Managing the Law: The Legal Aspects of Doing Business, 3rd ed (Pearson Education: Toronto, 2010), [Co-authored by Mitchell McInnes, J. Anthony Vanduzer and Chi Carmody].

Managing the Law: The Legal Aspects of Doing Business, 2nd ed (Pearson Education: Toronto, 2007), [Co-authored by Mitchell McInnes, J. Anthony Vanduzer and Chi Carmody, 655 pp.].

Managing the Law: The Legal Aspects of Doing Business (Pearson Education: Toronto, 2003), [Co-authored by Mitchell McInnes, J. Anthony Vanduzer and Chi Carmody, 636 pp.]

“Deputizing the Private Sector? ISPs as Agents of the State” in Desafíos del derecho a la intimidad y a la protección de datos personales en los albores del siglo XXI. Perspectivas del derecho latinoamericano, europeo y norteamericano (forthcoming 2009) [co-authored with Daphne Gilbert]

This chapter was written in collaboration with my longtime colleague and co-author Daphne Gilbert. Together, we describe the changing role of telecommunications service providers (TSPs) from trusted stewards of clients’ personal information to “agents of the state”, from gatekeepers of privacy to active partners in the fight against cybercrime. We argue that the legislative approach that has been or will soon be adopted in various jurisdictions around the world, including Canada, will lower the threshold of privacy protection and significantly alter the relationship between TSPs and the individuals who have come to depend on them to manage their personal information and private communications.

The Chapter begins with an investigation of the role of TSPs as information intermediaries, and then moves to examine a Canadian online search and seizure case, where a TSP acted as an “agent of the state” by sending to the police copies of a client’s personal emails without his knowledge or consent. The Council of Europe’s Convention on Cybercrime is considered next, focusing on the privacy implications of its potential implementation in Canada and the possibility of a challenge to the constitutionality of new cybercrime laws based on the Canadian Charter.

“The Strange Return of Gyges’ Ring” in Privacy, Identity, and Anonymity: Lessons from the Identity Trail, eds. Ian Kerr, Valerie Steeves and Carole Lucock (Oxford University Press, in press 2009)

Book II of Plato’s Republic tells the story of a Lydian shepherd who stumbles upon the ancient Ring of Gyges that has the power to make him invisible. In the story, the shepherd uses the ring to gain secret access to the castle where he kills the king and overthrows the kingdom. Plato uses this story to pose the classic philosophical question: why be moral if one can act with impunity? 

In a network society—where social structures and activities are organized around electronically processed information networks this classic philosophical question ceases to be the luxury of an ancient philosopher’s thought experiments.

This article, written as an introduction to the anthology Lessons from the Identity Trail, begins by discussing “the network society” and re-articulates the lesson from the tale of the Ring of Gyges in the context of anonymous online activity. The article goes on to describe the three themes discussed in the anthology: privacy, identity, and anonymity. 

“The Internet Of People? Reflections on the Future Regulation of Human-Implantable Radio Frequency Identification” in Privacy, Identity, and Anonymity: Lessons from the Identity Trail, eds. Ian Kerr, Valerie Steeves and Carole Lucock (Oxford University Press, 2009)

In 2004, twenty-five global law students and I listened to the proprietor of the Baja Beach Club in Barcelona pitch the idea of getting implanted with an RFID tag to allow easy access to the VIP lounge of the club and to act as an easy payment system for booze at the bar. Would my students seriously consider getting chipped?

The technological possibility of an RFID-enabled internet of things looms on the horizon. Companies like Applied Digital Solutions Inc., makers of the VeriChip, have been working hard to ensure this. In this chapter I argue that our privacy laws are not equipped to protect us in this fast-approaching new infrastructure.

Part I offers a brief account of RFID technologies. I define and explain the purpose and use of RFID tags. After describing various RFID applications, I suggest that if RFID becomes a mainstream technology, it could be truly transformative, enabling “the internet of things.” I then offer a brief overview of RFIDs in the realm of health care. This overview provides an example of the issues that can arise regarding the regulation of the many functions of human-implantable RFIDs.

In Part II I provide a brief explication of existing regulatory environment for RFID.  I review existing laws applicable to RFID such as regulations regarding such things as (a) communications, (b) electronic waste, (c) healthy and safety, and (d) privacy. The purpose of this section is to set the stage for Part III, where I set out my belief that current approaches are too narrow and will fall short in protecting our privacy and autonomy interests if implantable RFID becomes part of the infrastructure of the so-called Internet of things.

In order to grasp the potential shortcomings of our current regulatory environment, in Part IV I aim to show that human-implantable RFIDs are just one of the many implantable devices being developed as part of a growing trend to merge human bodies with machine parts.  In Part V, I conclude the chapter by suggesting that, rather than giving up core principles and values just because they are in tension with RFID and other emerging technologies, we must (i) rethink the appropriate application of these principles, and (ii) determine whether there is sufficient justification for moving forward with human-implantable RFID, ubiquitous computing, and the internet of things.

“Digital Locks and the Automation of Virtue” in Michael Geist ed, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010).

This chapter examines the social and moral cost of digital locks. I trace the concept and construct of a lock all the way back to the mythical Gordian knot, revealing two essential features of locks. First, I argue that locks are important not only for what they restrict, but for what they permit. I develop this idea in the context of digital locks using the concept of automated permissions. Second, I argue that the restrictions imposed by locks come with a social and moral cost; namely, that the adoption of a universal digital lock strategy could undermine the cultivation of moral virtue.

I begin with an examination of a series of historical and cultural vignettes investigating the nature, purpose and symbolic significance of locks. I then examine digital locks and the power afforded to keyholders to control others through the automation of permissions, in effect enabling or disabling the world we live in by setting terms and conditions for its use. After discussing the control locks give to the keyholders, I illustrate the potential progression of a widespread digital lock strategy and what this might mean. I then go on to ask how this might affect us as moral actors who desire to do good things. In answering this question, I try to demonstrate that a state sanctioned, unimpeded and widespread digital lock strategy would impair our moral development by impeding our ability and desire to cultivate the practical wisdom necessary for the acquisition of morally virtuous dispositions. Finally, I briefly investigate Bill C-32, Canada’s (former) proposal for sanctioning the use of digital locks and prohibiting their circumvention. Arguing that the flaws in Bill C-32 are symptomatic of the larger digital lock strategy, I conclude that the proposed legislative solution is inelegant – a brute force formula that fails to achieve a balanced copyright framework.

Given that the Government of Canada has recently enacted anti-circumvention provisions in its The Copyright Modernization Act, I hope that you will give this Chapter careful consideration.

‘Privacy, Identity and Anonymity‘ in International Handbook of Surveillance Studies, eds. Kristie Ball, Kevin Haggerty and David Lyon (London: Routledge) forthcoming 2011 [co-authored in equal proportion with Jennifer Barrigar].

This chapter was written in collaboration with one of my favourite readers and writers, Jennifer Barrigar.  Together, we consider the complex interrelationship between privacy, identity and anonymity in an increasingly networked society through an exploration of the evolution of network technologies and its consequent shifts in social and technological architectures.   The rise of ubiquitous computing from CCTV cameras and handheld devices to digital rights management systems (DRM) and radio frequency identification (RFID) tags has precipitated a shift in the network architecture from one in which anonymity was the default to one in which nearly every online transaction is subject to monitoring and the possibility of identity authentication. We argue that this invariably affects the relationship between privacy, identity and anonymity.

Going forward, we suggest that individual experience will become increasingly characterized and shaped by ubiquitous computing, social networks, information intermediaries, actuarial justice and social sorting.  By briefly examining privacy, identity and anonymity in three distinct parts as well as offering a case study on anonymity in a networked society, we try to demonstrate that the creation of appropriate regulatory protections will depend on the preservation of commitments to fundamental underlying rights such as freedom of speech, autonomy, equality, and security of the person.  We also briefly examine the extent to which an individual’s ability to manage one’s privacy, including the power to identify oneself or to speak anonymously, is inherently linked to the concept of surveillance.  We conclude that, just as our desire for privacy may in some cases necessitate surveillance, so too does the ever-expanding database of personal information require that some of our performances can be separated from that person of record.

‘Prediction, Presumption, Preemption: The Path of Law After the Computational Turn‘, forthcoming in Privacy, Due Process and the Computational Turn: The Philosophy of Law Meets the Philosophy of Technology, eds. Mireille Hildebrandt & Ekaterina De Vries.

This chapter examines the path of law after the computational turn. In framing my argument, I use Oliver Wendell Holmes Jr.’s famous “bad man” theory as a heuristic device for evaluating predictive technologies currently embraced by public and private sector entities worldwide. Perhaps America’s most famous jurist, Holmes was so fascinated by the power of predictions and the predictive stance that he made prediction the centerpiece of his own prophecies regarding the future of legal education. Holmes believed that predictions should be understood with reference to the standpoint of everyday people, made from their point of view and operationalized with their sense of purpose in mind.

In this chapter, I argue that Holmes’ vision is rapidly giving way to a very different model: machines making predictions about individuals for the benefit of institutions. This trend in today’s predictive technologies, I suggest, threatens due process by enabling a dangerous new philosophy of pre-emption. My primary concern is that the perception of increased efficiency and reliability in the use of predictive technologies might be seen as justification for a fundamental jurisprudential shift from our current ex post facto systems of penalties and punishments to ex ante preventative measures. Such a shift, I argue, would fundamentally alter the path of law by undermining the core presumptions and procedures built into the fabric of today’s retributive model of social justice, many of which would be pre-empted by tomorrow’s “actuarial justice”. Given the foundational role that due process values play in our legal system, I raise the question of whether law ought to set reasonable limits on the types of presumptions and predictions that institutions are permitted to make about people without their involvement or participation. While reliability, efficiency, and the bottom line will continue to be important social goals, I am concerned that to limit the discussion to issues of system design is to ignore the insight underlying the presumption of innocence and associated due process values—namely, that there is wisdom in setting boundaries around the kinds of assumptions that can and cannot be made about people.

This chapter does not offer concrete solutions; rather, it is written in the hopes of inspiring further research in the area of important threshold issues about the broader permissibility of prediction, pre-emption and presumption in the face of the computational turn.

“To OBSERVE AND PROTECT? How Digital Rights Management Systems Threaten Privacy and What Policy Makers Should Do About It“, forthcoming in Intellectual Property and Information Wealth: Copyright and Related Rights (vol. 1), Edited by Peter Yu, Praeger Publishers, 2007.

I begin the chapter by distinguishing between technological protection measures (TPMs) and digital rights managements (DRM) systems, examining how such technologies are used to enforce corporate copyright policies and express copyright permissions imposed by a DRM through a registration process that requires purchasers to hand over personal information. Given DRM’s extraordinary surveillance capabilities, I argue that anti-circumvention laws must contain express provisions and penalties to protect citizens from organizations using TPMs and DRMs to pirate personal information, engage in excessive monitoring, and preclude people from exercising their right to access and control personal information. In determining an appropriate balance, I introduce three public policy considerations: (i) the anonymity Principle; (ii) individual access; and (iii) freedom from contract. I conclude that these three recommendations would provide the sort of counter-measures necessary to offset the new powers and protections afforded to TPM and DRM.

“Emerging Health Technologies” in Canadian Health Law and Policy, 3rd ed, eds. Jocelyn Downie, Timothy Caulfield, Colleen Flood (Toronto: Butterworths, 2007) 509-538.

This chapter, written with my colleague and good buddy, Tim Caulfield, briefly surveys four emerging technologies that are likely to have a significant impact on Canadian health law and policy in the coming years. We start the chapter with a consideration of the Human Genome Project and how social policy might contend with the possibility of genetic discrimination. Then, we examine Radio Frequency Identification (RFID) technology as a means of linking an unconscious or disoriented patient to an electronic health record and the potential privacy implications of doing so. Next, we look at stem cell research and the questions it raises about the challenges associated with making policy in a morally contested area. Finally, we contemplate issues not yet articulated in a field not yet defined: nanotechnology and how to regulate against potentially catastrophic harms that are not yet understood.

Our aim in this chapter is not so much to prioritize or predict as it is to offer a new lens through which to consider various fundamental legal and ethical principles and their application to health law and policy in novel situations. Rather than providing comprehensive coverage of all known technologies or every issue that might possibly arise, we have chosen to sample a particular array of current and future technologies, presenting each alongside a core health law precept or principle.

After surveying these four emerging technologies and the issues they raise, the chapter ends with a brief consideration of issues associated with how science and technology are transferred from the laboratory to the community through the process of commercialization. We consider how scientific research is transformed into technological applications through the process of commercialization. When the governance of science and the proper place of technology in our health care system is considered, it is important to recognize that the technologies that science enables are not neutral and that it is therefore not always appropriate to leave science to its own devices.

“Nymity, P2P & ISPs: The Implications of BMG (Canada) v Doe” in Privacy and Technologies of Identity: A Cross-Disciplinary Conversation, ed K.J. Strandburg and D.S. Raicu (New York: Springer, 2005).

This chapter, co-authored by Alex Cameron, provides an exploration of the reasons why a Canadian Federal Court and the Federal Court of Appeal both refused to compel five Internet service providers to disclose the identities of twenty nine ISP subscribers alleged to have been engaged in P2P file-sharing. We argue that there are important lessons to be learned from the decision, particularly in the area of online privacy. Although this case reinforces the right to online privacy, we suggest that the Court’s decision could have the ironic effect of encouraging more powerful private-sector surveillance of our online activities, and that this might result in a technological backlash by some in order to ensure that Internet users have even more impenetrable anonymous places to roam. Consequently, we encourage the Court to further develop its analysis of how, when, and why the compelled disclosure of identity by third party intermediaries should be ordered by including a broader-based public interest in privacy as an element in the analysis.

“If Left to Their Own Devices…How DRM and Anti-Circumvention Laws Can Be Used to Hack Privacy” in Michael Geist, ed. In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005).

This chapter examines the anti-circumvention laws set out in Bill C-60 (Canada’s first legislative attempt in response to the 1996 WIPO treaties), provisions that aim to protect the copyright industries from individuals using devices to circumvent technological protection measures (TPMs) and digital rights management systems (DRM). I argue that the proposed anti-circumvention laws fail to address any aspects of the privacy implications of DRM, despite the obvious privacy threats that automation, cryptographic techniques, and other DRM technologies impose. I start by distinguishing between TPMs and DRMs. Then I examine how these technologies are used to enforce corporate copyright policies and express copyright permissions imposed by a DRM through a registration process that requires purchasers to hand over personal information. After illustrating DRM’s extraordinary surveillance capabilities, I suggest that such privacy considerations are especially important in light of legislative reforms that use the law to further enable DRM and facilitate its implementation as a primary means of enforcing digital copyright. I investigate three public policy considerations in determining an “appropriate balance” for DRM and privacy: (i) the anonymity principle; (ii) individual access; and (iii) DRM licenses. These lead me to offer three recommendations that would provide counter-measures necessary to offset the new powers and protections afforded to TPM and DRM if anti-circumvention laws are implemented.

“Should Law Protect the Technologies that Protect Copyright?” in Information Ethics in an Electronic Age: Current Issues in Africa and the World, ed. Thomas Mendina and Johannes Brtiz (Jefferson, North Carolina: McFarland Press, 2004.

This chapter provides a critical analysis of anti-circumvention legislation with a special focus on the extent to which the legal protection of copyright-protecting technologies might be said to undermine traditional copyright policy. While Technological Protection Measures (TPMs) hold the promise of ensuring legitimate access to digital work, when coupled with the ability to set licensing terms, TPMs provide copyright owners a much greater degree of control over work than copyright law historically allowed. After establishing the philosophical context of the protection of TPMs, I survey the four classes of technological protection: (i) general access control measures, (ii) limited access control measures, (iii) use control measures, (iv) anti-device control measures. Then I look at three available means copyright owners have of ensuring authorized access to their works: TPMs, existing copyright law, and the law of contract. I then review some of the US case law to illustrate the social consequences of adding as a fourth layer of legal protection (the Digital Millennium Copyright Act). I conclude the chapter by briefly examining how the American style of legal protection for TPMs could upset copyright law’s delicate balance between the private rights of creators, copyright owners, and the public’s interest in using works subject to copyright and suggest that there are potentially serious implications for public access to information, consumer privacy and freedom of expression.

“The Role of ISPs in the Investigation of Cybercrime” in Information Ethics in an Electronic Age: Current Issues in Africa and the World, ed. Thomas Mendina and Johannes Britz (Jefferson, North Carolina: McFarland Press, 2004).

In this chapter, co-authored by my good friend and colleague Daphne Gilbert, we describe the changing role of internet service providers (ISPs) from trusted stewards of clients’ personal information to “agents of the state”, from gatekeepers of privacy to active partners in the fight against cybercrime. We begin with an investigation of the role of ISPs as information intermediaries and consider how information intermediaries can be used by law enforcement agencies. This is done through an examination of a Canadian search and seizure case, where an ISP was said to act as an “agent of the state” after sending copies of a client’s personal emails to the police of without his knowledge or consent. We argue that the “agent of the state” analysis is especially important in light of the Council of Europe’s Convention on Cybercrime. Finally, we conclude by considering the privacy implications of the evolving roles of ISPs and their shifting technological architectures, arguing that the changing face of our communications infrastructure must be built with safeguards that will not only further the goals of national security and law enforcement but will also preserve and promote personal privacy.

“Online Service Providers, Fidelity and the Duty of Loyalty” in Ethics and Electronic Information, ed. Thomas Mendina and Barbara Rockenbach (Jefferson, North Carolina: McFarland Press, 2002).

In this chapter, I explore the possible privacy ramifications of our increasing reliance on Online Service Providers (OSPs), not only to provide quality informational services, but also to store and otherwise manage our private information online. Acknowledging that the current architecture of the networked world is moving towards a centralized (rather than end-to-end) computing model, this chapter investigates the degree to which OSPs are in a position of control and the extent to which they are duty-bound to safeguard our personal information. In particular, I question whether the moral institution of fidelity and the law of contract will adequately govern the relationships between OSPs and their users. Given that many OSPs break their promises with impunity and others make no such promises to begin with, I suggest that an alternative set of duties might be derived from the very nature of the relationship between some OSPs and their users- the fiduciary relationship. I conclude the chapter by proposing that when the criteria of a fiduciary relationship are met, it is possible to impose a duty of loyalty on some OSPs, requiring them to remain loyal to users whether it is in their best interest to do so or not.

“Personal relationships in the Year 2000: Me and My ISP” in No Person Is an Island: Personal Relationships of Dependence and Independence (Vancouver: University of British Columbia Press, 2002).

This chapter explores the nature of the legal relationship between the Internet user and service provider by examining that relationship as a special instance of a relationship of dependence. After illustrating the incredible power that Internet Service Providers (ISPs) hold over their user’s informational privacy online, I look at the contractual underpinning of ISP-User relations. Part of my aim was to survey the broad range of ISP-user relationships and the varying degrees of confidentiality promised by ISPs. I also explored how legislative safe harbours that require ISPs to comply with law enforcement limit online confidentiality and run the risk of chilling free expression. Next, I examine dependence and interdependence in ISP-User relationships through an application of social exchange theory and law’s concept of the “fiduciary relationship.” By casting its focus on the informational imbalance between the parties rather than the more familiar types of power imbalances (e.g., inequalities based on economics, social status, physical strength, and expertise), the Chapter seeks to provide a more robust understanding of what it is that makes a relationship one of dependence in order to assist law reformers in determining whether the relationship between Internet user and service provider is, or ought to be, governed by anything other than the contractual arrangements between the parties or the minimal requirements of enacted privacy legislation.

“When Computer Programs Contract Behind our Backs” in Transnational Cyberspace Law (Hart Publishing: Oxford, 2002).

“The Legal Implications of Software Agents in Electronic Commerce” in Introduction to Transnational Cyberspace Law, ed. Makoto Ibusuki, (Tokyo: Nihon Hyoron Sha, 2001) [in Japanese].

“Legal Fictions,” in The Philosophy of Law: An Encyclopedia, Volume I, ed. Christopher Gray, (Garland Publishing, 2000) 300-04.

This chapter was written while I was a law student. It provides a brief survey of the historical views and functions of the legal fiction, a judicial device used in civil and common law reasoning. A legal fiction is a false assumption of fact made by a court in order to reconcile a specific legal result with an established rule of law. I begin by looking at the nasciturus fiction originating in Roman law, which treats the unborn child as though born for the purposes of inheritance in order to circumvent the civil code’s prescription that legal personhood begins at birth. I then look at the historical debate between Blackstone and Bentham, followed by Maine’s middle ground view of fictions as an important tool in the development of full blown legal systems. Turning to present day concerns, I explore Lon Fuller’s view of fictions, extending his analysis of the risk of the fiction through my own analysis of the nasciturus fiction in contemporary private law within the context of maternal liability.

“Mind Your Metaphors: An examination of the Inefficacy Argument as a reason against Regulating On-line Conduct” in Ethics and Electronic Information in the 21st Century, ed. Lester Pourciau, (Purdue University Press, 1999), 231-251.

This chapter provides a critique of what I call the “inefficacy argument”, which continues to be offered as one of the most common rationales against internet regulation. This line of reasoning is premised on the claim that the internet, as a decentralized communications technology, has the built-in ability to circumvent and thus render irrelevant many of our fundamental normative commitments. I argue that the regulation question is not simply a question of efficacy but is, instead, a moral question. I deconstruct the typical metaphors used in arguments against regulating online conduct and caution against allowing ourselves to believe that the realm of regulation is beyond our control. I argue that the destruction of normative commitments is not the result of new communications technologies, but rather, is the product of human interference. I conclude by proposing that normative concerns are not subordinate to practical ones and claim that to suggest otherwise is to speak in the language of metaphor and excuse, a language that will ultimately suppress the importance of individual responsibility and moral accountability.

“Delegation, Relinquishment and Responsibility: The Prospect of Expert Robots” draft in progress.

The article was written for the first “We, Robot” conference held in Miami in 2012 in collaboration with my favorite philosopher-engineer-guitarist and all around renaissance dude, Jason Millar.

Together, we question what role humans will occupy once robot experts are capable of performing a multitude of tasks traditionally delegated to human experts. We begin by describing IBM’s Jeopardy! winning robot Watson and Isaac Asimov’s ‘The Evitable Conflict,’ and argue that we are on the precipice of having to decide whether to relinquish some control to expert robots. In Part II of this paper we describe Watson’s development into a go-to-medical expert to demonstrate that there are already many instances where knowledge and control are being relinquished to machines.  In Part III, we specify the kinds of robotic systems that we are concerned with, mainly those in which unpredictability in operations is a feature and not a bug. In Part IV we question when a robot might be considered an expert and in part V we examine the effect of expert robots on the question of relinquishing control of expert decision-making to machine systems. In Part VI we set out two situations in which humans will be working alongside robots and consider what might happen when disagreements between the two might arise. Finally we question how we might assign liability when an expert robot malfunctions.

“Tessling on My Brain: The Future of Lie Detection and Brain Privacy in the Criminal Justice System” Canadian Journal of Criminology and Criminal Justice (2008) 50:8.

This article, written with two of my fave researchers, Cynthia Aoki and Max Binnie, investigates the future of what we call “brain privacy.”

As we all know, the criminal justice system requires a reliable means of detecting truth and lies. A battery of emerging neuroimaging technologies make it possible to gauge and monitor brain activity without the need to penetrate the cranium. Bypassing external physiological indicators of dishonesty relied upon by previous lie detection techniques, some neuroimaging experts actually believe in the possibility of reliable brain scan lie detection systems in the criminal justice system. Likewise, courts have contemplated the possibility that neuroscience might provide a means of reducing the search for truth to the existence or non-existence of certain brain states. In this article, it is asserted that Canadian courts’ current approach to protecting privacy cannot easily accommodate the challenges caused by these emerging technologies, and addresses the potential threat to privacy this poses.

We begin our piece with an examination of the ‘reasonable expectation of privacy’ standard adopted by the Supreme Court of Canada, arguing that various courts across Canada have misunderstood and misapplied the Tessling decision by way of an inappropriate analogy. After a description of brain scan lie detection systems, we then examine the courts’ use of the Tessling analogy in the context of brain privacy. In addition to demonstrating the danger in a generalized judicial proposition that there is no reasonable expectation of privacy in information emanating from a private place into a public space, we conclude that a more robust account of brain privacy is required and speculate about possible sources of law from which this might derive.

“A Tsunami Wave of Science: How the Technologies of Transhumanist Medicine are Shifting Canada’s Health Research Agenda” (2008) Special Ed. Health LJ 13.

This article, written in collaboration with James Wishart, begins with an examination of a growing movement known as transhumanism. With thousands of members from various backgrounds and academic disciplines assembled at prestigious institutions around the world, this group is morally committed to the idea that technology ought to be used to radically alter the human condition. While the transhumanist stance may appear to be radical, in this article we argue that the project of transhumanist medicine is to be taken seriously because its underlying philosophies are already embedded in the mainstream North American health research agenda, resulting in a recent shift towards “enhancement” medicine.

In Part I, James and I briefly outline the core principles and practices of transhumanism. In Part II of the article, we examine nanotechnology as transhumanism’s technologies of choice, illustrating the transhumanist vision of medical science as a self-enabled, interventionist, enhancement-focused enterprise. In Part III, we examine a shift in agenda in Canadian federal research and development towards an enhancement-focused medical science. Finally, in Part IV, there are two possible implications that we suggest will result form this shift towards a transhumanist medicine.

While emerging and future human enhancement technologies may well have much to offer, Canada’s health research agenda is shifting towards a self-enabled, interventionist, enhancement-focused enterprise without pausing to consider or address its underlying philosophies or implications. In conclusion, in this brief article, we suggests that there are significant ramifications in doing so, both in terms of our core conceptions of what health is and in our sense of entitlement to it. Although we offers no concrete answers to these issues, this work is intended as the preface to an enduring discourse that is long overdue in Canadian bioethics, health law and policy.

“Emanations, Snoop Dogs and Reasonable Expectation of Privacy” (2007) 52:3 Criminal Law Quarterly 392-432.

In this article, co-authored by one of my fave researchers, Jena McGill, we examine the social implications of information emanations that contain valuable personal data, which radiate from our electronics, our personal effects, our homes and even our bodies. Contemplating new and emerging technologies designed to track these emissions, we consider the approach adopted by the Supreme Court of Canada with respect to existing technologies such as “forward looking infrared” and “sniffer dogs.”

We try to illuminate five main points. First, we contend that the majority of snoop dog decisions in Canadian courts have been wrongly decided; relying on an inappropriate use of judicial analogy that stems from a misreading of Tessling. Second, we warn against an excessively reductionist approach to informational privacy adopted in many recent reasonable expectation of privacy cases. Third, we warn against a non-normative approach to ‘reasonable expectations’ that is also gaining currency in several provincial courts across Canada. Fourth, we propose a different reading of Tessling, one that is better suited to the snoop dog cases and, perhaps more importantly, for subsequent application in cases concerning emerging high tech surveillance. Finally, it points to the future, suggesting that the A.M. and Kang Brown decisions are not just about snoop dogs; these two cases foreshadow the future of emanation information in a networked society.

We conclude by suggesting that courts must confront the social implications of informational privacy much more deeply than they have, interrogating its meaning, not one technology at a time, but within a larger empirical universe of information emanation. We warn that a failure to clarify the Tessling decision in the snoop dog cases and in the broader context of ubiquitous information emanation, especially alongside the maintenance of reductionist, non-normative approaches to informational privacy across Canadian courts, could seriously diminish the privacy rights of Canadians in a manner that the Supreme Court of Canada has until now been very careful to guard against.

“Seizing Control?: The Experience Capture Experiments of Ringley & Mann” (2007) 9:2 Ethics and Information Technology 129-139.

Will the proliferation of devices that provide the continuous archival and retrieval of personal experiences (CARPE) improve control over, access to and the record of collective knowledge as Vannevar Bush once predicted with his futuristic memex? Or is it possible that their increasing ubiquity might pose fundamental risks to humanity, as Donald Norman contemplated in his investigation of an imaginary CARPE device he called the ‘‘Teddy’’?

Through an examination of the webcam experiment of Jenni Ringley and the EyeTap experiments of Steve Mann, this article, co-authored with my friend and colleague, Jane Bailey, explores some of the social implications of CARPE. Our central claim is that focusing on notions of individual consent and control in assessing the privacy implications of CARPE, while reflective of the individualistic conception of privacy that predominates western thinking, is nevertheless inadequate in terms of recognizing the effect of individual uptake of these kinds of technologies on the level of privacy we are all collectively entitled to expect. Jane and I urge that future analysis ought to take a broader approach that considers contextual factors affecting user groups and the possible limitations on our collective ability to control the social meanings associated with the subsequent distribution and use of personal images and experiences after they are captured and archived. We ultimately recommend an approach that takes into account the collective impact that CARPE technologies will have on privacy and identity formation and highlight aspects of that approach.

“Soft Surveillance, Hard Consent” (2006) 6 Personally Yours 1-14.

In this article, me and my co-authors explore how, like newer approaches to State paternalism, both public and private sector surveillance increasingly rely on what Gary Marx once referred to as “soft” measures. Taking their cue from the behavioral sciences, governments and businesses have come to realize that kinder, gentler approaches to personal information collection work just as well as coercion or deceit — and that engineering consent is the key to their success.

In our examination of this fascinating topic, we contemplate various aspects of the role of consent in the collection, use and disclosure of personal information. After demonstrating how consent-gathering processes are often designed to quietly skew individual decision-making while preserving the illusion of free choice, we point out the dangers of these subtle schemes as well as the inadequacies of current privacy laws in dealing with them. In examining some potential remedies, we investigate the practical implications of data protection provisions that allow individuals to “withdraw consent.” Canvassing recent interdisciplinary work in psychology and decision theory, we try to explain why such “withdrawal of consent” provisions will not generally provide effective relief and argue that there is a need for a higher threshold of initial consent in privacy law than in private law.

“The Medium and the Message: Personal Privacy and the Forced Marriage of Police and Telecommunications Providers” (2006) 51:4 Criminal Law Quarterly 469-507.

Businesses and law enforcement agencies in Canada are increasingly interested in learning who is doing what online. Persistent client state http cookies, keystroke monitoring and a number of other surveillance technologies have been developed to gather data and otherwise track the movement of potential online customers. Many countries have enacted legislation that would require telecommunications service providers (TSPs) to build a communications infrastructure which would allow law enforcement agencies to gain access to the entirety of every telecommunication transmitted over their facilities. Canada is considering doing the same.

This article, co-authored with my longtime bud and colleague, Daphne Gilbert, with one of our fave researchers, Jena McGill, investigates the changing role of TSPs from gatekeepers of privacy to active partners in the fight against cybercrime. We argue that the legislative approach provoked by the Council of Europe’s Convention on Cybercrime and soon to be adopted in Canada and will lower the threshold of privacy protection and significantly alter the relationship between TSPs and individuals.

We begin our article with a brief investigation of the role of TSPs as information intermediaries. After that, we examine R. v. Weir, a Canadian search and seizure case involving a TSP that acted as an ‘agent of the state’ by sending to police copies of a customer’s personal emails without a warrant and without notice to the customer. Next, we examine the Council of Europe’s Convention on Cybercrime, an instrument that calls for state signatories implement provisions that will mandate an expedited interaction between TSPs and the police. Focusing on its potential implementation in Canada, we argue that the proposed Bill would lead to a lower threshold of privacy protection, requiring recourse to the Canadian Charter of Rights and Freedoms. Finally, we conclude by considering the privacy implications of the evolving roles of TSPs and their shifting technological architectures. We predict that privacy invasive practices that used to happen infrequently and with judicial oversight will soon become part of TSPs’ business routine. Our claim is that the evolving roles of TSPs and the shifting architecture of our communications infrastructure must be built with various safeguards that will not only further the goals of national security and law enforcement but will also preserve and promote personal privacy.

“Let’s Not Get Psyched Out of Privacy: Reflections on Withdrawing Consent to the Collection, Use and Disclosure of Personal Information” (2006) 44 Canadian Business Law Journal 54.

In this article, co-authored by myself, Jennifer Barrigar and Jacquelyn Burkell, we investigate PIPEDA’s (Canada’s private sector privacy law) conception of consent, with special emphasis on the right of individuals to withdraw consent. Instead of viewing consent in isolation, we read PIPEDA as providing a framework which aims to build a culture that better understands the importance of privacy protection. Not only do PIPEDA and similar data protection laws around the globe require consent prior to the collection, use, or disclosure of most personal information, we suggest that PIPEDA sets a higher threshold for obtaining consent than would be afforded by way of private ordering. Unlike the law of contracts – where consent is seen as a single transactional moment – PIPEDA generally allows the information subject to withdraw consent at any time. On this basis, we argue that PIPEDA’s consent model is best understood as providing an ongoing act of agency to the information subject that does not treat consent as an isolated moment of contractual agreement during an information exchange.

We try to demonstrate why the transactional approach to consent is wrongheaded through an examination of the psychological barriers to withdrawing consent. In our view, this inter-disciplinary approach informs a more robust approach to privacy protection in general and to the notion of consent as an act of ongoing agency in particular.

“BuddyBots: How Turing’s Fast-Friends are Under-Mining Consumer Privacy” (2005) 14 Presence: Teleoperators and Virtual Environments 647-655.

This article, co-authored by Marcus Bornfreud, examines how intelligent agent technologies are currently being deployed in virtual environments by online businesses. In furtherance of various corporate strategies involving marketing, sales and customer service, BuddyBots are capable of altering consumers’ legal rights and obligations. We focus on a rapidly evolving field known as “affective computing,” wherein the creators of some automation technologies utilize various principles of cognitive science and artificial intelligence to generate avatars capable of garnering consumer trust. We demonstrate how such trust can be exploited to engage in extensive, clandestine consumer profiling under the guise of friendly conversation and show how BuddyBots and other such applications have been used by businesses to collect valuable personal information and private communications without lawful consent. As an antidote, we offer some basic consumer protection principles, with the aim of generating a more socially-responsible vision of the application of artificial intelligence in automated electronic commerce.

Ian Kerr and Val Steeves, “Virtual Playgrounds and BuddyBots: A Data-Minefield for Tinys and Tweenies” (2005) 4 Canadian Journal of Law & Technology 91-105.

This article, co-authored by my good friend and colleague Valerie Steeves, a professor of criminology at the University of Ottawa, examines the online world of tweens (kids, not quite teens) looking at some of the places they play, chat and hang out online. We argue that these spaces are surreptitiously defined by commercial imperatives that seek to embed surveillance deeper and deeper into children’s playgrounds and social interactions. We show how online marketers do more than implant branded products into a child’s play; they collect minute and often intimate details of a child’s life. Part of our aim is to demonstrate that they do so by building relationships of trust between the child and the corporate brand. Although marketing to children in this way is not new, a networked environment magnifies the effect on a child’s identity because it opens up a child’s private online spaces to the eye of the marketer in unprecedented ways. Online marketers can invade the child’s privacy in a profound sense, by artificially manipulating the child’s social environment and communications in order to facilitate a business agenda. We offer several striking examples of this, including interactions with “buddybots”, automated software programs that can engage in realtime chat and create the illusion of friendship. This article was originally prepared for a workshop organized by On the Identity Trail for the 2005 Computers, Freedom and Privacy Conference in Seattle, called Keeping an Eye on the Panopticon: A Workshop on Vanishing Anonymity and subsequently published in the Canadian Journal of Law & Technology.

“Two Years On the Identity Trail“, Ian Kerr and Hilary Young (2005) Canadian Privacy Law Review.

This brief article describes the activities of On the Identity Trail, the SSHRC INE funded privacy project for which I am principle investigator. Co-written with Dr. Hilary Young, currently a second year law student at the University of Ottawa, the article reports on the many milestones that our project accomplished during its first two years.

“Hacking@Privacy: Anti-Circumvention Laws, DRM and the Piracy of Personal Information” (2005) Canadian Privacy Law Review.

This article is a shorter adaptation of “If Left to Their Own Devices: How DRM and Anti-Circumvention Laws Can Be Used to Hack Privacy” in M. Geist, In The Public Interest: Canadian Copyright in a Digital Age (Toronto: Irwin Law, 2005).

In it, I examine Canada’s recently proposed anti-circumvention laws set out in the former Bill C-60. The proposed laws would have protected the copyright industries against individuals using devices to circumvent technological protection measures (TPMs) and digital rights management systems (DRM). I argue that the proposed anti-circumvention laws fail to address any aspects of the privacy implications of DRM, despite the obvious privacy threats that automation, cryptographic techniques, and other DRM technologies impose. I provide three public policy considerations in determining an “appropriate balance” for DRM and privacy: (i) the anonymity principle; (ii) individual access; and (iii) DRM licenses. I conclude by giving three recommendations that would provide counter-measures necessary to offset the new powers and protections afforded to TPM and DRM if Canada’s anti-circumvention laws are implemented as policy: (i) an express provision prohibiting the circumvention of privacy by TPM/DRM; (ii) an express provision stipulating that a DRM license is voidable when it violates privacy law; and (iii) an express provision permitting the circumvention of TPM/DRM for personal information protection purposes.

“The Implications of Digital Rights Management for Privacy and Freedom of Expression” 2:1 (2004) Information, Communication and Ethics in Society 87-94 (co-authored in equal proportion with Jane Bailey).

This article was co-authored by my good friend and colleague Jane Bailey , a law professor at the University of Ottawa. We examine some of the broader social consequences of enabling digital rights management (DRM), focusing particularly on two central features of DRM: (i) its surveillance function and (ii) its ability to unbundle copyrights into discrete and custom-made products. We conclude that a promulgation of the current use of digital rights management has the potential to transform the basis of control for intellectual creations from various public powers to the invisible hands of private control. We also try to show that the current DRM strategy has the potential to seriously undermine our fundamental public commitments to personal privacy and freedom of expression. This article stems from a presentation that we made ETHICOMP 2004 in Syros, Greece in 2004. Among other things, the food there was truly incredible!

“Bots, Babes and the Californication of Commerce” (2004) 1 Ottawa Law and Technology Journal 285-325.

This article was my first scholarly contribution to On the Identity Trail. The study traces the architectures of human-computer interaction back to its conceptual origins in the field of artificial intelligence as the context for studying some of the lesser known consequences of today’s automation tools and their potentially harmful effect on everyday consumers. It illustrates how artificial intelligence can be used to simulate familiarity and create the illusion of friendship, sometimes with the aim of misdirecting consumers. It also exposes various forms of surreptitious surveillance that take place in the course of automated ecommerce and demonstrates how certain human-machine interactions can be used to diminish consumers’ ability to make informed choices, thereby undermining the consent principle required by data protection and privacy law. I think that this work constitutes one of the few published attempts to link existing work on privacy and data protection with future research on the human-machine merger.

“Building a Broader Nano-Network” (2004) 12 Alberta Health Law Review 57-63. (co-authored with Goldie Bassi).

This article, co-authored by Goldie Bassi, is a shorter adaptation of “Not That Much Room? Nanotechnology, Networks and the Politics of Dancing,” which was published in the Alberta Health Law Journal.

“Not That Much Room? Nanotechnology, Networks and the Politics of Dancing” (2004) 12 Health Law Journal 103-123.

Although there is a broadening social interest in the development of powerful and general nanotechnology, the public discourse to date has largely avoided a comprehensive examination of its social dimensions. Instead, the scientific debate has focused mostly on what is and is not scientifically possible. In this regard, much attention has been paid to the feasibility of Richard Feynman’s famous 1959 vision, i.e., whether it is possible to manufacture complex molecules atom-by-atom. Feynman’s vision has been fiercely debated in scientific literature and the popular press. This article, co-authored by Goldie Bassi examines the most famous version of this debate: a set of exchanges between Richard Smalley and Eric Drexler. We argue that, while this politically-charged debate has been extremely influential within scientific circles, the traditional point/counter-point approach to scientific dialogue does not provide an adequate basis for building normative or regulatory structures for nanotechnology. Although the development of sound social policy about a given technology must certainly commence with considerations about what is presently foreseeable, we suggest that it is also important to contemplate possibilities that are not necessarily congruent with today’s forecasts. We further propose that scientific forecasting is itself an insufficient social safeguard against a technology said to have the potential to revolutionize our ability to control and manipulate matter. In examining this claim, we demonstrate the power of scientific networks to shape policy agendas, control the development and implementation of new technologies, and influence the manner in which they are ultimately regulated. In response, we recommend that policy makers embrace a foresight model that aims to develop a broader network of social participants in their deliberations about the future regulation of nanotechnology.

“Mesures de protection techniques: Partie I – Tendances en matière de mesures de protection technique et de technologies de contournement” (2003) 15:2 Les Cahiers de Propriété Intellectuelle 575-617 (co-authored in equal proportion with Alana Maurushat and Chris Tacit).

“Mesures de protection techniques: Partie II – La protection juridique des MPT” (2003) 15:3 Les Cahiers de Propriété Intellectuelle 805-863 (co-authored in equal proportion with Alana Maurushat and Chris Tacit).

“Technological Protection Measures: Tilting at the Copyright Windmill” (2003) 34 Ottawa L. Rev. 9-82 (co-authored in equal proportion with Alana Maurushat and Chris Tacit).

This article, co-authored by Alana Maurushat and Chris Tacit, is an adaptation of a longer, two part Study commissioned by the Department of Canadian Heritage. It examines the policy questions associated with Canada’s decision whether to ratify the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, focusing on the extent to which Canadian law ought to protect the technologies that protect works subject to copyright in a digital environment. We commence with a detailed description of the current state of the art in technological protection measures (TPMs). We conclude that, until the market for digital content and the norms surrounding the use and circumvention of TPMs become better known, it is premature to ascertain the appropriate legal response. Consequently, we made what has turned out to be a relatively controversial suggestion: that Canada should not implement any new legal measures to protect TPMs at this time. Recognizing the possibility that such measures might need to be adopted for political reasons, we then recommended that the legislative creation of access-control right must be counter-balanced by a newly introduced access-to-a-work right. Finally, we pointed out that before asking whether and under what circumstances copyright legislation ought to protect TPMs, perhaps it is necessary to first ask whether and under what circumstances TPMs should be permitted to flourish.

“Ensuring the Success of Contract Formation in Agent-Mediated Electronic Commerce” (2001) 1 Electronic Commerce Research Journal 183-202.

In this article, I examine a number of contractual issues generated by the advent of intelligent agent applications. The aim of this study is to provide legal guidelines for the developers of intelligent agent software by addressing the contractual difficulties associated with automated electronic transactions. I investigate whether the requirements for a legally enforceable contract are satisfied by agent applications that operate independent of human supervision, and provide an analysis of whether proposed and enacted electronic commerce legislation in various jurisdictions is sufficient to cure the inherent deficiencies of traditional contract doctrine. Given the trend towards automated electronic commerce, I conclude by highlighting the legal requirements that must be met in order to ensure the success of agent technology in the formation of online contracts.

“The Legal Relationship Between Online Service Providers and Users” (2001) 35 Canadian Business Law Journal 1-40.

This article is an adaptation for the business sector of an important multi-disciplinary research initiative that was commissioned by the Law Commission of Canada, the Canadian Law & Society Association, the Canada Council of Law Deans and the Canadian Association of Law Teachers. The broader project, which resulted in a book explored relationships of dependence and interdependence. In this article, I examine the relationship between online service providers and internet users as a relationship of dependence in order to investigate whether ISPs might ever owe fiduciary obligations that would preclude them from disclosing a user’s personal information or private communications.

“Pregnant Women and the Born Alive Rule in Canada” (2000) 8 Tort Law Review 713-19.

In this article, I examine the theory of liability for pre-natal injuries adopted by Canadian courts. In 1933, the Supreme Court of Canada became the first common law appellate court to allow a child born alive to succeed in negligence against a third party for pre-natal injuries. While the “born alive” rule may appear unproblematic vis-a-vis third party negligence, it becomes theoretically unruly in cases where a child sues his or her own mother for pre-natal injuries. The Supreme Court faced this issue in Dobson v. Dobson and for policy reasons found that pregnant women are immune from maternal tort liability in negligence. I argue that the decision to adopt public policy considerations to the exclusion of a principled approach ultimately sidesteps the issue of when the relationship between a pregnant woman and her foetus gives rise to a legal duty of care.

“Contract Formation in The Age of Automation: A Study of the Attribution Rules in Electronic Commerce Legislation” (2000) 61 Revista del Colegio de Abogados de Puerto Rico 208-245.

“Electronic Miscommunication and The Defamatory Sense” (2000) 15 Canadian Journal of Law & Society 81-110 [co-authored in equal proportion with Jacquelyn Burkell].

This article was co-authored by my good friend and colleague, Jacquelyn Burkell , who is a professor in the Faculty of Information and Media Studies, at the University of Western Ontario. In it, we examine the effect that cultural and technological changes have had on interpersonal communication. Our aim is to provide an interdisciplinary explanation for the proliferation of defamation in electronic media. We argue that the absence of certain extra-linguistic cues and established cultural conventions in the electronic environment often results in miscommunication which – if not itself defamatory – gives rise to emotional exchanges between interlocutors in a manner that provokes defamation. We conclude by rejecting the naive point of view that a libel published through the Internet ought to be dealt with in exactly the same way that a libel published in a newspaper is. In the end, we suggest that further empirical research about the content that is produced as a consequence of contextual challenges in electronic communication is necessary.

“Spirits in the Material World: Intelligent Agents as Intermediaries in Electronic Commerce” (1999) 22 Dalhousie Law Journal 189-249.

This article is a scholarly extension of some earlier work of mine commissioned by the Uniform Law Conference of Canada . In it, I provide a critical evaluation of the various solutions that might be adopted by a legislature seeking to cure formal defects in agreements that are negotiated and entered into by software programs, independent of human review. I begin by examining the current and future state of intelligent agent technology. After that, I outline the barriers to automated electronic commerce inherent in traditional contract doctrine. Then I argue against the proposal to cure doctrinal difficulties by deeming electronic devices to be legal persons. I also investigate the merit of the legislative approaches adopted by UNCITRAL, the National Conference of Commissioners of Uniform State Laws (U.S.), and the Uniform Law Conference of Canada. In the end, I offer up an alternative approach, based on the law of agency.

“Indemnity for the Cost of Rearing Wanted Children From Unwanted Pregnancies” (1998) 6 Tort Law Review 120-124.

In this brief article, I examine how the use of the terms “wrongful pregnancy” and “wrongful birth” in unwanted pregnancy litigation obfuscates, rather than clarifies, the true issues raised in such proceedings. Using the English Court of Appeal case, R. v. Croydon Health Authority, I highlight that it is incumbent upon legal scholars and the judiciary to employ a consistent terminology that is straightforward and useful.

“Pre-Natal Fictions and Post-Partum Actions” (1997) 20 Dalhousie Law Journal 237-274.

This article was my first ever publication, stemming from my doctoral dissertation in philosophy. The article provides a theoretical investigation of the problems for personhood theory raised by the facts in Dobson v. Dobson, one of the most well known and controversial tort law cases considered by the Supreme Court of Canada. This case involved a determination of whether an injury to an unborn child (caused by his mother’s negligent driving while pregnant) was recoverable once the child was born alive. In this article I provide a critique of the traditional theory of legal personhood, offering an alternative approach. Portions of this article were quoted with approval by the majority of the Supreme Court of Canada, who then adopted my suggested approach to personhood in resolving the dispute, consequently discarding the received view of the past several decades. This work directly affected the law in Canada and helped to clarify the Supreme Court of Canada’s theory of legal personhood.

“The meaning of Watson” Ian Kerr, Ottawa Citizen (19 February 2011).

The Jeopardy! winning machine creates only the illusion of intelligence, writes Ian Kerr. But maybe that’s the point.

“The devil is in the defaults” Ian Kerr, Ottawa Citizen (29 May 2010).

If Facebook were truly committed to protecting privacy, it would start with the assumption that people want less access to their information, not more

“Robot law is taking over” Ian Kerr, Ottawa Citizen (15 September 2009).

A little over a year ago, in one of the most important privacy cases ever heard by the Supreme Court of Canada, Justice Ian Binnie sought to allay concerns that we are sleepwalking into a surveillance society with the following remark: “On these occasions, critics usually refer to ‘Orwellian dimensions’ and 1984, but the fact is that 1984 came and went without George Orwell’s fears being entirely realized, although he saw earlier than most the direction in which things might be heading.”

“Searching For The Right Balance” Ian Kerr, Ottawa Citizen (05 May 2008).

We can reasonably be suspicious of sliding standards for subjecting Canadian citizens to searches by sniffer dogs — or the next detection technology.

“Oscar Pistorius’s new normal” Ian Kerr, The Ottawa Citizen (16 January 2008).

Do Oscar Pistorius’s prosthetic legs make him faster? That probably depends on whether you take two-leggedness as the baseline.

“Minding the Machines” Ian Kerr, The Ottawa Citizen (04 May 2007).

Amid all the hype about South Korea’s proposed robot charter, let’s not forget the more important question of whether robots should assume human roles in the first place.

“Look out: The eyes have it” Ian Kerr, The Globe & Mail (January 12, 2004).

“Study Focuses on Privacy” David Canton, London Free Press (January 10, 2004).

“Age of surveillance goes under the scope” Peter McKnight, Vancouver Sun (December 15, 2003) © 2003.

A true surveillance society can now be achieved, anywhere in the modern industrial world, if that is what the population or leadership wants.

That sounds like something George Orwell might have said in one of his more paranoid moments. But I’m afraid those words come from someone who’s a lot closer to us, both in space and time.

Indeed, the words aren’t from Nineteen Eighty-Four, but from 1999, and the writer wasn’t George Orwell, but David Flaherty, the former B.C. information and privacy commissioner. Mr. Flaherty’s words accurately captured the state of information technology in 1999; four years later, the threat of a surveillance society is greater than ever.

“Will Technology Kill Anonymity?” Kate Heartfield, Ottawa Citizen (December 11, 2003).