Law Times

LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 11, 2019 9 www.lawtimesnews.com BY MARG. BRUINEMAN For Law Times T echnological development in vehicles that are becom- ing increasingly connected to the digital world is outpacing the laws developed to protect the privacy of consumers, say law- yers. Yet it is clear that consent and transparency are two important considerations over data gener- ated as more and more vehicles become connected to the digital world, says Robert Love, a litiga- tion partner at Borden Ladner Gervais LLP. Through informed consent, he says, the consumer can weigh the balance of allowing the col- lection of some of the data col- lected through their vehicle in exchange for the convenience offered by the technology and make an informed decision. And companies can stay in the clear by being transparent about what information they're col- lecting and what they're doing with it, he says. At issue is the data the car generates and may record in everyday operations when it is connected to the internet. Tesla, for example, uses cellular con- nectivity to update software used by the car for features such as navigation and internet radio in Canada. Love says a Tesla vehicle's over-the-wire communications could lead to a sharing of in- formation with manufacturers, which would require the vehicle owner to provide consent. "If you're sharing or have the ability to obtain personal infor- mation, that is information that can identify an individual and . . . that's where the concern be- comes more acute," he says. There are often advantages for consumers to share their information, says Love, point- ing to usage-based insurance as an example. Insurance com- panies use telematics to gauge how the vehicle is being driven by measuring driver habits in- cluding speed, lane changes and frequency of hard breaking and adjust insurance premiums, re- warding good and low-mileage drivers with lower fees. As the use of autonomous ve- hicles becomes more common- place, they may use and share biometric data for access and monitoring, but Love says it's all based on the need for consent. For some, the trade-off of the usage of information is worth the discount they might achieve in insurance premiums, says Donald Johnston, a partner at Aird & Berlis LLP in Toronto. "Your expectation of privacy there is much less. But, currently, you've got choices, whether you take pay-as-you-drive insurance or pay the regular fee," he says. He points out that there are circumstances in which a cer- tain amount of privacy is ex- pected when it comes to cars, which was successfully argued in the Ontario Court of Appeal decision in R. v. Sloan, 1994 CanLII 1721 (ON CA). Going back 25 years, the court dismissed a criminal charge of committing an indecent act in a public place, concluding that in Sloan the motor vehicle was a private place because it was parked, in darkness, in the far end of the lot and backed up to a tree-covered embankment of the escarpment in Hamilton, at least 45 metres from the nearest vehicle. Although because a moving car interacts with others, there is some limitation on that privacy, says Johnston. Cars are of particular inter- est, Johnston says, because de- vices such as personal comput- ers and cellphones rely upon Internet Protocol version 4 — or IPv4 — which is a user end point where communication starts and stops and continues to be used for most internet traffic. But vehicles use its successor, IPv6, which acts as a router, en- abling the various points of pres- ence and allows traffic to f low through the internet. "That transponder not only knows where you are but it knows where everybody else relevant to you is, too. It passes messages from cars all around you" into a network, Johnston says. "With connected vehicles, every vehicle knows where every other vehicle is." And while that is then used to provide driver assistance, the in- formation that f lows through it needs to be evanescent in order to ensure privacy, he says, add- ing that it is necessary to enforce policies to prevent abuse. Edona Vila, a BLG associate with an interest in connected devices, says the federal privacy commissioner identified the need for consumers to be aware of what data is being transmitted as part of the operations of con- nected vehicles currently on the road. "We're talking about tech- nology that's now available," she says. "And I think these kinds of issues probably propagate with more volume of data, with more specific data that might be avail- able with autonomous vehicles." Vila says there are a couple of initiatives companies can take on the corporate level, includ- ing developing guidelines about how to best handle the informa- tion, which could include re- moving information identifiable to a specific vehicle and driver. Companies can also provide consumers with tools to have more control about the data that is being shared, she says. The law, generally, lags be- hind innovation. However, she says the challenge with the pros- pect of introducing additional privacy legislation is to ensure that it doesn't stif le further growth and development. She suggests regulators pres- ent guidelines as a standard from which companies can de- velop best practices. LT Robert Love says there are often advantages for the consumer to share information with manufacturers gathered through the use of their vehicle. FOCUS Technology in cars accelerating, with privacy pondered Canadian Law List 2019 gives you immediate access to: • An up-to-date alphabetical listing of more than 80,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges across Canada • Legal contact information for all federal and provincial courts, law societies, law schools, Legal Aid and other important law-related offices • Government contact information for Canada, the provinces and territories including cabinet ministers, departments, boards, commissions and Crown Corporations Order your copy today! Call 1.800.387.5164 or visit www.store.thomsonreuters.ca for a 30-day no risk evaluation copy. Hardbound • Published .BSDI On subscription $184.50* • One time purchase $205* 0SEFS/PL7798-8406 • ISBN 978-0-7798-8406-3 Multiple copy discounts available *Plus shipping/handling and applicable taxes. Prices subject to change without notice. 2019 Canadian Law List Untitled-4 1 2019-03-07 10:47 AM

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