Regulating Information, Technology, and E-Commerce

• Author: George Takach
• Profession: Adjunct Professor
• Pages: 301-422

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

301

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.”

REGULATING

INFORMATION,

TECHNOLOGY,

AND E-COMMERCE

chapter 4

A. PRIVACY AND DATA PROTECTION

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 .