Techdirt has been following for a while the Canadian government's unabashed attempts to muzzle scientists and librarians who work for the state, as it tries to deny them the right to express their views if those happen to disagree with the His Excellency, Prime Minister for Life, Superior Person, Great Leader of our Party and Nation, Guiding Star of the 21st Centry, Lord of All the Beasts of the Earth and Fishes of the Seas Stephen Harper's political agenda.
The end result, of course, is the chilling of speech. Currently, there's a measure of due process to the proceedings. If this bill passes, that's gone. And with no clear standard expressed in the bill itself, all sorts of previously protected speech will be potentially subject to criminal penalties.
A nitpick, but an important one. In Canada, only the Federal government can pass criminal law. Quebec might be about to pass a terrible, horrible, no good, very bad law, but the one thing it can't do is result in criminal penalties.
Which doesn't mean the remedies the tribunal can order will be painless. In addition to whatever powers the Human Rights Tribunal already has, this legislation grants it the power to order fines of up to $10,000. And of course, and just getting dragged before such a tribunal will be a huge pain in the ass and will carry a stigma.
But technically, they won't be characterized as criminal penalties. That sounds like a petty distinction, but it can be a pretty big distinction when you're trying to cross an international border or applying for certain jobs.
I came to say the same thing. When I read that paragraph, it wasn't at all clear to me which of the three items listed was the "actual" weapon, even though the tone of the sentence suggests it should be obvious.
Even if, as John states, Tim intended to say "weapons that pose a serious threat", I don't see how that's at all relevant. Their policy doesn't mention weapons at all. Their policy just states that they're trying to ensure the "comfort and safety" of their guests and employees. So the question of whether something is or is not a weapon that poses a serious threat is irrelevant. Pepper spray and hatchets and airsoft guns can all cause some serious discomfort.
(As an aside, Wikipedia states that pepper spray has led to deaths in some cases, but without a citation. So it's possible that at least two of those items pose a serious threat).
What if I republish another person's statement? (i.e. someone comments on your posts)
Generally, anyone who repeats someone else's statements is just as responsible for their defamatory content as the original speaker—if they knew, or had reason to know, of the defamation. Recognizing the difficulty this would pose in the online world, Congress enacted Section 230 of the Communications Decency Act, which provides a strong protection against liability for Internet "intermediaries" who provide or republish speech by others. See the Section 230 FAQ for more.
The vast weight of authority has held that Section 230 precludes liability for an intermediary's distribution of defamation. While one California court had held that the federal law does not apply to an online distributor's liability in a defamation case, the case, Barrett v. Rosenthal, was overturned by the California Supreme Court (EFF filed an amicus brief in this case)
So, it sounds as if, at least on the Internet, US defamation law would reach a significantly different result (although in traditional print publishing, probably not). But wait, there's more! If you go to the EFF's Section 230 FAQ (linked from that first article), they state:
Your readers' comments, entries written by guest bloggers, tips sent by email, and information provided to you through an RSS feed would all likely be considered information provided by another content provider. This would mean that you would not be held liable for defamatory statements contained in it. However, if you selected the third-party information yourself, no court has ruled whether this information would be considered "provided" to you. One court has limited Section 230 immunity to situations in which the originator "furnished it to the provider or user under circumstances in which a reasonable person...would conclude that the information was provided for publication on the Internet...."
Now, I know that skimming a few EFF FAQs is not a substitute for actual legal research. But it sounds to me like it's not so certain at all that a US court would have found differently.
Why is "provincial" in quotations? It's a real thing and distinguishing between municipal regulations and provincial laws is legitimate (of course, that doesn't mean this particular lawsuit is legitimate). This Toronto Star article has more information on exactly what law the lawsuit relies on.
And that means that, at least in this specific case, the system has broken.
Not that I don't think trademarks get misused, but I don't think this is evidence of a broken system, at least not yet. The "single individual" just threatened to trademark the terms. Pride TO has applied for a trademark over those terms. But so far, no one has actually been granted a trademark. It's still very possible that the trademark office will reject the application, whether it comes from Pride TO or the mysterious individual... in which case the system will be working exactly like you'd want it to.
I'm sure that United Airlines didn't think through much of this and the details when it agreed to these ridiculous terms. It just thought it was adding an option that sounded nice. Letting people have access to more entertainment options, including on their own devices sure sounds like a nice option for some passengers. But if it comes with forcing people to put their computers and information at risk, it gets problematic fast.
To give them the benefit of the doubt, I'm sure someone at Universal realized this was problematic. Just maybe not someone in a decision-making role. Alternatively, someone in a decision-making role DID realize the problem here and thought "OK, so a few copyright wonks and security people on the Internet will freak out but 99% of our customers won't give a shit. They'll install whatever we ask and leave with fond memories of being able to watch Agents of SHIELD on their laptop on the flight".
Now that I re-read this, both of those options actually make United look worse than they did under Mike's theory. So much for giving them the benefit of the doubt.
To clarify: the injunction against Google in the Equistek case was first issued by Justice Fenlon in the Supreme Court of BC. It was then upheld by the Court of Appeal. It's Justice Fenlon again who has issued the order in the Niemala case (without apparently even referencing the Equistek case).
I'm assuming he's being charged under s. 264 of the Criminal Code:
264. (1# No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection #2# that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.
#2# The conduct mentioned in subsection #1# consists of
#a# repeatedly following from place to place the other person or anyone known to them;
#b# repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
A cursory research effort turned up only two cases where the constitutionality of this provision has really been challenged head on. In what is #to my mind# the most on-point of these cases, the judge said:
It is apparent that for s. 264#2#(b# behaviour to be criminal in nature the psychological integrity, health or wellbeing of the person must have been interfered with in a substantial way. To my mind, violence of this nature is a component of the offence. It would fall squarely within the exception stated by the majority in Irwin Toy and by the Court in Dolphin Delivery. The difficulty is the obiter dicta of Dickson, C.J.C. in Keegstra where after stating that the Court has not decided a case based on this exception to s. 2#b#, His Lordship goes on to interpret what was said in Irwin Toy as restricting the exclusion to a form of expression which is communicated directly through physical harm. In Keegstra the Court was concerned with the threat of violence implicit in hate literature. His Lordship found that the type of communication restricted by s. 319#2# could not be considered as violence nor analogous to violence. We are not dealing with a threat in considering s. 264. Rather, we are concerned with direct psychological violence and resulting harm. I have difficulty with the notion that direct psychological harm, which, as Cory, J. pointed out, is often "more pervasive and permanent in its effect than any physical harm" and can be every bit as damaging to a person's well-being, would not fall within the exception as stated in Irwin Toy. To my mind, the cause and effect contemplated by s. 264 goes well beyond a "threat" of violence.
I agree with what Craig, Prov. Ct. J., in R. v. Hau,  B.C.J. No. 677, Paragraph 11, said, though when he uses the term violence I believe he has physical violence in mind.
"I conclude that Section 264 clearly expands our criminal law to deal with anyone who harries another to the extent that it brings about a reasonable apprehension of violence. The stalking of another person intrinsically involves potential violence and its social consequences are appalling. When a person knowingly or recklessly engages in conduct specified in Section 264#2#, resulting in a reasonable apprehension of violence, there can be no exculpation by characterizing such conduct as a legitimate exercise of the freedoms guaranteed in Section 2 of the Charter. Those freedoms are not absolute and were not intended to justify latently violent conduct. Moreover, in our democratic society, the freedoms in Section 2 must never serve to diminish a person's right to be free from and protected against violence, or the threat of violence brought about by harassing conduct."
Thus, I find that the type of expression which may flow from behaviour as contemplated by s. 264 is not protected by s. 2#b# of the Charter.
#From the trial decision in R. v. Sillipp, I'd link it but I can only find the appeal decision on non-paywalled sites#.
So basically, according to that judge, this law is constitutional because in order to get caught by it, you have to repeatedly communicate with someone while knowing that your communications are interfering with their psychological integrity, health or wellbeing. That's a form of violence and violence isn't protected by the Charter right to freedom of expression, therefore no constitutional issues to here.
My guess is the judge in this new case will adopt that standard, say the defendant doesn't mean it and find him not guilty without getting into any further discussion as the constitutionality of this provision.
Because I just love to get yelled at and told I'm an idiot, I'll put forth the opposing argument: this doesn't sound like THAT ridiculous an argument to me.
Where privilege exists, it can usually only be waived by the privilege holder. I know there have been some Canadian cases that have held that an accidental disclosure of documents does not waive privilege over those documents. So an argument that getting hacked does not waive privilege doesn't sound THAT ridiculous.
Of course, I write this without doing any research into those specific cases or any relevant US cases on the law of privilege.
Agreed. And people have been using timers to take self photos for decades. I've been packing a mini-tripod (more recently a GorillaPod) whenever I go on vacation for at least the last decade for this exact purpose. No one ever threatened to ban me from anywhere.
As someone who used to teach copyright law to students, I can guarantee you that your average selfie-stick user has absolutely NOT put any consideration whatsoever into who owns the copyright to their vacation photos.
I dug around for some Canadian caselaw on this last year and all I came up with was a single Quebec Court of Appeal case: R. c. Boudreau-Fontaine.
There, at least, the judge was firmly of the opinion that compelling an individual to divulge their password was unacceptable.
 I note that it orders the respondent to disclose his password#s# [translation] "in order to establish that the computer was connected to the Internet by Mr. Boudreau-Fontaine, thus breaching the conditions of his probation." In other words, the justice of the peace was commanding the appellant to give essential information with the specific intent of having him incriminate himself. I cannot see how the criminal law can allow such an order. It should be noted that the respondent complied with the order but that he certainly would not have done so without it, proof being that he refused to speak with the police officers about the events of September 19 when he was arrested. As the respondent wrote in his written argument, this order raises the issues of the right to silence, the right to be presumed innocent, the right not to be conscripted against oneself, and the protection against self-incrimination. Commanded to participate in the police investigation and to give crucial information, contrary to his constitutional rights, the respondent made a statement #identification of his password# that is inadmissible and that renders the subsequent seizure of the data unreasonable. In short, even had the seizure been preceded by judicial authorization, the law will not allow an order to be joined compelling the respondent to self-incriminate.
 In R. v. Hebert, 1990 CanLII 118 #SCC#,  2 S.C.R. 151 at para. 47, McLachlin J. writes:
... the right to silence may be postulated to reside in the notion that a person whose liberty is placed in jeopardy by the criminal process cannot be required to give evidence against himself or herself, but rather has the right to choose whether to speak or to remain silent.
 Without necessarily being detained, the respondent was compelled to participate in his self-incrimination and was given no choice in the matter: he had to help the police officers convict him. This approach is unacceptable.
But of course, things are different at the border.