The Problem Solvers TM Privacy Rights: Minors and Parents Michael J. Hewitt Marcel Daigle Singleton Urquhart LLP

The Problem Solvers TM Privacy Rights: Minors and Parents INTRODUCTION What is the problem? Where are the answers? –Social context –Aspects of “privacy law” –Related legal principles

The Problem Solvers TM Privacy Rights: Minors and Parents What is the problem? -child’s privacy rights vs. parent’s responsibility

The Problem Solvers TM Privacy Rights: Minors and Parents What is the problem? -Internet predators -Bullying -Limitations on police powers -Parental knowledge and instinct

The Problem Solvers TM Privacy Rights: Minors and Parents What is the problem? -Can the PI assist? -What are the limitations?

The Problem Solvers TM Privacy Rights: Minors and Parents What is the problem? Who owns the computer? Who owns the cellphone? Does it matter? Who owns the information?

The Problem Solvers TM Privacy Rights: Minors and Parents Is social context relevant?

The Problem Solvers TM Privacy Rights: Minors and Parents The Legal Framework Client Needs Privacy Laws Human Rights Criminal Law Civil Liability

The Problem Solvers TM Privacy Rights: Minors and Parents The Legal Framework Criminal Law –Police search powers –Charter limitations –Possible offences

The Problem Solvers TM Privacy Rights: Minors and Parents The Legal Framework Criminal Law Potential offences: –personation –interception of private communications –theft

The Problem Solvers TM Privacy Rights: Minors and Parents The Legal Framework Civil Law Certain powers are available in the context of civil litigation E.g. Anton Piller orders, document production orders, injunctions Petitions and actions

The Problem Solvers TM Privacy Rights: Minors and Parents The Legal Framework Human Rights Human Rights Code applies in all cases Charter of Rights applies when acting for government

The Problem Solvers TM Privacy Rights: Minors and Parents Privacy Law Public bodies Freedom of Information and Protection of Privacy Act (BC) Freedom of Information and Protection of Privacy Act (Can)

The Problem Solvers TM Privacy Rights: Minors and Parents “Privacy Law” applicable to private persons and entities Personal Information Protection Act (“PIPA”) Privacy Act

The Problem Solvers TM Privacy Rights: Minors and Parents Privacy Act tort of invasion of privacy privacy is what is reasonable in the circumstances weighed against lawful interests fact-specific

The Problem Solvers TM Privacy Rights: Minors and Parents R. v. Spencer 2014 SCC 43 Charter / police powers case police request to internet service provider to link IP addresses to subscriber information

The Problem Solvers TM Privacy Rights: Minors and Parents R v. Spencer IP address request engages an informational privacy interest by attempting to link the suspect with anonymously undertaken online activities

The Problem Solvers TM Privacy Rights: Minors and Parents R. v. Spencer "it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information …”

The Problem Solvers TM Privacy Rights: Minors and Parents R. v. Spencer The requirement to produce the IP address would defeat the general prohibition on the disclosure of personal information without consent…

The Problem Solvers TM Privacy Rights: Minors and Parents R. v. Spencer while the police can ask for the IP address, they have no authority to compel compliance with such a request… there is a reasonable expectation of privacy in the subscriber information.

The Problem Solvers TM Privacy Rights: Minors and Parents R. v. Spencer Therefore, the request by police that the internet service provider disclose such information amounts to a search… whether the search is lawful will depend on whether the search is authorized by law.

The Problem Solvers TM Privacy Rights: Minors and Parents R. v. Spencer Legality of the search turns on the interpretation of “lawful authority” in the Act See later comparisons to exceptions in BC privacy legislation

The Problem Solvers TM Privacy Rights: Minors and Parents PIPA with certain express exceptions, an individual’s personal information must be protected from unconsented collection, use and disclosure by “organizations”

The Problem Solvers TM Privacy Rights: Minors and Parents Privacy Law PIPA “personal information” = all information about an identifiable individual with the exception of contact information and work product.

The Problem Solvers TM Privacy Rights: Minors and Parents PIPA Fundamental to the system is “informed consent” How does that fit with –Children? –Investigations?

The Problem Solvers TM Privacy Rights: Minors and Parents PIPA and Private Investigators Section 12 exceptions to collection Section 18 exceptions to disclosure

The Problem Solvers TM Privacy Rights: Minors and Parents An organization may collect personal information about an individual without consent if: Collection clearly in the interests of the individual and consent cannot be obtained in timely way (s. 12(1)(a), the personal information is available to the public from a source prescribed for the purposes of this paragraph (s.12(1)(e)), it is reasonable to expect that the collection with the consent of the individual would compromise the availability or the accuracy of the personal information and the collection is reasonable for an “investigation” or a proceeding (s.12(1)(c)),

The Problem Solvers TM Privacy Rights: Minors and Parents "investigation" means an investigation related to (a) a breach of an agreement, (b) a contravention of an enactment of Canada or a province, (c) a circumstance or conduct that may result in a remedy or relief being available under an enactment, under the common law or in equity, (d) the prevention of fraud,

The Problem Solvers TM Privacy Rights: Minors and Parents PIPA exception 12(1)(l) the personal information is collected for the purposes of the organization providing services to a third party if –(i) the third party is an individual acting in a personal or domestic capacity, –(ii) the third party is providing the information to the organization, and –(iii) the information is necessary for the purposes of providing those services.

The Problem Solvers TM Privacy Rights: Minors and Parents Under PIPA an organization can only disclose personal information that it collected without the person's consent if: it is clearly in the person's interest to do so and consent cannot be obtained in timely way, or Personal Information available to the public…. (as above) The disclosure is to public body or law enforcement agency concerning offence, to assist in investigation or to use in making of a decision to undertake an investigation There are reasonable grounds for believing that compelling circumstances exist that affect the health or safety of any individual ….

The Problem Solvers TM Privacy Rights: Minors and Parents PIPA: Social Media: just because something is shared in social media does not necessarily mean it was made "publicly available". No decisions on this point. It's not clear what qualifies as "personal or domestic capacity" under PIPA. No decisions on this point.

The Problem Solvers TM Privacy Rights: Minors and Parents PIPA and Private Investigators Role of the Provincial Privacy Commission Individuals who feel that their personal information has been collected, used and/or disclosed in contravention of the Act can make a complaint to the Office of the Information and Privacy Commissioner of British Columbia. The Privacy Commissioner will undertake an investigation and is authorized to make an order where there has been a breach of the Act. Where such an order is made, the aggrieved party would have a cause of action against the organization for damages for actual harm that he or she has suffered as a result of the breach of obligations under this Act.

The Problem Solvers TM Privacy Rights: Minors and Parents The basics : Context must be considered and must inform the investigation plan What is reasonable? Why is consent not realistic? What are the client’s lawful interests? Are technologies invasive? Available alternative techniques?