As I mentioned earlier, there is a proposal in the US for legislation to require backdoor internet access to law enforcement.  There have been similar proposals in Canada for “lawful access”.

Bruce Schneier has a good post entitled Wiretapping the Internet that explains why this is a bad idea.  The entire post is worth reading, but to give a flavour:

These laws are dangerous, both for citizens of countries like China and citizens of Western democracies. Forcing companies to redesign their communications products and services to facilitate government eavesdropping reduces privacy and liberty; that’s obvious. But the laws also make us less safe. Communications systems that have no inherent eavesdropping capabilities are more secure than systems with those capabilities built in.

…

Official misuses are bad enough, but the unofficial uses are far more worrisome. An infrastructure conducive to surveillance and control invites surveillance and control, both by the people you expect and the people you don’t. Any surveillance and control system must itself be secured, and we’re not very good at that. Why does anyone think that only authorized law enforcement will mine collected internet data or eavesdrop on Skype and IM conversations?

That’s the title of my Slaw post for today.  It reads as follows:

Given that lawyers are heavy users of Blackberrys, most Slaw readers will already know that RIM just announced the Playbook tablet, which is an iPad competitor.

RIM has taken an interesting approach.  It is designed for business users, and as a companion device that will tether to a Blackberry.  Indeed, its promo hits heavily on features that the iPad has been criticized for lacking – such as a forward facing camera, and usb.  It may very well be a compelling choice for Blackberry users.

While it was just announced, it is not available until early 2011.  I suspect it was announced so far in advance for a couple of reasons.  To try to convince Blackberry users to wait rather than buy an iPad now.  And to give the developer community time to create apps for its launch.  After all, the apps are as important as the device.

For the record, I think the iPad is a game changer, and want one badly – but am waiting for either the 2nd generation iPad, or a worthy competitor.

More details can be found in this engadget post about its intro (which has a copy of RIM’s press release) , engadget’s post comparing the Playbook, the iPad, the Samsung Galaxy Tab, and the Dell Streak.  Also Wired Gadget lab’s post about its intro, and it’s comparison.

We get upset when governments outside of North America insist on being able to monitor internet based communications.   But we shouldn’t get too smug about it, as the same thing happens in North America.  See these posts that talk about a new attempt to legislate backdoor internet access in the US, why its a problem, and links to other commentary.  CircleID       Techdirt

The three strikes concept just won’t go away either.  Basically it allows or requires sites or internet access to be shut down based on unproven allegations they are used for infringement.  A new proposed US bill would do that.  See the CircleID link above for their take on that.

Mike Masnick of Techdirt puts that bill in perspective by saying that the same logic used by the proponents of the bill would have in the past banned Hollywood itself, the recording industry, radio, the DVR, and other ubiquitous things.

UPDATE: Also see the EFF take on the backdoor bill.

For the London Free Press – September 27, 2010

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Most of us are familiar with the terms “software” and “hardware”. Over the years, many other “ware” words have been coined to describe the myriad applications available today.

There are a variety of terms for software designed to harm your computer. For example, “malware” (or “scumware”) describes software developed to harm your computer. It includes things such as viruses and worms, and often uses communication tools such as e-mail and instant messaging programs to spread from computer to computer.

“Scareware” is a type of malware. A form of fake security software, it claims that your computer is infected with viruses, and persuades the user to buy a full version of software that will “clean” the infection. It tries to scare users into buying a product. The product you buy could simply be unnecessary, but it could also be intended to damage your computer. It is even possible to become infected with scareware without buying the software, for example, if the user tries to close the notification. Some scareware messages are particularly deceptive because they are designed to look like they were generated by your computer’s operating system.

“Spyware” is another kind of malware that collects personal information about users without their knowledge. The information it collects is often used for the purposes of advertising and identity theft. Some can also slow down your computer, causing applications to freeze and systems to crash.

“Junkware” refers to unwanted, and often intrusive, software. It may be installed with the user’s consent when the user accepts an end-user licence agreement, but it typically serves no useful purpose. It can include adware, spyware, as well as “hijackware”, which can, among other things, set the user’s default Internet homepage to a site of its choice.

There are forms of “wares” that are less harmful, but equally annoying. “Annoyware” (or “nagware”) describes software that users find annoying. Such as software that frequently disrupts the normal operation of a program to remind users to register it.

“Adware” displays advertisements while the software is running. Although it can be harmless, and is typically used by application developers as a source of income, they can include spyware. Similar to “Adware” is “Beggarware”, a form of “freeware” that encourages the user to donate to the freeware’s author.

There are also terms for software with limited functionality. “Shareware” free software is sometimes limited in its functionality, availability or convenience. It may be trial or demo software. Additional features become available if the user chooses to purchase the full version. “Crippleware” refers to an even more restricted type of shareware.

Bloatware (or “fatware”) is software that uses so many resources it slows your system. A recent example of this is some pre-loaded applications found on Android smartphones.

Not all wares are evil, though. “Charityware”, for example, is a type of software whose end is to benefit a charity by encouraging its users to donate to a charity, instead of paying for the software.

The media has been reporting that “Hundreds of federal bureaucrats accessed the private records of a longtime veterans’ rights advocate and went as far as briefing the minister on his psychiatric records, the former soldier revealed this week.”

Assuming the allegations are true, this illustrates a phenomenon I’ve observed over the years. 

Many privacy breaches occur because of human actions where people look at and do things with personal information that they should not do.  Then when it comes to light, we wonder why they didn’t know better. 

People often have an asymmetrical concept of privacy.   A given individual who doesn’t understand (or understands but somehow rationalizes their actions) they are violating someone else’s privacy rights  – would be appalled if the roles were reversed and it was their personal information that was compromised.

We have to do better than that.

For the London Free Press – September 20, 2010

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An Ontario Superior Court recently upheld an interlocutory injunction against several defendants alleged to be engaged in the grey market sale of DirectTV to Canadians.

The case of DirectTV, Inc. v. Donaldson dealt with defendants based in the town of Charring Cross, just outside of Chatham. The injunction prohibits the defendants from selling DirectTV dishes or having anything to do with selling DirectTV subscriptions.

Grey-market satellite customers purchase a U.S. satellite dish, and pay monthly for programming. Grey-market customers use false U.S. addresses to misrepresent that they are U.S. residents. DirectTV is the largest provider of satellite-delivered subscription television programming signals in the United States, but is not licensed for sale or use in Canada.

Obtaining an interlocutory injunction — meaning an injunction in a preliminary motion before the trial has begun — is not easy, as courts are reluctant to make such decisions without hearing all the evidence.

The test for granting an interlocutory injunction is that:

there be a serious question to be tried; irreparable harm will be suffered if the relief is not granted; and the balance of convenience favours the granting of an injunction, i.e. the harm to the plaintiff if the injunction is not granted will be greater than the harm to the defendant if the injunction is granted.

In this case, the judge said, “I am satisfied that there is a serious issue to be tried and that DirectTV’s claim is not frivolous or vexatious and stands a reasonable chance of success at trial.”

The defendants tried to argue consumers could use the dishes for things other than receiving DirectTV signals, but the court was not convinced.

The judge said:

“I am satisfied that there is a serious issue to be tried as to whether the Haskell Defendants have breached the Radio Communication Act and are liable to DirectTV therefore. I am also satisfied that there is a serious issue to be tried as to whether the Haskell Defendants have aided and abetted in the breach of the Radio Communication Act and are liable to DirectTV therefore. I am also satisfied that DirectTV can show a serious issue to be tried as to whether the Haskell Defendants are liable for fraud, fraudulent misrepresentation, conspiracy, conversion, unlawful interference with economic relations, and unjust enrichment.”

Even if this case never proceeds to trial, it sends a strong message that the sale of grey-market satellite receivers is unlawful.

This is not the first case to send that message. In the 2002 case of Bell ExpressVu Limited Partnership v. Rex, et al., it was decided that section 9(1)[copy] of the Radiocommunication Act prohibited the decoding of all encrypted satellite signals, except where authorization was acquired from a distributor holding the necessary legal rights in Canada to transmit the signal. That case also dealt with black-market satellite, meaning accessing satellite TV using hacked access cards

UPDATE:  Here’s a link to the decision in case anyone is interested in reading it.   http://www.canlii.org/en/on/onsc/doc/2010/2010onsc4062/2010onsc4062.html

For the London Free Press – September 13, 2010

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The concept they may accumulate to equal a material breach is consistent with our case law

The United Kingdom Court of Appeal recently held that many minor breaches of contract can combine to be treated the same as a single material breach.

The claimant gas supplier entered into an agreement with the defendant for installation and maintenance of a new IT system, including an automated billing. The agreement included a warranty provision requiring the defendant to take remedial action for a fundamental breach.

Fundamental breach is essentially a way for courts to ignore limitation of liability clauses in contracts where it feels the defendant’s actions make it unfair for it to escape liability.

The rollout of one of the phases of the project was delayed following disputes over scope and performance. Although this was corrected, the new plan resulted in many problems, with increasing client dissatisfaction and customer accounts going unbilled. The claimant notified the defendant of what they perceived as amounting to a fundamental breach.

The defendant failed to correct the problems. A preliminary issue at trial was whether individual errors in the system could be aggregated to constitute a fundamental breach. The Court held that minor breaches of contract that might have no consequences individually can accumulate to equal a material breach that results in greater liability and more serious consequences.

This decision is consistent with Canadian case law.

In Canada the concept of fundamental breach has been replaced with a public policy test to determine if a strict reading of a contract in favour of a defendant should be set aside. Despite that, many of the principles established in previous fundamental breach case law will likely continue to be persuasive.

There are several cases in which fundamental breach was found as a result of an aggregation of small defects. An example is Lightburn v. Belmont Sales Ltd. (1969), in which the British Columbia Supreme Court found that over a period of some eight months a car which never gave satisfactory service and was returned to the vendor for repair some 17 times as a result of various defects constituted a breach of a fundamental term of the contract.

Another example is Knowles v. Anchorage Holdings Co. (1964), where the British Columbia Supreme Court found that where defects are so numerous that, taken en masse, they destroy the workable character of the thing sold, it may amount to a fundamental and total breach of the contract, so as to disentitle the defendant from taking refuge behind an exclusionary clause upon which, if the defects were considered singly, he might rely.

A third example can be found from the Court of Queen’s Bench of Alberta where in dismissing a summary judgment application the court held that it is not “plain and obvious” or “beyond a doubt” that a trial judge would find that a series of breaches could amount to a fundamental breach.

So in the right circumstances it should still be possible to argue that a series of minor breaches may lead to limitation clauses being ignored based on public policy.

That’s the title of my Slaw post for today.  It reads as follows.

There is a lot written about what people post about themselves on social media, and whether or not that is a good thing.   New location based services such as foursquare ramp up that controversy.  Letting others know where you are might have social advantages, and has the potential for interesting and useful services based on where you are at the moment.

But looming in the background are the dangers of that personal transparency.  Letting apps or friends know where you are is one thing – but how much of that detail do you really want the world to know?   For example, my son told me last night about a presentation made at Western’s orientation week about student safety.  They showed an actual student’s facebook page that was open to the world, where the student posted her detailed class schedule, and enough information that anyone could tell exactly were she lived.   Might as well post a sign saying when and where to take my stuff or stalk me.

And speaking of social media, it has been reported that Justin Bieber uses 3% of Twitter resources, and has dedicated Twitter servers. (BTW – Bieber’s popularity is a mystery to me -  its clearly not about his singing ability – my son, and others in the Amabile choir could out sing him any day – but I digress).  Apparently many large users have dedicated Twitter servers.  So is this the new social media metric?  Perhaps number of followers, numbers of friends, or number of visits is passe – the new metric: number of dedicated servers.

Michael Fitzgibbon has a good article summarizing a recent case in which the court made some very clear comments on various aspects of damage awards for wrongful dismissal on his Thoughts from a Management Lawyer blog. Its a worthwhile read.

Even though I’ve used the common term “wrongful dismissal” - the court points out that there is no such thing.   Either employer or employee can end their arrangement at any time for any reason.  The real issue is how much notice must be given. 

I guess we will have to come up with a new term to replace “wrongful dismissal” – how about “insufficient termination notice”.