Two privacy stories raise interesting issues.
1. Journalistic violation of privacy: PIPEDA s. 7(1)(c) gives an exemption from the rules about collection of personal information for journalistic purposes.
Section 32 of the Data Protection Act (UK), by contrast, provides a journalism exception only if, in addition,
(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances, compliance with [the provision being violated] is incompatible with the special purposes [i.e. journalism]
Lord Levenson’s recent report on abuse of press freedoms recommends even stricter controls.
In the light of this, is Canada’s journalism exception demanding enough of those who violate privacy in its name?
2. In U.S. v Stanley, WL 5512987, a court held that there is no reasonable expectation on privacy in wireless signals, so the police could use a device (called a ‘moocher hunter’!) to trace wireless signals, to find out who was trafficking in child pornography using a neighbour’s wireless signal. (A properly warranted search of the neighbour’s computer had turned up nothing, so the question was whether someone else was using the signal for the illegal purpose. Answer: yes. Moocherhunter answer: Stanley.)
The commentary by Orin Kerr (via the Stanley link above) quotes from the decision that Mr Stanley cited in his constitutional defence the US Supreme Court’s equivalent to the Tessling case, Kyllo v. United States, 533 U.S. 27 (2001), which went the other way from Tessling and found that the warrantless use of a heat detector was not permitted. The Stanley court distinguished it. Our courts would not have to take that step, I guess.
Should Mr Stanley have a better defence in Canada against the use of such a device?