by Shelley Bentley

The CBABC sponsors 68 Sections which play a vital role in keeping members informed both on changes in the law, and legal and political issues affecting a given area of practice. They are the main resource utilized by the CBABC in legislative review, law reform initiatives, and in responding to matters affecting the profession. What follows is a sample of the recent activities of some Sections.

Freedom of Information and Privacy Law Section
UBC Professor Emeritus, Dr. Richard Rosenberg, spoke about privacy and security issues in the use of technology in the workplace and elsewhere. In describing the growing tendency to monitor the worker rather than the work he mentioned a variety of techno- logical threats to worker privacy: the counting of keystrokes and absences from the computer, reading of employee e-mail, capturing and measuring employee internet activity, regular monitoring of employee locations with cards, beepers and TV cameras and service monitoring or “eavesdropping” by recording calls with customers, carrying out background checks over the internet, and checking washroom visits. U.S. decisions covering the use of these technologies by employers have come down heavily on the side of employers’ rights.

He described some future technologies and their uses: psychological tests to determine stability of potential employees, genetic tests to predict the possibility of terrible diseases. RFID (radio frequency identification) or the use of tags with microchips and antennae are currently used in pets and livestock, auto theft prevention, building access and quick payment fobs. Wal-Mart now uses them to prevent theft. Every pallet shipped to Wal-Mart from their 100 largest suppliers must be tagged. This is expected to result in savings of $407 million USD per year. Eventually every item manufactured could carry an RFID tag for consumer tracking. Tests using item tagging are being run by Gillette and Proctor and Gamble. Professor Rosenberg warned that once this starts it will be difficult to stop. He cautioned that widespread use of human implants and RFID-chipped identification could also be on the horizon. Implants are already used in Mexico by the Mexican Attorney General and security staff. The U.S. Real I.D. Act allows the Secretary of Homeland Security to require RFID in all U.S. Government issued I.D.

Computer technology makes all of the above-mentioned practices possible but at what cost? There is no comprehensive federal policy in Canada governing the use of electronic monitoring. Professor Rosenberg outlined a sample “RFID Bill of Rights” for consumers:

• The right to know whether products contain RFID tags
• The right to have RFID tags removed or de-activated when they purchase products
• The right to use RFID-enabled services without RFID tags
• The right to access an RFID tag’s stored data
• The right to know when, where and why tags are being read

He suggested some possible technological solutions including the use of aluminum foil, tag killing by disabling after purchase, use of blocker tags preventing readers from distinguishing data from garbage. He also itemized possible legal ways to limit the use of the tags and protect privacy. In concluding his remarks he cautioned that vigilance was the key. Stay aware of developments and make your voice heard!

Computer Law and International Law-Joint Meeting
International counterfeiting and the legal issues arising in the regulation and prevention of this criminal activity were discussed by David Wotherspoon of Fasken Martineau. Mr. Wotherspoon defined counterfeiting as a fraudulent imitation and itemized some popular counterfeit items: Louis Vuitton handbags, designer sunglasses and clothes, DVDs and CDs of popular movies and music. Global counterfeiting represents about 5% to 7% of world trade or $450 billion per year and has increased 1,700% since 1993. Counterfeiting involves high profit and low risk. The return is high because there is no need to invest in innovation or marketing. The penalties are considerably lighter than similar activities like drug trafficking. However, it should be of concern to everyone because it is a huge source of funding for organized crime and terrorism. As well, in the case of fake pharmaceuticals and auto parts there are public safety issues.

Mr. Wotherspoon pinpointed Canada as a preferred destination for counterfeiters because of the perception that the Canadian government does not implement an effective IP enforcement system and that border enforcement is virtually non-existent. He added that the RCMP will not pursue charges against retailers absent an ability to demonstrate health and safety issues or linkage to organized crime.

The internet now accounts for 13% of counterfeit sales. Sellers are difficult to monitor and catch. There is no overhead and the market is global.

To highlight the legal issues involved Mr. Wotherspoon asked the following questions:

Which law applies to an advertisement for counterfeit goods that are:

• Manufactured in China?
• Advertised from India?
• Read by someone in Canada?
• Via an internet server located in the U.S.?
• Where the goods are eventually delivered to someone in the U.K.?

How do you regulate this behaviour?

Generally a country can only enforce its laws against the following: persons with a presence or assets in that country; persons over whom a nation can obtain a personal jurisdiction and enforce a default judgment abroad; persons whom the nation can successfully extradite. Despite these difficulties Mr. Wotherspoon mentioned prosecution as a necessary strategy.

Family Law (Westminster)
In his presentation on “Current Issues in Family Law-Ethics and Technology” David Bilinsky of the Law Society of B.C. emphasized the ethical issues facing lawyers who represent clients carrying out electronic snooping. Can one spouse use the electronic communications of the other spouse? Mr. Bilinsky outlined a number of means of spying on a person’s computer communications: spyware (monitoring software that reports back to a third party), keystroke logging software (often used by parents to monitor a child’s use of the internet) and hardware logging devices including those that make the spyware undetectable.

He noted the Criminal Code provisions covering electronic surveillance and referred to s.184(1): “every one who, by means of any electromagnetic, acoustic, mechanical or other device, willfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.” There is an exception if the interceptor has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator to receive it. A “private communication” is defined as any oral communication or telecommunication made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted. Mr. Bilinsky commented that the use of key logging software/hardware to catch infidelity is contrary to the Criminal Code.

He also referred to three provisions of the Professional Conduct Handbook to guide lawyers on their duties in this area:

• Chapter 4, Rule 6 – regarding not engaging in activity lawyer knows assists or encourages dishonesty, crime, fraud
• Chapter 5, Rule 15 – regarding a lawyer coming into possession of a document which the lawyer has reasonable grounds to believe belongs to or is intended for the opposing party and the duty to promptly cease reading it and return it to the opposing party
• Chapter 8, Rule 1 – regarding not assisting a client to do anything dishonest or dishonourable

Mr. Bilinsky concluded by emphasizing that lawyers will be placed under increasing pressure by clients to make use of illegally gathered evidence and that the onus is on counsel to inform themselves of how to obtain electronic evidence properly and to ensure that all evidence is gathered in an ethical way.

Shelley Bentley practices wills and estates law at Kerr Redekop Leinburd & Boswell in Vancouver.

This article originally appeared in the February 2006 issue of BarTalk and is reproduced here with permission of both the author and the Canadian Bar Association, British Columbia Branch.