The Privacy Commissioner of Canada has not spoken out on the recent copyright bills, but in 2008 she wrote a public letter to then-Industry Minister Jim Prentice expressing concern “about possible changes to the Act authorizing the use of technical mechanisms to prevent copyright infringement that could have a negative impact on the privacy rights of Canadians.” The Stoddart letter, which came in the aftermath of the Sony rootkit case, stated:

If DRM technologies only controlled copying and use of content, our Office would have few concerns. However, DRM technologies can also collect detailed personal information from users, who often do no more than access the content on a computer. This information is transmitted back to the copyright owner or content provider, without the consent or knowledge of the user. Although the means exist to circumvent these technologies and thus prevent the collection of this information, previous proposals to amend the Copyright Act contained anti-circumvention provisions.

Commissioner Stoddart has not commented on the adequacy of the personal information exception in Bill C-11, but there is reason for concern.

The exception permits circumvention to verify whether personal information is being collected and to prevent it (where there is a no notice of collection or a notice that does not allow an opt-out) , but the ability to exercise this exception is rendered difficult by virtue of the inability to legally obtain devices (ie. software programs) for this very purpose. The bill states that a person can offer circumvention devices or services for the protection of personal information only “to the extent that the services, technology, device or component do not unduly impair the technological measure.”

In other words, you can use a circumvention device to protect your privacy but it cannot allow you to simultaneously access the underlying content. Of course, once most circumvention devices circumvent a technological measure, the protected content will be in the clear. Distribution of this form of device is therefore illegal under Bill C-11 and service providers will be likely be unwilling to use this provision for fear of facing liability. In light of the approach in Bill C-11, the Privacy Commissioner’s concerns about privacy and digital lock rules remain as valid today as they did in 2008.

Previous Daily Digital Locks: Provincial Resource Centre for the Visually Impaired (PRCVI) BC, Canadian Consumer Initiative, Retail Council of Canada, Canadian Council of Archives, Canadian Teachers’ Federation, Canadian Federation of Students, Canadian Civil Liberties Association, Documentary Organization of Canada, Canadian Library Association, Council of Ministers of Education Canada, Business Coalition for Balanced Copyright, Canadian Association of Research Libraries, Canadian Historical Association, Canadian National Institute for the Blind, Canadian Bookseller Association, Canadian Home and School Federation, Film Studies Association of Canada, Canadian Bar Association, Canadian Federation for the Humanities and Social Sciences, Appropriation Art