Assistant Professor, University of Ottawa, Faculty of Law
ANON interviews Professor Daphne Gilbert
ANON: What is the status of international requirements for lawful access to the records of ISPs?
DAPHNE GILBERT: Canada is a signatory to a convention on access to the identity of internet users. The convention has guidelines for how governments should construct policies. Canada is in the process of implementing that convention. As I understand it, we don't have a law yet that covers this area yet, but we will.
ANON: Does lawful access necessarily entail weaker privacy for people who are not involved in illegal acts? How is lawful access in the online context different from lawful access offline?
DAPHNE GILBERT: Lawful access does entail weakened privacy for all those online regardless of illegal acts. The most significant different between the online and offline contexts is the intermediary, the internet service provider. In the offline environment, police can come and search homes with a warrant to gather evidence. In the online environment, an ISP has to make a judgement call about whether or not a user’s identity should be released. ISPs have a lot of discretion. Online, you can have multiple identities, multiple users on one computer using the same IP address. There are issues around authenticating who is sending email or using websites or chatrooms, and even issues around using itself. Even the dissemination of hate propaganda is different online.
ANON: How do the Canadian and American Constitutions differ with respect to privacy and lawful access?
DAPHNE GILBERT: They are similar in the sense that neither constitution specifically protect privacy interests. Privacy is a more developed concept in the U.S. Constitution. In the Bill of Rights there is an implied privacy right that has grounded things like the right to contraception and the right to abortion in American jurisprudence. Canada’s search and seizure laws under s. 8 of the Charter are more permissive. Section 8 is more permissive of police or law making authorities having much more leeway in searching a private home. But Canada also has a s.24 exception which excludes unconstitutionally obtained evidence. No such exception exists in the US
ANON: You also write about gender, anonymity and the law. How does anonymity engage gender as a legal issue?
DAPHNE GILBERT: I wrote briefly about the construction of gender online and how an online environment enables people to explore gender in radical ways, both in a sense that you can go online as a woman or as a man and explore what that means through anonymous interaction. You can also get involved in gender bending through anonymous construction of identity.
Anonymity online can also have a negative impact. Internet stalking, pedophiles, luring children all of concern. There are also ways in which the internet contributes to the already dangerous situation that women find themselves in with respect to relationships with men. Sexual violence has a new tool.
ANON: Many surveillance technologies that are sold are marketed for the purpose of spying on women, could you discuss how privacy interests may be characterized as a gendered issue?
DAPHNE GILBERT: It's not just a gender issue. There is been a lot of talk about children lately; people have been masquerading as 13 year old children for example. In terms of surveillance technologies online, there's the fact that more men use computers and are familiar with the technologies – it adds to the real life behaviour of patterns.
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