An Ontario judge has ordered a party to a civil litigation case arising from a motor vehicle accident to hand over the contents of their private Facebook profile.  Importantly, the judge ruled that "a party who maintains a private, or limited access, Facebook profile stands in no different position than one who sets up a publicly-available profile."  The judge seems to have arrived at that conclusion based on her understanding of Facebook:

a court can infer from the social networking purpose of Facebook, and the applications it offers to users such as the posting of photographs, that users intend to take advantage of Facebook’s applications to make personal information available to others.  From the general evidence about Facebook filed on this motion it is clear that Facebook is not used as a means by which account holders carry on monologues with themselves; it is a device by which users share with others information about who they are, what they like, what they do, and where they go, in varying degrees of detail.  Facebook profiles are not designed to function as diaries; they enable users to construct personal networks or communities of “friends” with whom they can share information about themselves, and on which “friends” can post information about the user.

Case name is Leduc v. Roman.

Lawful access is back.  Two developments this month suggest that there may bi-partisan support for the always controversial attempt to establish new Internet surveillance powers for law enforcement.  First, the Globe and Mail reports today that new Public Safety Minister Peter Van Loan has indicated that lawful access legislation is being prepared that will force ISPs to allow law enforcement to monitor Internet-based conversations.  The power to compel will apparently be subject to court order.  Second, Liberal MP Marlene Jennings has reintroduced her lawful access private member's bill, called the Modernization of Investigative Techniques Act.  The Jennings bill is a virtual copy of a failed Liberal lawful access bill that died in 2005.

Given the past proposals, there is plenty of reason for concern since earlier lawful access initiatives focused on new instrusive powers, some without any court oversight.  That said, the government has the option to provide law enforcement with the powers it needs with appropriate oversight.  For example, the Jennings bill would require ISPs to disclose customer name and address information to law enforcement without court oversight.  In 2007, then-Public Safety Minister Stockwell Day committed to court oversight for such disclosures.  I believe Canadians expect the government to stand by that commitment (and I amazed that Jennings would propose a more intrusive approach).  Further, earlier proposals to mandate surveillance equipment have been rendered moot as most ISPs already have the technical capabilities to monitor Internet traffic.

So what is the way forward?  For starters, I think Van Loan should commit to active consultations with the privacy community before introducing the legislation; renew the government's pledge for full court oversight (including for customer name and address information); and there must be full hearings on the bill that place the burden on law enforcement to demonstrate that there is a problem with the law as it currently stands.

Update: As the Privacy Commissioner expresses concern about lawful access plans, Van Loan now says that the legislation is not imminent.