#CyberFLASH: Apple Encryption Saga and Beyond: What U.S. Courts Can Learn from Canadian Caselaw

computer-laptop-keyboard-852It has been said that privacy is “at risk of becoming a real human right.” The exponential increase of personal information in the hands of organizations, particularly sensitive data, creates a significant rise in the perils accompanying formerly negligible privacy incidents. At one time considered too intangible to merit even token compensation, risks of harm to privacy interests have become so ubiquitous in the past three years that they require special attention.

Legal and social changes have for their part also increased potential privacy liability for private and public entities when they promise – and fail – to guard our personal data (think Ashley Madison…). First among those changes has been the emergence of a “privacy culture” — a process bolstered by the trickle-down effect of the Julia Angwin’s investigative series titled “What They Know,” and the heightened attention that the mainstream media now attaches to privacy incidents. Second, courts in various common law jurisdictions are beginning to recognize intangible privacy harms and have been increasingly willing to certify class action lawsuits for privacy infringements that previously would have been summarily dismissed without hesitation.

Prior to 2012, it was difficult to find examples of judicially recognized losses arising from privacy breaches. Since then however, the legal environment in common law jurisdictions and in Canada in particular has changed dramatically. Claims related to privacy mishaps are now commonplace, and there has been an exponential multiplication in the number of matters involving inadvertent communication or improper disposal of personal data, portable devices, and cloud computing.

The obvious overlap between personal and professional e-mail accounts, Internet use, and quasi-ubiquitous surveillance renders the classic “reasonable expectation” standard quasi-obsolete, or at least unhelpful in articulating and enforcing privacy rights and duties. Assessing an individual’s right to privacy by reference to society’s conception of the measure of privacy that one is entitled to reasonably expect is particularly awkward when such expectations are rapidly eroding, precisely by reason of eventual social habituation to recurring intrusions. Plainly put and paradoxically: the more we are watched, the more we expect to be watched.

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