Teresa Scassa - Blog

Teresa Scassa and Anca Sattler, “Location-Based Services and Privacy”, forthcoming in (2011) Canadian Journal of Law and Technology

The last decade has seen a rapid growth in the number and variety of location-based services that are available to consumers. These include applications that permit users to call up a variety of different information about their current locations. Location-based services (LBS) also allow individuals to share their location with friends in a wide range of social networking contexts. Location-based services also permit information to be pushed automatically to users based on their location.

Many location-based services offer real benefits to users. Yet LBS raises inevitable user privacy concerns. In some applications, privacy issues will arise between individual users, where, for example, applications permit the tracking of movements of family members, co-workers or “friends”. Location-based services may also result in the collection of a new layer of personal information about consumers by private sector companies. Information about individuals and their movements has meaningful commercial value, and the potential for the collection, use and disclosure of this information is significant. Location-based services also raise the spectre of state surveillance of individual activity – either concurrent with an individual’s movements (tracking), or retrospectively, through searching records of individual patterns of movement.

In this paper we begin by describing location-based services, their evolution and their future directions. We then outline privacy issues raised by such services. We consider how current Canadian data protection laws apply to location-based services, and indicate where such laws fall short of addressing the full range of issues such services raise. We also explore some technological methods to address the privacy challenges raised by location-based services. The paper concludes with a series of recommendations.

In 2004, Michael Deturbide and I published our book Electronic Commerce and Internet Law in Canada (CCH Canadian).  Since that time, so much has changed (and continues to change).  We are currently working on a second edition of this book, which we hope to see in print sometime in 2012.

A new paper, co-authored with Dana Ellis and Benoit Séguin, and forthcoming soon will be exploring some of the consequences of converting ambush marketing from a business problem to a legal issue.  This is the case in those jurisdictions which have enacted laws to curtail ambush marketing.  This is an exciting new direction for my research in this area, and I hope to build upon it.

Most of my recent work has looked at the relationship of data protection laws to personal information linked to geographical location. An article, co-authored with Anca Sattler, on Location-Based Services and privacy is forthcoming in the Canadian Journal of Law and Technology. Current projects include a study of the exception for publicly available information in PIPEDA. My work on geospatial privacy is ongoing as well. This research work is described in greater detail under the heading "geospatial data".

My recent work in the area of trademark law culminated in the publication of Canadian Trademark Law (LexisNexis) in 2010. I am currently working on a new chapter on trademarks and the internet for the second edition of my co-authored book on Electronic Commerce and Internet Law. Other ongoing projects include an exploration of the relationship of the freedom of expression to trademark law.

Both globalization and the rapid development of communications technology have created an environment in which a very wide range of human activity can no longer be exclusively confined within the boundaries of any one state. Transborder commerce, communications, and crime are ubiquitous. The global movement of labour and capital, combined with widespread attempts to harmonize national laws to international standards also contribute to an environment in which the role of the nation state is greatly altered. As a result, the extent to which states can exercise jurisdiction over matters that take place outside their borders has become increasingly dynamic and controversial under international law. The goal of the project is to critically examine the use of extra-territorial jurisdiction by states and to formulate an analytical framework to help Canadian law and policy makers in making principled decisions on the issue.

My own work on this project has focussed on internet and privacy issues. A new paper exploring extraterritoriality in the context of the internet, co-authored with Robert Currie will be forthcoming shortly in the Georgetown Journal of International Law.

This SSHRC funded research project is being carried out with Stephen Coughlan, Robert Currie and Hugh Kindred of Dalhousie University.

Geospatial information (GI) has become widely used by government, the private sector and by ordinary individuals for an increasingly diverse range of purposes.  GI forms the basis for GPS systems and maps; these in turn are used in a broad range of applications which include navigation tools, land use planning, resource management, mobile marketing, tracking and surveillance.

This project, which is funded by the GEOIDE network, brings together researchers from law, geography, engineering and geomatics to explore some of the legal and ethical issues raised by this near ubiquitous use of geospatial information.  For example, work has been done on issues around the quality of geospatial data, and its suitability for use in various contexts.

As one of the legal experts involved in the project, my work has explored issues along two main axes.  First, I have looked at questions surrounding the ownership and licensing of geospatial data. Second, I have explored issues around geospatial data and privacy, including those raised location-based services, intelligent transportation systems, and information maps.

Publications related to my work on this project can be found in my publications list under the heading geospatial/digital cartography.

Public Protection and Ethical Dissemination of Geospatial Data – Social and Legal Aspects

Ambush marketing took on major event proportions at the Vancouver Olympics, as many large corporations sought to create associations with the event without falling afoul of s. 4 of Canada’s Olympic and Paralympic Marks Act. Perhaps the cheekiest example was Lululemon’s new clothing line titled “Cool Sporting Event That Takes Place in British Columbia Between 2009 & 2011 Edition.” Ambush marketing was also in the news around the FIFA World Cup of Football held in South Africa in the Summer of 2010. The most notorious incident linked to that event was the arrest of Dutch women who had the temerity to wear orange dresses, supplied by a Dutch brewery, to one of the matches.

“Ambush marketing” activities have frustrated major sporting event organizers and sponsors for years. Such activities are seen to detract from the value of lucrative event sponsorships, yet they have been difficult to curb under trademark law or the law of passing off. This is largely because most ambush marketing does not make use of the trademarks of others, nor does it attempt to create confusion as to the source of wares or services. Instead, ambush marketing tries to benefit from the buzz surrounding a major event by creating an association in the minds of consumers between the advertiser and the event. Event organizers, on the other hand, view the goodwill associated with the event as a form of property.

In the last decade, major sporting event organizers such as the International Olympic Committee and FIFA have pressured national governments to pass legislation prohibiting ambush marketing as a condition of a successful bid to host an event. Indeed, legal protection against ambush marketing is now a requirement for a successful bid for an Olympic Games. Anti-ambush marketing legislation has already been enacted in many countries, including the UK, Canada, South Africa, Australia and New Zealand. The statutes in these jurisdictions reveal an emerging “right of association”.

In a paper which should be out in the Sports Management Journal in the summer of 2011 (titled: Ambush Marketing and the Right of Association: Clamping Down on References to that Big Event with All the Athletes in a Couple of Years, PDF now available here) I survey the evolution of the right of association and discuss its key features. I argue that the need for such a legislated right has never been properly established. I also argue that anti-ambush marketing legislation is overly broad, does not reflect an appropriate balancing of interests, and may infringe upon the freedom of expression. In particular, the legislation removes the right to make commercial associations, however minor, with a major event taking place within a community. The laws do not just target major corporations who might have bid for sponsorship rights. They affect small local businesses as well, including those who might simply want to get into the spirit of the event that has transformed and taken over their community.