Law Bytes

One year ago this week, Ian Kerr, a friend, colleague, teacher, and prescient scholar in the world of law, technology, and ethics, passed away. Ian’s loss sparked an outpouring of stories of a truly exceptional person whose friendship, mentorship, and “en-Kerr-agement”, left a remarkable legacy with so many citing his impact as a defining moment in their lives and careers. Given the impact Ian had on the privacy world, the IAPP launched an annual lecture in his honour at the IAPP Canada Privacy Symposium. While this year’s symposium was cancelled, the Kerr Memorial Lecture went ahead with an online streamed lecture. I was honoured to deliver the inaugural lecture, titled Privacy and Zambonis in the Age of COVID-19. This week’s podcast features that lecture, which I think is most notable for exploring how Ian’s scholarship remains so fresh and relevant today with much to teach about the challenges of privacy in our current world. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: IAPP, The Ian Kerr Memorial Lecture

TikTok has found itself at the centre of a global geo-political fight between the United States and China. U.S. President Donald Trump, citing privacy, censorship, and national security concerns, first declared his plan to ban the app from the country and later followed up with an Executive Order prohibiting commercial activities with TikTok after a 45 day implementation period. What does the battle over TikTok and other Chinese-owned apps mean for their users and for the future of an open and accessible Internet? Anupam Chander, a law professor at Georgetown University and leading expert on the global regulation of new technologies, joins the podcast to explain the recent developments, unpack the legal issues, and assess the broader geo-political implications. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Chander, Trump Grants TikTok a Reprieve, But His Ban Threat Should be Permanently Retired Credits: CBS New York, President Trump Issues Executive Order on TikTok

The Canadian government released its COVID Alert, its COVID-19 exposure notification app, earlier this month starting first with a roll-out in Ontario. I’ve written how I’ve made the decision to install it, noting that the voluntary app does not collect personal information nor provide the government (or anyone else) with location information. The app underwent two privacy reviews, engaging both the federal privacy commissioner and the Ontario information and privacy commissioner. Patricia Kosseim, the newly appointed Ontario privacy commissioner, had only been on the job for a few hours before she was dealing with the app that was bound to attract public attention. Commissioner Kosseim joins me on the podcast to discuss the app, her review, the interaction between different governments and commissioners, and why she installed the app the day it was released. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: IPC Recommendations to the Government of Ontario Regarding COVID Alert Credits: CBC News, COVID-19 Exposure Notification App Rolls Out in Ontario

The Schrems II decision, a recent European Court of Justice ruling that declares the Privacy Shield program that facilitates data transfers between the EU and the United States invalid, has major implications for modern commercial data related activities such as cross-border data transfers. The decision will reverberate in countries around the world, including Canada. For example, Canadian privacy law was found many years ago to meet the EU’s adequacy standard, but the Schrems II may call that into question. Colin Bennett is a political science professor at the University of Victoria and one of Canada’s leading privacy experts. He has written multiple books on privacy and surveillance and focuses on the development and implementation of privacy protection policies at the domestic and international levels. He joins the podcast to discuss the Schrems II decision and what it means for global data transfers and the future of Canada’s privacy law framework. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Colin Bennett, The Schrems II Decision: Implications and Challenges for Canada Credits: Reuters, Privacy Advocate Wins New Battle Against Facebook

As the broad availability of genetic testing has mushroomed over the past two decades, privacy and potential discrimination concerns associated with testing results has increased. Until recently, Canada lagged behind other countries in this regard with no specific national legislation. That changed in 2017 with the enactment of the Genetic Non-Discrimination Act. The Act was quickly challenged on constitutional grounds, but earlier this month a divided Supreme Court of Canada upheld its validity. The law underwent a remarkable parliamentary journey featuring opposition from successive governments, lobbying against the bill by the insurance industry, passage in the House of Commons despite objections from then-Justice Minister Jody Wilson-Raybould, and a court challenge in which the government supported the effort to declare the law invalid. Senator James Cowan, who was the lead proponent of the legislation, joins me on the podcast to discuss what prompted him to take on the  issue and the unlikely path of Canada’s genetic non-discrimination law. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Supreme Court of Canada, Reference re Genetic Non-Discrimination Act Credits: CTV News, Genetic Non-Discrimination Law is Constitutional, Supreme Court Says

From the very outset of the COVID-19 outbreak, public health officials have identified the potential of contact tracing applications to both assist in conventional contact tracing activities and to warn individuals that they may have been in close proximity to someone who tested positive for the virus. The apps have unsurprisingly proven controversial, with some doubting their effectiveness and others concerned about the broader privacy and security implications. The Government of Alberta was first off the mark with its ABTraceTogether app that launched in May 2020. Alberta Information and Privacy Commissioner Jill Clayton recently completed her review of the application with an extensive investigation into its privacy implications that included an examination of the technical details, how the app functions, the role of third parties, and access to the data by contact tracers and other officials. Commissioner Clayton joins me on the podcast to discuss her report, the positive aspects of the app implementation, and the ongoing concerns that her review uncovered. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Office of the Information and Privacy Commissioner of Canada, ABTraceTogether: Privacy Impact Assessment Review Report Credits: Government of Alberta, Fight COVID-19 with ABTraceTogether

South Africa spent years embroiled in a high profile effort to update its copyright law responding to concerns from creators, the education community, and the visually impaired that the longstanding laws did not serve the national interest and were harming creativity and access to knowledge. Its Parliament ultimately passed progressive reforms in 2019, but the bill languished on the desk of President Cyril Ramaphosa, who faced enormous trade pressures from the United States and European Union to not sign the bill and stop it from becoming law. Last month, he seemingly caved to the pressure, citing constitutional concerns in sending it back to the Parliament. Ben Cashdan is a South African documentary film maker and television producer who was active during the copyright reform process. He worked with Recreate ZA, which brought together a broad coalition of creatives, to advocate for both the interests of owning copyright in their own works, and in fairly using copyrighted materials in the creation of new works He joins me on the podcast this week to discuss the decade-long reform process, the external pressures, and explains why he thinks those pressures should be viewed as racist policies. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: SABC News, Various Groups Call for Signing of the Copyright Amendment Bill

The Supreme Court of Canada recently released its much anticipated Uber Technologies v. Heller decision, a landmark ruling with significant implications for the validity of online contracts and for employment relations in the gig economy. The court rejected an arbitration clause in an Uber contract with its drivers, finding the clause unconscionable. The decision unsurprisingly quickly caught the attention of many in the legal, technology, business, and consumer advocacy communities. Professor Marina Pavlovic is a friend and colleague at the University of Ottawa, who appeared before the Supreme Court representing the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic as an intervener in the case. She joined me on the podcast to discuss the decision and to explain why she believes it is an earth shattering ruling for online contracts in Canada. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Uber Technologies v. Heller Credits: CBC News: The National, Supreme Court Rules in Favour of Uber Drivers, Opening Door to Lawsuit

Canadian Heritage Minister Steven Guilbeault recently suggested that the government’s support for news media should be replaced by copyright rules that would open the door to payments from internet companies such as Google and Facebook. Guilbeault indicated that a legislative package was being prepared for the fall that would include a press publishers’ right is that is commonly referred to as an internet link tax. Julia Reda is a former Member of the European Parliament who for several years was the most active and visible politician in Europe when it came to copyright reform. That multi-year debate ultimately led to the adoption of a link tax and upload filters with a European directive. She joins me on the podcast to talk about that experience, why she believes a link tax harms freedom of expression and diversity of media, and what lessons Canada should draw from the European experience. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Credits: Banff Xchange, In Conversation With: Minister of Canadian Heritage, Steven Guilbeault

The state of Canadian privacy law has been ongoing source of concern with many experts concluding that the law is outdated and no longer fit for purpose. This is particularly true when contrasted with rules in the European Union that feature tough penalties and new privacy rights. It would appear that the province of Quebec has concluded that the waiting has gone on long enough. The provincial government recently introduced Bill 64, which if adopted would overhaul provincial privacy laws and provide a potential model for both the federal government and the other provinces. Eloïse Gratton is a partner at the law firm of Borden Ladner Gervais in Montreal and recognized as one of Canada’s leading privacy law practitioners. She joins the podcast to break down Bill 64 and its implications for privacy enforcement, accountability and new privacy rights. The podcast can be downloaded here and is embedded below. Subscribe to the podcast via Apple Podcast, Google Play, Spotify or the RSS feed. Updates on the podcast on Twitter at @Lawbytespod. Show Notes: Proposed Amendments to Quebec Privacy Law: Impact for Businesses Credits: EuroNews, France fines Google €50 million using EU’s transparency and consent law