goldiron

Source: National Post

An Ontario Superior Court ruling could open the door to police routinely using Internet Protocol addresses to find out the names of people online, without any need for a search warrant.

Justice Lynne Leitch found that there is “no reasonable expectation of privacy” in subscriber information kept by Internet service providers (ISPs), in a decision issued earlier this week.

The decision is binding on lower courts in Ontario and it is the first time a Superior Court-level judge in Canada has ruled on whether there are privacy rights in this information that are protected by the Charter.

The ruling is a significant victory for police investigating crimes such as possession of child pornography, while privacy advocates warn there are broad implications even for law-abiding users of the Internet.

“There is no confidentiality left on the Internet if this ruling stands,” said James Stribopoulos, a professor at Osgoode Hall Law School in Toronto.

The ruling by Judge Leitch was made in a possession of child pornography case in southwestern Ontario.

A police officer in St. Thomas faxed a letter to Bell Canada in 2007 seeking subscriber information for an IP address of an Internet user allegedly accessing child pornography. The court heard that it was a “standard letter” that had been previously drafted by Bell and the officer “filled in the blanks” with a request that stated it was part of a child sexual exploitation investigation.

Bell provided the information without asking for a search warrant. The name of the subscriber was the wife of the man who was eventually charged with “possession of child pornography” and “making available child pornography.”

Most ISPs in the country require search warrants to turn over subscriber information unless it is a child pornography investigation.

Ron Ellis, the lawyer for the defendant, stressed to the judge that there was no allegation of attempted luring or of a child in immediate danger. The “making available” charge stems from peer-to-peer websites that permit the downloading of images from other users.

Mr. Ellis argued that police should have been required to seek a search warrant to obtain the subscriber information.

Judge Leitch accepted the arguments of Crown attorney Elizabeth Maguire that the information is similar to what is in a phone book.

“One’s name and address or the name and address of your spouse are not biographical information one expects would be kept private from the state,” said Judge Leitch.

The reasoning of the judge misses the context of what police are seeking, suggested Mr. Stribopoulos.

“It is not just your name. It is your whole Internet surfing history. Up until now, there was privacy. An IP address is not your name; it is a 10-digit number. A lot more people would be apprehensive if they knew their name was being left everywhere they went,” he said.

This information should require a search warrant by police if there is suspected criminal activity, said Mr. Stribopoulos. Judges are accepting the argument that this is “just your name” because “everyone wants to get at the child abusers,” he said.

The federal Personal Information Protection Electronics Documents Act permits ISPs to provide this information to someone with “lawful authority,” which Judge Leitch interpreted as meaning a police officer and not requiring a court ordered warrant.

There is an irony that exemptions in federal privacy legislation have been used to increase police powers and potentially reduce privacy rights, said Mr. Stribopoulos.

The trial of the defendant in St. Thomas will resume this spring. Mr. Ellis declined on Thursday to comment about the ruling because the case is ongoing.

California DMV considering facial recognition

Proposed $63M facial recognition contract would help flag applicants applying for fraudulent licenses

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San Jose Mercury News (CA)
via NewsEdge Corporation

Feb. 4–SACRAMENTO — Even as cost-conscious Gov. Arnold Schwarzenegger looks to trim state spending every way he can, officials at the Department of Motor Vehicles are planning to spend tens of millions of dollars on new driver’s license technology.

And privacy advocates say finances are the least of the plan’s problems.

The proposed $63 million contract includes facial recognition software that would allow the DMV to quickly compare an applicant’s new photo against other photos in the agency’s database in an effort to deter identity theft. The system could eventually include as many as 25 million images of drivers statewide.

Similar software is used in Oregon, New Mexico, Texas, Colorado and Georgia. California DMV officials say that by flagging applicants who already have a license under a different name, the software has led to a reduction in fraudulent licenses and identification cards by as much as 10 percent in those states.

But the five-year contract, which is being fast-tracked and could be approved as early as next month, is drawing objections from privacy advocates who fear state and local authorities could use the biometric technology to monitor the movements of “innocent people” — for instance, spectators at a sporting event or an anti-war rally.

“What this would allow law enforcement to do is scan a crowd of folks, check that image against the database and have their names and addresses,” said Valerie Smalls

Navarro of the American Civil Liberties Union in Sacramento.

The ACLU is fighting the proposal with a handful of other groups, including Consumers Union, the Electronic Frontier Foundation and the Consumer Federation of California, which says the plan poses “massive threats” to personal privacy.

“We see this as sort of creeping Big Brother government, an invasion of people’s privacy,” said Richard Holober, executive director of the San Mateo-based Consumer Federation of California.

The DMV says privacy concerns are overblown because, under its interpretation of state law, police departments don’t have “open access” to the current database that contains drivers’ information.

When police need to track down a license holder’s address or driving record, said Dennis Clear, a DMV assistant director for legislation, they must request it from the department. Similarly, police would have to ask in order to check a suspect’s picture against the new database. The database is protected, he said, “and that’s not going to change.”

If anything, Clear said, the new system will significantly improve privacy. “We believe this new contract is in the best interest of the citizens; it is in the best interest of all of us.”

But the proposal also is eliciting criticism for the hasty manner in which it’s being driven through the state’s bureaucracy — using an expedited process for select budget items that can be funded without the scrutiny of public hearings.

The state Department of Finance, which allocates the DMV’s budget, is processing the contract proposal through a so-called Section 11 application, which in many cases allows for a speedy, 30-day approval. The state would be able to sign the contract after Feb. 14, unless the Legislature intervenes before then, and the biometric features could be in place as early as 2010.

The current contract to manufacture driver’s licenses expires in June. Under that contract, the state pays 65 cents for each license. The new contract will push the price to $1.40 per card, which amounts to $63 million in a five-year period, Clear said.

“We feel it’s worth it as an investment because, frankly, the system we have today is wearing out,” Clear said. “We have cameras that are no longer functioning, we have hardware that is breaking down.”

State officials turned to the fast-track process — instead of waiting for the state budget to be approved in what has become an increasingly drawn-out process — because they say California desperately needs to improve security features on its licenses.

Sen. Joe Simitian, D-Palo Alto, perhaps the most outspoken lawmaker when it comes to privacy issues, is urging his colleagues to put the contract proposal before a public hearing, where DMV officials could provide more details about the facial recognition technology.

“There are at least four questions I want to ask,” Simitian said. They are: Does the technology work? How much does it cost? Does it make the public safer? How will privacy be protected?

“None of those questions should be avoided or evaded by doing an end around the process, which is really what’s being proposed here,” Simitian said.

Wednesday, he formally asked the Joint Legislative Budget Committee to reject the finance department’s fast-track application for the contract.

Committee spokesman John Ferrera said the committee is aware of the concerns raised by the application and is “giving the request consideration.”

South Dakota: State Takes no Blame for Creating Dangerous Intersection
South Dakota Supreme Court ruling absolves state officials from blame in maintaining dangerous conditions at intersections.

The South Dakota Supreme Court on Wednesday issued a ruling absolving the state from any liability in cases where it fails to warn motorists on roadways with an inherently dangerous design. On February 13, 2004 two families were driving at the “Four Corners” intersection of Highways 14, 34 and 63. These roads merge together on a sharp curve in a blind crossing without a stop or yield sign. The two cars collided nearly head-on, taking the lives of three and severely injuring four others. The surviving family members sued Darren Griese, in his official capacity as South Dakota Department of Transportation (DOT) Pierre Region Traffic Engineer.

The high court majority ruled that a state employee could not be held responsible for failing to maintain warning signs at the dangerous intersection because he was protected by sovereign immunity. The court reasoned that Griese had been operating as an expert with the discretion to post or not post signs as his personal judgment dictated. As long as no law required the posting of a sign, he was protected from any lawsuit.

“If the legislature or other policy maker has not demanded performance, the decision to act or not act is discretionary,” Chief Justice David Gilbertson wrote for the 5-2 majority. “One can only imagine the reaction of an average citizen if he or she… were ‘plucked off the street’ and informed it was now his or her legal duty to place ’substantial and conspicuous warning signs’ at any ’sharp turn, blind crossing or other point of danger…’ How much stronger would their reaction be when they realize that the failure to place a sign in every conceivable place would result in their being subjected to suit and criminal charge simply based on a plaintiff’s pleading disagreeing with the initial placement decision, and a jury being allowed to ‘Monday morning quarterback’ his or her conclusions…”

Justice Richard W. Sabers authored a scathing dissent that contended the duty to place signs at blind crossings was not only mandatory, it was a class one misdemeanor to fail to do so. The disagreement was so sharp that Gilbertson and Sabers took a number of personal jabs at each other. Sabers labeled the chief justice’s reasoning “preposterous” and cited past cases authored by Gilbertson that appeared to disagree with his present ruling. Gilbertson, in turn, cited cases where Sabers appeared to hold an opinion opposite to the one he now held. Sabers set the case up for challenge before the US Supreme Court by asserting that the majority’s decision violated the plaintiffs’ Seventh Amendment right to a jury trial on the material facts involved in the case.

“Incredibly, under the majority’s view, the highway department could arbitrarily, unreasonable and capriciously design the busiest, most dangerous intersection in South Dakota with inadequate signage or signage that goes out of repair, as here, and never be accountable, despite numerous injuries and deaths, year after year,” Sabers wrote.

A full copy of the decision is available in a 1.4mb PDF file at the source link below.

Source: Truman v. Griese (South Dakota Supreme Court, 2/11/2009)