Fighting in the legal trenches of new technology

At the end of March, a Federal Court justice struck down the bid by the Canadian recording industry to identify people who were downloading audio files from the Internet. While the decision was hailed as a victory for fans of online music sharing, the decision had even broader implications for anyone using the Internet, according to law professor Philippa (Pippa) Lawson.

�This is a strong affirmation of privacy rights,� she says, because Internet service providers (ISPs) were being asked to encroach on such rights by turning over the names and contact information of their customers, who had allegedly taken part in music file sharing.

CIPPIC director Philippa Lawson with a copy of the landmark decision

However, as the Faculty of Law�s Canadian Internet Policy and Public Interest Clinic (CIPPIC) and some ISPs pointed out, it is possible that some of these individuals were wrongly identified. Given the difficulties of associating dynamic Internet Protocol addresses with subscribers, the court agreed with CIPPIC that privacy interests warrant a high standard of proof before individuals accused of wrongdoing are stripped of their anonymity.

�It soon became clear that the Internet service providers had a very limited interest in this,� says Lawson, recalling the incentive for a team from the University of Ottawa to get involved. With the assistance of copyright lawyer Howard Knopf, her student team subsequently won the right to intervene in the case. By pointing out that the record companies had not made out a clear case of wrongdoing on the part of the file sharers, this intervention was instrumental in the Court�s decision to deny the motion.

The result was also highly gratifying to members of CIPPIC, which was not even a year old when the file sharing case first caught their attention. Lawson is the executive director of this modest unit that was established in early 2003 with funding from the Ontario Research Network for Electronic Commerce (ORNEC), and from a court settlement involving the giant Internet retailer, Amazon.com.

Tucked away on the fifth floor of Fauteux Hall, CIPPIC is the brainchild of Michael Geist, Ian Kerr and other faculty members, who have devoted their work to the legal impact of new information and communications technologies. For Lawson, who spent 12 years representing consumer interests as a lawyer with Ottawa�s Public Interest Advocacy Centre, the issues taken on by the clinic look all too familiar.

�We�re always trying to play catch up or reacting to new business practices based on new technologies,� she says. �It�s only natural that companies will seize new opportunities and make the most of them. What I find from a consumer perspective is that the limits are always being pushed, in terms of downloading responsibility to the consumer.�

With a minimal staff (Lawson and a part-time assistant) and a handful of part-time law student interns and volunteers, CIPPIC has to choose the legal challenges it wants to address. The list includes topics such as copyright, e-mail advertising, and disputes over Internet domain names. Quite separate from taking part in major court actions, notes Lawson, is the need to help people understand issues that the law is still struggling to define, offering the CIPPIC Web site as a useful source for this kind of information.

�Public-interest intervention in litigation, particularly at the higher levels, where the courts are making important determinations and setting important precedents � I think that is something we can do well. We want to continue to be involved at the policy-making level, at the legislative, advocacy, and judicial level.�