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Canadians are invited to submit comments

Canada’s Privacy Commissioner, Jennifer Stoddart, recently announced a new consultation with the Canadian public on privacy issues related to the online tracking, profiling and targeting of consumers by marketers and other businesses.

Canadians are invited to submit comments and participate in panel discussions. Details are on the Privacy Commissioner’s website at http://www.priv.gc.ca/.

The commissioner says this consultation will “provide a forum for the exploration of the privacy implications related to this modern industry practice, and the protections that Canadians expect. Our goal, therefore, is to shine a spotlight on this evolving technological trend.”

Online consumer tracking takes several different forms. The most basic level of tracking places cookies on one’s computer to collect data about browsing habits. Global Positioning Systems (GPS) in mobile devices can supply consumer data. Deep packet inspection of Internet traffic is another way to gather data.

Of course, we advertise a vast amount of personal information about ourselves when we join social networking sites. Facebook, MySpace and LinkedIn are prime examples.

What many may not realize is that personal data available about anyone can be gathered from various sources and pieced together to create comprehensive personal profiles which are available for a price. The buyer may use the information to help them market their products to specific consumer groups. It can be a valuable commodity.

It is unlikely that anyone will put a complete stop to online consumer tracking. Some of it offers real benefits to consumers. The key is to attain a balance where privacy is respected without getting in the way of the advantages the technology provides.

Transparency and choice are important components. We should be made aware of what is being collected and why, and be able to choose whether or not the benefits are worth the disclosure.

This consultation is an opportunity for the public to become engaged in a topic that affects us all. Written submissions are being accepted until March 15.

They are also looking for people to take part in formal discussion panels in Toronto in April, and in Montreal in May.

This consultation aims to give the commissioner’s office a “comprehensive view of the privacy risks associated with the online tracking, profiling and targeting of consumers, and contribute to the development of new public education and outreach materials,” it says.

“It will also help shape the office’s input into the next parliamentary review of the private-sector Personal Information Protection and Electronic Documents Act.”

A second consultation will be held later focused on cloud computing, or using software from a remote location rather than having it on your own computer. It, too, is a technology that has compelling advant-ages, but can carry privacy risks and uncertainties.

That’s not surprising given the nature of the restrictions.  For more details about those restrictions, see some of my earlier comments.

I’m speaking at a breakout session on “Legal Issues for a Digital World” .

I’ll be commenting on issues including copyright, cloud computing, the Streisand effect, and social media and privacy.   

There are several factors that make digital law different from analogue law.  As I’m putting my presentation together, I’m realizing that the concept of  practical obscurity plays a big role in explaining some of the differences.

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IBM recently announced that Euro Partners, a New York-based brokerage, downloaded $1.7 US million worth of IBM software between 2003 and 2008 without permission.

Euro Partners, a unit of BGC Partners, was acquired by BGC in 2005 for about $97.3 million. IBM accuses BGC of downloading extra copies of its Informix software without paying licensing fees.

IBM is suing BGC for breach of contract and copyright infringement and is seeking an injunction to impound all improperly downloaded copies of its software.

In 2008, after a customer audit, IBM found BGC was downloading more copies of Informix than its purchase agreement allowed. In September 2008, IBM sent BGC a bill for $1,730,665.24; BGC refused to pay.

In December, IBM offered BGC a new licence covering both previously licensed copies of Informix and the improperly downloaded copies. When BGC said no, IBM terminated BGC’s International Program License Agreement.

As a condition of its IPLA, BGC was required to destroy its copies of Informix. Not only did BGC refuse to destroy existing copies, but it downloaded more after the IPLA ended.

This is not the only example of a software distributor playing hardball and cracking down on users of unlicensed software.

The Business Software Alliance, an industry trade group that polices software licences, announced last fall it settled with 12 Canadian companies for a total of $431,336 in damages for using unlicensed software. Settlements ranged from $11,900 to $128,800.

These are not always instances of intentional “theft” of software. Sometimes the business simply doesn’t keep proper track of its software use compared to what they have actually licensed.

The most common way software vendors become aware of improper use is through tips from current or former employees.

In its 2009 Global Software Piracy Study — available at www.bsa.org — the alliance notes that “in 2008, the worldwide monetary value of unlicensed software — ‘losses’ to software vendors — was $53 billion. This was up $5.1 billion from 2007, or 11%, in non-constant dollars.” In 2008, “for every $100 of legitimate software sold, another $69 was pirated.”

Calling this entire amount “losses” is a stretch, since many of those who copied would simply not use the software if they had to pay for it.

Regardless, it is clear that any business or organization that uses a significant amount of unlicensed software — whether intentionally or through lax management — exposes itself to possible fees and damage claims likely to exceed the actual licence fees. Not to mention the internal time and public embarrassment entailed in such a claim.

From the official website:

Data Privacy Day is an international celebration of the dignity of the individual expressed through personal information.  In this networked world, in which we are thoroughly digitized, with our identities, locations, actions, purchases, associations, movements, and histories stored as so many bits and bytes, we have to ask – who is collecting all of this – what are they doing with it  – with whom are they sharing it?  Most of all, individuals are asking ‘How can I protect my information from being misused?’  These are reasonable questions to ask – we should all want to know the answers.

Also see more info on Wikipedia.

The Canadian Privacy Commissioner says: On Data Privacy 2010 we’d like to take a moment to remind everyone that is the responsibility of both individuals and companies to make sure that personal information is safe.   

Its worth a read, not only for Mike’s thoughts on new ways for the music industry to make money, but also to consider how that business model might work for other industries. 

Here are some snippets to get a flavour:

It’s no secret that there’s a lot of concern these days about what the music industry will look like going forward — especially from those who work on the label side of the business and have been around for a bit. A variety of things have caused rapid change in the market. Competition from other forms of entertainment, such as the internet, movies and video games, have put more pressure on the industry, as consumers have been presented with significantly more options for their entertainment attention and dollars. And, of course, there’s the ever-present specter of unauthorized file sharing — or, as the industry prefers to call it (accurately or not), “piracy.”

…

However, there is another solution: stop worrying and learn to embrace the business models that are already helping musicians make plenty of money and use file sharing to their advantage, even in the absence of licensing or copyright enforcement.

In simplest terms, the model can be defined as:

Connect with Fans (CwF) + Reason to Buy (RtB) = The Business Model

Sound simple? It is, if you understand the basics — and it can be incredibly lucrative. The problem, of course, is that very few seem to fully understand how this model works. However, let’s go through some examples.

…

This is a business model that’s working now and it will work better and better in the future as more people understand the mechanisms and improve on them. Worrying about new copyright laws or new licensing schemes or new DRM or new lawsuits or new ways to shut down file sharing is counterproductive, unnecessary and dangerous. Focusing on what’s working and encouraging more of that is the way to go. It’s a model that works for musicians, works for enablers and works for fans. It is the future and we should be thrilled with what it’s producing.

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“Responsible communication” expands media freedom of expression and opens door to more frank discussion of matters of public policy

If you don’t have anything nice to say, be sure to say it in the name of public interest.

The Supreme Court of Canada recently changed defamation law with its ruling in Grant v. Torstar. The case dealt with allegations that a wealthy land developer in Northern Ontario had bypassed regular government approval procedures for building a golf course, courtesy of friends in high places.

The Charter of Rights and Freedoms guarantees freedom of expression. But there’s a limit to what one can express.

Under defamation law, if a statement unjustifiably compromises a person’s reputation, that person can sue for damages.

In recent years, there has been concern that defamation law has resulted in media outlets suffering “libel chill.” The suggestion is the media have toned down or left out what they wished to say, for fear of being sued.

In the Grant v. Torstar decision, the Supreme Court created a new defence to defamation. This “responsible communication” defence effectively expands the freedom of expression afforded to media and opens the door to more frank discussion of matters of public policy.

To succeed, the new defence requires that the publication must be a matter of public interest, and the publisher must have been diligent in trying to verify the allegations. Factors to be considered when measuring diligence are:

• the seriousness of the allegation
• the public importance of the matter
• the urgency of the matter
• the status and reliability of the source
• whether the plaintiff’s version of the story was asked for and accurately reported
• whether including the defamatory statement was justifiable
• whether the statement’s public interest lay in the fact that it was made rather than its truth
• other relevant circumstances.

In other words, it is now possible to inaccurately report something of public interest, but have a viable defence to defamation so long as you take steps to get your facts straight at the outset.

This change is unlikely to result in a media free-for-all. In the decision, Chief Justice Beverley McLachlin cautions “The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause.”

It is noteworthy that bloggers are explicitly included in this test. Whatever uncertainty existed previously about allegations in cyberspace, the law is now clear: if you make controversial claims, you must do due diligence, however you publish them.