August 20, 2017

About Karen Eltis

Professor Karen Eltis is on faculty (professeure titulaire) at the Law school of the University of Ottawa. A past Director of the Human Rights Centre, Karen specializes in the impact of new technology on constitutional rights and democracy from a comparative perspective, with special emphasis on privacy. She served as Senior Advisor to the National Judicial Institute and has taught at Columbia Law School, McGill University, University of Montreal (Faculty of Medicine), and Tel Aviv University (Israel).

Fluent in French, English, Hebrew, Spanish and Romanian and proficient in German and Italian, Professor Eltis holds law degrees from McGill University, the Hebrew University of Jerusalem and Columbia Law School (Harlan Fiske Stone Scholar). She clerked for Chief Justice Aharon Barak of the Supreme Court of Israel.

Prior to joining the faculty at the University of Ottawa, Karen was a litigation associate in New York City, focusing on International Dispute Resolution.

Her research on privacy was recently cited by the Supreme Court of Canada (in A.B. v. Bragg, 2012). Karen’s latest book is titled “Courts, Litigants and the Digital Age” Second edition (Irwin Law, 2016); It was supported by a CIRA grant.

Privacy: A Personality, Not Property, Right

The European Court of Justice’s decision in Google v. Costeja González appears to compel search engines to remove links to certain impugned search results at the request of individual Europeans (and potentially others beyond Europe’s borders). What is more, Costeja may inadvertently and ironically have the effect of appointing American companies as private censors and arbiters of the European public interest.

Google and other private entities are therefore saddled incomprehensibly with the gargantuan task of determining how to “balance the need for transparency with the need to protect people’s identities,” and Costeja’s failure to provide adequate interpretive guidelines further leads to ad hoc approaches by these companies. In addition, transparency and accountability are notoriously difficult to cultivate when balancing delicate constitutional values, such as freedom of expression and privacy. Indeed, even the constitutional courts and policy makers who typically perform this balancing struggle with it—think of the controversy associated with so-called “judicial activism.” The difficulty skyrockets when the balancers are instead inexperienced and reticent corporate actors, who presumably lack the requisite public legitimacy for such matters, especially when dealing with foreign (non-U.S.) nationals.

The Costeja decision attempts to paper over the growing divergence between Anglo-American and continental approaches to privacy. Its poor results highlight internal normative contradictions within the continental tradition and illustrate the urgency of re-conceptualizing digital privacy in a more transystemically viable fashion. [Read more…]

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

It 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.
[Read more…]