Deputizing the Private Sector? ISPs as Agents of the State
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
Posted: 5 Apr 2013
Date Written: January 1, 2009
In this chapter, the authors 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. It is argued 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.
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