Archive for the ‘privacy’ Category

Privacy Is A Government Joke And We’re All The Judicial Punchline

December 27, 2013

Image by D. Honig via Daily Kos.

My nominee for the best/worst example of faulty parallelism by a judge in 2013:

ACLU et al. v. Clapper et al.

Reference: American Civil Liberties Union et al v. Clapper et al, U.S. District Court, Southern District of New York, No. 13-03994. per Judge William H. Pauley III (link)

(H/T @TyreJim via Twitter)

Twitter PSA: Canadian Legal Edition

December 19, 2013









Third Party




The Applicants, The Government, The Police, Your Employer, John Does, One-Infiinity (collectively “just about everybody”) hereby give notice to the Respondent, You (yes, this means you) that what you say on Twitter can and will be used against you in a court of law (or adminstrative tribunal):

To Wit:

Exhibit “A”:

 [para 53]     The Applicant has also provided me with a screenshot of a “conversation” that took place in January 2012 on a social media site (Twitter) between accounts that appear to belong to the Applicant and the Minister (another, unknown, user was involved in the conversation as well). While I do not know for certain that the Twitter account that appears to belong to the Minister is, in fact, the Minister’s account, the Public Body has not denied the allegations made by the Applicant, or challenged the evidence. I conclude, on a balance of probabilities, that the account that appears to belong to the Minister does belong to the Minister and that therefore the Minister discussed the Applicant’s access request on Twitter.

[para 54]     One of the statements (tweets) from the Minister’s account names the Applicant and states “You FOIPPed my personal correspondence with kids’ pictures.” Although the Applicant’s request captured this information due to its breadth (discussed above), this statement suggests the request had a motive of interfering in the Minister’s personal life that it did not have in fact.

[para 55]     The Applicant insists that he was not seeking personal communications or pictures of the Minister or his family. He argues that the Public Body could have withheld the pictures under the Act (the Public Body states that some of the records were outside the scope of the Act, per section 4(1)(o), but that discretion was exercised and the records were provided outside of the Act). The Applicant seems to be arguing that the records he is alleged to have sought (pictures of the Minister’s children) are outside of the scope of the FOIP Act and so could not have been part of his request.

[para 56]     Regardless of whether the Applicant intended to or could include personal records of the Minister in his access request, and regardless of the Minister’s intent in calling the Applicant’s supervisor and making the comment on Twitter, the phone call and Twitter posting may be viewed as being disparaging toward the Applicant, both to his supervisor and to the public.

[para 57]     Moreover, a Twitter conversation takes place in an entirely public realm. The Minister’s implicit condemnation of the request could have had a “chilling effect” not only on the Applicant, but on any other person who viewed the conversation. It is plausible that a fear of similar public reprisal could make individuals reluctant to make access requests. In other words, this type of public denouncement of an applicant could have a deleterious effect on the access-to-information process. [emphasis added]

 ReferenceAlberta Education (Re)2013 CanLII 69856 (AB OIPC),

Exhibit “B”:

[9]        However, it is in their personal contact and communication, i.e. about each other, where there is dysfunction evident. The mother’s testimony was to the effect that she remains under stress because of the father’s interaction and comments (or lack thereof) towards and about her. And, the evidence supports that lingering worry. This Court outlined some of that evidence in the interim ruling. The father says that his comments about his wife were situation specific and confined to a brief period. Yet, the more recent evidence is that just last month he inexcusably put on Twitter (as almost everyone knows, a form of social media interaction open to the world) a dedication page for a cookbook he is writing in which the dedication to his wife is scratched out, but still readable. Understandably, this only exacerbated the mother’s upset. The father, albeit somewhat reluctantly, acknowledged that this was not proper. More importantly, though, in his testimony he genuinely seemed to want a “fresh start”. And, the mother did acknowledge that very lately they have resorted to some personal communications beyond the log book that she said were “civil”. She said much about what went on in the past when she described those exchanges as “refreshing”. [emphasis added]

Reference: EKI v MGS2013 NBQB 406 (CanLII),

Exhibit “C”:

[145]      Comments Graves had made on his Twitterr account could, at first impression, be construed as supporting a finding that he had decided on his conclusion before beginning the study. On a closer examination, I find that they show him discussing whether analysis of the data would show a voter suppression effect, then progressing towards hoping to find such an effect.  Some of the tweets, in sequence, say for instance: “That is why I don’t know if it is testable and I am agnostic as to impacts.”; “From what I understand so far I think the hypothesis of effects is testable.  I am not sure what the results would be.”; “I think one could actually design a statistical test that would give some guidance on this. I am agnostic as to answers.”; “Damn! maybe it wasn’t the polls that were off after all. Maybe it was the election.” They gave me some concern but I was ultimately satisfied on his evidence as a whole, particularly his acknowledgement of the weaknesses of the methodology that he had validly arrived at his conclusion through a genuine analysis of the data.

[146]      In arriving at a conclusion on the admissibility of this evidence, I have not overlooked the fact that Graves demonstrated a lack of common sense and respect for the Court when he testified. When asked to step outside during a discussion which the Court had with counsel, he chose to follow the live report of that discussion by journalists in the courtroom. I have reviewed the transcript of what was said during that discussion and am satisfied that it did not have a material effect on his testimony. As noted above, I was not persuaded that the line of cross-examination being pursued by counsel was relevant. I also recognize that Mr. Graves was given no instruction not to access the reporters’ live transmission from the courtroom nor were the journalists instructed not to report what was said in his absence. Nonetheless, this showed poor judgment on Mr. Graves’ part for which he subsequently apologized to the Court.

[147]      Having reviewed the arguments and the lengthy cross-examination of Mr. Graves in the record I was not persuaded that the respondent MPs had made out a case that he was not qualified to carry out the survey he was retained to conduct or that his opinion reflected partiality. The respondents have not attacked Mr. Graves’s professional opinions but his personal views and motivation in accepting the retainer. I was satisfied that he had objectively presented the challenges and limitations of the survey methodology in his report. I find that his opinion evidence meets the standard for admissibility set out in Mohan, above. For that reason, I dismiss the motion to disqualify Mr. Graves and strike his evidence. I will have more to say about the weight I have given his evidence below.

Reference: McEwing v. Canada (Attorney General)2013 FC 525 (CanLII),

Exhibit “D”:

[104]      I agree with Defence counsel that Ms. Peters was not entirely truthful when she testified about whether drugs were being dealt out of her home. Her evidence about selling only Century Sam cigars made no sense. She admitted smoking marihuana recreationally and testified that is why she had the scale. Ms. Peters denied that people were coming to her house to buy drugs and denied that marihuana was being sold from her house or that this was why her house became a “chill spot”. In that regard I prefer the evidence of Mr. Hersi; his evidence makes much more sense and explains why Ms. Peters still had Century Sams that she would sell from her home and why her house became a chill spot. In fact at one point in her evidence when being questioned by Mr. Stastny, Ms. Peters did say that they were selling “blunts” which had already been described in the evidence as a marihuana cigarette made from the paper of a Century Sam cigar. Because this evidence appeared to be at odds with her evidence that they were only selling Century Sams without marihuana, I asked Ms. Peters a question. She responded that she used the term “blunt” meaning just a Century Sam. I do not accept that evidence and believe she was trying to justify her mix up in using the term blunt when she did not intend to. I also agree with Mr. Stastny that the fact drugs were being dealt out of her home is corroborated by a post she admitted that she made on Twitter after the robbery and in particular her reference to “stacks”; which I will come to.

[105]      There is also the inconsistency in Ms. Peters’ evidence generally concerning the Twitter messages following the robbery. In her evidence in chief Ms. Peters admitted that she posted something on Twitter the day of the robbery or the day after. She was not sure of exactly what she said but it was along the lines of querying how someone could do a home invasion with two children there. She testified that after she posted it I.G.’s brother said something ignorant to her and so she took it down. Mr. Stastny showed Ms. Peters copies of messages that she had posted on Twitter. She recognized them and gave evidence about them. Although I appreciate, as submitted by Ms. Stanford, that because we do not have all the tweets, there is a question of context to consider, in my view these tweets are very much at odds with Ms. Peters’ evidence in chief, even if I accept that they were in response to a tweet that she was a “fucking rat”. [emphasis added]

Reference:  R. v. Brown2013 ONSC 2349 (CanLII),

Exhibit “E”:

32)                  The petitioner and Mr. Sanderson are also heavy Twitter users. Twitter is an online social networking service and micro-blogging service that enables its users to send and read text based messages of up to 140 characters with their friends or others who follow their Twitter account. In short, if you have an appetite to share the minutiae of your daily routine with friends and acquaintances, then Twitter affords you an opportunity to serve up a feast.

33)                  The respondent produced numerous Twitter messages sent out by Mr. Sanderson. It would appear from the nature of the messages that Mr. Sanderson and the petitioner use the same Twitter account. In any event, the Twitter messages (known as tweets) are clearly about Mr. Sanderson and the petitioner. More to the point, the respondent maintains that they illustrate the petitioner and her partner enjoying a glitterati lifestyle.

36)                  The petitioners commitment to a busy social life is obviously strong as she was on a disability from July 2011 to August 2012. It is worthwhile noting that Mr. Sanderson was also on disability for a time after July 11. It is unclear as to when he ceased being on disability.

37)                  The juxtaposition of the petitioner’s life with Mr. Sanderson from their Twitter account is difficult to reconcile with her affidavit evidence which suggests that she and her new spouse are essentially part of the working poor. [emphasis added]

Reference: Beattie v Beattie2013 SKQB 127 (CanLII),

Exhibit “F”:

Section Q        Defendant’s Twitter Account

[61]           The plaintiff seeks a list of the defendant’s Twitter followers. Rancourt has tweeted about St. Lewis and this libel action. The defendant sent out a tweet that disseminated a National Post article that reported on his allegedly defamatory ‘House Negro’ publication. St. Lewis submits that the defendant is deliberately drawing attention to his defamatory publications and expanding the base of people who know about his defamatory statements about St. Lewis and that the location of these people (local, national, and international) and who they are (ex: media, other professors, students) is relevant to the issue of the breadth of the damages that the defendant causes to St. Lewis and to the issue of malice.

[62]           Rancourt submits that tweets are not electronic person to person messages but rather like a posting to a web page, which are public, and any follower may choose to access and read. Rancourt states that he has already provided the list of his 79 Twitter followers. If he has done so, then I find the question has been adequately answered. If he has not done so, then I would order Rancourt to provide the list of his 79 Twitter followers. I agree with Rancourt’s submission that he would not have knowledge of other members of the public who may have read his tweets. [emphasis added]

ReferenceSt. Lewis v. Rancourt2013 ONSC 1350 (CanLII),

Exhibit “G”:

[113]      S.B.C. understood from B. that sometimes M.v.D. tries to get B. to call him “Dad.” S.B.C. indicated that he would have grave concerns that M.v.D. would try to be B.’s father if B. were with F.A.C. and M.v.D. in Australia. Given the Facebook comments, S.B.C. was concerned that M.v.D. would not represent him in a good light to B. On cross-examination, S.B.C. agreed that he had entries on his twitter page to the effect that “Dutch bald men are creepy and try to steal your kids and try to be their dad,” referring to M.v.D.

[192]     When shown copies of her twitter account, J.M. agreed that M.v.D. is bald and she tweeted about baldness and obesity. [emphasis added]

Reference: S.B.C. v. F.A.C.2013 BCSC 211 (CanLII),

Exhibit “H”:

9.      The parties were previously before the Landlord and Tenant Board on January 3, 2013. RER submitted a copy of January 3, 2013 ‘Twitter’ messages in which ML wrote “My Landlord is jokes. Sitting in court because she assumes that I do crack”.  ML further wrote “sitting in the same room with my landlord for 3 and a half hours. I just want to punch her in the face. Not fair. can’t”. ML’s twitter message further demonstrates ML’s contempt for the Landlord and her disregard for the issues raised by the Landlord’s application.

10.   RER feared for her safety after reading ML’s Twitter message. Police were called to address the message with ML.  Since the Twitter message, RER will no longer communicate directly with ML. [emphasis added]

Reference:NOL-10719-12 (Re)2013 CanLII 11095 (ON LTB),

Exhibit “I”:

The proper forum to bring allegations against someone is one in which the veracity of the allegations can be determined by someone who has the authority to do so, and the accused party has the opportunity to respond to the accusations.  By making unfounded allegations through Twitter and Facebook and through communications to public offices which do not have the authority to determine the veracity of the allegations, the Tenant has contributed to harming the reputation of the Landlord and that of one of the Landlord’s employees.  I therefore believe that this conduct substantially interferes with a lawful right, privilege or interest of the Landlord. [emphasis added]

Reference: EAL-25210-12 (Re) , 2012 CanLII 74660 (ON LTB)

 Exhibit “J”:

[7]               I heard the evidence of Detectives Hill and Garrow as well as Detective Bui and the other officers involved in the arrest of Mr. Sonne and those who had physical contact with him following his arrest. In addition, it was agreed that I could have regard to information on Mr. Sonne’s Twitter account that the Crown argued shows that Mr. Sonne was well aware of his legal rights upon arrest.

[32]           Mr. Byrne filed, on consent, several exhibits that were copies of documents that could be found by clicking on links to postings by Mr. Sonne on his Twitter account. In his Tweet on June 21, 2010, Mr. Sonne posted: “read EVERY PDF on this page and know your rights.” There was a link from this Tweet to “” and the materials there all relate to what was described as G20 specific resources materials. This included a pocket-size “Know Your Rights Flyer”, a “Legal Guide for Activists” and a brochure entitled “What to do if the police come knockin’.” The flyer makes it clear that one should not answer any questions or give any statements apart from name, address and date of birth. The legal guide is intended to provide the person who reads it with an overview of their rights when dealing with the police. It also deals with what a person should do if arrested by police. This includes asserting the right to silence. The brochure is to the same effect.

[33]           As Mr. Sonne did not testify, there is no evidence from him as to his understanding of these documents although given his Tweet, it is reasonable to infer that Mr. Sonne had read these documents and was generally familiar with their contents. These documents provide no information with respect to the secondary caution as I have defined it.

[49]           It was at this point in Detective Garrow’s notes that he noted Detective Hill asking Mr. Sonne whether he belonged to any social groups. Mr. Sonne told them that he had no knowledge of protest groups but that he did belong to a social group called, the Toronto Area Security Klatsch; a surveillance club for collecting pro and anti surveillance things and a Facebook group. He was then asked if he had heard anyone talking about the G20 in Toronto and Mr. Sonne told them he had been to 1266 Queen Street which he called the Convergent Space. Detective Hill asked him if there were any groups planning any acts of violence and Mr. Sonne said these groups were mostly talking and the people were not violent people. In cross-examination, Detective Garrow testified that he did not recall Detective Hill asking Mr. Sonne about postings on the Internet or things that were on Twitter. He admitted it was possible, however, as he could not get everything down in his notes.

… [64]           Detective Dunlop testified that when he arrived at 13 Division at 10:30 p.m., it was brought to his attention that Detectives Hill and Garrow had spoken to Mr. Sonne and he obtained some information from them. He was told that Mr. Sonne had chemicals in his house and that the Emergency Task Force had to be involved, that Mr. Sonne had advised Detectives Hill and Garrow that he had all this property because he belonged to a rocket club. Detective Dunlop was also told about a website on Twitter called TorontoGoat with photos of security fencing and cameras and their positions, that Mr. Sonne was a member of Hacklab that met at 1266 Queen Street, and that Mr. Sonne was a reverse engineer and an IT security specialist. It was not expressly confirmed that this additional information came from Detectives Hill and Garrow but clearly some of it did as it corresponds with information Detective Garrow noted from their interview of Mr. Sonne.

[136]      In this regard Mr. Sonne’s knowledge of his rights, based on the information he had posted on Twitter and his obvious sophistication, intelligence, and willingness to challenge the police when he did not agree with something being said to him corroborates my conclusion on the rest of the evidence that he was not swayed by anything said by Detectives Hill and Garrow. With Detective Bui, it is clear that he was fully aware of his ability to choose what questions he would answer and what he would not.  His ability to evaluate what was being said to him and his willingness to challenge Detective Bui when he said something that he did not agree with was also clear. He frequently refused to discuss certain matters and was clearly not afraid to challenge Detective Bui when he disagreed with something he had said. He displayed an understanding of his rights and the law that was far beyond that exhibited by the typical accused. Furthermore, there was no suggestion that he was under any misapprehension that what he told Detective Bui might not be used against him and in fact he repeatedly made it clear that he realized that what he told Detective Bui could be used against him. [emphasis added]

Reference: R. v. Sonne2012 ONSC 1741 (CanLII)

Govern yourself accordingly.

 Dewey, Sueham and Howe, LLP

The Twittersphere

Anyplace, Anywhere, Anytime

Sex, Laws and Videotape: Canadian Government Moves Ahead to Criminalize Revenge Porn

October 24, 2013

Sex, Lies and Videotape (Poster image via Wikipedia)

I previously blogged about the Criminalization of Revenge Porn movement south of the border in a post entitled “Revenge Is A Link Best Served Cold“.

From the October 16, 2013 Speech From The Throne:

Our Government believes that the justice system exists to protect law-abiding citizens and our communities. For too long, the voices of victims have been silenced, while the system coddled criminals. Our Government has worked to re-establish Canada as a country where those who break the law are punished for their actions; where penalties match the severity of crimes committed; where the rights of victims come before the rights of criminals.

  • Our Government will introduce a Victims Bill of Rights to restore victims to their rightful place at the heart of our justice system.
  • Our Government will focus on protecting the most vulnerable of all victims, our children. Recent tragic deaths, including those of Amanda Todd, Rehtaeh Parsons, and Todd Loik, have shocked Canadians.Our Government will introduce legislation giving police and prosecutors new tools to effectively address cyberbullying that involves criminal invasion of privacy, intimidation and personal abuse. This legislation would create a new criminal offence prohibiting the non-consensual distribution of intimate images.

The proposed amendments to the Criminal Code of Canada are based on the euphemistically titled report ” “Cyberbullying and the Non-consensual Distribution of Intimate Images (June 2013)” [pdf], [the “Report”]. The Report was written under the auspices of the Coordinating Committee of Senior Officials (CCSO), Criminal Justice, Cybercrime Working Group (CWG) and a Sub-Group on Cyberbullying established in January 2013 (co-chaired by the Department of Justice Canada and the Ontario Ministry of the Attorney General) at the behest of the Federal/Provincial/Territorial Ministers Responsible for Justice and Public Safety.

With respect to the “Non-Consensual Distribution of Intimate Images” (shorter version “Revenge Porn”), the Executive Summary states:

On the issue of the non-consensual distribution of intimate images, the Working Group and CCSO reviewed related literature and existing Criminal Code offences and concluded that there is a gap in the Criminal Code’s treatment of this conduct. The Working Group recommends that a new criminal offence addressing the non-consensual distribution of intimate images be created, including complementary amendments relating to, for example, the forfeiture of items used in the commission of the offence and restitution to permit the victim to be compensated for any costs associated with having the images removed from the Internet.

Read the Report and see whether criminalizing revenge porn addresses any free speech issues. Just kidding, section 2(b) of the Charter which includes the right to freedom of expression (a denuded version of the U.S. First Amendment right of free speech) is not on the Committee’s radar. When consenting adults have sex and choose to film their amorous escapades, it is the responsibility of the Canadian federal government to ensure that the revenge pornographer is prosecuted to the fullest extent of the Law. (more…)

Privacy, Shmrivacy

June 11, 2013

For those who slept in or don’t have internet access: You may have missed the media fire-storm surrounding Edward Snowden, a 29-year-old former NSA contractor, most recently employed by Booz Allen Hamilton, who shared hacked liberated divulged details on the agency’s call tracking program and another program called PRISM, which gathers Internet data on foreign citizens suspected of terror links.

Traitor or Patriot? The debate rages on. (more…)

“Swab First, Ask Questions Later”

June 5, 2013

Deoxyribonucleic acid (DNA): the wonder molecule.  It encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.

From genetic engineering to forensics to bioinformatics to nanotechnology, DNA is the defining characteristic of of human evolution and scientific progress. It is —for any fan of Law & Order of CSI — the stuff of which dreams of guilt or innocence are made of.

In his post, “The Slippery Swab (Update)” Scott Greenfield tackles the issue of DNA in a thought-provoking post on the U.S. Supreme Court decision in Maryland v. King, which approved the Maryland law permitting the taking of DNA from presumptively innocent defendants. Greenfield writes, (more…)

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