A new place to put cameras: Lollipops!

England, well beyond the cutting edge of surveillance, has found a new place to put cameras: in the lollipop-shaped signs used by crossing guards.

Campaign to lick lollipop rage UK news guardian.co.uk

For generations, lollipop men and women have shepherded schoolchildren safely across roads armed only with their trusty signs.

But they are about to undergo a Robocop-style makeover: their signs are to be equipped with cameras in an effort to combat "lollipop rage" by aggressive drivers.

The new signs, which cost £890 each, will allow lollipop men and women - officially known as school crossing patrol officers - to record dangerous driving and capture car number plates, say council leaders.

Air Marshals denied boarding due to no-fly list

I think I may need an "Ironic" tag for this one ...

The Washington Times reports that it is not uncommon that Air Marshals are denied boarding on aircraft because they are misidentified as terrorism suspects and other baddies. Hmm.

See: Air marshals grounded in list mix-ups - - Breaking News, Political News & National Security News - The Washington Times.

If you handle personal information, you'd better know the exceptions in privacy laws

If you handle personal information and only read one privacy law article, this one should be it:

Far too often, bureaucrats, cops and others use poorly understood privacy laws as a justification for inaction. Maybe it's just that they don't fully understand the myriad rules and the multiplicity of exceptions.

Privacy laws are complicated and are not well understood, even by people whose day-to-day operations are affected by them. But they are generally sensible and coherent. And -- believe it or not -- they are laced with common sense.

I've had the opportunity to look at every privacy law in Canada and I don't think I've seen one that does not have a public interest override. A public body, in the public sector context, can disclose personal information without consent if it is in the public interest to do so. There are often other exceptions from the general rule that requires consent.

Some may recall the aftermath of the south Asian tsunami where the federal government said they couldn't name victims or survivors because of the Privacy Act. The Privacy Commissioner and others were pretty quick to point out s. 8 of the Privacy Act, which allows the government to disclose personal information where it is in the public interest:

8(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

...

(m) for any purpose where, in the opinion of the head of the institution,

(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or

(ii) disclosure would clearly benefit the individual to whom the information relates.

(I wrote about it on this blog at the time: Editorial urges that naming Canadian tsunami victims is in the public interest & Fallout from naming/not naming Canadian victims)

I was recently reminded of this in a discussion about the failure of the police in Merritt BC to identify a suspect on the lam after a family was found murdered. Police blamed privacy laws. (RCMP grilled for delay in alerting town over suspect) The National Post Editorial Board called them out on the misstep:

The Post editorial board on the Allan Schoenborn case: The RCMP's high-profile failure - Full Comment

...Two days later, Ms. Clarke returned from errands to find her children murdered, and their father vanished along with his dog. The RCMP, confronted with a gruesome spectacle that may have resulted from their failed efforts to get Schoenborn under lock and key, took nearly a full day to announce to the public in Merritt that he was the prime suspect in the killings. Their excuse? "Due to privacy concerns," said RCMP Staff Sergeant Scott Tod, "we had to make sure that we had information that this was the suspect before we released his name."

"Privacy" is a popular item these days in the lexicon of justice, as it is used by the Mounties. No act of ineptitude in communicating with the public can possibly escape its reassuring cover, even though every privacy law or code written down anywhere in the last 50 years contains public-interest exemptions.

Most recently, a University in Ontario has been called to account for not notifying the parents of a mentally ill student who subsequently committed suicide. Privacy laws were pointed to as preventing such action. Anne Cavoukian and her counterparts have reminded universities that these laws are easy scapegoats, but without exception contain provisions that allow privacy rights to be overridden in certain circumstances.

Universities grapple with providing health services, protecting privacy

...University officials say they followed procedures and couldn't tell Kajouji's parents about her mental health because of the province's privacy law. They also indicated universities that don't respect the privacy of their students' health information risk driving students away from the very services designed to help them.

Ontario's privacy commissioner, Ann Cavoukian, and several of her counterparts in other provinces, say universities need to have a clearer understanding of what privacy laws allow and they cautioned that too often privacy laws are the automatic target of blame when controversy arises.

Cavoukian's office provided a fact sheet several years ago to universities explaining the law allows them to disclose personal health information in "compelling circumstances" and if they believe on reasonable grounds it would eliminate or reduce the risk of bodily harm.

Determining whether a situation warrants disclosure is a judgment call, Cavoukian said in an interview, though the law affords protection to the decision-maker as long as he or she acted in good faith.

"If you are a health-care practitioner or a university professional and you have information relating to a student that is considering suicide and you fear for that person and want to reduce the risk of suicide, absolutely you are allowed to release that information," she said. "It's not an easy decision but it is one that is permitted under our privacy laws and I'm sick and tired of people saying that it's the privacy laws that prevented the counsellors from contacting the girl's parents. That's incorrect," she said.

... Suzanne Blanchard, vice-president for student support services, said in an e-mail message the university has specific procedures to deal with students who are in "imminent danger of doing harm to themselves or others."

"Carleton University has reviewed its actions in the aftermath of Nadia's tragic death. We believe that we followed all proper procedures and provided all the support services we could for Nadia," she said. "Carleton University is always diligent in its compliance with Ontario's privacy laws and we believe that we acted, and continue to act, in accordance with those laws."

Cavoukian said some universities take their obligations under the privacy law seriously, but there is still a lot of confusion. She plans to convene a meeting with the Council of Ontario Universities in an attempt to clarify any lingering questions.

Saskatchewan's privacy commissioner agreed there is a "significant need for more education" about the flexibility that is built into privacy laws.

"Sometimes you have people who don't want to do the wrong thing and so therefore you get a kind of paralysis and they don't share information even when the law allows them to and it's appropriate to do so," said Gary Dickson.

Dickson said Kajouji's death, while tragic, provides incentive for universities to ensure they are prepared to deal with students' mental health issues and with situations where informing the parents is up for debate. "Decisions will have to be made and then there have to be people with the appropriate training and judgment who can then make that discretionary decision," he said.

Frank Work, Alberta's privacy commissioner, said it has to be kept in mind Kajouji was an adult and the university may have felt her situation was under control. All the law asks is that a standard of reasonableness be applied, said Work.

"I think it's true in just about every privacy law, the standard is always reasonableness, not perfection," he said.

People will disagree on whether Carleton made the right decision, but one thing the privacy commissioners all agree on is the decision needs to be given due consideration.

"The worst case scenario is if it's just neglect. They saw the bus coming and they didn't yell: 'Get out of the way.' We don't know here. Hopefully in this case they made a judgment call," said Work.

Ontario's commissioner similarly said university officials have to take the time to make the difficult determination and should not rely on privacy laws as the default reason for not disclosing personal information.

"I would urge people to resist the knee-jerk reaction of automatically blaming privacy laws," Cavoukian said.

Here is the moral of this story: Whenever common sense or humanity seem to bump up against privacy laws, take a close look at the law and its exceptions. You will probably find that the drafters have designed the laws to accommodate common sense and humanity.

Blawg Review #157

Michael Fitzgibbon was just called upon to prove his dedication to legal blogging: He put together a very interesting Blawg Review while trying to clear his desk to take a vacation.

Check it out: Thoughts from a Management Lawyer: Blawg Review #157.

Radwanski's lawyer to challenge admissibility of evidence

According to Canwest, the defence lawyer for George Radwanski is talking about having certain evidence against him excluded. See: Lawyers to challenge eligibility of evidence against Radwanski.

I'm not sure why anyone involved on his behalf would be speaking to the media, as no trial is scheduled and I can't imagine that reminding people of the saga would be a good thing for George.

California takes lead on DNA crime-fighting technique

In an effort to fully exploit DNA databases, investigators in California are planning to look for partial matches from crime scenes. If a forensic sample partially matches a sample on file, it likely means that it was left by a relative of the person on file. Although the "match" isn't for a suspect, they'll be investigated to try to find the suspect in their family tree.

Critics are concerned about the privacy implications of this.

California takes lead on DNA crime-fighting technique - Los Angeles Times

Civil libertarians oppose using DNA databases to search for relatives of unknown offenders, saying it puts family members under "genetic surveillance" for crimes they did not commit. For now, all the people in the state's database are convicted offenders, but the state plans to expand the database next year to include arrestees, heightening concerns over privacy.

Critics say familial searching could expose sensitive and secret genetic relationships. A son, for example, could learn that his father was not his biological parent. DNA databases also reflect the racial and ethnic biases of the justice system, exposing minority communities to more surveillance than others, critics maintain.

FBI officials in charge of the national database network have also expressed concerns, making them unlikely allies of civil libertarians on familial searching. They urge a cautious approach, worrying that the courts will balk at this type of sleuthing. No law specifically authorizes it, and some legal scholars consider it unconstitutional because they say it amounts to an unreasonable search.

Brown called such objections hypothetical. The policy forbids the release of the names of relatives until genetic tests and analysis convince the state that the person is indeed a relative.

"It is still not going to be a fail-safe system, and we are going to make mistakes," said Simoncelli, the ACLU science advisor. "We are opening the door to using the database in such a fundamentally different way than the purpose for which it was established."

Wacky Canadians Still Believe in Privacy

Washtington Post columnist Al Kamen has picked up on the Canadian Privacy Commissioner's response to the Secretary of Homeland Security's statement that fingerprits are not "personal" (see: Canadian Privacy Law Blog: Privacy Commissioner's response to US Homeland Security Secretary's statement on biometrics). It's not clear whether he's being serious, but we certainly are wacky compared to the Americans.

Al Kamen - Wacky Canadians Still Believe in Privacy - washingtonpost.com

Wacky Canadians Still Believe in Privacy

By Al Kamen

Friday, April 25, 2008; A21

Homeland Security chief Michael Chertoff caused a little ruckus up north a couple weeks ago as he was pushing his plan to share databases of international air travelers' fingerprints with the Canadians, Brits and Aussies.

In an interview with an excessively squeamish Canadian reporter, Chertoff was told: "Some are raising that the privacy aspects of this thing, you know, sharing of that kind of data, very personal data, among four countries is quite a scary thing."

Nonsense, Chertoff responded. "Well, first of all, a fingerprint is hardly personal data because you leave it on glasses and silverware and articles all over the world. They're like footprints. They're not particularly private," he said, according to Canadian news reports and privacy lawyer Peter Swire, a senior fellow and guest blogger at the Center for American Progress.

Absolutely. But the old-fashioned Canadians seem to think otherwise. They even have someone who monitors privacy issues, Privacy Commissioner Jennifer Stoddart, who promptly wrote the minister of public safety and preparedness to object, noting that Canadian law "defines fingerprints as personal information" and that "fingerprints constitute extremely personal information for which there is clearly a high expectation of privacy." That's why, she wrote with a hint of huffiness, "Canadians rightly expect their government to respect their civil liberties and personal information from abuse."

Oh yeah? Well, our Supreme Court ruled in 1985 that you have to have probable cause before you haul someone off and fingerprint them. Justice Byron R. White wrote the opinion, joined by Warren E. Burger and William H. Rehnquist, no less.

But in wartime, maybe we have different expectations, okay? As Chertoff, who after all was recently a federal appeals judge, knows quite well, no one should expect privacy in a restaurant or anywhere else where a fingerprint might be left.

And we don't. That's why many diners here are beginning to use gloves when they eat at restaurants and some even wear those hospital booties. Others prefer just a discreet swipe of utensils and glassware with a Wet-Nap to ensure against DNA retrieval from saliva. (There is a growing -- and deplorable -- trend to bring personal cutlery, but that really seems excessive and, in finer establishments, downright disrespectful, especially if it's plastic.)

Is it possible the Canadians thought those signs at beachfront eateries -- "No shirt, no shoes, no service" -- were an effort to maintain appropriate attire? Everyone down here knows the restaurants just wanted to prevent the feds from trying to collect toe prints.

Canadians probably still go to barbershops -- where a single hair in the right hands can provide DNA, general health info, recent drug use data and other information. Our cousins probably haven't read about the growing in-home trim movement here.

And there's an easy way to guard against theft of your secret mattress Sleep Number. Just change the setting every morning before you leave.

Feds to leave disclosure of data security breaches to businesses: legislative plan

One thing that was relatively consistent in the submissions at PIPEDA's five year review was to follow in the footsteps of more than half the US states to require notification of security and privacy breaches. Canwest is reporting on leaked draft legislation which will surely disappoint many in the privacy community. In effect, there is no mandatory reporting. Businesses get to determine whether there is a "high risk of significant harm" and only then do they need to report the breach to consumers. Not reporting has no consequences. See: Feds to leave disclosure of data security breaches to businesses: legislative plan.

Supreme Court of Canada throws out evidence of drugs obtained by fly-by sniff

In a decision released today, the Supreme Court of Canada has upheld a decision that excluded evidence obtained in a sweep of an Ontario school by sniffer dogs. In this case, the police were invited by a school principal to walk a sniffer dog through the building to enforce the "zero tolerance" policy for drugs. When the dog reacted to an unattended backpack, the police opened it and found drugs. At trial, the accused argued that the search was unconstitutional and the evidence should be excluded. The trial judge agreed and the Supreme Court of Canada has upheld that decision.

In the result, police can only use sniffer dogs and open backpacks if they have a reasonable suspicion is demonstrated. Any holding otherwise would enable the police to effectively see through backpacks, into their contents. The Court concluded that teenagers have a reasonable expectation of privacy in closed backpacks.

A positive reaction from a sniffer dog, the Court concluded, is not sufficiently reliable to indicate the actual presence of drugs. Sniffers detect smells that indicate that drugs may be present, may have been present or that the backpack has been exposed to drugs, or "the dog is simply wrong". As the Court noted, "in the sniffer dog business, there are many variables."

Here's the headnote:

Supreme Court of Canada - Decisions - R. v. A.M.

Per McLachlin C.J. and Binnie J.: The police possess common law authority to use sniffer dogs in appropriate circumstances. If the police in this case had been called to investigate the potential presence of guns or explosives at the school using dogs trained for that purpose, the public interest in dealing quickly and efficiently with such a threat to public safety would have been greater and more urgent than routine crime prevention. [7] [37]

The dog sniff amounts to a search within s. 8 of the Charter. The information provided when the dog is trained to alert to the presence of controlled drugs permits inferences about the precise contents of the source that are of interest to the police. The subject matter of the sniff is not public air space. It is the concealed contents of the backpack. As with briefcases, purses and suitcases, backpacks are the repository of much that is personal, particularly for people who lead itinerant lifestyles during the day as in the case of students and travellers. Teenagers may have little expectation of privacy from the searching eyes and fingers of their parents, but they expect the contents of their backpacks not to be open to the random and speculative scrutiny of the police. This expectation is a reasonable one that society should support. The guilty secret of the contents of the accused’s backpack was specific and meaningful information, intended to be private, and concealed in an enclosed space in which the accused had a continuing expectation of privacy. By use of the dog, the policeman could “see” through the concealing fabric of the backpack. [8] [62‑63] [66‑67]

Although a warrantless sniffer‑dog search is available where reasonable suspicion is demonstrated, the sniffer‑dog search of the students’ belongings in this case violated their Charter rights under s. 8. The dog‑sniff search was unreasonably undertaken because there was no proper justification. The youth court judge found that the police lacked any grounds for reasonable suspicion and the Crown has shown no error in the youth court judge’s finding of fact. [91]

While the sniffer‑dog search may have been seen by the police as an efficient use of their resources, and by the principal of the school as an efficient way to advance a zero‑tolerance policy, these objectives were achieved at the expense of the privacy interest (and constitutional rights) of every student in the school. The Charter weighs other values, including privacy, against an appetite for police efficiency. Because of their role in the lives of students, backpacks objectively command a measure of privacy, and since the accused did not testify, the question of whether he had a subjective expectation of privacy in his backpack must be inferred from the circumstances. [15] [62‑63]

In the context of a routine criminal investigation, the police are entitled to use sniffer dogs based on a “reasonable suspicion”. If there are no grounds of reasonable suspicion, the use of the sniffer dogs will violate the s. 8 reasonableness standard. Where there are grounds of reasonable suspicion, the police should not have to take their suspicions to a judicial official for prior authorization to use the dogs in an area where the police are already lawfully present. All “searches” do not have the same invasive and disruptive quality and prior judicial authorization is not a universal condition precedent to any and all police actions characterized as “searches” given that the touchstone of s. 8 is reasonableness. Account must be taken in s. 8 matters of all the relevant circumstances including the minimal intrusion, contraband‑specific nature and high accuracy rate of a fly‑by sniff. The warrantless search is, of course, presumptively unreasonable. If the sniff is conducted on the basis of reasonable suspicion and discloses the presence of illegal drugs on the person or in a backpack or other place of concealment, the police may confirm the accuracy of that information with a physical search, again without prior judicial authorization. But all such searches by the dogs or the police are subject to after‑the‑fact judicial review if it is alleged (as here) that no grounds of reasonable suspicion existed, or that the search was otherwise unreasonably undertaken. [12‑14]

Permitting the police to act on a standard of reasonable suspicion within the framework of s. 8 will allow inappropriate conduct by the dog or the police to be dealt with on the basis that although the lawful authority to use the sniffer dog does exist, the search in the particular case was executed unreasonably, and thereby constituted a Charter breach, on the basis of which the evidence obtained may be excluded. The importance of proper tests and records of particular dogs will be an important element in establishing the reasonableness of a particular sniffer‑dog search. From the police perspective, a dog that fails to detect half of the narcotics present is still better than no detection at all. However from the perspective of the general population, a dog that falsely alerts half of the time raises serious concerns about the invasion of the privacy of innocent people. An important concern for the court is therefore the number of any such false positives. It is important not to treat the capacity and accuracy of sniffer dogs as interchangeable. Dogs are not mechanical or chemical devices. Moreover, the sniff does not disclose the presence of drugs. It discloses the presence of an odour that indicates either the drugs are present or may have been present but are no longer present, or that the dog is simply wrong. In the sniffer‑dog business, there are many variables. [82] [84‑85] [87‑88]

In sniffer‑dog situations, the police are generally required to take quick action guided by on‑the‑spot observations. In circumstances where this generally occurs, it is not feasible to subject the “sniffer dog’s” sniff to prior judicial authorization. Both the subject and his suspicious belongings would be long gone before the paperwork could be done. In the particular context of sniffer dogs, there is sufficient protection for the public in the prior requirement of reasonable suspicion and after‑the‑fact judicial review to satisfy the “reasonableness” requirement of s. 8. [90]

The trade‑off for permitting the police to deploy their dogs on a “reasonable suspicion” standard without a warrant is that if this procedure is abused and sniffer‑dog searches proceed without reasonable suspicion based on objective facts, the consequence could well tip the balance against the admission of the evidence if it is established under s. 24(2) of the Charter that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Youth court judges have a greater awareness than appellate judges do of the effect that admission or exclusion of the evidence would have on the reputation of the administration of justice in the community with which they deal on a daily basis. Here, the youth court judge excluded the evidence. His exclusion of the evidence should not be interfered with. [14] [90] [98]

The irony of privacy enhancing technologies

I reported last month that the Information and Privacy Commissioner has issued a report on the proposal to dramatically increase video surveillance on public transit in Toronto. (Canadian Privacy Law Blog: Ontario Commissioner releases detailed report on TTC surveillance cameras)

InterGovWorld.com has an extensive article on the Commissioner's suggestion that reversible faceblurring technology may make the system more palatable. I spoke with the author, Rosie Lombardi, at length on the topic who has done a good job of summing up my take on the topic:

More privacy-boosting technology begets more video surveillance

... A point that's often overlooked is that privacy legislation is ultimately about feelings, says David TS Fraser, a privacy lawyer at Halifax-based law firm McInnes Cooper. "Although the legislation is written in a way that talks about personally identifiable information and identity theft, it's ultimately designed to protect people's sensibilities about unwanted intrusions," he says.

PET technology may not be enough to address those sensibilities unless the rules governing the use of surveillance are stated. "While the technology may do a good job of limiting the actual intrusions, I'm not sure it does much to address people's feelings about being watched. Unless the policies and procedures around surveillance are clearly communicated, it won't diminish that visceral feeling of unease about being spied upon."

Fear of the unknown is at the core. "If you see a cop at a corner, you can tell from his uniform who he is, what he's looking at, and if you've aroused his suspicions," he says. "But a camera is completely faceless. You don't know who's watching and how the information captured is used - will it wind up on late-night television?"

He notes a significant number of videos in these shows displaying people caught in embarrassing situations come out of Britain, where an extensive network of cameras in public places is rousing a public backlash. Cavoukian noted in her report that U.K. camera operators have caught entertaining themselves by zooming in on attractive women. "If you're going to outsource surveillance to a bunch of badly-paid guys locked in dark rooms, they're going to see more bums than bombs," agrees Fraser.

He concedes that automating the enforcement of policies and procedures around surveillance with PET technology rather than relying on fallible human operators to refrain from misusing the information offers some comfort. But he warns this may have the unintended effect of increasing video surveillance. "Unfortunately, this stuff makes it more acceptable to put video cameras all over the place, and by making it better and safer with less intrusive technology, it may ironically lead to more surveillance."