Nightclubs Requiring Proof Of Vaccination And Privacy; What Could Possibly Go Wrong?

Oh the data and privacy disaster we are headed towards. As soon as I heard the enormously bizarre announcement of Boris Johnson to impose proof of vaccination requirement in nightclubs, I knew this was not going to go well. Entrusting door staff with handling sensitive health data of people who just want to get s…faced and dance the night away, is set to expose vulnerable young people to identity and vax data theft. It is irresponsible and the only clubs who don’t resist right now are those who prepare to harvest invaluable data at the door.

https://www.rollingstone.com/music/music-news/eric-clapton-not-play-vaccine-shows-1200257/

Forget mandatory. This measure goes against the best interests of club-goers and society at large and should be prohibited. No nightclub anywhere should ever be allowed to require proof of vaccination as a condition of entry to people who are there precisely to party like there is no tomorrow. Very likely, none of these club-goers truly cares about a so called “tomorrow” enough to be afraid to miss it. Is it even possible to distinguish between the symptoms of a classic hangover and the delta variant? Headaches, unable to get out of bed, runny nose… you kiddin’? Some people’s noses are falling off after going to the club, you think runny nose will alarm anyone?

This literally is “barking at the wrong tree” (unless something changed and nightclubs have turned into long-term geriatric facilities) Again, who cares. The point is, if you are afraid enough to be vaccinated, you sure as hell are afraid to be in a club to breathe other people’s evaporated sweat replete with airborne bacteria and chemicals. It is likely that the club is in your imagination while you are listening to Spotify on your phone. With your mask on. Which is entirely cool. I am for consent. Wherever it goes. Your body, your choice.

On an end-note, being vaccinated shouldn’t include the obligation to have something to PROVE for the remainder of your life. It is extremely discouraging to see how the vaccinated are being segregated into a crowd that will always have to disclose more data than necessary. Many refuse to disclose proof of vaccination and are treated as non-vaccinated.

The data of the vaccinated is worth more money than the data the unvaccinated.

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Spyware Tracks Journalists And Activists Via Microsoft

This just in. At least 100 activists, journalists and government dissidents across 10 countries were targeted with spyware produced by Candiru, according to cybersecurity researchers at the University of Toronto’s Citizen Lab, which tracks illegal hacking and surveillance.

https://montrealgazette.com/news/world/activists-journalists-targeted-by-israeli-firms-spyware-researchers-say

Using a pair of vulnerabilities in Microsoft Corp.’s Windows, cyber operatives operating in Saudi Arabia, Israel, Hungary, Indonesia and elsewhere purchased and installed Candiru’s remote spying software. According to Cristin Goodwin, general manager of Microsoft’s Digital Security Unit, the tool was used in “precision attacks” against targets’ computers, phones, network infrastructure and internet-connected devices,”

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Being a frequent target of cyber-attacks (like any person in the world who needs to get anything done these days), I recommend you install your own spyware in your devices to “counter-hack”. There is no other way to track and catch malignant algorithms in your operating systems.

Your own spyware can come in handy to produce valuable data regarding your own activity. I use basic surveillance methods to help me with my time-sheets for example. If I forgot what I did or how I got there some time ago, or if my time-sheet is disputed, I can produce minute by minute proof of my activity in detailed databases, including sound and screen activity. I keep a sticker in front of my cam at all times but if I take it off for online meetings, I can also extract video of me and the environment I’m in. This is essentially the data that an external spyware would be able to access if I had one in my system.

Considering the Swiss-cheese type vulnerabilities of Microsoft products, it is very questionable why Quebec keeps using Microsoft Teams for court hearings. Worst platform EVER! How do expect to have access to justice if your platform is known as hacker-central, not to mention the sound issues….

France: Vente de vrais certificats vaccinaux sur Snapchat via Amazon

Nous avons déjà reporté des incidents de vente de QR codes vaccinaux sur le dark net dès le mois d’avril 2021, mais ces incidents comme tout ce qui est “dark web” ne forment qu’une infime partie du traffic mondial d’usurpation de pcr tests et certificats vaccinaux.

Depuis toujours, l’internet de surface (grace à notamment des protections comme l’article 230, Communication Decency Act ) est la place où se déroule 95% de la cybercriminalité, et surtout vol d’identité, demandes de rançon et traffic humain. Évidemment, l’internet de surface est idéalement propice à la vente illégale de passeports vaccinaux.

Grace à la collaboration indispensable de travailleurs de la santé qui ont un accès privilégié aux données personnelles des patients vaccinés, et qui en font des utilisations et des partages illégaux, il se déroule devant nos yeux des combines de plus en plus ingénieuses de crime organisé de vol d’identité des vaccinés.

Alternativement, et de façon encore plus alarmante, comme dans le cas à l’étude, certains travailleurs de la santé chargés d’administrer des vaccins vont jusqu’à émettre des certificats vaccinaux à des patients non vaccinés moyennant une contrepartie de 500 euros. Ces certificats portent des QR codes entrent dans les registres officiels de la santé publique.

Cette combine particulière ne nécessite aucun vol d’identité, car il s’agit d’une transaction purement consensuelle entre patients non-vaccinés et travailleurs de la santé. C’est en quelque sorte la définition de crime sans victime. Vu la complicité des patients non-vaccinés, personne ne se plaint aux autorités et le business prospère

N’eut-été une campagne publicitaire bien visible sur Amazon et Snapchat, il y a peu de chances que ce réseau se serait fait prendre. Les experts estiment qu’il y a plusieurs milliers de telles transactions qui échappent aux autorités,

Il faut absolument pénaliser, taxer, censurer et même bloquer, toutes les plateformes de Big Tech populaires qui facilitent le vol d’identité des vaccinés et qui permettent aux réseaux de crime organisé de solliciter des travailleurs de la santé, de faire du marketing de transactions illégales et de prendre de l’ampleur.

EU: Privacy Policies Defy User Understanding

A large-scale, longitudinal comparison of privacy policies in the EU pre- and postGDPR found that privacy policies increased in length
without demonstrating improvements in sentence structure complexity.

Defining Privacy: How Users Interpret Technical Terms in Privacy Policies, Proceedings on Privacy Enhancing Technologies ; 2021 (3):70–94

This study shows the difficulty in drafting privacy and data reforms in such a way as to achieve the desired effects. It appears that in spite of the GDPR providing that information about data collection and use be communicated “in a concise, transparent, intelligible and easily accessible form, using clear and plain language”, the attempt by attorneys to do so results in an increased use of technical terms and legalese that users simply don’t understand.

California Consumer Privacy Act (CCPA) imposes similar transparency requirements for disclosures and require that policies are “written in a manner that provides consumers a meaningful understanding of the information being collected”. The cited study has found however that privacy policies are still written at a high reading level, where misconceptions and misunderstandings about technical terms are pervasive.

Owsianik v. Equifax Canada, 2021 ONSC 4112

One in 6 Ontario class actions allege privacy violations. This dynamic may change following the Divisional Court’s determination in Ohsianik v. Equifax that collectors and guardians of personal data (“Database Defendants”) cannot be liable for intrusion upon seclusion when third parties steal or access that data. Liability is suppressed even where database defendants are alleged to have acted recklessly in the storage of that information such that the information was improperly accessed by a third party.

https://www.canlii.org/en/on/onscdc/doc/2021/2021onsc4112/2021onsc4112.pdf

EU: Prohibited Artificial Intelligence Practices

As per Article 5 of the EU Artificial Intelligence Act are prohibited the following practices consisting of placing on the market, putting into service or use of AI systems that consist of :

1.a) Subliminal techniques beyond a person’s consciousness designed to materially distort a person’s behaviour in a manner that causes or is likely to cause that person or another person physical or psychological harm

b) (algorithmic bias) Exploiting any of the vulnerabilities of a specific group of persons due to their age, physical or mental disability, in order to materially distort the behaviour of a person pertaining to that group in a manner that causes or is likely to cause that person or another person physical or psychological harm;

c) (social credit score system) by public authorities or on their behalf: evaluation or classification of the trustworthiness of natural persons over a certain period of time based on their social behaviour or known or predicted personal or personality characteristics, with the social score leading to either or both of the following:

  • detrimental or unfavourable treatment of certain natural persons or whole groups thereof in social contexts which are unrelated to the contexts in which the data was originally generated or collected;
  • detrimental or unfavourable treatment of certain natural persons or whole groups thereof that is unjustified or disproportionate to their social behaviour or its gravity;

d) the use of ‘real-time’ remote biometric identification systems in publicly accessible spaces for the purpose of law enforcement, unless and in as far as such use is strictly necessary for one of the following objectives:

  • the targeted search for specific potential victims of crime, including missing children;
    • the prevention of a specific, substantial and imminent threat to the life or physical safety of natural persons or of a terrorist attack;
    • the detection, localisation, identification or  prosecution of a perpetrator or suspect of a criminal offence referred to in Article 2(2) of Council Framework Decision 2002/584/JHA62 and punishable in the Member State concerned by a custodial sentence or a detention order for a maximum period of at least three years, as determined by the law of that Member State.

1d) requires a judicial authorization. There is a balancing test.

UK Law Society, Future Worlds 2050

The main regulator of the legal profession has issued its predictive report on where the practice of law is headed by 2030. Not surprisingly, the future of the legal profession will be dominated by Data, AI, Tech, and Climate Change.

https://www.lawsociety.org.uk/en/topics/research/future-worlds-2050-images-of-the-future-worlds-facing-the-legal-profession-2020-2030

These areas of expertise are almost entirely outside the scope of law societies’ exclusivity and practice of the law is already escaping their monopoly according to the report. The trend is visible right now as firms are scrambling to find lawyers with engineering degrees for example.

Lawyers have not been providing the services that clients want to buy”

“The best way to prepare themselves is probably to stop thinking of themselves as lawyers. That has a lot of historic and cultural baggage, I think a lot of the problems that the legal industry faces at the moment arise from that baggage. If you went back 20 or 30 years, there was virtually no difference between the legal profession and the legal services market. There’s a big difference now because you have different players in that market who are not lawyers, they’re not law firms.”
(Professor Stephen Mayson)

The UK Law Society sees “trust” as the only factor that differentiates a real lawyer from an automatic service legal tool.

A full chapter is dedicated on why Global problems require global solutions. Yes, but how does the current geographically fragmented framework of law societies fit into that paradigm? It doesn’t.

There will be a growing cooperation between legal and non-legal providers “to better meet client needs for a holistic problem-solving service.” Yes, because there are still some things engineers and biochemists can’t do on their own.

When innovations become more effective than the original system – this is a point of disruption. (this is my favourite sentence of the whole report)

After reading this report, I am not sure that the legal profession as we know it will exist in 2030 at all. The legal brand is in full dilution mode.

Law becomes seen as rule – governments will use tech to monitor and alert citizens to be compliant (Horizon 2)

On page 51, the report provides a table splitting the future in three horizons: a) now to 2023, b) 2023 to 2026, and c) 2026 to 2030. I have a feeling that this timeline will be accelerated. It is likely that we’ll enter the second horizon by 2022 where it is predicted that the “partnership model dissolves” to give rise to a more fluid workforce, and society (the public) will shift to instant, self-service legal advice. Instant solutions are the key here and it is where the current model fails.

End users shift away from perceiving the judge as a human being and the lawyer as a representative.

So much to look forward to..

In Horizon 3 it is predicted that compensation for the profession will drop dramatically. AI and voice advisors become commonplace, everyone has a free lawyer at their disposal, similar to Siri. A “wholly logical justice” notion is introduced, calmer lifestyles, more caring, and more bla, bla…Yeah but not really, it will be way more disruptive. This is the problem with long term predictions. The only thing on that list that will actually happen 100% is that compensation will drop significantly because traditional legal expertise doesn’t include the key areas of the future and lawyers lack the competence to advise the public in these key areas. Everything else is speculation. And by the way, everyone already has a free lawyer at their disposal, it is called the internet, or Siri if you want.

The disruptive projection on page 56 suggests lawyers will need performance enhancing drugs to compete with AI. This is frankly a most hilarious justification for the profession’s notorious substance abuse habit caused by the current failing business paradigm, the 50-80 hour week, the 19th century dynamic. The point of AI is precisely to help you slow down as a human and enjoy the moment while AI does the grudge work for you, not the other way around. Nice try though. Go UK!

Another big trend (and deja vu) is nano-tech. I expect to see performance enhancing nano particles or gene therapies to replace old world performance enhancing (slave) drugs and achieve calm alertness without the jittery side effects, the crippled creativity, and the tunnel vision that stimulants are known for. Moving fast in the wrong direction is worse than not moving at all.

‘We’ll definitely move from a society where we are reactive, waiting for people to get ill, to spot early signs and make replacements well in advance. It’s already happening at the genetic level.” Liselotte Lyngsø, Future Navigator

The N standing for nanotech, which means manipulating material on ever more precise atomic scales. In due course, I believe the vision of Eric Drexler of nanofactories duplicating what happens in biology with ribosomes will be feasible. It will transform a whole bunch of different things. So, nanobots should be on this list, along with other improvements in biology. The B in NBIC stands for biotech; I for infotech and the C for cognotech, which is understanding and improving the brain more than before, and I see little evidence… that people fully appreciate the potentially wide and sweeping changes that these technologies may bring. (David Wood, Delta Wisdom)

I am glad that the report addresses the widespread myth that AI could replace most humans in the current workforce.

The cost of computation necessary for certain advanced AI and machine learning tools has been grossly underestimated.”

“The actual cost of running the process necessary to brute-force an AI application like that might simply be too expensive in terms of the electricity or the heat dissipation.

The trouble is that computation is a resource like any other – it takes place
inside history, it takes place inside physics, it takes place inside the physical
universe and it has a thermodynamic cost associated with it. And, what we’re
finding increasingly, is that at least at current capacities, that cost is too high
for many institutions to bear.” (Adam Greenfield, writer and urbanist)

In sum, it will be too expensive to replace everyone. So chill.

Subway v. Budway, 2021 FC 583

Earlier this month, Subway scored a legal victory in a trademark infringement claim against Budway Cannabis Store who didn’t bother showing up at trial (blame it on the “bud”, I guess).

https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/498525/1/document.do

The court based its analysis on a previous ruling Toys R Us v. Herbs R Us, 2020 FC 682 flowing from very similar facts.

The fact that “budway” is not itself a word means that it would tend to be read in a manner to connote the common word “subway.” (at para. 20)

The two logos displayed in this post are distinguishable from one another by one single element, a cannabis plant. Is it enough to avoid likelihood of confusion?

Along with injunctive relief, the Federal Court awarded Subway $45 000 in damages and $25 000 costs, but no punitive.

The resemblance in the logos is such that they look nearly identical. it clearly goes beyond feigned lack of originality or pure coincidence. This is 100% infringement. It is clearly intentional, but there is no evidence it was done in full knowledge of the alleged harmful consequences on Subway’s goodwill. The Whiten criteria are not made out. In the intellectual property sphere, punitive damages have been awarded in cases of “outrageous” or “highly reprehensible” conduct, or conduct that constitutes a “callous disregard for the rights of the Plaintiff or for injunctions granted by the court”.

the existence of a goodwill is reinforced by the respondents conduct in taking advantage of that goodwill” (para.32)

“[40] Goodwill attaching to a trademark is the benefit to the trademark owner arising from the “reputation and connection” identified with the goods in association with the mark (Veuve Clicquot at paras 50–52). As the Federal Court of Appeal noted in Sandhu Singh, the purpose of the goodwill assessment is different for depreciation of goodwill than it is for passing off, although the factors considered for each may overlap. Relevant factors for assessing goodwill for purposes of section 22 include fame, degree of recognition, volume of sales, depth of market penetration, extent and duration of advertising and publicity, geographic reach, inherent or acquired distinctiveness, channels of trade, and the extent to which the mark is identified with a particular quality (Veuve Clicquot at para 54).”

I think that Budway should’ve appeared at trial to fight the goodwill depreciation argument. Despite the obvious linkage, connection, or mental association likely to have an effect on goodwill, it doesn’t mean that goodwill depreciation happened, and if it did, it doesn’t mean that it stands in causal connection with Budway.

First of all, we are in a pandemic, it is reasonable to infer that every major fast food chain’s goodwill has been affected in a negative way. Under the circumstances, it is kind of convenient for Subway to blame trademark dilution on Budway. Cannabis dispensaries have been declared essential by Public Health because of the therapeutic value they bring to society. In contrast, pushing non organic, unhealthy, and otherwise toxic food that puts people at heightened risk of thrombosis (among many other things), contradicts the public’s notion of a “healthy and active” lifestyle during a covid pandemic. Second, even if there was any direct impact on Subway’s goodwill, that impact is more likely to have been beneficial rather than detrimental, given that the Budway logo keeps generating strong social media engagement in a manner that indicates the respondent has little control over its dissemination.

The minute I saw the Budway logo, it made me think of an Andy Warhol artwork. It could be displayed in a museum as pop art / parody of fast food and consumption of processed food and a symbol against climate change (which is directly linked to meat processing).

The artistic value of trademark infringement is never relevant, Andy Warhol has lost cases too. Being a “good person” (one that doesn’t destroy the planet) is not a carte blanche to infringe, but in this world you cannot both care about the planet and defend Subway in the same sentence. This is maybe one of the very limited circumstances that I would side with an infringer.

The point is that goodwill is an intangible that keeps changing. Proving dilution is complex and outside of a contradictory process it remains pure speculation.


In spite of the injunction, the Budway logo continues to maintain a strong online presence and is displayed on several e-commerce fronts in many variations of the same logo as of right now. Welcome to Canada!

Teksavvy Solutions and Bell Media, 2021FCA10

The Federal Court of Appeal confirmed a site blocking order that was touted as the “first ever” in Canada back in 2019. The Federal Court of Appeal is right. I sincerely hope to see such orders much more often and on an interlocutory basis. Too many defendants are using the morbid slowness inherent in our justice system to allege some bogus “rights” to be resolved at trial and commit unfettered infringement in the meantime.

The order can be accessed here.

IMHO, ISP-blocking must be available at an interim stage and even before. There should be a presumption in favor of blocking, to protect consumers, improve access to justice, block the floodgates of litigation by powerful copyright holders, etc.

Moreover, the notice and notice system as opposed to notice and takedown is a total aberration and at times it looks like it is drafted in such a way to precisely render the process inefficient. Notice and Notice consists of finger-pointing in a chain reaction. The goal is to dilute service providers’ liability to a maximum and eventually pin all piracy on a handful of individual consumers, such as teenagers and grandmas whose confidential information is wrongfully sent to powerful copyright holders (a.k.a. delusional movie studios) for the purpose of extorting settlements. The more vulnerable the consumer, the easier to abuse by powerful copyright holders.

ISP blocking eradicates piracy from the source. It is the only way forward. No individual consumer should pay for this. Those who give consumers access to pirate sites are the only ones to blame, not the consumers.

Consumers are persistently hit with cyber-attacks, their private information is leaked by banks and service providers everywhere and the pandemic made it all a little worse. How convenient to blame all cyber-crime on single IP addresses. Criminalizing consumers while letting Pornhub off the hook.

If Canada wants to shake off its reputation of infringement haven, our regime has to align with the US notice and takedown regime which is followed worldwide due to Big Tech predominantly operating under US law. To draw an analogy, we have witnessed with our own eyes that it is impossible to tackle a pandemic without a concerted worldwide effort. Closing borders is a demonstrably limited solution or rather a mild failure. There are no borders on the internet. Issues arise on a global level and have to be addressed from a global perspective. A unified worldwide IP legislation is the only decent way forward.

As for the interveners, I don’t understand why academic copyright activism is so consistently aiming to destroy economic rights. But this is not everything academic activism has destroyed.

When you live your life in a bubble and pretend that the internet hasn’t compromised countless lives and the privacy of billions of people, then you only worry about copyright for free and unfettered access to information to a public that keeps misusing the internet to harm vulnerable persons. You reason from your own idealized utopia.

This academic utopia in Canada is the reason why countless survivors are suing Montreal company Mind Geek in the USA. Stop discounting the suicides caused by crimes committed in the name of “net neutrality”. If net neutrality means that courts should never do anything about egregious cybercrime, such as piracy and distribution of non consensual porn, then net neutrality has worked out great so far to make the world a more suicidal place.

Call me totalitarian, I am 100% for ISP blocking of unlawful content, before it is shown whether or not it is unlawful. In general I am for search engine delisting (or not listing from the outset) social media censorship, taxing big tech, massive take-downs, reducing access to harmful sites, dissuading hate-speech and online discrimination and so much more…

3.5 billion people on this planet live without internet. That gives me hope. It means it is possible.