Law blogger posts online: surveillance

Showing posts with label surveillance. Show all posts

Tune in next week ...

Thanks to the series of articles in Canwest newspapers on privacy and surveillance that ran between Christmas and New Year's, I've been asked to be on a couple of radio shows at the beginning of next week. Tune in to Peter Anthony Holder's show on Monday night at 8:05pm (EST) on CJAD in Montreal (live radio feed here) or to the Bill Good show on Tuesday morning at 11:00am (PST) on CKNW in Vancouver (live radio feed here). I understand that there may be a call-in portion for both shows, so feel free to call with your privacy stories and questions. If they archive shows for posterity, I'll post a link.

Invasive technology makes schools more like "correctional facilities"

The third article in the series of privacy articles by CanWest Global is now online from the Ottawa Citizen's site: Security-riddled schools more like 'correctional facilities':
Instead of making students feel safer, an education professor argues extreme surveillance makes them feel like criminals, writes Sarah Schmidt.

Banks up customer surveillance

Stuart Laidlaw has a very interesting article on customer surveillance at Canadian banks and the impact of the USA Patriot Act on their vigilance: TheStar.com - Banks up customer surveillance.

They're watching and know who you are

Part two of the weeklong series of articles on privacy issues by Canwest reporter Richard Foot has been published in the Ottawa Citizen, Montreal Gazette, Vancouver Sun, etc. This part is on surveillance and the possibility of pervasive surveillance being coupled with facial recognition software.

They're watching you, and they know who you are (Ottawa Citizen):
"Biometric face recognition is about to change the way governments do business, and could remove our last shreds of anonymity, writes Richard Foot.

Richard Foot

The Ottawa Citizen
December 28, 2004
In London, Ont., 16 video cameras mounted on traffic poles keep a 24-hour watch on downtown streets for the city's police. In New York City, more than 2,400 outdoor video cameras -- many operated by private companies -- gaze out over the streets of Manhattan alone.
'No matter what, walking through the world these days, you're going to end up on video camera,' says David Fraser, a Halifax privacy lawyer.
Public surveillance isn't a new phenomenon, but despite its creeping presence, Canadians have maintained a measure of anonymity when we venture outside our homes. Video cameras might be watching us in public places, but unless we're famous or infamous, they usually can't identify who we are.
Until now...."

Your daily digital data droppings

Canwest Global is doing a series of feature-length articles on privacy between Christmas and New Year. For the first one, I was "shadowed" by a reporter to look at the sorts of data that we leave in our wake as we go throughout our daily lives.

Our every move is tracked and recorded:
"Short of becoming a hermit, there's little Canadians can do to avoid the pervasive climate of surveillance that surrounds them, says Richard Foot. However, there is protection in knowing what information is sought, how it is collected, and why.

The Ottawa Citizen

Monday, December 27, 2004
David Fraser walks out his front door on a midwinter morning bound for work. His movements and activities are under surveillance, tracked by networks of people and distant computers in his own city and around the planet.
Mr. Fraser isn't a wanted man, nor is he a foreign spy. He's an ordinary Canadian inhabiting a world so wired by ubiquitous technology that almost everything he does is monitored and measured in breathtaking detail.
Mr. Fraser, a Halifax privacy lawyer, isn't concerned about the surveillance itself. What worries him is that most Canadians simply don't know their lives are so closely watched by the silent eyes of business and government. Like federal privacy commissioner Jennifer Stoddart, he calls public ignorance about the vast, daily exchange of personal information the greatest threat to privacy in Canada today.
'The critical thing is that people must be aware of it,' Mr. Fraser says. 'Yet most people simply don't understand much private information they leave behind them each day, during their ordinary routines.'...
The Series

Tomorrow: Biometric wizardry poised to remove last shreds of anonymity.

Wednesday: School security: When safety concerns override privacy rights.

Thursday: Your health records in cyberspace.

Friday: Lives and habits of Canadian consumers up for grabs."

I'll post links to the stories as the appear online.

Legal Analysis of the NSA Domestic Surveillance Program:

Orin Kerr at the Volokh Conspiracy has a lengthy Legal Analysis of the NSA Domestic Surveillance Program that is worth a read. The post also has hundreds of intelligent (and a few not so) comments from readers who are taking a close look at the legality of the recently-revealed and White House ordered NSA domestic surveillance operations.

US News reports that law enforcement monitored mosques and muslim homes for radioactivity without warrants

More information is coming out about the use of warrantless surveillance in the United States as part of the war on terrorism. One of the latest revelations comes from US News and World Report, which reports that US law enforcement have used radiation monitors to look for radioactive materials at mosques and the homes of muslims in the US. See: USNews.com: Nation and World: EXCLUSIVE: Nuclear Monitoring of Muslims Done Without Search Warrants (12/22/05).

This sort of surveillance raises some different issues than wiretapping or wholesale surveillance of communications. Is there an expectation of privacy in incidential emissions from your property? Is this different from infrared imaging (Supreme Court of Canada considers different species of personal privacy) or alcohol detectors (Alcohol sensor an invasion of privacy?)?

Domestic surveillance by the NSA much more widespread than first reported, according to the New York Times

There has been a huge amount of press in the last little while addressing the revelation that, since September 11, 2001, George Bush authorized interception of domestic communications by the National Security Agency without review by the Foreign Intelligence Surveillance Court. Now, the New York Times is reporting that the National Security Agency has collected much more information than originally reported and is using data mining techniques on the amassed trove of data:

Spy Agency Mined Vast Data Trove, Officials Report - New York Times:
WASHINGTON, Dec. 23 - The National Security Agency has traced and analyzed large volumes of telephone and Internet communications flowing into and out of the United States as part of the eavesdropping program that President Bush approved after the Sept. 11, 2001, attacks to hunt for evidence of terrorist activity, according to current and former government officials.

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said.

The (Privacy) Gap: Popular Retailers Using Secret Cameras to Capture Information About Customers - PrivacySpot.com

I don't get the Wall Street Journal (online or offline), though I'd like to read the article referred to in this post on privacyspot.com:

The (Privacy) Gap: Popular Retailers Using Secret Cameras to Capture Information About Customers | PrivacySpot.com - Privacy Law and Data Protection:

"The Wall Street Journal (subscription required) reports that many popular retailers are using secret cameras to record, and sophisticated software to analyze, information about what happens in their stores. The cameras, which are different than your vanilla anti-shoplifting camera, are often completely hidden. And the images they record aren't reviewed by a sleepy security guard; they are reviewed by sophisticated computers that can differentiate people on the basis of age, gender, and race. This information is then aggregated into reports about who is shopping, who is browsing, and how they are reacting to items in the store. Interestingly, the data is also matched with information about credit card transactions to determine how much people are spending.
Predictably, retailers swear that the technology is innocuous because no information about particular individuals is recorded; however, the computers can read facial expressions down to the level of "fast-eye movement, smiles and frowns." The data may not be utilized to collect information about individuals at this stage, but there are no guarantees. The bigger problem, of course, is that this technology further erodes the distinction between private and public life. Every time we step outside our front doors, we are consenting to be viewed by other people. But while I may not care that someone knows I visited The Gap (which uses the technology) yesterday, I might care a lot that my facial expressions were recorded and stored in a databse somewhere. Despite the fact that I am out in public, I carry expectations regarding a modicum of residual privacy that I will continue to enjoy. This includes not being photographed, analyzed, recorded, and data-mined in every store I visit. Unfortunately, people's expectations regarding privacy have not kept pace with recent advances in surveillance technology. This has led to the creation of a "privacy gap" that retailers are eager to exploit. Tellingly, the article notes that many stores do not want customers to know they utilize the technology. You see, it might make people feel "uncomfortable." No kidding."

This is the first I've heard of this technology, but it raises some interesting questions.

Employees in Ontario (and perhaps other Canadian provinces) have no right to privacy

This is hot off the presses. With no statutory right to privacy in Ontario (unlike Alberta and British Columbia), an arbitrator has decided that the "reasonableness" test that has ordinarily applied to determine the admissibility of video surveillance evidence may not be warranted. It is worth asking if the admission of video surveillance is really any different from admitting the testimony of the private investigator who took the video. Should the fact that it is more persuasive make it more difficult to admit?

2004 CarswellOnt 5241
Hotel-Dieu Grace Hospital v. CAW-Canada, Local 2458
Ontario Arbitration Board
Snow Member
Heard: July 15, 2004
Heard: October 14, 2004
Judgment: November 2, 2004
Docket: MPA/Y401670
Snow Member:
...
1 The grievor was discharged on the basis of video surveillance evidence. This is an interim award regarding the admissibility of that video evidence.
IV. Union Position
....
8 The Union submitted that the Employer could only use this video evidence if:
1. It was reasonable for the Employer to request surveillance;
2. The surveillance was conducted in a reasonable manner; and,
3. There were no other alternatives open to the Employer to obtain this evidence.

9 The Union submitted that the arbitration cases indicated that video of an employee was an intrusion that should not be taken lightly, that an Employer needed to have reasonable grounds to decide to engage in surveillance of an employee and, if the Employer did not have reasonable grounds, the video evidence should be rejected. The Union reviewed several awards and adopted the arguments contained in them.
10 As for reasonable grounds, the Union said the cases made clear that mere suspicion was inadequate. The Union said there were no reasonable grounds to use surveillance in this case. To allow the Employer to use video evidence without first subjecting that evidence to the above reasonableness test would shift the balance of power in favour of the Employer. In summary, the Union said it made sound labour relations sense to use the test of reasonableness in assessing video surveillance evidence.
....
V. Employer Position
12 The Employer said there was no legal reason to require the Employer to have reasonable grounds to engage in surveillance and there was no proper basis to refuse to admit the video evidence from that surveillance.
13 The Employer referred to Section 48 (12) (f) of the Labour Relations Act, 1995 dealing with admissibility of evidence and said that an examination of that provision indicated that the video was admissible. The Employer submitted that the arbitration cases upon which it relied indicated that the cases cited by the Union have not been followed in recent years. The Employer reviewed both the Union's and its own cases in detail and urged me to follow the approach found in its cases.
...
15 In summary, the Employer said that, absent a collective agreement or statutory provision, an Employer can engage in surveillance of an employee and use the video from that surveillance in arbitration. There was no basis for subjecting the issue of admissibility of this video evidence to a special test.
Should there be an additional reasonableness test for surveillance video?
32 Notwithstanding that this evidence is relevant to a material issue, and would be admissible applying the statute, the Union said that there was a line of arbitration cases which took a different approach. The Union submitted that those cases held that video evidence should only be admitted in an arbitration if that evidence also passed the reasonableness test. Although there are conflicting decisions of Ontario arbitrators on this point, the Union is correct that in the decisions upon which it relied the arbitrators subjected the introduction of video surveillance to the reasonableness test. There are minor differences in those tests but the key points are:

1. The employer had to have acted reasonably in deciding to place the employee under surveillance; and,

2. The Employer had to have conducted the actual surveillance in a reasonable manner.
33 I note that the reasonableness test appears to have been used in Ontario only for video evidence. Before the days of video, and currently as well, this Employer could have hired a detective to conduct similar surreptitious surveillance away from the work place, make notes on what was observed and take still photographs, and then testify in an arbitration from his or her memory aided by the notes and still photographs. I am aware of no suggestion that such evidence has been subjected to the reasonableness test in an arbitration under the Labour Relations Act.
34 From the awards before me it is clear that this reasonableness test for the admissibility of video evidence was first used in British Columbia in Re Doman Forest Products Ltd. and I.W.A., Loc. 1-357 (1990), 13 L.A.C. (4th) 275 (Vickers), a case discussed in several of the awards relied upon by the parties. At that time British Columbia had a statute providing for a right of privacy and Arbitrator Vickers took the view that, among other things, surveillance conflicted with the employee's statutory right of privacy. In reconciling the employer's right to prove its case through relevant evidence with the employee's statutory privacy right to be free from surveillance, the arbitrator adopted the reasonableness test. If the surveillance was unreasonable under the privacy legislation, the resulting video evidence was not admitted.
35 A similar test was used in Manitoba, where there was also a statutory right to privacy, in Re New Flyer Industries Ltd. (supra). Arbitrator Chapman cited with approval an earlier decision of Arbitrator Peltz between the same parties (the Mogg case) and, at page 63 of his award, Arbitrator Chapman quoted from Arbitrator Peltz' earlier award where the existence of a statutory right to privacy is relied upon. Although Arbitrator Chapman does not specify the source of the statutory right, at page 146 of his award in Re Canadian Timken Ltd. (supra), Arbitrator Welling indicates that the right to privacy in Manitoba was found in the Privacy Act, R.S.M. 1987, c. P125.
36 A similar test was used in Ross v. Rosedale Transport Ltd. (supra), a dispute under federal jurisdiction, to balance an employee's privacy rights found in the federal Personal Information Protection and Electronic Documents Act with the employer's right to prove its case through relevant evidence.
37 In each of those jurisdictions there is a statutory right of privacy and I have no issue with the reasonableness test being applied to balance an employee's right of privacy with an employer's right to prove its case through relevant evidence.
38 But I do have difficulty with the use of a reasonableness test where there is no right of privacy. A reasonableness test has been used in Ontario - see, for example, two cases cited by the Union, Re Toronto Transit Commission (Saltman) (supra) and Re Labatt Ontario Breweries (supra) - where there is no statutory right to privacy. In subjecting videotape evidence to a reasonableness test Arbitrators Saltman and Brandt applied a different approach from that normally used in assessing the admissibility of evidence.
39 In examining the reasonableness test of Arbitrators Saltman and Brandt in the above cases, a test also applied by some other Ontario arbitrators, it is important to note that the use of the reasonableness test for the admission of videotape evidence has been criticized and firmly rejected in a number of later cases - see, for example, Re Kimberly-Clark Inc. (Bendel) (supra); Re Toronto Transit Commission (Solomatenko) (supra); and Re Canadian Timken Ltd. (Welling) (supra) cited by the Employer. (I note that while Arbitrator Bendel's award was released in 1996, prior to Arbitrator Saltman's 1997 award, it was not published in Labour Arbitration Cases until 1998 and was not mentioned in Arbitrator Saltman's award.)
40 The initial and primary basis for the use of the reasonableness test for the admissibility of video evidence has been a concern about privacy. The use of the reasonableness test as a means of balancing privacy expectations or concerns (there being no right to privacy) with the right to lead relevant evidence has been fully and ably reviewed in the three awards by Arbitrators Bendel, Solomatenko and Welling (supra) and I do not intend to repeat that analysis. Although the analysis in those three cases varies in some details, each rejects the reliance on privacy as a basis for using the reasonableness test for the admissibility of video evidence.
41 As there is no right of privacy in Ontario, this reasonableness test, originally designed to balance rights, has to be carefully examined. Since it is not needed to balance competing rights, and has been persuasively rejected by other arbitrators, why might I adopt it?
42 Some of the cases (including cases not relied upon by the Union but referred to in the various awards) suggest alternative rationales for using the reasonableness test and subjecting video evidence, particularly video evidence resulting from surveillance, to heightened scrutiny. But those alternative bases (reliance on values in the Canadian Charter of Rights and Freedoms, analogy with cases on searching employees, and safeguarding the integrity and credibility of the arbitration process) are also examined by Arbitrators Bendel, Solomatenko and Welling in Re Kimberly-Clark Inc. (supra); Re Toronto Transit Commission (supra); and Re Canadian Timken Ltd. (supra), respectively, and persuasively rejected.
43 I can find no basis in the arbitration awards relied upon by the parties to persuade me to adopt a reasonableness test for the admissibility of this video evidence. In particular, I reject the primary ground advanced for this test - privacy - as a basis for using the reasonableness test. I also reject the other reasons which have been advanced - reliance on values in the Canadian Charter of Rights and Freedoms, analogy with cases on searching employees, and safeguarding the integrity and credibility of the arbitration process. Nothing in those awards persuades me that a special test is needed to determine the admissibility of video evidence.
44 The Union offered further policy reasons for adopting the reasonableness test. The Union submitted that to allow the Employer to use video evidence without subjecting that evidence to the reasonableness test would shift the balance in favour of the Employer. The Union also submitted that it made sound labour relations sense to use the test of reasonableness in assessing surveillance evidence. The Union did not provide specifics, but I understood that the submissions flowed from:
1. The idea that employees have an expectation of privacy, even if not a right; and,

2. The distaste which some people have regarding an employer conducting surreptitious surveillance.

45 The Union urged me to shift the balance, and to uphold sound labour relations values, by subjecting the video evidence to the reasonableness test.
46 I do not think that my subjective perception about a need to shift the balance of power between the parties, or the balance between the Employer and the grievor, is a sound basis for a decision to reject relevant evidence, or to subject this evidence to the additional reasonableness test.
47 Moreover, the fact that some people find this practice of surreptitious video surveillance offensive does not, in my view, carry any weight in determining the admissibility of the video evidence. Improvements in technology have enhanced the ability of a "sleuth" to record what an employee has done away from the work place but, as I noted earlier, it has long been possible to engage in surveillance and testify about what was observed. I do not see that the recent use of video has created a shift in the balance of power which should be corrected, even assuming that correcting a shift in the balance of power was a sound basis for determining admissibility. In my view, because the evidence is clearer, more detailed, and thus perhaps more persuasive, the possibility of video evidence has, at most, simply prompted employers to more frequently exercise a power which employers have long possessed.
48 While I have concluded that shifting the balance of power is not a proper basis for determining the admissibility of this video evidence, I would note that if the Union wishes to shift the balance of power it is able to do so in the bargaining process. The parties' collective agreement is their current agreement in terms of the allocation of power between the two of them. It is clearly possible for a collective agreement to address this issue and to indicate an approach to the admissibility of video evidence which an arbitrator would be required to apply. But there was no suggestion of anything in the parties' existing collective agreement which would assist in resolving the issue before me on the admissibility of this video evidence. ....

CN and union fight over hidden cameras leads to whistleblower charges

Below is a press-release issued by the CAW today:

Canada NewsWire - CAW to charge CN for threats to whistleblower:
"TORONTO, Dec. 21 /CNW/ - The Canadian Auto Workers union will file
charges against Canadian National Railway for threatening to discipline a
union representative who exposed CN's hidden surveillance cameras at its
Winnipeg repair shops.
Les Lilley, the union chairperson representing 600 CAW members and a CN
employee for more than 34 years, has been summoned to a disciplinary hearing
to be held this afternoon. The allegations, which include 'insubordination,'
could carry severe penalties ranging up to dismissal.
On November 24, workers in the Transcona Wheel Shop discovered a hidden
surveillance camera in an air duct. Last Thursday, Queen's Bench Justice
Wallace Darichuk granted the CAW's request for an injunction prohibiting CN
from using all but four cameras in its Transcona Shops complex, and
restricting the use of those four cameras to the protection of workers'
safety. Les Lilley conducted the in-house investigation which brought the
evidence of covert surveillance to light.
'The charges against Les are outrageous,' said CAW Local 100 Prairie
Region vice-president Dennis Wray. 'CN is using intimidation and reprisal
tactics to muzzle whistleblowers and divert attention from its own actions.
This is the same disturbing pattern of corporate behaviour which helped
trigger a month-long strike of 4,500 CAW members last winter.'
The CAW will charge CN under a section of the Canada Labour Code which
bars employers from interfering with legitimate union activities. "Other
charges may also be laid," said CAW national representative Abe Rosner in
Montreal, "considering the proximity of the threats to the issuance of the
court injunction."
Last week the union filed a grievance as well as a formal complaint to
the federal Privacy Commissioner accusing CN of spying on Wheel Shop workers
contrary to federal legislation and asking for punitive damages for loss of
dignity and invasion of privacy. Those matters will be heard over the coming
months."

No suggestion of looking for charges under PIPEDA's whistleblower provisions.

Update: See also Winnipeg Sun: NEWS - CN union to grieve hearing (2004.12.22)

Well-respected US judge calls for wholesale electronic surveillance of US citiziens

This is one of the more interesting and surprising Op-ed pieces I have seen in a while. While most commentators are upset over the most recent revelations about domestic surveillance in the US, Justice Richard Posner of the US 7th Circuit Court of Appeals has written an opinion piece for the Washington Post calling for more widespread electronic surveillance of Americans. He argues that the review by computers is not an invasion of privacy, since it is only sifted by a computer rather than an actual person.

Our Domestic Intelligence Crisis
These programs are criticized as grave threats to civil liberties. They are not. Their significance is in flagging the existence of gaps in our defenses against terrorism. The Defense Department is rushing to fill those gaps, though there may be better ways.
The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

I expect we'll be hearing a lot about this piece as Justice Posner is not prone to ill-conceived or knee-jerk statements.

For some discussion and review, see Concurring Opinions: Judge Posner's Troubling Call for Massive Surveillance.

Borrow the wrong book and get it personally delivered by the feds

One of the problems with widespread monitoring is the huge incidence of "false positives". This example from the University of Massachusetts is instructive and a bit chilling to those who have commented upon it.

A senior at UMass Dartmouth was doing a research paper on communism in a class on fascism and totalitarianism. As part of his research, he requested a copy of Chairman Mao's Little Red Book using the interlibrary loans system. (Why a major univeristy library does not have its own copy of the book raises completely different questions.) Instead of the book, he received a visit from officials from the Department of Homeland Security. The agents told the students that the book is on a "watch list". Actually, the agents brought the book with them, but did not leave it with him.

Privacy advocates aren't generally pleased with any watching of what people read, but the chilling effect of this is significant. The professor who teaches the class has decided against teaching a planned class on terrorism because he does not want to put his students at risk of this sort of surveillance and profiling.

Read the coverage here: Agents' visit chills UMass Dartmouth senior: 12/ 17/ 2005, Student Gets Surprise From Mao's Book. Some comment here: Gardistan in Vision: Political censorship in Bush's USA, The Dark Wraith Forums: Special Report: Feds Question Student for Requesting Book of Mao Tse-Tung Quotations, Villa Beausoleil: Fascism comes to New Bedford, David Farrar: Book Monitoring.

UPDATE: There is speculation at Boing Boing that this story is a hoax. Boing Boing: DHS agents visit student over Little Red Book - HOAX DEBATE. As I hear more, I'll post here.

UPDATE 2: The Canadian Privacy Law Blog: Story about feds visiting after request for Mao book is a hoax.

The fight over mobile phone-derived location information

Today's New York Times has a good and thorough piece on the fight over location information from mobile phones and other unwired devices:

Live Tracking of Mobile Phones Prompts Court Fights on Privacy - New York Times:
In recent years, law enforcement officials have turned to cellular technology as a tool for easily and secretly monitoring the movements of suspects as they occur. But this kind of surveillance - which investigators have been able to conduct with easily obtained court orders - has now come under tougher legal scrutiny.
In the last four months, three federal judges have denied prosecutors the right to get cellphone tracking information from wireless companies without first showing 'probable cause' to believe that a crime has been or is being committed. That is the same standard applied to requests for search warrants.
The rulings, issued by magistrate judges in New York, Texas and Maryland, underscore the growing debate over privacy rights and government surveillance in the digital age.
With mobile phones becoming as prevalent as conventional phones (there are 195 million cellular subscribers in this country), wireless companies are starting to exploit the phones' tracking abilities. For example, companies are marketing services that turn phones into even more precise global positioning devices for driving or allowing parents to track the whereabouts of their children through the handsets.
Not surprisingly, law enforcement agencies want to exploit this technology, too - which means more courts are bound to wrestle with what legal standard applies when government agents ask to conduct such surveillance....

Federal Privacy Commissioner to enter the DRM discussion

According to P2PNet, the Office of the Privacy Commissioner is about to become involved in the discussions related to copyright reform and digital rights management:

DRM personal privacy threat:
"p2pnet.net News:- Jennifer Stoddart, Canada�s privacy commissioner, says she's about to, "become involved in the process to amend Canada's copyright laws".

Her statement came in response to a CIPPIC (Canadian Internet Policy and Public Interest Clinic) request to address privacy implications of proposed copyright legislation.

In it, Stoddart said she would, 'oppose legislation or legislative amendments that conferred unjustified privacy-invasive surveillance powers upon digital copyright holders,' going on:

'However, we have not as yet been consulted by either Heritage Canada or Industry Canada officials regarding the proposed legislation referred to in your letter. I have instructed my staff to initiate a dialogue with these departments to ensure that privacy risks are identified and addressed.' ..."

CN Rail turns on hidden cameras to investigate vandalism

Further to my earlier post (CN's hidden camera sparks workers' ire (Winnipeg Sun), Canadian National Railway says hidden cameras will stay), the Winnipeg Sun is reporting that CN Rail has activated the hidden cameras at issue and the union is pretty mad about it:

Winnipeg Sun: NEWS - CN spying: union:
"Operating four hidden cameras

By KATHLEEN MARTENS, BUSINESS REPORTER

CN Rail has now turned on four hidden cameras in its Transcona Wheel Yard, the Canadian Auto Workers union says. The news is a blow to the union, which had been fighting to get the company to disconnect the covert surveillance discovered two weeks ago.
A maintenance-area worker found one camera in the ceiling and the union contacted the media about the find. The railway confirmed publicly there were two cameras that had not yet been activated trained on an area where repair work was under investigation.
Union spokesman Dennis Wray said he received a letter from CN yesterday saying four cameras were now running.
'The members are upset,' said Wray, who is CAW Local 100 vice-president for the Prairie region."

US Government developing standard for positive identification

According to Privacy Digest, the National Institute for Science and Technology is developing a national standard for positive indentification of government employees and contractors. The following is a general introduction to the project, from a working paper released on the NIST site:

The “Personal Identity Verification for Federal Employees and Contractors” briefing was developed in response to the Homeland Security Presidential Directive (HSPD-12). The directive sets a policy for a common identification standard for Federal employees and contractors. It also establishes the high level requirements to be satisfied in the Personal Identity Verification standard.

The following information is intended to convey current thinking regarding the NIST response to the HSPD. The concept and design decisions contained herein are tentative and subject to change in the course of consultations with affected Federal government departments and agencies.

A general threat facing government agencies is the unauthorized access to physical facilities or logical assets under the protection umbrella of the PIV system and in which a PIV card is employed in access control processes. Specific examples of threats to government resources include the following:

Cardholder makes improper use of a valid card
Counterfeit cards are used to intercept or gain access to stored information
Stolen or borrowed cards are used to gain unauthorized access
PIN information is captured / intercepted through passive surveillance
Lower sensitivity rated cards are used to gain access to more sensitive and critical assets.

HSPD-12 mandates a government-wide standard for secure and reliable forms of identification. The policy further defines the following criteria for a secure and reliable form of identification. The identification standard (PIV FIPS 201) will be:

Based on sound criteria to verify an individual employee’s identity
Strongly resistant to fraud, tampering, counterfeiting, and terrorist exploitation
Rapidly verifiable electronically
Issued by providers whose reliability has been established by an official accreditation process
Applicable to all government organizations and contractors
Used to grant access to Federally controlled facilities and information systems
Flexible enough for agencies to select the appropriate security level for each application by providing graduated criteria from least secure to most secure
Not applicable to identification associated with national security systems
Implemented in a manner that protects citizens’ privacy

The program working paper is available at http://csrc.nist.gov/piv-project/Papers/Narration-PIV-Briefing10-1.doc and a slideshow from the project briefing is available at http://csrc.nist.gov/piv-project/Papers/PIV-BriefingSept16-2004.pdf.

Thanks to Privacy Digest for the pointer.

This is a complete aside, but I found it very interesting that the word document above is loaded with metadata, showing the last minute revisions that were made to it before the briefing. The tone of the narrative was shifted slightly. To see the changes, open the document, right-click on the toolbar above the document, select "Reviewing" and, on the toolbar that appears, select "Final, showing changes" in the drop-down box. Voila, you can see the revisions made.

Lucily for NIST, the document it is not full of "notes to draft" or anything significantly embarrasing. It is a bit surprising in any event that the organization responsible for IT security standards is posting metadata-laden documents on its website!

US Military seeking new domestic surveillance powers

According to the Washington Post, the maze of intelligence agencies operating within the United States may be expanding. A proposal advanced by the White House would give the little-known Counterintelligence Field Activity (CIFA) additional powers to investigate treason, sabotage and economic espionage. The Pentagon is simultaneously pushing an intelligence exception to the US Privacy Act. Both initiatives would see an increased ability for the military to gather intelligence about US citizens domestically. See: Pentagon Expanding Its Domestic Surveillance Activity.

Canadian Occupational Safety magazine on Eastmond v. CPR

Canadian Occupational Health and Safety Magazine has an interesting analysis of the recent Federal Court Decision in Eastmond v. Canadian Pacific Railway, where the issue was the reasonablness of video surveillance cameras at a railyard. The author discusses the implications of the decision from the labour-side point of view and makes some recommendations:

Across the table - Camera surveillance and the privacy rights of employees:

"What lessons can be gleaned from the decision of Justice Lemieux to better equip workplaces that have electronic surveillance? Employees and employers should be aware that this decision has established jurisdictional parameters for hearing recommendations from the Privacy Commissioner. Paragraph 13 of PIPEDA provides the Commissioner with the discretion to 'investigate a complaint or defer it if he considered it appropriate a complainant should exhaust a grievance [procedure].' This means that in the absence of collective agreement language that does not refer to the privacy rights of employees, employees may refer the recommendation of the Privacy Commissioner to the Courts.
However, in the case where a collective agreement does include privacy right language, PIPEDA has greater legislative authority and may still be referred to the Courts at the discretion of the Commissioner. Therefore, labour relations jurisprudence is still in need of a decision by the Commissioner or the Courts speaking to the issue of whether a labour arbitrator will have precedence to hear a privacy right complaint where such language is in the collective agreement.
The Court has directed respondents to PIPEDA applications to raise at the earliest opportunity the existence of an alternative dispute resolution mechanism available to the parties, such as a grievance procedure. The Court did not go so far as to say the Commissioner would be bound to defer to this other mechanism, but the inference is that alternatives should be contemplated before proceeding to the courts.
One lesson to be learned in the era of privacy rights legislation is that parties, union and non-union, should be negotiating local-level conciliation procedures. This should result in win-win resolutions instead of litigious and adversarial confrontations in the courts. "

surveillance

surveillance

Tune in next week ...

Invasive technology makes schools more like "correctional facilities"

Banks up customer surveillance

They're watching and know who you are

Your daily digital data droppings

Legal Analysis of the NSA Domestic Surveillance Program:

US News reports that law enforcement monitored mosques and muslim homes for radioactivity without warrants

Domestic surveillance by the NSA much more widespread than first reported, according to the New York Times

More hidden video cameras - this time in a correctional facility

The (Privacy) Gap: Popular Retailers Using Secret Cameras to Capture Information About Customers - PrivacySpot.com

Employees in Ontario (and perhaps other Canadian provinces) have no right to privacy

CN and union fight over hidden cameras leads to whistleblower charges

Well-respected US judge calls for wholesale electronic surveillance of US citiziens

Borrow the wrong book and get it personally delivered by the feds

The fight over mobile phone-derived location information

Federal Privacy Commissioner to enter the DRM discussion

CN Rail turns on hidden cameras to investigate vandalism

US Government developing standard for positive identification

US Military seeking new domestic surveillance powers

Canadian Occupational Safety magazine on Eastmond v. CPR

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