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JMJimmy
join:2008-07-23

JMJimmy

Member

Voltage v. Does

In looking into a completely unrelated issue I came across some information that significantly impacts the Voltage case. A motion to quash the evidence needs to be submitted. Unfortunately, I don't have the means (nor standing).

The basis is that Canipre did not, and possibly cannot ever, have authorization to perform electronic surveillance.

Imperial Oil v. Jacques, 2014 SCC 66.

Per Abella J. (dissenting): It is not legally permissible in Canada to authorize electronic surveillance for the purpose of gathering evidence in civil proceedings. Electronic surveillance can only be authorized in the limited circumstances set out in Part VI of the Criminal Code for the investigation of serious crimes, or under the Canadian Security Intelligence Service Act for the investigation of threats to national security. Part VI recognizes the uniquely intrusive character of electronic surveillance by permitting state interception of private communications only if express safeguards are followed. Until a determination has been made as to the legality of a challenged interception, the communication is not admissible in a criminal proceeding.

Section 193(2)(a) should not be interpreted in a way that overrides the privacy protections in Part VI. Section 193(2)(a) does not create a right to access intercepted communications and is not available to pre-empt a judicial determination about the validity of an interception. Until those interceptions have been found, or are conceded to be, lawful and admitted into evidence in a criminal proceeding, they retain their private character for all purposes and are not available to the public. Using s. 193(2)(a) to permit litigants in a civil case to get disclosure of communications intercepted in the course of a criminal investigation before a challenged interception is found to be lawful, allows those litigants to benefit indirectly from an extraordinary investigative technique they are otherwise not legally entitled to.

The general right to privacy and the specific right not to have confidential information disclosed are expressly protected in Quebec’s Charter of Human Rights and Freedoms. The discretion in art. 402 of the Code of Civil Procedure to order disclosure should therefore not be so interpreted as to extinguish the scrupulous protection for the non-disclosure of intercepted communications found in other parts of the law. This provision gives significant discretion to a trial judge, but it does not give him or her carte blanche to order disclosure of communications protected by an almost impermeable legal coating like a privileged communication. Evidence gathered through electronic surveillance is entitled to the same protection and, as a result, is not amenable to a balancing exercise.

In that case, the majority held that the information be disclosed, however, the basis was that the information intercepted was done so in a criminal investigation for which a judge had authorized surveillance. That is not the case with Voltage, who hired a private firm to perform the surveillance. In addition, much of the discussion revolved around section 193's disclosure exceptions. These would not be applicable as the issue is not the disclosure but the interception. In that same case the majority opinion, with emphasis added and agreement by the chief justice:

While wiretaps can only be [u]authorized[/u] for criminal investigations, [u]any evidence obtained pursuant to an authorization can be used in civil proceedings[/u]. There is nothing express in Part VI of the Code authorizing the use of wiretap evidence in civil proceedings because the Code focuses on criminal offences and procedure. However, s. 193, which creates an offence for disclosure of information intercepted by electronic devices, specifically exempts disclosing wiretap evidence “in the course of or for the purpose of giving evidence in any civil or criminal proceedings”.

Setting aside the disclosure components the key for the Voltage case is "wiretaps can only be [u]authorized[/u] for criminal investigations".

184.2 (1) A person may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a private communication where either the originator of the private communication or the person intended by the originator to receive it has consented to the interception and an authorization has been obtained pursuant to subsection (3).

184.2 gives requirements, the first part is consent to the interception (which is automatic with P2P due to s. 183) the second part is the authorization. Meaning that regardless of consent, no authorization exists because no judge can authorize anyone but a "peace officer". Therefore the evidence submitted was unlawfully obtained. R. v. Fliss provides that a 24(2) Charter test needs to be applied to determine if the evidence is admissible (before issues of balance are considered) which is detailed in R. v. Wise. Canipre fails all 3 parts of the test.

- Fairness "...evidence would only affect the fairness of the trial if the evidence were virtually undiscoverable without the assistance of the accused." ie: Without communication of the evidence to Canipre through their surveillance scheme discovery of the evidence would be virtually impossible. (no self-incrimination)

- Seriousness "violation ... was inadvertent or of a merely technical nature, or whether it was deliberate, wilful or flagrant" Canipre's business model is based on flagrant violation of s.8 Charter rights.

The following from R. v. Wise. especially applies:

The decisions in Wong and Duarte are predicated on the notion that there exists a crucial distinction between exposing ourselves to the risk that others will see us or overhear our words, and the much more pernicious risk that they will be electronically monitored at the sole discretion of the state. Transposing to the technology in question here, it must follow that there is an important difference between courting the risk that our activities may be observed by other persons and the risk that agents of the state, in the absence of prior authorization, will track our every move. In both instances, it is constitutionally unacceptable that the state should be allowed to rest a justification for the unauthorized electronic surveillance of a given person on the mere fact that that person had been in a situation where he could be the object of scrutiny on the part of private individuals. To sanction state intrusions on this basis is to blind oneself to the fact that the threat to privacy inherent in courting the ordinary observations of other members of society pales by comparison with the threat to privacy posed by allowing the state to electronically monitor our every movement. Section 8 of the Charter exists to protect privacy and not solitude.

The above applies whether it is the state, business, or person.

Other reading:

R. v. TELUS Communications Co
»www.justice.gc.ca/eng/co ··· faq.html
»www.publicsafety.gc.ca/c ··· eng.aspx - In 4 years police used authorized surveillance in cases against 1,953 people - Voltage did 2,000 people in 1 case.

What's especially fun:

191. (1) Every one who possesses, sells or purchases any electro-magnetic, acoustic, mechanical or other device or any component thereof knowing that the design thereof renders it primarily useful for surreptitious interception of private communications is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

2 years in jail for Barry Logan? I do hope so.

elwoodblues
Elwood Blues
Premium Member
join:2006-08-30
Somewhere in

elwoodblues

Premium Member

We haven't gotten to that point yet. Right now they're looking for names. if they have the names,and they proceed to go after the "names" in a civil action, then a smart lawyer or intervener can bring it up.

HiVolt
Premium Member
join:2000-12-28
Toronto, ON

1 recommendation

HiVolt to JMJimmy

Premium Member

to JMJimmy
Is it really electronic surveillance? All they were doing is collecting ip addresses from public torrent trackers, freely visible to anyone.

I'm not defending their pathetic cash grab attempt, but does this law even apply here?

jmck
formerly 'shaded'
join:2010-10-02
Ottawa, ON

jmck

Member

i doubt it since they were only listening to what was voluntarily connecting and broadcasting openly to a tracker. essentially it's no different than a honeypot (but even less extreme) and my dealings with local law enforcement and courts indicate that it is a valid and legal tactic without a warrant when it comes to individuals doing this.

now when law enforcement does it, it will need a warrant.

elwoodblues
Elwood Blues
Premium Member
join:2006-08-30
Somewhere in

elwoodblues

Premium Member

And people wonder why I use a private tracker. I paid for a VPN, but the public tracker went down, which is a shame, it was a fantastic source.

jmck
formerly 'shaded'
join:2010-10-02
Ottawa, ON

jmck

Member

a private tracker doesn't help if someone from the industry has an account on the tracker and is sniffing everything, and yes I've gotten DMCA emails from clients who were using a private tracker too (you see the torrent and tracker details in the notice).

the VPN helps as long as they don't log and you're sure of it.
JMJimmy
join:2008-07-23

JMJimmy to HiVolt

Member

to HiVolt
said by HiVolt:

Is it really electronic surveillance? All they were doing is collecting ip addresses from public torrent trackers, freely visible to anyone.

I'm not defending their pathetic cash grab attempt, but does this law even apply here?

Sorry for the delay in reply. I'd sent the idea to CIPPIC and while they liked it, (got back to me right away) they pointed out some weak spots. Electronic surveillance is a pretty broad category covering pretty much any software/device. The question comes down to private communications and the inapplicability of 24(2) (facepalm!). As great as Abella J. comments are, they are not the majority so big chunks of Imperial Oil v. Jacques would need to be addressed. Rather than do it head on, I took a bottom up approach along the same vein:

Canipre is based out of Montreal and that's where the data collection took place. That opens up the oh so wonderful Quebec Civil Code. The gist would be:
Title 1 establishes the privacy rights
By downloading something from each user they establish/use a file on said person which they are not allowed to do if it "otherwise invade the privacy or injure the reputation of the person concerned." That should solidify it as unlawful.
To get it thrown out though you still have to take into account Voltage's rights. The code provides that if you can't get "right of examination or rectification of a file" or there's some difficulty exerting the rights they are to apply to the courts for authorization to perform the surveillance under 184.2.
R. v. Spencer as well points out that 7(3)(c.1)(ii) requires that ISPs only disclose to a lawful authority (which is the basis for TSI not just handing over the info). So not only was the data collection unlawful, but so was the initial request by Voltage, and they had a perfectly reasonable/legal path to take but instead they prejudiced themselves.

One thing I did learn through all this... it's mothereffing scary how many holes Harper has put into various Acts that completely compromise basic privacy expectations. Even "radiotelecommunications" have the exemption for intercepting private communications if it's for the purpose of gathering evidence. I honestly think, based on the logic presented in the Imperial Oil case that it might theoretically be legal to wiretap someones phone - so long as you're not working for the government in a criminal case or in general for a civil case.
jkoblovsky
join:2011-09-27
Keswick, ON

1 edit

jkoblovsky

Member

Hense unauthorized disclosure of personal info. Glad to see some people actually catching on to that. If Voltage pushes forward, Mr. Logan would be responsible for 2000 consecutive cases of breaching section 184(1) of the criminal code of Canada, with a maxium penalty of 5 years in prision for each infraction.

More case law on that here:

»www.legaltree.ca/node/908

I came to the conclusion back in 2009, that at the end of the day, this type of copyright infringement for personal use via p2p is not enforceable under so many laws ending ultimately at the Charter. So why not just legalize and properly monetize it? Why delay the inevitably of the outcome? The answer to that question is very politically driven. Maybe we need to start electing people who see the writing on the wall.

A more interesting question would be, if Logan is acting in a criminal fashion, why hasn't this been brought to the attention of the court by TSI's lawyers to date, and why haven't the RCMP been notified to further investigate. Criminal Code is federal jurisdiction.
JMJimmy
join:2008-07-23

JMJimmy

Member

The reason is that tidbit near the end, R. v. Tam and R. v. Coburn. One has to establish the expectation of privacy which doesn't exist under federal law when it's "natural persons" doing the recording. The most he can be charged with at this point is possessing the software. The Charter similarly doesn't apply because of s. 32. It has to be made a constitutional issue where cultural, property, and civil rights issues are exclusively the provinces. ie: you'll need to establish case history that civil rights carve out legislating certain elements of copyright (federal).

sbrook
Mod
join:2001-12-14
Ottawa

sbrook

Mod

Mr Koblovsky, Your legal analysis falls down in several places, but most noticeably this ...

It is NOT the communication itself that is being intercepted. At this stage, what is intercepted is the IP address that the requestor's system has placed in the headers of the packets requesting the "communication". Now there is NO expectation of privacy of that IP address since it is used in routing your message to the serving system, and routing your packets back to you. It can be viewed by any number of people.

The system hosting the material for communication to you advertises the names of the communications and you request that it be sent to you. So there is no violation of privacy. What has happened is that you didn't know who you requested the communication from and told him where to send it (your IP).

So no violation there in that process. The requestor all but told him how he could be found.

There is no Charter violation since it is NOT the state making law that violates your privacy. This is the continued belief that the Charter applies to the public in general. The charter essentially states that governments in the country shall make no law that violates the charter items. What actually stops person A from infinging the privacy of person B is legislation.

TypeS
join:2012-12-17
London, ON

TypeS to jkoblovsky

Member

to jkoblovsky
Most torrent clients give you the IP address of every peer and seeder you connect to. There's is no breach of privacy what so ever. Once you get the IP address, look up on any of the hundreds of WHOIS IP lookup sites and then send a list to the corresponding ISPs.

Maybe learn the basic 101 of how bittorrent software works before getting on your high horse.

sbrook
Mod
join:2001-12-14
Ottawa

sbrook

Mod

Since the common way of getting people is the "honeypot" ... i.e. the agent for the film puts a segment on a tracker, and entices you to download it, this could be called entrapment to obtain your IP. How legal THAT is may be another matter.

Of course there is the question of "if the agent is trying to protect copyright, the way is to put a dummy file there, not a real one". By putting a real file out into the public domain, it could be argued he's actually anulling his own copyright claim.
jkoblovsky
join:2011-09-27
Keswick, ON

3 edits

jkoblovsky to sbrook

Member

to sbrook
said by sbrook:

It is NOT the communication itself that is being intercepted. At this stage, what is intercepted is the IP address that the requestor's system has placed in the headers of the packets requesting the "communication". Now there is NO expectation of privacy of that IP address since it is used in routing your message to the serving system, and routing your packets back to you.

From the above link I quoted:

What constitutes a private communication

The statutory definition of private communication:

Section 183 of the Criminal Code provides the following definition for private communication:

"private communication" means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it.

See also:

Private communications to multiple persons

The privacy element of the definition for "private communications" refers to "the person intended by the originator to receive it" i.e. it is worded in the singular. However, s. 33(2) of the Interpretation Act, R.S.C 1985, c. I-21 states: "Words in the singular include the plural, and words in the plural include the singular".

Further, s. 183.1 of the Criminal Code addresses one party consent to interception of private communications made by or intended to be received by multiple persons and confirms that a communication may be a "private communication" notwithstanding that it is communicated by the originator to more than one other person; see discussion below.

Therefore, a communication to a group of persons may be a "private communication". Determining whether a communication to a group of persons is in fact a "private communication" would be evaluated by asking whether the originator could reasonably have expected that anyone other than the members of the group would intercept it.

We'd have to ask the seeder in the above example on whether or not he/she expected his torrent would have been intercepted by Canipre to make the evidence stand in court?

And:

Consent to interception of a conversation involving many people

If many people are involved in a single conversation, it can lawfully be recorded so long as any one of the parties to the conversation consents to it being recorded. That rule is set out in s. 183.1 of the Criminal Code:

Where a private communication is originated by more than one person or is intended by the originator thereof to be received by more than one person, a consent to the interception thereof by any one of those persons is sufficient consent for the purposes of any provision of this Part.

According from what I can see, there is a reasonable expectation of privacy among P2P users that the communications would not be intercepted, nor have P2P users consented to any private intercept by Logan/Canipre while connecting to a swarm. Canipre is not active in the swarm from what I remember numnuts Logan has stated. It's just a capture of the IP addresses. Not sure if that's legal here.

Still unauthorized disclosure as a result IMO. This will be interesting if it's tested in court. It should be considering the amount of data that's collected by us online.
stormy13
join:2003-10-28
Pickering, ON
Asus RT-AC66U B1

stormy13

Member

Instead of speculation and opinion, how about you actually contact a lawyer and see what they have to say. Until then anything you have to say is pretty much moot with nothing to back it up.

Or do you happen to have a law degree and what you keep saying is fact?
jkoblovsky
join:2011-09-27
Keswick, ON

4 edits

jkoblovsky

Member

I apologize that should be unauthorized identification. From the Comparative Law: Privacy and Data Protection course blog at Osgoode regarding the TSI decision earlier this year:

»osgoode-privacy-seminar- ··· urt.html

TekSavvy has been told to hand over the names and addresses of their customers who have illegally downloaded Voltage Pictures' films (such as the Hurt Locker). The article comments about how this will tip the unbalanced pendulum in favour of rightsholders. It also discusses how some customers will choose to pay the settlement fee instead of litigate. It makes me wonder whether people will argue that their privacy has been infringed upon due to the unauthorized identification, and whether this has the potential to flood the legal system with various cases.

Wondering if Logan is soon to have a room mate named Bubba? Again raises questions as to why TSI has taken a hands off approch to this case, and why CIPPIC is doing the dirty work compare to the quoted cases by Jimmy above regarding Telus and Rogers. According to the above TSI could be an accessory to a criminal act. Interesting, since the former co-founder of CGO was in breach of those very same laws above, and I had and obligation to report to TSI to clear CGO of wrongdoing and did so. Same goes to TSI in this case regarding thier subscribers towards the courts. Silence is deafing Marc.
JMJimmy
join:2008-07-23

JMJimmy to TypeS

Member

to TypeS
said by TypeS:

Most torrent clients give you the IP address of every peer and seeder you connect to. There's is no breach of privacy what so ever. Once you get the IP address, look up on any of the hundreds of WHOIS IP lookup sites and then send a list to the corresponding ISPs.

Maybe learn the basic 101 of how bittorrent software works before getting on your high horse.

Going on the assumption that IP info is public for the below:

Bittorrent 101:
Connecting to a client and retrieving a list of IPs is hearsay for the courts. There's no way to verify that the client is being "truthful" or accurate at that moment in time about the IPs or how much of a document they contain. While there are measures against false clients, Guardaley software provides ample example as to the ease with which that is defeated.

The Guardaley software goes further than simply collecting IPs though, it advertises that it has content and initiates searches of those IPs to provide that verification.

The question remains, is that a private communication or not? Without looking at civil rights laws we can still establish that it is in fact a private communication. Shaw Cablesystems G.P. v. Society of Composers, Authors and Music Publishers of Canada and similar rulings which hold that it remains a private communication until the work is transferred in full at which point it becomes a communication to the public.

This means that they are in violation of s. 191 (1) of the Criminal Code, unless they have a license. It also means that they have no evidence of any communication to the public both for this reason and the lack of evidence of "substantial" copying.

Given the above, the question then becomes, is Canipre in violation of section 184 * millions of IPs (not just this case but all the IPs they've collected)? For them to escape this they need to establish that they had consent and not just implied consent but informed consent free from coercion (Goldman test). Since Goldman is 1979 and deals more with police it's likely not appropriate, PIPEDA is appropriate.

4.4.2 The requirement that personal information be collected by fair and lawful means is intended to prevent organizations from collecting information by misleading or deceiving individuals about the purpose for which information is being collected. This requirement implies that consent with respect to collection must not be obtained through deception.

The software is not lawful as it is not licensed, doesn't record the data downloaded (merely claims that it did which has been proven laughable in other cases), it deceives people by creating a false bitfield claiming 50% of the file is available from Canipre's IP and so on. All things considered, there's a pretty good case for an investigation/charges against Barry Logan at the very least.

Toss onto the pile the hugely damning evidence FightCopyrightTrolls dug up on Guardaley and the machine behind it calling for experts the judges won't take too close of a look at. A couple other failed cases and you've got yourself a party.

sbrook
Mod
join:2001-12-14
Ottawa

sbrook

Mod

Assuming that the IP address is not considered part of the private communication since it is advertised at every step of a request for the initiation of the private part of the communication to route packets, then ...

The first sentence of 4.4.2 is the critical one ... "by fair and lawful means". The IP address is obtained lawfully since it is the address to which the requestor wants the communication sent. But since it is being used as an entrapment, then it is questionable as to whether it is "fair".
JMJimmy
join:2008-07-23

JMJimmy

Member

Yup. Oh and I forgot... Ontario provides even more protection

"A private investigator is a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information."

Somehow I don't think they got their PI license

jmck
formerly 'shaded'
join:2010-10-02
Ottawa, ON

jmck

Member

you don't need a PI license to investigate things on your own and collect data that's out there in the open.

trolls_f_off
@192.99.168.x

trolls_f_off

Anon

said by jmck:

you don't need a PI license to investigate things on your own and collect data that's out there in the open.

The question is - is data collected by non-PI admissible in court? Is it a fair collection under PIPEDA?
JMJimmy
join:2008-07-23

JMJimmy to jmck

Member

to jmck
said by jmck:

you don't need a PI license to investigate things on your own and collect data that's out there in the open.

Two issues with that - first, it wasn't Voltage doing the investigating it was a company selling the investigative services. Second, we already established that they were private communications under the board/court rulings so it's not "out in the open" - it required a positive act on Canipre's part.

trolls_f_off got the questions right. Either they need to meet Ontario's PI laws or Quebec's Civil Code - neither of which would allow them to operate in the manner they did.
Ree
join:2007-04-29
h0h0h0

Ree to JMJimmy

Member

to JMJimmy
How does Canipre's operation work? Are they reactive or proactive in collecting IP addresses?

By that I mean, how is the relationship between Canipre and a studio setup?

"Hi Canipre, my name is Voltage and I'd like you to capture the IP addresses of people sharing my movies"

or is it:

"Hi Voltage, my name is Canipre and I think you would be interested in this list of IP addresses that I captured sharing your movies"

Seems like one wouldn't fit the definition of PI, but not sure which way they operate.
JMJimmy
join:2008-07-23

JMJimmy

Member

How do you figure? Both definitions Canipre's work consists primarily of investigations in order to provide information for which they receive remuneration. Doesn't matter if they do it proactively or not under Ontario's definition of what a PI is. For them to escape the PI legislation they'd have to fall into one of the exempt categories of work.
Ree
join:2007-04-29
h0h0h0

1 edit

Ree

Member

said by JMJimmy:

How do you figure? Both definitions Canipre's work consists primarily of investigations in order to provide information for which they receive remuneration. Doesn't matter if they do it proactively or not under Ontario's definition of what a PI is. For them to escape the PI legislation they'd have to fall into one of the exempt categories of work.

I don't disagree that they were investigating either way, but the definition for PI mentions remuneration, and remunerative work is defined as:

(8) In subsections (2), (4), (6) and (7), a reference to performing work for remuneration includes performing work pursuant to an agreement that provides that the remuneration paid is contingent, in whole or in part, on the completion of the work. 2005, c. 34, s. 2 (8).

So if there was no agreement to perform the investigation, Canipre just decided to proactively do it and hope to sell the IP addresses at a later date, then I don't think that fits the definition.

EDIT: On second read that appears to be an addition to the definition for remunerative work, not the actual definition. But I'm still not convinced that doing some work and then asking a bunch of people to pay you after the fact fits the definition of PI. (And maybe that's not how Canipre works anyway, maybe there are agreements in place ahead of time, and then of course it's much easier to see that would fit the definition)
JMJimmy
join:2008-07-23

JMJimmy

Member

Interesting point. I would think they'd actually want to avoid that being the case. Without an agreement in place their investigations could be easily characterized as being fraudulent and without colour of right. It's reasonable to consider a company doing an investigation to protect their rights but not a 3rd party with no interest in the work. They would need authorization to create copies for evidence, otherwise they'd be liable for infringement as well.
Ree
join:2007-04-29
h0h0h0

Ree

Member

That would be an interesting turn of events if Canipre finds itself on the other end of an infringement suit for doing this work without authorization!

Although my (admittedly limited) experience is that rights holders only care about uploaders, not downloaders, and I remember reading something awhile back indicating that the software Canipre uses only downloads without uploading.

But yeah, it does seem unlikely that they would be doing this ahead of time, so there probably is an agreement that would fit the PI definition.
JMJimmy
join:2008-07-23

JMJimmy

Member

Ya, that claim about it not uploading comes from their so called "expert" in this trial (the one judges aren't supposed to look too hard at their credentials). It's been proven in 2 other major cases involving the Guardaley software that it does in fact advertise a false bitfield with 50% of the file showing as available and acts as a honeypot.
resa1983
Premium Member
join:2008-03-10
North York, ON

resa1983 to JMJimmy

Premium Member

to JMJimmy
Anyone wanting to go to the Voltage hearing needs to go way out of their way for it..

The Voltage hearing has been moved to Ottawa for some strange reason.
JMJimmy
join:2008-07-23

JMJimmy

Member

There goes any chance of me attending

LuRk_wAtChEr
@95.211.190.x

LuRk_wAtChEr to resa1983

Anon

to resa1983
said by resa1983:

The Voltage hearing has been moved to Ottawa for some strange reason.

Closer to the decision maker's lair as well as closer to the lobbyists? We will see how that one goes. One can hope trolls are going to be asked some tough questions for the scumbags they are.