Regulating Information, Technology, and E-Commerce

AuthorGeorge Takach
ProfessionAdjunct Professor
Governments regulate information in order to achieve a number of
objectives. They institute and administer data protection laws in an
effort to protect the privacy of individuals. Governments control the
export of certain high-tech information in order to protect a nation’s
security interests. In the area of telecommunications and broadcasting,
the Canadian government exercises the regulatory power to preserve
and enhance Canadian culture, sovereignty, and a host of other objec-
tives. Governments also pass laws to protect the interests of con-
sumers, as there are many nefarious fraudsters who would perpetrate
scams over the Internet. In each of these areas two important questions
can be asked. The initial, threshold-level inquiry is whether govern-
ments should regulate these areas of endeavour at all. The answer to
this question will be based on an amalgam of policy and political con-
siderations. If the decision is made to introduce government regula-
tion, then the analysis shifts to determining the optimum manner in
which such regulation may be effected. In this regard it is important to
understand that the four dynamics of computer law — the torrid pace
of technological change, the elusive nature of information, and the
blurring of private/public and national/international — are making it
more difficult for governments to regulate computers, networks, data,
and e-commerce activities effectively.1
1 These dynamics are important and are a unifying theme throughout this book. For a
discussion of these dynamics, see chapter 8, section A, “Computer Law: Dynamics.”
chapter 4
Privacy has been expressed as the fourfold right to control intrusion
into a person’s seclusion or solitude; control the disclosure of embar-
rassing private facts about the person; prevent being put into a false
light in the public eye; and control the exploitation of a person’s image
and likeness.2It is increasingly difficult for individuals to protect these
rights in the Information Age; indeed some commentators conclude
that privacy does not stand a chance.3And if the prospects for privacy
were bleak before the terrorist attacks of September 11, 2001, they are
positively depressing after this date given the additional sacrifices pri-
vacy will have to make in the name of security.4Computers, databases,
302 COmputer Law
2 William L. Prosser, “Privacy” (1960) 48 Calif. L.R. 383 [“Privacy”]. Each of these
rights, which David H. Flaherty, in “Some Reflections on Privacy and Technology”
(1999) 26 Man. L. J. 219 [“Privacy and Technology”] refers to as solitude, intima-
cy, anonymity, and reserve, is the subject of discussion in this book. Controlling
intrusion is the subject of chapter 3, sections B.3, “Computer Abuse,” B.10,
“Interception of Communications,” and B.11, “Search, Seizure, and Surveillance,”
as well as some discussion in the next section below; the regulation of personal
information is dealt with in the bulk of section A, “Privacy and Data Protection”;
the right to avoid being put in a false light is the subject of the libel discussion in
chapter 7, section A, “Cyber Libel”; and the exploitation of image and likeness
is touched upon briefly in section A.1 of this chapter, “Privacy Laws.”
3 See “The End of Privacy” and “The Surveillance Society,” The Economist, 1 May
1999. These articles take a decidedly gloomy view of the prospects for privacy: given
the privacy-eroding impact of technology, in the not-to-distant future there will sim-
ply be no privacy left, and there is little that technology or legal solutions can
do about this inexorable development. The authors’ prescription? “Get used to
it.” Recent books that echo the sentiment about privacy losing the battle to technol-
ogy include Simson Garfinkel, Database Nation: The Death of Privacy in the 21st Cen-
tury (Cambridge: O’Reilly, 2000); Jeffrey Rosen, The Unwanted Gaze: The Destruction
of Privacy in America (New York: Random House, 2000); and Reg Whitaker, The End
of Privacy: How Total Surveillance Is Becoming a Reality (New York: New Press,
1999). Some commentary has also noted that many people are willing to give up
some degree of privacy to private sector service suppliers in return for security
or convenience: “Go On, Watch Me,” The Economist, 17 August 2002.
4 “Liberty v. Security,” The Economist, 29 September 2001. See also Miro Cernetig,
“Uncle Sam and Big Brother,” The Globe and Mail (25 November 2002), which
describes a proposal to create a supercomputer that would search a massive data-
base that would bring together, at the U.S. border, a traveller’s credit card purchas-
es, travel patterns, health and bank records and previous telephone conversations
(see also “New U.S. Rules to Require More Data from Canadian Travellers,” The
Globe and Mail (4 January 2003)). A similar concept in Canada has Canadian pri-
vacy advocates up in arms: Kim Lunman, “Air-Travel Database Plan Alarms Rights
Advocates,” The Globe and Mail (28 September 2002). Canada’s privacy commis-
and telecommunications networks, not to mention current develop-
ments in photography and other surveillance technologies,5present
significant threats to people’s privacy.6In particular, the Internet, and
the computer and networking technologies that underpin it, allows for
hitherto unknown degrees of data collection techniques, by express col-
lection of data from consumers through sign-up activities and the like,7
Regulating Information, Technology, and E-Commerce 303
sioner is fairly comfortable with new measures taken to combat terrorism, but is
extremely concerned that these new measures not be utilized for governmental
purposes completely unrelated to terrorism suppression, such as routine income
tax investigations: Campbell Clark, “Canadian Privacy Rights at Risk, Radwanski
Says,” The Globe and Mail (30 January 2003). In Japan, a proposed new national
database is also encountering serious opposition, in part because of the fear that
data will leak from the system: “There’s Always Someone Looking at You — And
the People Don’t Like It,” The Economist, 10 August 2002.
5 For example, by hiding small cameras in the ceilings of stores, retailers can cre-
ate “consumer observation laboratories” in order to track shoppers’ behaviour:
John Heinzl, “Some Retailers Watching Your Every Move,” The Globe and Mail
(3 May 2002). Employee surveillance is another application for video cameras.
In a recent American survey, over 30 percent of companies acknowledged watch-
ing staff through them for security reasons; Marjo Johne, “Is Someone Watching
You,” The Globe and Mail (10 January 2003).
6 For a good survey of the various threats to privacy that have surfaced over the
past decade, see Privacy Commissioner of Canada, Annual Report, 1999–2000
(Ottawa: the Privacy Commissioner of Canada, 2000 [2000 Privacy Commissioner
Annual Report]. The privacy commissioner who penned this report was Bruce
Phillips, a former journalist. There is a large literature, authored principally by
journalists, that focuses on the erosion of privacy in the face of new and ever-
menacing technology; the other genre of privacy writing is the academic defence
of privacy rights, as exemplified in Prosser’s “Privacy,” at note 2 above, and West-
in’s Privacy and Freedom, at note 55 below. For an example of the former, journal-
ist variety, see David Brin, “The Transparent Society,” Wired, December 1996,
which gives a revealing description of new surveillance techniques engendered by
miniature cameras. In a recent book, The Transparent Society (New York: Addison-
Wesley, 1999), David Brin also argues that privacy is doomed. His prescription?
Transparency: let everyone see everything on everyone else, with the result, he
hopes, that this would result in less data being collected in the first place.
7 Including through online registration screens, survey forms, user profile requests,
order fulfilment processes, mailing lists, etc. The Internet also is a very powerful
tool for information dissemination, so much so that various Canadian provincial
governments have decided to stop making certain family law court decisions
available over the Internet due to the disclosure of personal information, even
though the public can otherwise get copies of these decisions: Kim Bolan, “B.C.
to Close Court Web Site Offering Lurid Case Details,” The Globe and Mail (12
July 2002). Digital rights management systems, which will become ubiquitous for
selling digital content rights over the Internet, also present some finicky privacy
issues: see Information and Privacy Commissioner of Ontario, Privacy and Digital
Rights Management: An Oxymoron, October 2002, available at .

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