Canada: Developments In Technology - Oct 2004

Edited by Louis R. Benoit

• Part Of Patriot Act Unconstitutional

• Cybersecurity Act Discussed By U.S. Congress

• U.S. Copyright Office Intorduces New Induce Act

• U.S. Federal Courts Propose Rules For E-Discovery

• Ontario Proposes Amendments To Consumer E-Commerce Regulations

• Schwarzenegger Discards Privacy Bills

• NET Piracy Still Under Attack

• California To Post Information About Sex Offenders Online

A key section of the U.S. Patriot Act that allows the FBI to secretly demand information from Internet providers has been found to violate the U.S. Constitution by a federal judge. The law requires Internet service providers and other types of communication providers, including telephone companies, to comply with secret "national security letters" from the FBI asking for information about subscribers, including home addresses, what telephone calls were made, e-mail subject lines and logs of what Web sites were visited. The recipient of such security letters is forever restrained from disclosing its existence to anyone.

The judge barred the FBI from invoking that section of the law in the future, saying the mandatory gag orders amount to an "unconstitutional prior restraint of speech in violation of the First Amendment." The U.S. Department of Justice recently announced it would appeal the federal court ruling.

More information available at:

http://news.com.com/2100-1028_3-5388764.html

http://www.internetnews.com/xSP/article.php/3415501

The Department of Homeland Security (DHS) Cybersecurity Enhancement Act of 2004 was recently presented to the United States Congress. The act's main objective is to improve the department's capacity for protecting critical cybersystems. The bill would broaden the definition of cybersecurity to include not only computers and computer networks but also "wire communication." This would grant authority to the department over protecting not just networks but also telecommunications. In addition, the Department of Homeland Security Science and Technology Enhancement Act of 2004, was also introduced, which is aimed at assisting the department develop new cutting-edge technologies needed to combat terrorism. The likelihood of either bill passing as standalone legislation is unlikely since Congress plans to adjourn at the end of September. Nonetheless, some elements of the bills could be added to future cybersecurity bills and initiatives.

More information available at:

http://www.internetnews.com/security/article.php/3408841

A new version of the Induce Act drafted by the U.S. Copyright Office has been released. Aimed at making file-swapping networks such as Morpheus illegal, the bill was drafted after a meeting with representatives from IBM, Apple, Hewlett-Packard, the Business Software Alliance, the RIAA and the Motion Picture Association of America. The criticism of the original Induce Act is that it could in theory ban devices like the iPod. The new version appears to back away from the broad sweep of the original act by making it more difficult for companies to be found liable for copyright violations. However, many critics are still sceptical. For example, one section states that companies who "actively interfere" with a copyright holder's efforts to identify pirates could be liable. Internet service providers are concerned this may mean that objecting to a demand from the recording industry to obtain the names of subscribers could be a violation of the act.

The act recently failed to advance in the Senate because lawmakers said there was too much opposition. One Senator said negotiators would meet to try to come up with a bill that would satisfy the entertainment and technology industries, and that the bill would be taken up again before Congress is scheduled to adjourn for the fall elections.

More information available at:

http://news.com.com/2100-1027_3-5345528.html

http://www.internetnews.com/bus-news/article.php/3404461

http://www.reuters.com/newsArticle.jhtml;?storyID=6380512

The U.S. Federal Judiciary has published a set of proposed rules to govern electronic discovery and addressing issues such as inadvertent disclosure of privileged information, treatment of information that is not reasonably accessible and consequences of loss or destruction of electronic data. Perhaps the most controversial of the proposed rules is an amendment that could create a narrow "safe harbour," protecting a party from sanctions for failing to provide electronically stored information in some circumstances. Under this new rule, a party would be protected if it took reasonable steps to preserve the information after it knew or should have known the information was discoverable and the failure resulted because of the routine operation of the party's electronic system. This amendment is meant to deal with the fact that electronic data can easily disappear in cyberspace without anyone trying to destroy it, through programs that automatically recycle data, overwrite deleted information and discard data that has not been accessed for a period of time.

On the issue of inadvertent disclosure of privileged material, a new rule provides that a party who produces privileged material without intending to waive the privilege, may "within a reasonable time," notify the recipient, who would have to "promptly return, sequester, or destroy the specified information and any copies."

The third major area addressed by the proposed rules involved how to deal with the discovery of data that is not readily accessible such as information deleted from a computer hard drive on an employee's departure, which can be recovered but it takes time and money. This new rule would provide that such information need not be reviewed or turned over. But if an adversary moves for disclosure, the party would have to show that the information was "not reasonably accessible." The court could then require disclosure only for good cause and on specified terms and conditions.

More information available at:

http://www.law.com/jsp/article.jsp?id=1094073248317

The Ontario government has released proposed amendments to its consumer e-commerce regulations. The revised rules narrow several information disclosures in response to complaints from industry. Three specific information disclosures appear in the revised draft regulation:

1. The requirement to disclose technical specifications in the original regulations was intended to refer to those specifications that are related to the intended use of a good or service, such as system software requirements, rather than all technical specifications. The revised regulations are clearer on this point.
2. A business' means of delivery and the identity of the person to perform services for a consumer will only need to be disclosed if they are actually specific terms of the agreement. For example, if the consumer is specifically paying for express delivery, this will need to be disclosed.
3. Consistent with the Internet Sales Contract Harmonization Template, restrictions, limitations and conditions only need to be disclosed if they are within the contract with the consumer. A business is not obliged to disclose limitations that arise outside their contract with the consumer. These limitations may include manufacturers' limits on warranty or intellectual property limits.

More information available at:

www.cbs.gov.on.ca/mcbs/english/5WYMJF.htm

The revised regulation can be found at:

www.cbs.gov.on.ca/mcbs/english/pdf/CPA_Regs_Fall04.pdf

California Governor, Arnold Schwarzenegger, recently vetoed three bills aimed at improving e-mail privacy at work as well as safeguard private medical and financial information. One bill would have limited information that medical firms can send abroad for processing without a patient's consent. Gov. Schwarzenegger said the bill was unnecessary since existing laws already prohibit the sharing of an individual's medical information. Another vetoed bill would have required consumer consent before financial institutions could outsource or share personal information on clients. Schwarzenegger said the law could conflict with present state financial privacy laws. The Governor also rejected a bill requiring state employers to give workers written notification if e-mail and other Internet activity was being monitored at work. Critics said the bill would burden employers and is unnecessary because most employees already assume their online activities at work are monitored.

More information available at:

http://www.reuters.com/newsArticle.jhtml;?storyID=6372217

People who illegally share copyrighted music and movies over the Internet could be jailed for up to five years under a bill recently approved by a congressional panel. The Piracy Deterrence and Education Act of 2004 targets the practice of Internet file sharing, which record companies blame for playing a part in a significant decline in yearly CD sales since 2000. This measure would make it a crime to make $1000 US or more in copyrighted works available for download. The bill would also make it illegal to use camcorders to record movies in theatres, a practice commonly used by bootleggers looking to distribute the latest hits. Under this proposed legislation, file-swappers could be jailed for three years for file sharing or five years if they do it for private financial gain. Second offenders could be jailed for twice that long. The House Judiciary Committee approved this measure by voice vote, clearing it for further debate in the full House.

In the meantime, California Governor, Arnold Schwarzenegger, signed a bill last week requiring file-swappers who sends copyrighted work such as music and movies without permission to at least 10 other people must include their e-mail address and the title of the work, or risk being charged with a misdemeanour. The law goes into effect in January. Critics argue the law is a tricky way for copyright owners to get at file-swappers since individuals are not targeted for copyright violations; rather, they are nabbed for not adding their e-mail address to a shared file.

More information available at:

http://www.washingtonpost.com/wp-dyn/articles/A6091-2004Sep8.html

http://news.com.com/2100-1028_3-5387682.html

http://www.wired.com/news/politics/0,1283,65062,00.html

Governor Arnold Scharwzenegger signed a bill that will enhance Meghan's Law and ease the concerns of parents and other citizens asking for better protection for themselves and their children against sex offenders. Meghan's Law was enacted in 1996; it was named after a seven-year old who was raped and murdered in a New Jersey town by a sex offender neighbour. While Meghan's Law encouraged states to set up sex offender registries for public review, the registries that have been set up in different states vary greatly in accessibility.

Under the new legislation, the sex offender's home address, name, alias, photograph, physical description, gender, race, date of birth and criminal history will be accessible via the Internet.

More information available at:

http://www.reuters.com/newsArticle.jhtml;?storyID=6331011

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