
The main Website is at: http://iate.europa.eu/
The download page is at: http://iate.europa.eu/tbxPageDownload.do
The search interface is at: http://iate.europa.eu/SearchByQuery.do
Here is the description, from the Website:
IATE stands for InterActive Terminology for Europe. It’s the shared terminology database of the institutions of the European Union. Its main aim is to facilitate the task of the translators working for the EU, but will hopefully also be useful for other EU staff and for the public in general. [...]
The domain classification system used for IATE entries is the EuroVoc thesaurus. [...]
There are at present about 8.6 million terms in IATE, distributed through approximately 1.4 million entries. [...]
IATE is the shared responsibility of all EU institutions and bodies involved in the project (European Parliament, Council of the EU, Commission, Court of Justice, Court of Auditors, European Economic and Social Committee, Committee of the Regions, European Central Bank, European Investment Bank, Translation Centre), and is hosted by the European Commission in Luxembourg. [...]
Matchbox-keyboard is an on screen ‘virtual’ or ‘software’ keyboard which works well for small touchscreen TFTs connected to a Raspberry Pi.Matchbox-keyboard also uses XML files to specify the layout of the keys, which makes it highly customizable.
If the idea of learning a productivity system like Getting Things Done is keeping you from being more productive, here is a simple practice that requires nothing more than reading this pretty-short blog post. The best part: it will instantly make you more productive, every day.
Most Important Tasks (MITs) is a simple idea that (I think) was first outlined on the Zen Habits blog. At the beginning of each day, sit down and write down the two or three things you must do that day. No matter what else you do that day, get those things done.
Three seems like a small number, but if you strive to accomplish at least three things, you will have done something besides just putting out fires. And working from a short list of MITs is a lot easier than working from the huge lists you probably have in your practice management software or your GTD system. That helps you to be more productive.
You can write down more than three things — I have five today. But make sure you can realistically complete all the tasks during your day. Don’t put down “draft motion for summary judgment” if you haven’t even started it yet and it isn’t due for a week. That’s probably not a must-do-today task, and it is too big a task for one day, anyway. Try something like “draft statement of facts” instead.
If you like, you can put together your MITs the night before. That is what I do, actually. I spend a few minutes looking at my inbox, reviewing our project management software, seeing what is coming due in Remember the Milk, and checking my calendar. Then I write down my MITs for the next day. I do it at night because it helps me get to sleep if I know I already have done my planning for the next day.
If you finish all your MITs, you obviously are not done for the day, but you should feel better knowing you have already had a fairly productive day. So if you finish, go back to your to-do lists or inbox and pick another task or three to try to complete before you are finished for the day.
I even do MITs for the weekend, although I let my kids help with that. So things like “go to the Pumphouse Creamery for ice cream” and “build a fairy house” usually end up on our weekend MITs.
You can write down your MITs on whatever you want. I usually use a little notebook or index card, but a work plan or TeuxDeux works well, too. Just put them on something you will carry with you throughout the day.
Setting aside a few minutes every day to put your MITs down on paper will make you more productive. And knowing what’s most important every day will probably lower your stress level a bit, too.
Featured image: “Close up shot of filled check boxes with red pen” from Shutterstock.
MITs: A Simple Way to Be More Productive is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
There are pests in my world – ants, flies, wasps, giant hungry mosquitoes and more – and I find myself becoming irritated by their incessant buzzing and humming, until I hear the distinct whack of a screen door slamming. The sound immediately reminds me that my summertime serenity is secure.
This simple device allows the fresh morning breezes and cool night air to pass freely through my home, all the while, effectively keeping the pests at bay.
Screens can be equally effective in your legal practice. Good screening techniques will help you to select clients who provide clear instructions, pay their bills ungrudgingly, and value the services that you provide to them.
Absent a good screen, you may find yourself swarmed by clients who don’t appreciate your expertise and won’t pay their accounts. Not coincidentally, these are often the same clients who later allege malpractice or complain to your law society about the quality of your services.
One of the most effective client-screening techniques you can employ is to watch for the red flags that may signal problems down the road. These include clients (or potential clients) who:
When you notice these red flags, heed your instincts and think twice before taking on or continuing to represent this client.
Consider that the fees you might otherwise bill may not be worth the aggravation you’ll experience and time you may spend in defending a malpractice claim or complaint made to your governing body.
By using a good screen, you’ll be able to invite the good clients into your practice, while preventing some of the more “pesty” clients from finding their way through the door.
Based on an article of the same title originally published by Canadian Lawyers Insurance Association in Loss Prevention Bulletin Issue No. 41, Fall 2007.
I’ve been dreaming again about the future of legal publishing. How might we arrange legal information if we were not constrained by the structure and format that we’ve all grown up with? We know what the core pieces are:
Primary law: remember all those bound volumes of statutes? Remember all the print law reports? Many law libraries still carry these, but they have now mostly been replaced by a variety of online resources. Of course, in this country, CanLII is the best example.
Secondary law: we are lucky to have a huge body of secondary law in Canada, published in many forms, and organized in many ways:
But what would our legal information look like if we didn’t have to cope with the legacy of print? It’s no secret that our content has been informed by the format. (I’ve written about this before.)
I had been dreaming of an online legal information service with a great search engine, excellent taxonomy and metadata, organized by practice area, easily mashed up with relevant statutes , and tightly integrated with relevant case law. Then I started to check out what’s been developed and discussed recently and I found things beyond my wildest dreams. A couple of examples:
The Open Law Lab is a project of Margaret Hagan , currently a fellow at the Stanford d.school. Her idea is “to explore how law can be more engaging, more usable, and more useful … to document how students, lawyers, researchers, and professionals can build products and services to redesign law.”
I’m not going to be able to do justice to her site and her work in this short column; I can tell you, though, that she’s thinking about how to present legal information in new, fabulous, and even gorgeous ways. We rarely use design elements in traditional legal publishing, but why not move beyond text based information? For instance, I see lots of promise for legal infographics; I expect they’ll be useful for public legal education materials but why not use them to explain some complicated legal concepts to lawyers, too? Think of all of the “if … then” scenario trees we encounter in legal practice, and how well those could be expressed graphically. But go and take a look for yourself.
Then I reviewed Tim Knight and Sarah Sutherland’s excellent presentation from the recent CALL conference. They introduced and discussed the ideas behind the semantic web and legal information. (Hat tip to Kim Nayyer for her post that alerted me to this session.)
The idea is that you take all the open data on the web and use metadata to create relevant connections between the data that may not have been apparent before, or were too difficult to create or discover. This applies to any sort of information, but we can see that also it applies to legal information.
I see real potential here to develop further secondary sources that take resources already available and connect them either with other secondary sources or related primary law or further connections between related primary law.
What exactly would this look like? It’s certainly not just one thing or service, and will probably start with limited scope projects. The danger is that the vast possibilities will lead to an endless rabbit hole of legal research. Designing resources in which it is clear that research is efficient and complete will be important.
We have moved such a long way from putting print online and being constrained by that format. Of course there are plenty of reasons that the first online legal publishing projects started that way, but our thinking and the technology has advanced so much since then.
What’s next? Communicating the possibilities to our market, leading and following at the same time, and of course the perennial topic of how to fund these projects will keep us occupied for years to come.
I may be dreaming in technicolour, but I’m pretty certain we’re not living in a nightmare … this is more like one of those vivid dreams with lots of interesting characters and exciting scenarios.
Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.
For this last week:
1. Hay v. Ontario (Human Rights Tribunal), 2014 ONSC 2858
 The Vice-Chair concluded that the applicant failed to establish that the decisions to suspend and terminate his appointment were discriminatory. The Commissioner suspended the applicant’s appointment because his comments put into question the appropriateness of his appointment as a First Nations Constable. The suspension allowed the OPP to investigate his conduct. The Commissioner consulted with the Council prior to terminating the applicant’s appointment. While it is unknown whether the Commissioner would have acted differently had the Council taken disciplinary action, the decision to terminate was based on non-discriminatory reasons. The applicant was terminated because he made public allegations against the OPP and other police services while in uniform and on duty. The comments were unsubstantiated because the applicant refused to explain them. The comments fostered disrespect for police officers and potentially placed them at risk. They interfered with the cooperation necessary for police services to work together. The comments were more concerning because they were made by the chief of police. She said that these were the reasons given in the termination letter and that they were not discriminatory.
2. Harry Sherman Crowe Housing Co-operative Inc. v. Benjamin, 2014 ONSC 3744
 While the picture is an incomplete one, it does appear that Ms. Benjamin is in a catch-22 situation. Through no fault of her own she now finds herself as a single person occupying a two-bedroom unit. This is a violation of the Occupancy By-law. Knowing this, Ms. Benjamin did what the Occupancy By-law required her to do, and notified the Co-op. The Co-op, however, says that she cannot move to a smaller unit, which she would be more likely able to afford, because she and her mother had moved to the unit she currently occupies less than a year previously. Furthermore, the Co-op says that the applicant is barred by virtue of the fact that she has fallen into arrears (not surprising given the cost of occupancy of the two-bedroom unit). Even if she could overcome these two hurdles, she would still have to fill out the correct form, which the applicant says she has not filed, and she would then have to wait her turn. Indeed, although it is not entirely clear, it may be that her position on the priority list has been negatively impacted by the Co-op having provided incorrect information to Toronto Community Housing.
 While the Co-op necessarily has rules that govern the number of occupants, units, transfers and arrears, there is nothing in the record that suggests a recognition by the Board that the respondent’s circumstances were the result of a conflicting intersection of these rules. She should have been extended more of a helping hand. Instead the Co-op moved quickly down the path to an eviction decision.
3. Leroux v. Canada Revenue Agency, 2014 BCSC 720
 It is essential to keep in mind that the relationship between Mr. Leroux and the auditors at CRA exists in the context of a self-assessing tax system. Mr. Leroux, like anyone running a business, is obliged to keep proper records and to be able to document and support his tax positions.
 While there is no requirement to keep a formal set of accounting records, and Mr. Leroux’s shoe-box approach to record keeping is not prohibited, it put him at a disadvantage once CRA began to look at his documents. According to Ms. Quance and Mr. Hansen’s notes, Mr. Leroux had many obviously personal expenses included with his business expenses. They went through each one, listed them, described them and either accepted them as a business expense or did not, and provided an explanation for each one. Items such as pet supplies, shaving and hair products, restaurant meals (unless bought in Valemount), groceries, candies, ladies clothing and lingerie, toys, tobacco and many other items were disallowed. The auditors were painstaking in their approach, and Mr. Leroux was eventually supplied with all their worksheets. They sent Mr. Leroux the proposal letter in September of 1997 and invited him to reply. He did not.
The most-consulted French-language decision was E.B. c. Warnaco of Canada Inc., 2013 QCCQ 11945
 Un fabricant qui met en marché un produit doit aussi s’assurer qu’il peut être utilisé sans danger. La responsabilité du fabricant pour défaut de sécurité du bien qu’invoque M. B… s’applique en faveur d’un tiers. Ici, M. B… bénéficie de la garantie de qualité du bien vendu qui impose au fabricant de s’assurer que son bien est exempt de défaut.
 La preuve en l’espèce démontre que le maillot de bain de marque Speedo que M. B… portait au moment de l’incident est affecté d’un défaut.
 Le Tribunal a examiné le maillot de bain et constaté le côté tranchant de la bande velcro. Il a également constaté que les fabricants utilisent maintenant une bande de tissu cousue de chaque côté de la braguette, rendant impossible en pratique le contact du pénis avec la bande velcro.
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.
We’re halfway through 2014. How’s your practice strategy coming along?
If you’re feeling stuck, you might find inspiration in “The End of Competitive Advantage” by Columbia Business School’s Rita Gunther McGrath. McGrath’s framework makes a lot of sense for firms dealing with rapidly changing environments.
The new “playbook for strategy” outlined in McGrath’s latest research is premised on creating transient advantages versus exploiting business-as-usual to sustain historical performance. Her logic will resonate with anyone preparing firms for new realities:
“The presumption of stability creates all the wrong reflexes. It allows for inertia and power to build up along the lines of an existing business model. It allows people to fall into routines and habits of mind. It creates the conditions for turf wars and organizational rigidity. It inhibits innovation. It tends to foster the denial reaction rather than proactive design of a strategic next step.…
…A preference for equilibrium and stability means that many shifts in the marketplace are met by business leaders denying that these shifts mean anything negative for them [until they’re forced to deal with a full blown crisis].”
McGrath thoughtfully illustrates how organizations such as Infosys and Wolters Kluwer have reconfigured to identify opportunities earlier, qualify risks better and respond faster and more appropriately, based on a new mind-set.
Granted, these examples are from public companies, not partnerships, but some of the principles are transferable. It isn’t impossible for law firms to do this. But it isn’t for the faint of heart, either.
Some of my favourite ideas come from the chapter on building proficiencies for innovation. We often discuss the need for innovative legal services, but how can they actually be created? McGrath advises us to “start with what clients want to accomplish, but can’t get done”, rather than generate ideas from within the firm. It saves time and it is grounded in external market realities. She then suggests practical steps to get started, along with a case study.
You might think this sounds obvious, but if your firm isn’t in the habit of asking clients about their problems beyond your immediate mandate or conducting rigorous market research, how many opportunities to do something a) unique, b) lucrative and c) relevant are you missing? How many of your assumptions about future growth might be wrong?
I’ve written before about the need to build trustworthy relationships within law firms; it creates an atmosphere of collaboration and creativity, enabling firms to leverage the intellectual capital housed in their office(s). At the same time, firms will need to be much more disciplined about training lawyers to identify and qualify opportunities. Which will require different approaches to governance, budgeting and the concept of ownership, not to mention our individual careers.
A framework based on transient advantages would represent a sea change for the way strategic planning processes unfold in most law firms. It’s worth considering, though, if only to start conversations with clients about what the future could look like, and your place in it.
I have been working with some advisors on a project to map a process that we think could use some improving. An aspect of this is identifying waste.It is an interesting exercise to think about how you do something and identify where waste occurs.
Slawyers will appreciate the acronym DOWNTIME to think about waste in their organizations.
D defects (mistakes that mean something has to be done over)
O over-production (printing 30 handouts for 20 people)
W waiting (delays in the ability to move on to the next step)
N non-utilized talent (both over qualified and under utilized)
T transportation (how things move around your space)
I inventory (keeping things on hand just in case, or looking for items that are not in the right place at the right time)
M motion (how people move around your space – particularly in office layout or extra keystrokes)
E extra processing (too much research, triple checking, answering more than the question asked)
How much DOWNTIME do you have in a day?
Lawyers who cannot not find the courage to leave a law firm for solo practice usually have one fear that stops them dead in their tracks. They know the consequences of going solo, and they know in their heads and hearts that they should leave, but they can’t quite do it.
Most of those fears are well-founded, though, and none of the lawyers I have helped confront their fears have decided to stay at their firms. All of them left, and are happy they did.
In no particular order, here are the fears they overcame.1. There Is More Job Security at My Firm
Have you read the newspapers recently? There is no such thing as job security in law. The lawyers who have the most job security are those with the most clients, because they can go anywhere and prosper.
The size of a firm or its revenues does not provide any job security. In fact, sometimes the larger firms provide less security because high overhead costs have weighed them down.2. My Clients Will Not Follow Me
Don’t be so pessimistic. Clients (individuals as well as businesses) hire lawyers, not law firms. If your client relationships are strong, they will follow you when you go solo.
Probably not all of them, but most will — and if most will, why stay?3. I cannot Afford the Start-Up Costs of Going Solo
Yes you can. You should consider yourself lucky that you are in a profession where the start up costs are relatively low.
Spend a little more to get help from consultants if you think you need to. Even so, starting a law firm is a relatively inexpensive venture.4. My Former Partners Will Hate Me
So what. Every time I heard this excuse, the next words out of their mouths were that they wanted to leave in order to get away from these same people. You have always thought they were jerks; why should you care how they feel towards you in the future?5. Prospective Clients Want to Know There Is a Firm Behind Me
See number 2, above.
Law firms do not develop relationships; lawyers do. Continue to develop strong relationships and convince prospects that you are capable to do the work. Few, if any, will care that you are no longer part of a firm with lawyers doing lots of other things that the client could care less about.6. I Will Miss Bouncing Ideas Off My Colleagues
You still know plenty of lawyers at other firms who will be more than happy to talk to you on the phone or respond to an email. Join a listserv. Do some conventional and social networking.
Most lawyers — especially other solos — are happy to let you use them as a sounding board, as long as you are willing to return the favor.7. I Do Not Have the Business Know-How to Run My Own Firm
You probably don’t. It is a skill set few lawyers possess. That is the bad news. The good news is that your competitors are just as clueless about managing their practices as you may be. They all somehow seem to make a nice living. You will, too, if you work at this.8. I Will Miss the Prestige
Yes, there is a certain cachet to be able to tell others you work at Big Law Firm, P.A. But you just told me all of the reasons why you hate going to work there. Is the prestige really that important to you?9. If a Big Case Walks in the Door, I May Not Be Able to handle it
You probably will, actually. Have you ever heard of co-counseling matters and referral fee arrangements? If you are lucky enough to have that big case walk in the door, there are plenty of lawyers who will be more than happy to help you. Ditto for expertise.10. I Hate Change and Fear the Unknown
Join the club. But wouldn’t it be nice to proactively create a change in your career that you control? You cannot stop change. Sooner rather than later, there will be changes at your law firm creating many unknowns that you will have to react to with your partners. Wouldn’t you rather deal with change when you are in the driver’s seat?
Go for it and don’t look back. Life is too short. Although there are no guarantees, the chances are very good you will not regret it.
This was originally published on June 23, 2010. It was revised and republished on July 8, 2014.
Featured image: “Closeup portrait of young nerdy funny female” from Shutterstock.
Going Solo: Debunking the Top Ten Fears is a post from Lawyerist.com. The original content in this feed is © 2013 Lawyerist Media, LLC. This feed is provided for private use only and may not be re-published.
[Updated (7/8/2014, 2:53 p.m.) with news of a post on the controversy by the MOOC instructor.]
The University of Zurich says it has cleared up the bizarre case of the MOOC that went missing. But the university is offering few clarifying details to the public, which has been left to piece together theories from the university’s statements and from cryptic tweets by the course’s professor about an unspecified experiment he might have been trying to conduct.
As I reported this morning, the content of a massive open online course taught by one of the university’s lecturers, Paul-Olivier Dehaye, vanished last week without explanation, leaving an empty husk on Coursera’s platform. The course, “Teaching Goes Massive: New Skills Required,” was one week into its planned three-week run when the videos and other course materials disappeared. Coursera officials said Mr. Dehaye, a mathematician, deleted the materials on July 2, and the company has since restored them. But the company’s officials initially were as confused as everyone else.
Ulrich Straumann, a vice dean at the university, has since replied to an inquiry I sent on Monday to Mr. Dehaye’s email address. Mr. Straumann wrote:
Professor Dehaye, instructor of the Coursera course “Massive Teaching – New Skills needed,” has deleted content during the course as part of his pedagogical concept in order to get more students actively engage in the course forum. In the course of the events, confused students contacted Coursera directly, as they assumed a technical problem [had been] the reason for the disappearing of course material. Unfortunately, Professor Dehaye had not previously informed Coursera of this part of his pedagocial approach: Deleting course material is not compatible with Coursera’s course concept, where students all over the globe decide when they want to watch a particular course video. Professor Dehaye’s course included experimental teaching aspects which led to further confusion among students. Coursera and the University of Zurich decided on Friday, July 3, to reinstall the course’s full content and paused editing privileges of the instructor until final clarification on the issue would be obtained.
I asked Mr. Straumann if he would elaborate on the thinking behind Mr. Dehaye’s unorthodox pedagogical approach, and whether the university planned to discipline the professor in any way. He replied:
The university of Zurich is a responsible employer. You certainly understand that we can not communicate any personal information about our employees to the public.
I argued that the professor’s pedagogical tactics were a professional matter, not a personal one. In his response, Mr. Straumann reiterated that “Professor Dehaye’s goal in deleting course material was to have more students actively participate in the forum, instead of watching the videos only.” The vice dean added: “Once final clarification is obtained, the University of Zurich will decide whether any action needs to be taken.”
Update, 2:53 p.m.: It appears that Mr. Dehaye, the professor, was in fact conducting an experiment to see if he could get students to migrate to a non-Coursera platform and spur a discussion of the hazards of data mining in free online courses.
In a post last week to an online text-editing forum, the professor (or someone posting in his name) wrote about how he did not want to assist the company in its efforts to collect and monetize student data. He said he had been contacted repeatedly by the company about the data. “I feel they are fishing for business models, which I am certainly not going to give them,” Mr. Dehaye wrote in the post, which was first reported by Inside Higher Ed. “I don’t want to tell them how to track you.”
Mr. Dehaye, who got his doctoral degree at Stanford University, where Coursera was born, said he did not wish the company harm; rather, he wants to make sure students know how their data might be used. “I don’t mean to destroy Coursera,” he wrote, “just insist to those students that there are dangers.”
He said he intended to create confusion and media attention as a way of drawing attention to the issue. “I hope you learned by thinking first, and then getting the explanations,” he wrote in a post to participants who had found their way to the document. “I could have just told, but it’s not the same.”
A dozen years ago I wrote an article about regulating activity on the Internet (‘Solving Legal Issues in Electronic Government: Jurisdiction, Regulation, Governance’, (2002), 1 Canadian Journal of Law and Technology No. 3 p. 1 ) in which I suggested that a number of successful regulatory strategies focused on intermediaries, as the principal targets of regulation might be hard to find or hard to persuade. Intermediaries often had the benefit (to the regulator) of being large, stable and solvent – and they often cared about their reputation for legality and good citizenship.
Since that time the interest of regulators in intermediaries has increased, both as to the types of activities sought to be regulated in this way and in the range of operations sought out as pressure points. Tamir Israel wrote a detailed study of this issue here a few years ago, focusing especially on defamation, linking and the Crookes v Newton case. This column updates and expands his excellent work.
In this first part, I will review several examples of the kinds of activities that have attracted focus on intermediaries, and note the intermediaries in question. In my next column, I will consider the policy and legislative issues raised by this indirect regulation.
1. Infringement of copyright: Internet service providers, web hosts
Some attention has been paid to intermediaries as a source of information about the people who infringe. The intermediaries in principal focus have been Internet Service Providers (ISPs) and web hosting services. Thus copyright owners bring actions against the intermediaries to get the names of the users of computers whose Internet addresses are known to infringe or suspected of infringing, in order to sue or prosecute the infringers directly.
In Canada, the Federal Court of Appeal in BMG Canada v Doe (2005) held that copyright owners had an equitable right to get subscriber information where they had a legitimate and bona fide claim, subject to balancing the claim against subscribers’ privacy considerations. More recently, the Court held in Voltage Pictures v John Doe and Jane Doe (the Teksavvy case) that the information could be disclosed but only under strict conditions about its use.
In addition, sometime the intermediary itself is liable for contributory infringement. This has been the case for operations that facilitate file-sharing, and for those that formed centrally available collections of infringing material. One thinks of services like Napster and Grokster in the early years of this century. The development of peer-to-peer file-sharing networks has been largely stimulated by a desire to avoid creating a legally responsible intermediary.
Some laws require web hosting services (who are often Internet Service Providers – ISPs) to police the conduct of their subscribers. The best known example is the Digital Millennium Copyright Act in the US (DMCA), which has a ‘notice and takedown‘ system. A copyright owner sends a notice of infringement by a subscriber to the intermediary, who must delete the designated content. The intermediary then informs the subscriber of its action. The subscriber has the right to object, and the dispute may be taken to a court. The intermediary would not be a party to any such action.
Canadian copyright law was amended in 2012 by the Copyright Modernization Act to include a ‘notice and notice‘ system, by which the host must pass on to its subscriber a notice of infringement received from a copyright owner – but no other action is required. (Records of the subscriber’s content must be kept, but not disclosed, for six months from the notice.) Unlike in the US, the host’s liability for infringement does not depend on taking down the offending content. The Canadian host may be liable if it does not pass on the notice. (The notice and notice system – Copyright Act (Canada) ss. 41.25, 41.26 and 41.27(3) - will come into force on January 1, 2015,)
More dramatically, some countries have enacted ‘graduated response‘ or ‘three-strikes’ regimes, by which the ISP must (at the request of a copyright owner) give notice of infringement to subscribers. After three notices, the subscribers’ Internet services must be cut off. These laws have been subject to considerable criticism, in part because of the difficulty of knowing for sure what uses are infringing, but mainly because people use the Internet for so many important activities that it seems disproportionately severe to prevent such activities just to protect someone’s copyright interests.
2. Defamation: bulletin boards, web hosts, posters of links
A great deal of what is online is not a copy of anybody’s material, it is original to the person who posts it. Some of it violates other laws or legal norms. Some of it is defamatory. The people considering themselves defamed have wanted intermediaries to disclose the names of the authors of the defamation, as copyright owners have done for infringers.
In addition, some have tried to hold the intermediaries themselves liable for the defamation. The intermediaries generally have little control over what is posted – they do not have time to review or censor content. They have raised the common-law defence of ‘innocent dissemination’, available offline to printers, booksellers and librarians, among others, who have no editorial input to the alleged defamation.
The immunity of a disseminator ends, however, when the dissemination is no longer ‘innocent’, i.e. when the person has knowledge that what is being made available to the public is defamatory. The common law of defamation is essentially a ‘notice and takedown’ rule.
The application of the principles to the Internet was established at the turn of the century in England in Godfrey v Demon Internet. The Court reviewed in some detail the technical working of the Internet and the defendant’s service. It held that the defendant could not be responsible for the content of the bulletin board it ran as content was posted. Once the plaintiff gave it notice of the defamation, however, it was both able and obliged to delete it. (The case was argued under the English Defamation Act, 1996, but it was agreed that the statute essentially had codified the common-law rule, which still operates in common-law Canada.)
The other intermediaries who have come into the line of legal fire in Canada are those who post links to sites considered defamatory. While the exposure to liability of the poster of the defamatory content itself is not challenged, is the person who merely links to that site, without adding any defamatory material, also liable? The answer to that is generally negative, thanks to the Supreme Court of Canada’s ruling in Crookes v Newton in 2011. As the case and its implications have been thoroughly reviewed in the article referred to earlier, I will not take up more space with it here.
3. Online gambling: financial institutions, executives of facilitating businesses
The United States in particular has been energetic in combatting online gambling, despite some doubts about whether all forms of it are illegal in that country. The US has run two lines of attack on intermediaries (and none on the actual gamblers). The first struck at financial institutions that were handling the proceeds of gambling, either to place the bets or to pay out the winnings. By the Unlawful Internet Gambling Enforcement Act of 2006 (see Title VIII of this much larger statute) and a 2008 Rule under it, financial institutions were prohibited from serving these roles.
As it turned out, the Rule took a great deal of fine tuning, and Congress has revisited the regulatory scheme since then. It is not easy to distinguish the legitimate from the targeted transactions.
The other line of attack was on the companies that facilitated online gambling: the software companies and the web sites that hosted them. Since those companies were located outside the United States, the US used criminal prosecutions of their executives, who were then arrested as they happened to set foot in the country, often in transit at US airports. British and Canadian business people were arrested in this way, and their freedom was sometimes bought at a cost of blocking US users from their services. A bit more history, with an estimate of the success of the strategy, is here.
4. Protection of privacy: search engines
Since we all go online through an ISP of some kind, that ISP necessarily holds a good deal of our personal information. Just how much depends on each company’s policy and applicable legislation. However, it holds the information directly, and has obligations as the holder of personal information to protect it under privacy laws. (How it may be persuaded or compelled to release it to others for their purposes is discussed in the following sections.)
It is less clear that search engines are holders of personal information for the purpose of privacy law. Search engines produce, from millions of locations and servers on the Internet, links to information that appears to be relevant to a search query. Some of the information behind the links will be personal information, much will not.
Nevertheless the Court of Justice of the European Union recently held that Google was a ‘data controller’ within the meaning of the EU Privacy Directive of 1995. Its use of calculated algorithms – the produce of human decision-making – led it to discover and disclose links in a determined order. Google was a data processor that fell into the definition of ‘controller’, being a body that determines the purposes and means of that activity, entirely independently of the publisher of the material to which the links will lead.
Google’s obligations as a data controller under the Directive (and its Spanish implementation) required that data be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected. The personal data was not to be ‘inadequate, irrelevant or no longer relevant, or excessive in regard to the purpose for which it was collected.’ (paragraph 93) The facts in question, about the complainant’s former financial difficulties, were held no longer necessary for the public interest, so privacy interests prevailed.
In essence, the Court found that the Directive contained a ‘right to be forgotten’ in appropriate circumstances. Thus Google was required to remove links to online newspaper articles containing facts about the complainant in the case that the complainant found embarrassing, though true. Indeed the right to have links removed did not depend on any actual prejudice to the data subject. (paragraph 96) The newspaper sites were not required to delete the content, however. They had the benefit of a journalism exception to privacy obligations that Google did not share.
Google – and any other search engine subject to European law – were to balance the privacy interests in blocking the links against other potential interests in keeping the information public. The involvement of a public figure might make a difference. Links to information about certain kinds of actions – such as criminal convictions – of continuing relevance might remain.
The decision seems to require a very subtle understanding of the facts behind information that is the subject of a takedown request. Google has responded by setting up a request system, with a form, along with a high-profile panel of decision-makers with experience in Internet matters. In the first few days of its operation, this system received many thousands of requests to block links – a lot of them from alleged pedophiles.
The original newspaper reports remain online. They can be found with smaller search engines not subject to European law. It remains to be seen if the decision is effective to protect privacy or whether it just adds costs to a system that can be avoided by those who know how.
Courts in the United States have refused to order Google to take down links, whether to a misleading report or because of the form of the search results (the latter not really being in its intermediary function). A discussion of several cases in the light of the EU decision is here. The author emphasizes the importance of Google’s freedom of expression, which outweighs the privacy interest, if any – privacy not being generally protected by most state law.
To date no search engine or other data holder has been subjected to a right to be forgotten under Canadian privacy law.
5. Tax collection: online businesses, real-world intermediaries
Our tax collection system depends very largely on self-assessment by taxpayers, for income tax and also for sales tax. However, it is definitely a ‘trust but verify’ system. Taxpayers are subject to audits, and information is collected from third-party sources. Perhaps the most important example is the remittance of income and tax information by employers about their employees. It ensures that the tax authorities know what the employees earned, and they can see (and count) the taxes paid.
When transactions go online, it becomes harder for the tax people to audit them. Bits and bytes as they move are not identifiable, especially if encrypted. Online banking transactions are subject to audit just as offline transactions are. However, less traditional transactional intermediaries have been brought into the picture as well.
One dramatic example was the Canada Revenue Agency’s demand on eBay Canada to provide it with a list of ‘power sellers’, those who were making the most transactions and probably earning the most money through online auctions. Sales tax might properly be chargeable on the transactions too. The CRA wanted to start with the high-value files. While the transactions were online, the data about them were on real computers run by a real business that was subject to Canadian law.
An interesting element of the case – the reason that the demand on this intermediary made the news – was that the data were stored in servers located in the United States and owned by the parent company, eBay itself. Nevertheless the Federal Court of Appeal held that the data were needed for eBay Canada to do business (notably to collect commissions on the sales), so were accessible to the Canadian company. The data must therefore be produced to the Canadian authorities. (An accountant’s view of the case – and the use of intermediaries – is here.)
US tax authorities have made use of less traditional intermediaries to track online sales, notably to recover sales taxes imposed at a higher rate in the buyer’s state than in the seller’s – as is often the case for alcohol and tobacco. Demands have been made for the records of interstate trucking companies who were making the deliveries of the goods bought online, to find out who the buyers were – and thus who was liable for the tax.
6. Law enforcement: ISPs, cell phone companies, social media (geolocation)
The Internet is full of information on who people are and where they are, as well as what they are saying. These are questions that interest law enforcement authorities. By the nature of the Internet, the information can be, even must be, in the possession of intermediaries. These intermediaries may be traditional ones, such as telecommunications companies – wiretaps have been used for a long time, and non-traditional ones like devices connected to the Internet of Things.
To some degree, law enforcement authorities are looking for the same information as copyright owners and people who believe themselves defamed: subscriber information – who created the content that has been discovered in some other way. Canadian privacy law generally requires personal information to be kept confidential by those who hold it. Disclosure without the consent of the person involved is allowed only in narrow circumstances. One of those is disclosure to law enforcement authorities in the course of a lawful investigation.
This provision was widely used, but the Supreme Court of Canada recently imposed some restrictions. In R v Spencer, the Court held that the provision of PIPEDA did not create any right to get the information; it dealt only with the ability of the data holder to release it. General police interest did not constitute a legal investigation, especially for information for which there is a reasonable expectation of privacy. Subscribers had such an expectation for their identifying information in the hands of ISPs and web hosts, and a provision in a hosting agreement that the host might release information to the police did not overcome that expectation. So intermediaries will still be source of this information, but more usually in the face of judicial authorization of its release.
The technology we use today frequently indicates our location to providers of the technology. The obvious example are mobile phones, whose communications systems have to know where we are in order to send and receive calls. The systems also need to remember the location data at least when calls are made and received, in order to bill the customers for their usage.
Telecoms have typically handed over to law enforcement authorities mobile phone records for specified phones. This has helped identify suspects as being present at the scene of the crime, and allowed police to follow suspects until a crime is committed or evidence is disclosed.
Social media frequently broadcast location data as part of their service, from FourSquare to GroupOn, and if the media themselves do not broadcast it, the users do it themselves. These records are kept and are available, either on request or on a subpoena or warrant, to parties with legal interests in having them.
The strong tendency to link other devices to the Internet – from fridges to cars to electrical generating stations – makes new kinds of businesses into information intermediaries: appliance manufacturers, auto dealers, power utilities – and many more. And the self-sensing and recording capacities of the devices themselves turn them into potential intermediaries. The data from a car recording what speed the car is driven at and the braking patterns can be of interest to insurance companies (who offer incentives to customers to use such devices) to lawyers in motor vehicle negligence cases to law enforcement authorities.
It is rare that law enforcement seeks the content of messages from Internet intermediaries, largely because the contents are not usually kept. The records that are kept, and thus sought, are ‘metadata’ – the records of who and where and when communications were made. It has been demonstrated that metadata can be very effective in identifying much more than basic name and address. They can show browsing habits that themselves disclose personal interests, possibly health or social concerns, and much else. The Supreme Court in the Spencer case mentioned above described in some detail the types of information deducible from metadata, and affirmed the strong privacy interest that people have in the metadata as a result. (See paragraphs 32, 46 and 47 among others.)
There is likely to be more judicial scrutiny of efforts to obtain information from at least some kinds of intermediaries as a result of this decision. How it affects legislation on the topic, we will consider in the next part of this article.
Meanwhile two Canadian ISPs, Teksavvy and Rogers, have recently disclosed to the public the number of requests for subscriber information that they have received from law enforcement authorities. Some American bodies have done this for some years, notably Google and Verizon. Letting people know what is being done, or sought to be done, with their information, is a step toward a transparent system whose merits can then be debated more effectively.
7. National security: ISPs, cloud services, social media, and just about everybody else
That government agencies with a mandate to care about national security have an interest in Internet communications is no longer news, if it ever was. The activities of the National Security Agency and the Federal Bureau of Investigation in the US, the Communications Security Establishment of Canada (CSEC) here, and the offices of various other governments, have been increasingly well documented.
These agencies too have relied on intermediaries, though not always with the knowledge of the intermediaries themselves. The agencies have sometime broken the security of the communications service providers. On occasion they have made deals with the providers to give them a way of intercepting communications despite their apparent security. They have used broad empowering legislation to compel production of data from all kinds of services about their clients. Recently a court held that Microsoft could not refuse to disclose information to the US government though the information was held outside the United States. The fact that Microsoft, in the US and thus subject to US law, had control of the information and was able to access it, meant that the information had to be produced.
There is no reason to think that Canadian law would be different on the point. Consider the eBay tax case mentioned in section 5 of this article.
The US government has pressed financial intermediaries to help it reduce the capacity of Wikileaks to continue to embarrass it on security matters. After the revelations of documents from Bradley/Chelsea Manning, the government prevailed upon the credit card companies, Visa and MasterCard in the lead, not to process donations to Wikileaks. The same arrangement was made with PayPal. One wonders to what degree this financial pressure was a matter of preventing future threats to security and to what degree it was intended to punish Wikileaks for the embarrassment. In any case, the use of the financial intermediaries served both ends.
We see that governments and private interests have all been seeking solutions for the relative anonymity and relative invisibility of electronic communications. Sometimes the solutions seem to lie in proxy enforcement or proxy regulation: apply to the intermediaries, either for information not otherwise available, or for enforcement on third parties (as with the three-strikes laws), or for contributory liability themselves.
Whether all these techniques make sense as a matter of policy, or whether regulatory interests should be better balanced against others – either efficiency or privacy – we will review in the second part of this discussion, in the next column.
Meanwhile, feel free to mention in the comments other examples of the regulatory use of intermediaries, or to say what you think of the ones mentioned.