The law and ethics of recruiting in today’s wired world

I presented today at a regional conference of the Canadian Association of Career Educators and Employers on “the law and ethics of recruiting in today’s wired world.” This is an encore from a presentation I did back in June, described here. The two topics I focussed on today were (1) employee online speech, with a special focus on its use by recruiters, and (2) legal issues in the “war for talent.”  We had a great discussion, and I’d like to thank the organizers for the invite.

Here are my slides.

Princeton’s computing in the cloud workshop worth a listen

This looks like it has been around for a while, but I just had a listen to this five-part podcast from a Princeton University Centre for Information Technology Policy workshop from last January.  I skimmed the rest, but listened twice to the full clip of the panel on the possession and ownership of data.  The panel presentation itself invites a fairly rigorous but general debate about privacy and technology, but the question period gets better and better, ending with some good dialogue on issues specific to cloud computing.

Enjoy!

My ClawBie nominations

I’m very happy to support Steven Matthews’ Canadian Law Blog Awards by talking a bit about who I follow as well as forwarding three nominations for the 2008 awards.

My nominations are…

  1. Slaw.  Not that it needs my help!  I recently explained my re-finding of Slaw. You can practice with your head down or you can practice with good view of the context in which you’re practicing.  I can’t think of a better source of information for a Canadian lawyer to build that good view.
  2. Cavanagh Williams Update.  This is a great blog for its coverage of Ontario civil procedure and related cases.  I hope I’m being fair by classifying it as a “by-lawyers-for-lawyers” blog, but as such it has garnered praise from more than one of my blog-following Hicks Morley colleagues.  Though it was posted shortly before 2008, I particularly appreciated the firm’s coverage of the 2007 Montebello civil justice conference.
  3. The Court.  Another super-heavyweight.  If you haven’t noticed, it’s the substantive law that gets me, and for regular commentary on the substantive law The Court ranks at the top on relevance and credibility. I prefer a little more brevity than offered by The Court, but will actually print and digest a post that hits the mark like Ryder Gilliand’s comment on Simpson v. Mair.

Along with these I’ve been following a number of others, most super-heavyweights and most with content that overlaps to some degree with my own.  In no particular order, my other top reads are David Canton, David Fraser, Deeth Williams Wall e-Tips, Michael Fitzgibbon, Michael Geist, Alan Gahtan and Rob Hyndman.  As the last task in the dying moments of my staycation, I’ve updated by blogroll to include links to them all.  Now I’m ready to go back to work!

Ontario brings in child pornography reporting requirement (updated)

It’s all too common for employers to find child pornography on their computer systems.  In Ontario, until now, deciding whether or not to report it to the authorities was difficult.  It was important to pay heed to the potential for obstruction of justice charges in some circumstances, but for the most part the decision to report was an employer’s to make based on practical and ethical considerations.  This has changed with the December 4th passage of Bill 37, the Child Pornography Reporting Act, 2008.

Bill 37 will amend the Child and Family Services Act on a date to be named.  The CFSA has long-featured a duty to report a child in need of protection to a children’s aid society.  The amendment will mean that any child who is exploited by child pornography will, in most circumstances, be deemed to be in need of protection.  The amendment also creates a new duty to report what a person reasonably believes “is” or “might be” child pornography to an entity that will be designated later by regulation.  The duty applies to all persons, not just those owning or operating computer systems (such as employers) and those providing risk-related services (such as ISPs and photograph developers).  A failure to report will be punishable by fine of not more than $50,000 and/or imprisonment of up to two years.

Thank you to Slaw and John Gregory for first noting this significant amendment.

Addendum.  There are a couple twists to this legislation that are worth considering. First, the duty appears to hinge on a subjective belief that the material is (or might be) child pornography, which has a narrowing effect. Second, it appears that an employee of a corporation who discovers child pornography on his or her employer’s system will have an independent duty to report that will not be discharged by his or her employer’s report.  As, discussed above, the duty applies broadly, to all “persons.”  The legislation also specifies that a person must report “directly,” which means a person cannot rely on another to report.  This seems to require multiple reports by all those who handle the offending material.

Case Report – OLRB affirms power to adjudicate on privilege

On October 8th, the Ontario Labour Relations Board affirmed an order requiring a party to attend at a hearing along with all arguably relevant records that it claimed to be subject to solicitor-client privilege.  

The Board made its order in its joint hearing of two construction industry contracting out grievances.  The responding employer had failed to disclose or produce records customarily produced in such grievances (e.g. contracts, bid documents and payroll records). Instead, it produced a few records and claimed “all other records in our client’s possession are privileged.”  The impugned order became necessary after the employer twice resisted Board orders to specifically identify the records it claimed were privileged.

The Board rejected the employer’s argument it lacked jurisdiction to order the production of documents over which a claim of solicitor-client privilege has been made.  It distinguished the Supreme Court of Canada’s recent Blood Tribe decision by explaining that it was not about an adjudicative body’s power to control its hearing procedure.

The difficulty with the argument made by the responding party is reflected by the passage above.  The Privacy Commissioner is not an adjudicator, but an investigator.  It would be problematic if an investigator had the authority to compel disclosure of documents that are subject to a solicitor-client privilege, because there is the possibility that the documents or their contents could be used by the investigator against the party claiming the privilege.  In fact, the Court in Blood Tribe Department of Health specifically notes that a major distinction between the Privacy Commissioner and a court is that in pursuit of her mandate the Privacy Commissioner may become adverse in interest to the party whose documents she wants to access.  

The circumstances are entirely different before the Board.  The Board is not an investigator, and is not and will not become adverse in interest to the responding party.  Although the Board is not a court of law, it is a quasi-judicial statutory tribunal that is responsible for determining all questions of fact or law that arise in any hearing before it, including grievance referrals filed with it pursuant to section 133 of the Act.  

In these two proceedings filed with the Board, one of the questions that has risen before the Board is whether the documents that the responding party asserts are covered by solicitor-client privilege are, in fact, covered by that privilege.  The Board is responsible for verifying claims of privilege to ensure the integrity and proper functioning of its processes, including grievance referrals under section 133 of the Act.  If all of the documentation asserted by the responding party to be covered by solicitor-client privilege is, in fact, covered by a legitimate solicitor-client privilege, the applicant will not be entitled to production of the documentation.  However, the determination as to whether the documentation is covered by a legitimate solicitor-client privilege is for the Board to make at first instance.

Thank you to OLRB Solicitor Voy Stelmaszynski for providing a copy of the award and speaking to it at last night’s panel on Blood Tribe.

Re Proplus Construction & Renovation Inc. (8 October 2008, O.L.R.B.).

Alberta OIPC issues solicitor-client privilege adjudication protocol

I attended a very good dinner panel tonight on the Supreme Court of Canada’s Blood Tribe decision. The panelists were excellent, but my best take-away was moderator Priscilla Platt’s heads-up on the Alberta OPIC’s recently-issued Solicitor-Client Privilege Adjudication Protocol.

The Protocol is a leading attempt at addressing how an access to information adjudicator ought to exercise a discretion to order production of records claimed to be subject to solicitor-client privilege.  It states:

… the Commissioner does not routinely compel production of information over which solicitor-client privilege is claimed; rather, he does so only on a case-by-case basis, when the party claiming the privilege fails to present adequate evidence of it and/or when opposing, persuasive evidence or argument has been presented to him that, in either circumstance, necessitates production in order for him to fairly decide the issue.  Importantly, the Commissioner only compels production to the extent absolutely necessary in exceptional cases. 

There is little question that the Alberta FIPPA gives the OPIC the power to compel records claimed to be privileged.  Furthermore, one of the Act’s express purposes is to “provide for independent reviews of [access to information] decisions made by public bodies.” It nonetheless appears the OPIC has heeded to the tenor of the developing solicitor-client privilege jurisprudence by committing to a Protocol that will apply to all access requests that it adjudicates, including those under FIPPA.

Not surprisingly, the Protocol does require claimants to provide evidence to support a privilege claim on a record-by-record basis, preferably by way of a sworn affidavit.  In this regard, it includes a (fair, in my view) “record form” to help claimants particularize the facts raised in support of a claim.

It remains to be seen whether access to information adjudicators in other jurisdictions will adopt a similar approach.

“Negotiating the Balance” in managing on-campus violence

It was a very pleasant surprise when after a long day of work back in September I received contact from Yasmin Nissim, a recent masters graduate in Legal Studies now working at Carleton University’s FOI and privacy office. Yasmin sent me a copy of her master’s thesis, Negotiating the Balance:  Reconciling Individual Privacy and Public Interest When Addressing At-Risk Individuals, Campus Violence and Ontario Privacy Legislation.  Here’s her abstract:

The recent application of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) to the university sector has raised new issues between the habitually conflicting perspectives of individual privacy and the public interest.  This study attempts to reconcile these opposing sides with the goal of illustrating that, under the new privacy regime, Ontario Universities can achieve a balance between these interests.  Using the massacre that took place at Virginia Polytechnic Institute in April of 2007 as a case study and a media analysis of the resulting moral panic that followed, this thesis discusses the negative consequences of allowing privacy legislation to go misunderstood and misapplied when dealing with at-risk students.  Ontario Universities have the opportunity to clarify their new privacy landscape and institute a framework that would protect the safety and security of the general public by identifying at-risk students without jeopardizing the individual privacy of those identified. 

I finally got a chance to sit down with Yasmin’s thesis and found it very insightful. I also agree with Yasmin’s view that the balance between personal privacy and public security that is currently struck under FIPPA is a proper one that should not be upset in reaction to crises like Virginia Tech.

Yasmin has graciously agreed to allow me to share to her thesis here.  If you use it in your own work please include an appropriate citation.

Information Roundup – 1 December 2008

Back in TO.  Managed a stormy surf at Bluffer’s Park yesterday before coming home to read the following:

Another reason I’d recommend a staycation to over-busy professionals is that it’s a great way to get your life in order. We knocked off most of our Christmas shopping early last week and have gotten rid of a handful other nagging household projects. Today I took care of a personal project and rationalized the list of RSS feeds I follow, dumping a bunch of low value and adding some others, including Slaw.ca.

Sometime in the past one or two years (likely at a point of being overwhelmed in practice), I decided to un-subscribe from Slaw. I can’t remember why, but it probably had something to do with my move away from a role in research and knowledge management.

Un-subscribing was a mistake. Slaw is such a relevant blog, for me certainly but also (I suspect) for most involved in legal practice and academics in Canada. When I went back to Slaw today, for example, I realized that Simon Fodden had already beat me in noting the Time’s Google’s Gatekeeper’s article. He also recently posted something nice on text justification and readability which fits within an interest I have in clear writing, layout and design and usability. I’ve probably missed out on lots in the last while and am glad to be re-focused and back on board!

See ya!

Dan

“Staycation” gives time to discover an excellent podcast on campus and workplace violence

I love driving trips, and the last few trips I’ve taken I’ve come back and blogged about all the podcasts I’ve listened to while on the road (see here and here).  This fall we had to cancel a two week trip out east in favour of a “staycation,” which has been remarkably enjoyable.  Staying home means access to child care, so Seanna and I have had some nice time together, a rarity nowadays.  Mommy and daddy drop Hugs off and go to a matinée (the new Guy Ritchie movie’s pretty fun).  Mommy and daddy drop Hugs and mommy beats daddy 3-0 in squash, and so on…

Anyway, I did get permission to fly out to Halifax to catch a good swell (solitude also being a rarity nowadays).  I’ve spent the last three days surfing myself to death and, while driving between sessions, listening to a great podcast on managing the threat of campus violence.  (For my most detailed pubic contribution on this topic please click here).

The five audio clips published here were taped at an April 2008 program run by the Woodrow Wilson School of Public and International Affairs at Princeton University.  The first clip, Blueprint for a Safer Campus, is a bit slow to start, but sets the stage for the event and discusses the International Association of Campus Law Enforcement Administrators “Blueprint” (linked here), made in response to the Virginia Tech incident.  The second clip is a fantastic discussion of threat assessment by Dr. Marisa Randazzo (former Chief Research Psychologist for the U.S. Secret Service and co-author of the very significant Secret Service/Department of Education report on threat assessment) and Gene Deisinger (Associate Director of Public Safety and Deputy Chief of Police for the Iowa State University Police Division).  Just excellent, and the highlight of the program for me.  The third clip is of Professor Katherine Newman’s keynote address, in which she profiles two K-12 shooting incidents with a view to explaining the motivation of shooters. I got a little burnt out by clips four and five, one on risk assessment and the other on “a regional perspective.”

I’m back to Toronto now and have a week of staycation to go during which I plan to hang out with Hugs, lounge around and challenge Seanna to a re-match.  If I get a chance to listen to anything else of interest I’ll be sure to let you know.

Dan