I recently watched the Canadian Senate – a much maligned institution of late – hard at work.   In session, was the Senate Standing Committee on Aboriginal Peoples (APPA), which was only just established in 1990 after several generations of Canada’s interaction with Aboriginal Peoples post-Confederation in 1867, and many centuries of explorer and settler interaction with the land’s first inhabitants before that time.

 

Meeting on Wednesday, February 17, 2016,[1] and chaired by Dr. Lillian Eva Dyck, a Senator from Saskatchewan and a member of the Gordon First Nation,[2] the committee was engaged in an “Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples,”[3] in the second of its 2 meetings on the subject.[4] That Wednesday’s witness list was highly impressive,[5] with equally impressive presentations and revelations of policy, procedure, and lived experience in practice.

 

 

ISSUES

Amongst the major topics discussed were the United States Western Hemisphere Travel Initiative (WHTI)[6] and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).[7] As a lawyer with legal work experience in both Canada and the United States, neither one of these instruments was new to me. However, a third – the Jay Treaty – actually was.

 

WHTI (Western Hemisphere Travel Initiative):

Initiated in 2 stages, first for air travel (effective from January, 2007) and then for travel by land and sea (effective from June, 2009), WHTI grew directly from some of the key recommendations of the 9/11 Commission and was codified in the Intelligence Reform and Terrorism Prevention Act of 2004.[8] WHTI mandates that all travelers to and from the United States who are citizens of Canada, Mexico, Bermuda, and the United States itself, have and present secure passports or other acceptable documentation proving identity (such as NEXUS Cards, Enhanced Driver’s Licenses, and the “in-Canada” Secure Certificate of Indian Status – but with caveats[9]), for such travel originating in the western hemisphere.[10]

 

UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples):

As adopted by the General Assembly of the United Nations at its 107th plenary meeting on September 13, 2007, the United Nations Declaration on the Rights of Indigenous People (UNDRIP),[11] is “a comprehensive statement addressing the rights of indigenous peoples[12] (…) which “emphasizes the rights of indigenous peoples to maintain and strengthen their own institutions, cultures and traditions and to pursue their development in keeping with their own needs and aspirations.[13] Of current key relevance are Article 30[14] (territorial quiet enjoyment amidst planned military activities in the Arctic) and Article 36[15] (rights to societal cohesion and cultural vibrancy in a changing and more “bordered” world).

 

Article 30

  1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

 

  1. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures and in particular through their representative institutions, prior to using their lands or territories for military activities.[16]

 

Article 36

  1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

 

  1. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.[17]

 

Although UNDRIP is not binding International law, such declarations by the United Nations “represent the dynamic development of international legal norms and reflect the commitment of states to move in certain directions, abiding by certain principles.”[18] Indeed, the 1982 Canadian Charter of Rights and Freedoms, which enshrines at Article 35[19] a guarantee of the rights of Canada’s Indigenous Peoples, appears a step in the right direction ….. but then, there is that Jay Treaty …..

 

JAY TREATY:

With a short title in the name of its American lead negotiator, Chief Justice John Jay, and signed on November 19, 1794, this “Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and The United States of America”, maintained U.S. neutrality and consolidated the peace between these two sovereign states that had remained shaky since the latter achieved its independence from the former.[20] The main contention with this Treaty cited by several of the First Nations witnesses appearing before the Senate Standing Committee on Aboriginal Peoples was that the Treaty rights to free passage of the persons and goods of Aboriginal peoples to and from the United States as guaranteed in Article 3,[21] only applied one way (to Canadians traveling to the United States which deems Canada’s recognized First Nations and Native Americans to be “American Indians” for purposes of the Treaty), but not to Americans traveling to Canada; even though many are also citizens of First Nations with lands, members, and long histories of travel, trading, and cultural interests and practice in both Canada and the United States. The fact that Canada can claim succession in interest to the rights and obligations of Great Britain viz-a-viz the United States, but deny recognition and ratification of the Jay Treaty, remains a contradiction.[22]

 

 

THE CORE POINT as REPEATED SORE POINT

As shown, there is still a major disconnect between policymaking, law enforcement, and true consideration of the status, needs, and special circumstances of the Aboriginal Peoples (as first inhabitants) of the American Continents (South America, North America,[23] and the Arctic into today’s Russia, as well as their relatives and trading partners in yesterday’s Russia, which today is Alaska.[24]

 

The WHTI seeks passports, but in Canada many Band members have Status Cards issued by the Bands with disparate membership rules and regulations. Besides which, while seeking to honour the terms of the Jay Treaty, the United States has no power to accord rights thereunder to the Inuit or Métis, as they are not “Indians” within the meaning of the Indian Act,[25] and several members will undoubtedly fall short of the 50% (“fifty percent”) bloodlines rule required for their unimpeded entry into the United States as “American Indians” under Jay Treaty terms.[26]

 

The UNDRIP lays-out norms of acceptable behavior towards indigenous peoples. However, there is a long history of past and continued unacceptable treatment across the length and breadth of both North America and South America, and the pointing fingers of blame keep wagging, but with no resolution. However, Canada’s recently-inaugurated Liberal government has made a stated[27] and demonstrated[28] commitment to a re-vamped relationship with Canada’s Aboriginal Peoples –including promised implementation of the UNDRIP,[29] and this has been noticed and warmly welcomed by the First Nations in both actions,[30] and words.[31]

 

Clearly then, the only way to conclusively move forwards, capitalize on this new energy, and solve the long and repeated lack of full consideration and consultation in policy-making,[32] treaty interpretation,[33] and policy implementation,[34] is certainly to work together, but perhaps it is time to do so within the context of a significant paradigm shift as I will now describe.

 

 

ONE PROPOSAL

I would propose that the new(er) national governments of North America work much more closely and in a far more collaborative and mutually respectful way, with the older and transnational Aboriginal residents of the continent who are impacted by their decisions, and who preceded them in time and space. I would propose a single, continental body with unequal representation of the newer (9 national “government” members) and the older (12 “aboriginal” members).

 

I would also propose, as the government members: 2 from each of Canada, Russia, the United States, and Mexico; with an additional Canadian member from Indian Oil and Gas Canada (IOGC) to sit on RICT.[35]

 

Inspired by the Senate Committee meeting to perform some research on individual memberships and geographic scopes of several First Nations and Aboriginal Peoples so as to better balance the interests of communities of all sizes, I would also propose as the aboriginal members: 4 from Canada, 5 from the United States, and 3 from Mexico. From Canada, one might invite representation from the Cree, Inuit, Métis, and Mohawk. From the United States, one might invite representation from the Cherokee, Chipewa, Choctaw, Navajo, and Sioux. And from Mexico, one might invite representation from the Apache, Maya, and Nahuatl.

 

With a rotating 5-month chairmanship/chairwomanship amongst the Aboriginal members only,[36] there would be full rotation every 60 months, or 5 years. Term limits of 5 years might also be applied to the aboriginal members, and term limits of 3 years for the government members; giving a joint turnover only once every 15 years, so that the entity would often have veteran Commissioners, but always a veteran staff.

 

Preferably based in Canada[37] due to those stated and demonstrated commitments earlier noted,[38] this “First Americans’ Continental Circle (or “Commission”) for Engagement, Enablement, Systems and Sustainability (FACES)”, as proposed, would also have and operate through 7 subcommittees, with potential Aboriginal (“a”) and government (“g”) Commissioner member numbers as follows:

 

CLNT: Culture, Language, Necessities of Life, and Tourism (2a/2g);

RICT: Resources, Industry, Commerce and Trade (1a/1g),

RINC: Restitution, Issues Management, Negotiations, and Consultations (1a/1g);

SASA: Studies, Administration, Statistics and Appointments (1a/2g);

SECO: Services to the Community, Education, Communications, and Outreach (1a/2g);

TIRA: Travel, Identification, Registration, and Access (1a/2g); and

TRLS: Treaty Right, Law, and Status (2a/2g).

 

 

ASSURANCES

Each of the Aboriginal Peoples and First Nations represented on the Commission has its own governance structures and systems that will in no way be replaced, pre-empted, or subsumed within the Commission. The old (and existing) paradigm of First Nations self-governance is for a one-on-one relationship with the Crown. However, this means that issues that may be common to several First Nations are still handled on a case-by-case basis, and severe inconsistencies have resulted. This new paradigm would serve to ensure that there is consistency of result through uniformity of buy-in and coordination of efforts – both among and between all participating national governments, and among and between all participating Aboriginal Peoples (whether actually present, or represented in interest).

 

Of course, this is merely proposed as a forum where everyone can get to and stay on the same page, and where platforms, positions, and policies common to some or all of the Aboriginal Peoples of North America can be formulated, put forward, and implemented, respectively. Furthermore, having grown up in diplomatic circles, I know that it is not uncommon for small pairs, groups, or teams to step aside and informally discuss other pressing issues of mutual interest to them in this convenient forum, such as ensuring peaceful Arctic exploration, navigation, and resource exploitation, or superpower politics in other parts of the globe, the details of which may not seem immediately relevant to the other Commissioners, but the solutions for which may well do all some lasting good in ensuring world peace.

 

These are just some thoughts spurred by a very informative Senate Committee meeting.

 

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Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experience in regulatory compliance, litigation, and business law and counseling. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

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[1] Senate of Canada. Senate Committee on Aboriginal Peoples. Meeting schedule – Past Meetings. Visited March 4, 2016. Online:

<http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&comm_id=1001&Language=E&meeting_id=419810>

[2] Parliament of Canada. Members. Senator Biography. Lillian Eva Dyck. Visited March 4, 2016. Online: <http://www.parl.gc.ca/SenatorsBio/senator_biography.aspx?senator_id=2776&Language=E>

[3] Senate of Canada. Senate Committees. Senate Committee on Aboriginal Peoples meeting of Wednesday, February 17, 2016. Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples. Visited March 4, 2016. Online: <http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&Language=E&comm_id=1001&meeting_id=419810>

[4] An additional meeting on this subject had just taken place on Tuesday, February 16, 2016, but with a different list of witnesses, being: Allan Clarke, Director General, Economic Research and Policy Development Branch, Lands and Economic Development (Indigenous and Northern Affairs Canada); Douglas Fairbairn, Legal Counsel (Department of Justice Canada); Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs (Indigenous and Northern Affairs Canada); and Sheilagh Murphy, Assistant Deputy Minister, Lands and Economic Development (Indigenous and Northern Affairs Canada). See Senate of Canada. Senate Committees. Senate Committee on Aboriginal Peoples meeting of Tuesday, February 16, 2016. Examination of federal government’s constitutional and legal responsibilities to Aboriginal Peoples. Visited March 4, 2016. Online: <http://www.parl.gc.ca/sencommitteebusiness/Notice.aspx?parl=42&ses=1&Language=E&comm_id=1001&meeting_id=419796>

[5] Supra note 3. Listed as speakers, were: Grand Chief Abram Benedict (Mohawk Council of Akwesasne); Bill Erasmus, Regional Chief (Assembly of First Nations); Claudia Ferland, Director General, Individual Affairs Branch, Resolution and Individual Affairs (Indigenous and Northern Affairs Canada); Lisa Janes, Regional Director General, Northern Ontario Region (Canada Border Services Agency); David Millette, Director General, Negotiations – Central, Treaties and Aboriginal Government (Indigenous and Northern Affairs Canada); Rasennes Pembleton, Researcher, Aboriginal Rights and Research Office (Mohawk Council of Akwesasne); James W Ransom, Director of Tehotiienawakon (Mohawk Council of Akwesasne); and Joe Wild, Senior Assistant Deputy Minister, Treaties and Aboriginal Government (Indigenous and Northern Affairs Canada).

[6] United States Department of Homeland Security. Western Hemisphere Travel Initiative. Visited March 5, 2016. Online: <https://www.dhs.gov/western-hemisphere-travel-initiative>

[7] United Nations (UN). Declaration on the Rights of Indigenous Peoples. Visited March 5, 2016. Online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

[8] United States Government Publishing Office (GPO). Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Pub. L. 108–458—Dec. 17, 2004. Visited March 5, 2016. Online: <https://www.gpo.gov/fdsys/search/pagedetails.action?browsePath=108%2FPUBLIC%2F[400+-+499]&granuleId=&packageId=PLAW-108publ458&fromBrowse=true>

[9] Indigenous and Northern Affairs Canada (INAC) – formerly Aboriginal Affairs and Northern Development Canada (AANDC). Border Crossing. [emphasis added]. Visited March 5, 2016. Online: <http://www.aadnc-aandc.gc.ca/eng/1100100032380/1100100032381>

 

“AANDC is currently only issuing the in-Canada Secure Certificate of Indian Status. Until further notice, all applications for the border-crossing Secure Certificate of Indian Status will be converted to the in-Canada Secure Certificate of Indian Status. Individuals receiving a Secure Certificate of Indian Status will receive a letter providing this information.”

 

“For crossing the border into the United States (U.S.) via land ports of entry (which can include ferry and lake crossings), AANDC has been advised that, in the near term, U.S. border officials will accept both the SCIS and older Certificates of Indian Status as valid identity documents.

 

“The Government of Canada cautions individuals that the duration for the acceptance of these documents for border crossing purposes into the United States is entirely at the discretion of the U.S. Government. A list of documents approved for entering the United States can be found at Western Hemisphere Travel Initiative. Please note that travellers entering the United States by air continue to be required to present a valid passport or, in certain circumstances, a NEXUS card.”

 

“Please contact Passport Canada for information on passports and the Canada Border Services Agency for information on NEXUS cards.”

[10] Supra note 6.

[11] United Nations (UN). Declaration on the Rights of Indigenous Peoples. Visited March 5, 2016. Online: <http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

[12] United Nations (UN). Frequently Asked Questions on the Rights of Indigenous Peoples. What is the Declaration on the Rights of Indigenous Peoples? Visited March 5, 2016. Online. <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf>

[13] Id.

[14] Supra note 11, at Article 30.

[15] Supra note 11, at Article 36.

[16] Supra, note 14.

[17] Supra, note 15.

[18] United Nations (UN). Frequently Asked Questions on the Rights of Indigenous Peoples. Is the Declaration Legally Binding? Visited March 5, 2016. Online. <http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf>

[19] Constitution of Canada. The Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (UK), 1982, c 11Canada Act 1982 (the “Canada Act”). Visited March 5, 2016. Online: <http://laws-lois.justice.gc.ca/eng/Const/index.html>

 

Constitution act, 1982 –

PART II – RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA

 

Recognition of existing aboriginal and treaty rights

  1. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

 

Land claims agreements

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

 

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (96)

 

Commitment to participation in constitutional conference

35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the “Constitution Act, 1867”, to section 25 of this Act or to this Part,

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. (97)

[20] United States Department of State. Office of the Historian. Milestones 1784–1800. John Jay’s Treaty, 1794–95. Visited March 5, 2016. Online: <https://history.state.gov/milestones/1784-1800/jay-treaty>

[21] Yale Law School. Lillian Goldman Law Library. British-American Diplomacy. The Jay Treaty; November 19, 1794. [excerpt below with emphasis added]. Visited March 5, 2016. Online: <http://avalon.law.yale.edu/18th_century/jay.asp>

 

The Jay Treaty. Treaty of Amity, Commerce, and Navigation, signed at London November 19, 1794, with additional article Original in English. Submitted to the Senate June 8, Resolution of advice and consent, on condition, June 24, 1795. Ratified by the United States August 14, 1795. Ratified by Great Britain October 28, 1795. Ratifications exchanged at London October 28, 1795. Proclaimed February 29, 1796.

Treaty of Amity Commerce and Navigation, between His Britannick Majesty; and The United States of America, by Their President, with the advice and consent of Their Senate.

 

ARTICLE 3.

“It is agreed that it shall at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson’s Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other. But it is understood, that this Article does not extend to the admission of Vessels of the United States into the Sea Ports, Harbours, Bays, or Creeks of His Majesty’s said Territories; nor into such parts of the Rivers in His Majesty’s said Territories as are between the mouth thereof, and the highest Port of Entry from the Sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any Frauds in this respect. Nor to the admission of British vessels from the Sea into the Rivers of the United States, beyond the highest Ports of Entry for Foreign Vessels from the Sea. The River Mississippi, shall however, according to the Treaty of Peace be entirely open to both Parties; And it is further agreed, That all the ports and places on its Eastern side, to whichsoever of the parties belonging, may freely be resorted to, and used by both parties, in as ample a manner as any of the Atlantic Ports or Places of the United States, or any of the Ports or Places of His Majesty in Great Britain.

 

All Goods and Merchandize whose Importation into His Majesty’s said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty’s Subjects on the Importation of the same from Europe into the said Territories. And in like manner, all Goods and Merchandize whose Importation into the United States shall not be wholly prohibited, may freely, for the purposes of Commerce, be carried into the same, in the manner aforesaid, by His Majesty’s Subjects, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by the Citizens of the United States on the Importation of the same in American Vessels into the Atlantic Ports of the said States. And all Goods not prohibited to be exported from the said Territories respectively, may in like manner be carried out of the same by the Two Parties respectively, paying Duty as aforesaid

 

No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians. No higher or other Tolls or Rates of Ferriage than what are, or shall be payable by Natives, shall be demanded on either side; And no Duties shall be payable on any Goods which shall merely be carried over any of the Portages, or carrying Places on either side, for the purpose of being immediately reimbarked, and carried to some other Place or Places. But as by this Stipulation it is only meant to secure to each Party a free passage across the Portages on both sides, it is agreed, that this Exemption from Duty shall extend only to such Goods as are carried in the usual and direct Road across the Portage, and are not attempted to be in any manner sold or exchanged during their passage across the same, and proper Regulations may be established to prevent the possibility of any Frauds in this respect.

 

As this Article is intended to render in a great Degree the local advantages of each Party common to both, and thereby to promote a disposition favourable to Friendship and good neighbourhood, It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned therein.”

 

[22] While some might say that the War of 1812 between Britain and the United States voided all treaties between them – including the Jay Treaty, it remains a fact that the Treaty of Ghent (1814) in the ninth of its 11 Articles “specifically” restored all of the rights and terms of the Jay Treaty as they applied to American Indians (provided that they cease and desist with all hostilities upon notification of the Treaty’s signing) but yet again, with no direct Indigenous consultation or seat at the negotiating table. See Yale Law School. Lillian Goldman Law Library. British-American Diplomacy. Treaty of Ghent; December 24, 1814. [excerpt below with emphasis added]. Visited March 5, 2016. Online: <http://avalon.law.yale.edu/19th_century/ghent.asp>

 

Treaty of Peace and Amity between His Britannic Majesty and the United States of America.

 

ARTICLE THE NINTH.

“The United States of America engage to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom they may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against the United States of America, their Citizens, and Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly. And His Britannic Majesty engages on his part to put an end immediately after the Ratification of the present Treaty to hostilities with all the Tribes or Nations of Indians with whom He may be at war at the time of such Ratification, and forthwith to restore to such Tribes or Nations respectively all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven previous to such hostilities. Provided always that such Tribes or Nations shall agree to desist from all hostilities against His Britannic Majesty and His Subjects upon the Ratification of the present Treaty being notified to such Tribes or Nations, and shall so desist accordingly.”

 

[23] I will limit my observations and conclusions to the North American continent and the Arctic.

[24] The degree of this interconnectedness was highlighted by Bill Erasmus, Regional Chief (Assembly of First Nations), as he noted that his own people, members of the Dene Nation were now, and had long been, present as residents, and/or actively trading in Alaska (while it was in Russia), North America, and Mexico. This is a staggering geographic reach. For a brief biography of Regional Chief Erasmus, please see: Assembly of First Nations (AFN). Chief Willy (Bill) Erasmus, B.A. Visited March 5, 2016. Online: <http://www.afn.ca/en/chief-willy-bill-erasmus-b.a>

[25] A hyperlink identifying those “Federally recognized Canadian Indian Bands” that can certify ancestry and Indian ancestry for purposes of U.S. implementation of the Jay Treaty can be found on the website of the United States Customs and Immigration Service (USCIS) under, Green Card for an American Indian Born in Canada. Visited March 5, 2016. Online: <https://www.uscis.gov/green-card/other-ways-get-green-card/green-card-american-indian-born-canada> . However, that link leads directly to a list of Canada’s officially recognized Indian Bands at Aboriginal Affairs and Northern Development Canada (AANDC) – as now renamed Indigenous and Northern Affairs Canada (INAC), under First Nation Profiles. Visited March 5, 2016. Online: <http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/Search/SearchFN.aspx?lang=eng>

[26] 8 CFR §289.1   Definition.

 

The term American Indian born in Canada as used in section 289 of the Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. It does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood. [Emphasis added].

 

Code of Federal Regulations, Title 8 (Aliens and Nationality), Chapter I – DEPARTMENT OF HOMELAND SECURITY, Subchapter B – IMMIGRATION REGULATIONS. Visited March 4, 2016. Online:<http://www.ecfr.gov/cgi-bin/ECFR?page=browse>

[27] Susana Mas. CBC News. Trudeau lays out plan for new relationship with indigenous people. Posted December 8, 2015, on cbc.ca. Visited March 5, 2016. Online: <http://www.cbc.ca/news/politics/justin-trudeau-afn-indigenous-aboriginal-people-1.3354747>

[28] Id. Recalling the 5 promises of the Liberal election platform, the Prime Minister prioritized: (1) the launch a national public inquiry into missing and murdered indigenous women (as already started); (2) making significant investments in First Nations education; (3) lifting the two per cent cap on funding for First Nations programs; (4) implementing all 94 recommendations from the Truth and Reconciliation Commission; and (5) repealing all legislation unilaterally imposed on indigenous people by the previous government.

[29] Id. “The prime minister also vowed to implement all 94 of the recommendations from the Truth and Reconciliation report, starting with the UN declaration on the rights of Indigenous Peoples.”

[30] Canada NewsWire. Media Advisory – Rt. Hon. Prime Minister Justin Trudeau to Visit Tsuut’ina First Nation. Visited March 4, 2015. Online: <http://www.morningstar.com/news/canada-news-wire/CNW_20160226C2785/media-advisory-rt-hon-prime-minister-justin-trudeau-to-visit-tsuutina-first-nation.html> Honoured with the receipt of a headdress at the event along with the Prime Minister, was the Assembly of First Nations Chief, Perry Bellegarde.

[31] See e.g. Tiar Wilson. CBC News. Hopeful indigenous reaction to Justin Trudeau’s cabinet picks. Posted November 4, 2015, on cbc.ca. Visited March 5, 2016. Online: <http://www.cbc.ca/news/aboriginal/aboriginal-leaders-react-cabinet-choices-1.3303972> Assembly of First Nations Chief Perry Bellegarde was especially pleased with the recognition afforded to Canada’s Aboriginal Peoples in the appointment of two MPs from Canada’s First Nations to significant Cabinet positions – Jody Wilson-Raybould, regional chief of the B.C. Assembly of First Nations was named as Canada’s minister of Justice and Attorney General, and Hunter Tootoo of Nunavut was named as Canada’s minister of fisheries and the Canadian Coast Guard.

[32] One example of policymaking in Canada without proper consultation (if at all), is the entire Indian Residential Schools program, as now and conclusively agreed.

[33] The Jay treaty and its one-way impact is a clear, contemporary, and lasting example of a treaty that could have been very easily interpreted in a different and more inclusive way that was consistent with its framers’ intentions, a long time ago.

[34] Countless examples of disastrous policy implementation in the United States were seen in the mass and forced dislocations of several indigenous communities; as accompanied by other actions that some have called genocide.

[35] See text, below.

[36] This rotation might be by ascending commissioner age, descending commissioner age, alphabetic nation name, alphabetical commissioner name, or as the Aboriginal Commissioners (AC), themselves, may otherwise provide.

[37] There are a several additional reasons for Canada to provide a home base of operations for the Commission:

 

(I) FUNDING – Indian Tribes and Indian Bands have jurisdiction over their own members and can therefore (I think in most if not all cases, as subject to local laws and their ability to exercise powers tantamount to taxation), levy modest assessments against the “on-reserve” income of their citizens and generate sometimes significant “own source revenues”. See e.g. Daniel Schwartz. CBC News. How does native funding work? Posted February 6, 2013, on cbc.ca. Visited March 7, 2016. Online: <http://www.cbc.ca/news/canada/how-does-native-funding-work-1.1301120> Counting all of the Tribes and Bands across Canada, Mexico, and the United States, the significant funds so raised can be matched singly, doubly, (or even more, now that the 2% funding cap for First nations programs in Canada will soon be history), by those 3 national governments of North America that have the most direct stake in the Commission, its work, and its ultimate beneficiaries. Of course, these 3 parties would also pay the way for their own 9 members on the Commission.

 

(II) VALUE – With such a large number of Indian Tribes geographically based in the United States, including several with significant business and resource industry interests and revenues, the exchange rate of United States dollars to Canadian dollars will likely prove quite advantageous to them in money that invariably goes further in a friendly neighbouring country with a stable government and a well-educated, multicultural, and multilingual population.

 

(III) LEVERAGE – As host to the United Nations Secretariat, the International Finance Corporation (World Bank), and the International Monetary Fund (IMF), amongst others, the United States has seen significant and sustained multipliers in the local economies where these entities are based (New York and Washington, D.C.), and political leverage. Canada is already host to the International Civil Aviation Organization (ICAO) in Montreal. Establishing the proposed Commission in Alberta at this time, would provide a much needed economic boost to both that province and Western Canada, and immeasurably boost Canada’s standing, and diplomatic and political credentials in the international community due to first mover advantage. Such an initiative would also show that Canada was living up to Prime Minister Trudeau’s call for a new dawn in “sovereign to sovereign relationships” with Canada’s Aboriginal People – especially by extending that new dawn to all of the Aboriginal Peoples of North America.

 

[38] See supra, notes 27–31 and accompanying text.

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ECJ

INTRODUCTION:

On October 6, 2015,[1] the Court of Justice of the European Union (ECJ) declared invalid a decision of the European Commission on July 26, 2000[2] that had, pursuant to the relevant EU data protection law,[3] granted and acknowledged safe harbour for certain United States entities when transferring the personal data of European Union citizens to, and processing and storing that data within the United States. The case had been referred to the ECJ for a preliminary ruling from the High Court of Ireland, with a subsequent non-binding Opinion from the ECJ Advocate General, Yves Bot,[4] that the ECJ eventually followed.

CASE HISTORY:

The case began when Maximilian Schrems, an Austrian Citizen (and law student at that time), spearheaded a group to file a complaint with the Irish Data Protection Commissioner (DPC)[5] against Facebook Ireland Ltd, which is the company’s European headquarters. When Billy Hawkes, the Irish DPC rejected the case,[6] Schrems and his group sought and were granted judicial review at the High Court of Ireland.[7] Citing pre-emption on the key issues by European law, Mr. Justice Hogan adjourned the case pending referral to the European Court of Justice (ECJ).[8] Those key issues were: (a) whether the Edward Snowden revelations of 2013[9] revealed such a wholesale (both actual and potential) lack of compliance with European law that the U.S. Safe Harbour provisions with regard to transferring the personal information of European Citizens were essentially invalid; and (b) whether EU member states were bound by controlling EU privacy laws regarding those safe harbours, or free to pursue their own investigations into allegations of privacy breach or other non-compliance as and when needed, and were then subsequently able to suspend data transfers if they violated EU laws and/or EU citizen rights. Advocate General Bot had opined in the affirmative on both of these points,[10] and the ECJ agreed.

IMPLICATIONS:

Being effective immediately and with no grace period (or period of suspended invalidity as would likely have been applicable in Canada,[11] were the matter heard under Canadian jurisdiction),[12] the ruling immediately put the businesses and business practices of thousands of entities in legal jeopardy for their reliance on an invalid law. Fortunately for all, the European Union’s 28 national data protection authorities, acting through their Article 29 Working Party, issued an October 16, 2015 statement[13] encouraging those entities impacted by the ruling to negotiate, establish, and implement their own interim measures to ensure compliance with the ruling, including, in a later Q&A compliance release of November 6, 2015, that they “consider putting in place any legal and technical solutions to mitigate any possible risks they face when transferring data”;[14] assuring European businesses and citizens that privacy and data protection remained key elements of European law, and that they would issue further guidance at a national level, but at a later date; and implying quite strongly, that coordinated enforcement actions might issue if an appropriate successor framework could not be negotiated with the United States by the end of January, 2016.[15] That specific “deadline” language, read:

“If by the end of January 2016, no appropriate solution is found with the US authorities and depending on the assessment of the transfer tools by the Working Party, EU data protection authorities are committed to take all necessary and appropriate actions, which may include coordinated enforcement actions.”[16]

Essentially, then, the Commissioners agreed to implement a suspended enforcement as they could not retroactively seek or secure any period of suspended invalidity from the ECJ, and nobody had asked for one to be considered on the possibility of such a decision resulting. It would have been interesting to read the ECJ views on Canadian and other such precedent …. Perhaps we’ll read that some other time!

For now, we watch as companies scramble to “not” comply with this newly invalid law;[17] we wait for both that national European guidance (whether or not uniform or coordinated);[18] and we follow – to the extent made public – negotiations between the United States and Europe up to January 31, 2016. There may already be light at the end of that negotiation tunnel, as two identical bills – H.R.1428[19] in the House of Representatives (now passed by the full House), and S.1600 in the United States Senate[20] may eventually grant the United States District Court for the District of Columbia (USDC, DC) exclusive jurisdiction to hear foreign citizens’ privacy breach complaints against federal (not state) government actors of the United States. But, only the President can sign any final version of either Bill, into law.

In addition, the matter – now transferred back to the Irish High Court for further deliberations, may still result in a finding that Facebook cannot provide adequate data privacy protections for European citizens. If again referred or appealed to the ECJ, and upheld, Facebook’s European operations might cease under subsequent enforcement actions in one or many European jurisdictions on such a ruling.

And so, one way or the other, we wait![21]

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy; working with equal ease and effectiveness in his transitions to and from the public and private sectors. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Schrems (Judgment) [2015] EUECJ C-362/14 (06 October 2015), [2015] EUECJ C-362/14, [2015] WLR(D) 403, EU:C:2015:650, ECLI:EU:C:2015:650. Online: http://www.bailii.org/eu/cases/EUECJ/2015/C36214.html

[2] Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (OJ 2000 L 215, p. 7)

[3] Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).

[4] Case C-362/14 Maximillian Schrems v. Data Protection Commissioner [2015] EUECJ C-362/14, Opinion of AG Bot (23 September 2015). Online: http://www.uni-muenster.de/Jura.itm/hoeren/itm/wp-content/uploads/C0362_2014-EN-Opinion.pdf

[5] RTE News. Data Protection Commissioner says no action will be taken against Apple and Facebook. Published on rte.ie, July 26, 2013. Online: http://www.rte.ie/news/2013/0726/464770-data-protection/

[6] Id.

[7] Schrems v. Data Protection Commissioner [2014] IEHC 310 (18 June 2014). Online:http://www.bailii.org/ie/cases/IEHC/2014/H310.html

[8] Ruadhán Mac Cormaic. High Court refers Facebook privacy case to Europe. Published on irishtimes.com, June 19, 2014. Online: http://www.irishtimes.com/business/technology/high-court-refers-facebook-privacy-case-to-europe-1.1836657

[9] Barton Gellman. Edward Snowden, after months of NSA revelations, says his mission’s accomplished. Published on washingtonpost.com, December 23, 2013. Online: >http://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html

[10] Supra note 4.

[11] Schachter v. Canada, [1992] 2 S.C.R. 679 at 715-16, 1992 CanLII 74 (SCC) per Lamer, CJ. Online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/903/index.do

A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provincial legislature has had an opportunity to fill the void. This approach is clearly appropriate where the striking down of a provision poses a potential danger to the public (…) or otherwise threatens the rule of law (…). It may also be appropriate in cases of underinclusiveness as opposed to overbreadth. For example, in this case some of the interveners argued that in cases where a denial of equal benefit of the law is alleged, the legislation in question is not usually problematic in and of itself. It is its underinclusiveness that is problematic so striking down the law immediately would deprive deserving persons of benefits without providing them to the applicant. At the same time, if there is no obligation on the government to provide the benefits in the first place, it may be inappropriate to go ahead and extend them. The logical remedy is to strike down but suspend the declaration of invalidity to allow the government to determine whether to cancel or extend the benefits. (Citations omitted).

[12] As I wrote in an earlier blog post, Canadians are very much aware of the challenges of international data governance and transnational privacy protection. See e.g. Ekundayo George. In who’se pocket is your data packet? – International Data Governance. Published on ogalaws.wordpress.com, February 6, 2013. Online:

https://ogalaws.wordpress.com/2013/02/06/in-whose-pocket-is-your-data-packet-international-data-governance/

[13] Article 29 Working Party (Art. 29 WP). Statement on the implementation of the judgement of the Court of Justice of the European Union of 6 October 2015 in the Maximilian Schrems v Data Protection Commissioner case (C-362-14). Brussels, October 16, 2015. Online: http://ec.europa.eu/justice/data-protection/article-29/press-material/press-release/art29_press_material/2015/20151016_wp29_statement_on_schrems_judgement.pdf

[14] European Commission – Fact Sheet. Q&A: Guidance on transatlantic data transfers following the Schrems ruling.

MEMO/15/6014. Brussels, November 6, 2015. Online: http://europa.eu/rapid/press-release_MEMO-15-6014_en.htm

[15] Supra, note 13.

[16] Id.

[17] See e.g. supra, note 14.

[18] Technology executives and politicians alike have even warned that if these concerns over, and an increasingly vocal resistance to, targeted and/or bulk collection of personal data through government surveillance continue to “trend”, we may very soon see a real splintering of the internet into several disparate and walled-off variants. See e.g. Stephen Lawson, IDG News Service. Jitters over US surveillance could break the Internet, tech leaders warn. Published on itworld.com, October 8, 2014. Online: http://www.itworld.com/article/2825590/security/jitters-over-us-surveillance-could-break-the-internet–tech-leaders-warn.html

[19] First introduced in the United States House of Representatives (the “House”) on March 18, 2015 by Representative F. James Sensenbrenner, a Wisconsin Republican, the HR.1428 Bill is officially known as The Judicial Redress Act of 2015, and has a stated purpose “[t]o extend Privacy Act remedies to citizens of certified states, and for other purposes”. Online: https://www.congress.gov/bill/114th-congress/house-bill/1428/all-info

[20] First introduced in the United States Senate (the “Senate”) on June 17, 2015 by Senator Christopher S. Murphy, a Connecticut Democrat, the S.1600 Bill has now been referred (as H.R.1428) to the Senate Judiciary Committee, but it is yet to be considered and voted upon by the full Senate. Online: https://www.congress.gov/bill/114th-congress/senate-bill/1600/all-info

[21] *Reserved (pending further news).

SCC_2015

WHAT IS MAINSTREAM RELIGION?

There are many faiths in this world of ours. These range from about 36 (“thirty-six”) mainstream ones;[1] through a handful of known or colonially-inspired and often derided, or not so widely accepted or even historically acceptable ones;[2] to the very many thousands of traditional beliefs, and “new-age” faiths.[3]

Just as there exists this multiplicity, there is also a wide variety of state systems within which they operate. These range from sole state religions, as in the case of Saudi Arabia; tolerant Islamic states (including Iraq under Hussein, Libya under Ghaddafi, and Syria under both Assad Senior and Assad Junior), all of which allowed or still try to protect, the existence and exercise of myriad Islamic branches, Christianity, and Judaism; preferred state religions – witness the preference for Chinese Buddhism over Tibetan Buddhism; and systems where a dominant mainstream religion co-exists with others as with India’s many Christians, Moslems, and members of other faiths, or in the tolerance of Japanese mainstream Shinto for several other faiths. The predominant peace under tolerant mainstream systems compares quite starkly with rising religious strife in many parts of the world, including Africa, Europe, or other jurisdictions where relatively stable systems, despite their real or alleged imperfections, were dramatically and lastingly upset of recent.

WHY THE FUSS?

Into this milieu, steps the Supreme Court of Canada, with a recent ruling based on freedom of conscience and religion,[4] but it works to promote freedom from conscientious religion in a multicultural and pantheistic democracy. This slippery slope raises the stakes as the decision promoted Atheism, which, being a non-religion (by self-definition), is free to be raised above mainstream, new age, and traditional faiths. Over time, as one or more mainstream faiths quaver under this rising pressure, will the other mainstream faiths stand together to defend their uncommon ground,[5] or will they join the fray and squeeze one another until all are equally diluted, or banned outright in their public exercise as offensive to Atheism – because the state cannot be seen (or be alleged) to have favoured one or some, over the others whether within the province of Quebec,[6] or within the entire Canadian Federation?[7]

Also, looking more closely at the globally-pervasive United States currency, our neighbor to the south (which reads “In God we trust”), and listening to elected and electioneering politicians all over the world who consistently ask God to bless both their electorates and nations, one starts to see how widespread religion truly is, and what it would mean if all this were to suddenly be declared unconstitutional, and/or ordered to cease. This goes far beyond the case at bar, and begs the further question: can government entities in Canada (and government-licensed or government-regulated entities, such as municipalities and the banks) one day be barred from trading, holding, or aiding Canadians in using, U.S. currency?

This may all seem like absurd scaremongering at this time. However, the shadow cast by the decision has potentially far-reaching consequences, as I will show with the following analysis and conclusions.

EARLIER RULINGS:

In the Canadian City of Saguenay, Quebec, the mayor would commonly commence and end City Council meetings with a prayer.[8] There were also religious symbols in some City Council chambers. Alain Simoneau, a resident of Saguenay who regularly attended these meetings of the City Council, found this all to be religious and therefore offensive to his own Atheist status, and so Simoneau had initially asked the Mayor to stop the practice.

The Commission.

When the Mayor refused, Simoneau sought relief at the Quebec Commission des droits de la personne et des droits de la jeunesse (hereinafter the “Commission”) for violation of his rights under sections 3 and 10 of the Quebec Charter of Human Right and Freedoms.[9] The Commission focused on whether the prayer was discriminatory (choosing not to consider the religious symbols, and so stating) and found so in the affirmative; however, it left Simoneau to pursue his claims further on his own, at the Human Rights Tribunal (hereinafter “Tribunal”).[10]

The Tribunal.

As this was happening, the Saguenay City Council passed a Bylaw changing the prayer’s wording and providing for a break between the prayer’s recitation, and the actual start of its meetings.[11] In addition, Simoneau was joined in his complaint to the Tribunal by the Mouvement laïque québécois (hereinafter “MLQ”), with a joint and amended application that now also sought a declaration that the Bylaw was ineffective and of no force or affect as against S.[12] The Tribunal found an actual and detrimental breach of the state’s duty of religious neutrality and granted the declaration,[13] awarding S $30,000 in compensatory and punitive damages (of the $50,000 originally sought), and ordering that the City and mayor cease and desist in the prayer within council chambers and remove all religious symbols (including a Sacred Heart statue and a crucifix) from rooms where council meetings were held.[14] The City Council and mayor appealed, and the Quebec Court of Appeal reversed the Tribunal’s decision.[15]

The Quebec Court of Appeal.

The Quebec Court of Appeal made sure to first note the implicit duality of modern religious freedom, at paragraph 59 of its decision:

Freedom of religion exists in two distinct forms. The first, characterized in case law and commentary as the positive aspect doctrine […] is essentially the recognition that every person has the right to hold religious beliefs and to profess them openly. The second is expressed in a negative form in that it is forbidden to impose coercion or constraint upon the choice to act in accordance with one’s conscience or to impose a religious choice.[16] [Emphasis added].

Citing to the evidence of the expert witnesses before the Tribunal, Gagnon, J.A. wrote at paragraph 88, that: “I take from the opinions of these experts that the values expressed by the prayer at issue are universal and cannot be identified with any particular religion. According to these experts, this prayer is consistent with modern theistic doctrine, open to some reasonable non-invasive and religious particularities.”[17] [Emphasis added]. Further bolstering this conclusion, Gagnon, J.A. also noted the ongoing recitation of prayer in the House of Commons (albeit with the doors closed to the public),[18] the affirmation of God’s supremacy in the preamble to the Canadian Charter of Rights and Freedoms (Charter),[19] and adoption of a resolution by the Quebec National Assembly in May, 2008, to preserve the cross in its blue room and on the Quebec Coat of Arms,[20] to conclude that: “[i] am convinced by these examples that the principle of the religious neutrality of the State is intended to promote tolerance and openness in regard to diversity and not to exclude from the reality of a society any references to its history, albeit religious.” […] “I conclude, on the basis of the foregoing, that the content of the prayer included in Bylaw VS-R-2008-40 cannot constitute an infringement to the neutrality of the City.”[21] In reversing the Tribunal decision, Gagnon, J.A., ruled that any constraint on the stated rights of Simoneau by the infringement, was therefore “trivial or insubstantial”.[22] In addition, the religious symbols were “for a significant portion of the population, deprived of their religious connotation (…).”[23] In the final analysis, he wrote: “(…) I add that it has not been shown that Simoneau was the subject of a distinction in violation of the principles of substantive equality. In any event, the demonstration of harm is non-existent here.”[24]

Far from being one-sided, however, he did rebuke the mayor of Saguenay for being so cavalier in freely expressing his personal religious beliefs – by crossing himself so brazenly while in public office, and openly bragging of his love for and support of Christ.

These are words and behaviour that reflect a basic lack of reserve from one who holds an elected position and participates in the governance of the City on a daily basis. It seems quite inappropriate that a prestigious office could be used to promote one’s own personal religious beliefs. Moreover, nobody has argued before this Court that the voters of the City of Saguenay chose their representatives for their avowed belief in any divinity.[25]

Concurring in the overall result but disputing the choice of Gagnon, J.A., to deal with the issue of religious symbolism (which the Tribunal had exceeded its authority in addressing), Hinton J.A., wrote that: “[t]he issue of religious symbols is both delicate and difficult. In the context of this appeal, there are certainly distinctions to be made between the legality of a 20-second, non-denominational prayer recited in public before the opening of the Council meetings of the City Saguenay when it is still possible to leave the room and the permanent presence of religious symbols in two of the City’s three meeting rooms, on the other.[26] But, as Hinton J.A. rightly and perhaps clairvoyantly stated, the matter would likely still arise at a time and place in which it could be more timely and more fully addressed.

In light of this, it is certainly possible that the issue of the legality of crucifixes in courtrooms where trial judges always sit (many of whom are not Catholic or of any denomination) will be debated some day. Ultimately, courthouse courtrooms serve the entire population of Quebec, including its interconfessional and non-denominational components.[27]

AT THE SUPREME COURT:

The Supreme Court of Canada diverged completely from the prevailing conclusion of the Quebec Court of Appeal that “[w]hile Simoneau does invoke several irritants that he elevates to the level of injury, his arguments do not withstand scrutiny.”[28] The Court therefore reversed the Quebec Court of Appeal, modified the prevailing standard of review, and re-affirmed the original decision of the Tribunal.[29]

Preceded and followed by the Councilors making the sign of the cross and the mayor stating: “[i]n the name of the Father, the Son and the Holy Spirit”,[30] the text of the offending prayer as used between 2002 and November of 2008, read:

[TRANSLATION] “O God, eternal and almighty, from Whom all power and wisdom flow, we are assembled here in Your presence to ensure the good of our city and its prosperity.

We beseech You to grant us the enlightenment and energy necessary for our deliberations to promote the honour and glory of Your holy name and the spiritual and material [well-being] of our city.

Amen.[31]

As reproduced by the Court, the Bylaw, VS-R-2008-40, adopted by council on November 3, 2008, read in pertinent part as follows:

“[TRANSLATION] WHEREAS there exists within the City of Saguenay a tradition to the effect that Council meetings [are preceded by] the recitation of a prayer, the text of which is reproduced below;

WHEREAS the purpose of this tradition is to ensure decorum and highlight the importance of the work of the councillors;

WHEREAS the members of Council, unanimously, want this tradition to continue and wish to pursue it on the basis of their individual rights and freedoms, in particular their rights to freedom of expression, conscience and religion;

WHEREAS it is important to specify that the Council members and the public are in no way obligated to recite this prayer or attend its recitation;

WHEREAS it is important to ensure that members of the Council and of the public who do not wish to attend the recitation of this prayer may nevertheless attend the Council session in its entirety;

NOW THEREFORE, it is enacted as follows:

SECTION 2 — Bylaw VS-2002-39 is amended to add section 16.1, which provides the following:

SECTION 16.1 — Once the chairperson of the meeting enters the Council deliberation room, the Council members who wish to do so may rise to recite the traditional prayer, the text of which is reproduced below.

Almighty God, we thank You for the great blessings that You have given to Saguenay and its citizens, including freedom, opportunities for development and peace. Guide us in our deliberations as City Council members and help us to be aware of our duties and responsibilities. Grant us the wisdom, knowledge and understanding to allow us to preserve the benefits enjoyed by our City for all to enjoy and so that we may make wise decisions.

Amen.

To allow Council members and the public who do not wish to attend the recitation of the prayer to take their places in the room, the chairperson of the meeting will declare the Council session open two minutes after the end of the recitation of the prayer.”[32]

In the Quebec Court of Appeal, Gagnon, J.A. had ajudged the Tribunal to be a specialized body considering a matter of public importance, but one over which it lacked exclusive jurisdiction; and therefore he had chosen to apply the “correctness” standard of review to the overall decision.[33] However, regarding evidence admitted by the Tribunal from an improperly qualified expert, Gagnon, J.A. ruled that, “(…) this Court has the duty to intervene, when warranted by circumstance, if it is established that there has been a palpable and overriding error on this issue.”[34] Writing for the supermajority of the Supreme Court, Gascon J, put an end to this bifurcation of standards on appeal.

First, Gagnon J.A. applied both administrative law principles related to judicial review (the correctness standard) and tests applicable to appeals (palpable and overriding error). With respect, the result is a confusing conceptual hybrid. Given the current state of the Court of Appeal’s case law on this point, it seems to be hard for litigants to understand the rules. Clarification is needed to ensure greater consistency and some predictability. Where, as in this case, a statute provides for an appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are, in light of the principles laid down by this Court, the ones that apply on judicial review, not on an appeal.[35] [Emphasis added].

Further, citing the line of reasoning developed in the 2002 Supreme Court case of Housen v. Nikolaisen,[36] Gascon J, wrote that “[w]here an appeal concerns a question of law, intervention is required if the decision is incorrect. Where an appeal concerns a question of fact or a question of mixed fact and law, intervention is warranted if there is a palpable and overriding error.”[37] Weighing one (albeit obiter) line of reasoning in the Quebec Court of Appeal that permitted review of a decision based on expanded criteria not considered below or as otherwise limited by traditional judicial review,[38] against a competing line of reasoning in that same court that frowned on such practices,[39] Gascon J, ruled that with regard to the state’s duty of neutrality on the question of religion itself, “I am of the opinion that, in this case, the Court of Appeal properly applied the correctness standard on this question.”[40] Subsequently, with regard to the remaining questions and indeed the entirety of the case, he then used a different line of Supreme Court cases and reasoning,[41] to conclude as follows:

“However, it was not open to the Court of Appeal to apply that standard to the entire appeal and to disregard those of the Tribunal’s determinations that require deference and are therefore subject to the reasonableness standard. For example, the question whether the prayer was religious in nature, the extent to which the prayer interfered with the complainant’s freedom and the determination of whether it was discriminatory fall squarely within the Tribunal’s area of expertise. The same is true of the qualification of the experts and the assessment of the probative value of their testimony, which concerned the assessment of the evidence that had been submitted. The Tribunal is entitled to deference on such matters. The only requirement is that its reasoning be transparent and intelligible. Its decision must be considered reasonable if its conclusions fall within a “range of possible, acceptable outcomes which are defensible in respect of the facts and law.[42] (Citations omitted). (Emphasis added).

Gascon J, also and unequivocally agreed that the Court of Appeal had properly concluded that it lacked jurisdiction to consider the religious symbols at issue,[43] because “where a complainant has a right to submit his or her own application to the Tribunal, the scope of the remedy is limited by the work done beforehand by the Commission. The Tribunal’s jurisdiction is circumscribed by that work. In a discrimination case, the application to the Tribunal is intended to be an extension of the investigation conducted by the Commission in response to a complaint.”[44] In essence, matters not considered, were unavailable for a later ruling by a court of review, because there was, essentially, nothing to review.

On the question of the prayer itself, and its discriminatory nature, Gascon J, stated the rule that, “[i]n a case such as this, the practice of reciting the prayer and the By-law that regulates it result in the exclusion of Mr. Simoneau on the basis of a listed ground, namely religion. That exclusion impairs his right to full and equal exercise of his freedom of conscience and religion.”[45] From there, he further stated that, “[f]or the purposes of the protections afforded by the charters, the concepts of “belief” and “religion” encompass non-belief, atheism and agnosticism.[46]

Defining the scope and impact of the state’s duty of neutrality per se, which promotes “diversity and multiculturalism[47] and remains “based on a democratic imperative[48], Gascon J, iterated that:

By expressing no preference, the state ensures that it preserves a neutral public space that is free of discrimination and in which true freedom to believe or not to believe is enjoyed by everyone equally, given that everyone is valued equally. I note that a neutral public space does not mean the homogenization of private players in that space. Neutrality is required of institutions and the state, not individuals (…).[49]

He further took issue with the conclusion at the Court of Appeal that perfect neutrality must bow to “benevolent neutrality”,[50] due to certain historical and cultural precedents, wherein he stated that,

If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality. If that religious expression also creates a distinction, exclusion or preference that has the effect of nullifying or impairing the right to full and equal recognition and exercise of freedom of conscience and religion, there is discrimination.[51]

Gascon J, also found that the Oakes balancing test applied to any analysis of section 9.1 of the Quebec Charter of Human Rights and Freedoms,[52] – as equivalent to section 1 of the Canadian Charter of Rights and Freedoms,[53] when the offending Saguenay prayer and Bylaw were considered against that section 9.1. Even then, though, neither prayer nor Bylaw could be saved from invalidity under such analysis,[54] and the Quebec Court of Appeal had also erred in finding the Tribunal’s qualification of Simoneau’s expert improper.[55]

On a final note, Gascon J, distinguished the instant case from Allen v. Renfrew County,[56] an Ontario case wherein a similar prayer recitation by council was deemed not to be an infringement of the rights of others.[57] He further distinguished between abstaining from religion (which he deems true neutrality), and taking a stance for atheism and/or agnosticism (which he deems unbelief); writing at paragraph 133:

A practice according to which a municipality’s officials, rather than reciting a prayer, solemnly declared that the council’s deliberations were based on a denial of God would be just as unacceptable. The state’s duty of neutrality would preclude such a position, the effect of which would be to exclude all those who believe in the existence of a deity.”[58]

Then, however, Gascon J, hurriedly dismissed both the strong Allen precedent and the Freitag obiter from the Court of Appeal for Ontario as inapplicable, on the ground that the latter decision “does not close the door on the application of the justificatory provision”, which provision the Tribunal in the instant case had deemed of no recourse.[59] Also declining to consider the prayer practices of the House of Commons – citing a lack of evidence before it on the purpose of the prayer and speculating that it might, nevertheless, be protected by Parliamentary privilege, Gascon J, concluded in addition that “it would be inappropriate for the Court to discuss its content or to use it to support a finding that the City’s prayer is valid.[60] Further, regarding the Charter preamble which reads: “[w]hereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:[61], that is a mere articulated ““political theory”” underlying those Charter protections.[62]

“Thus, the reference to God in the preamble cannot be relied on to reduce the scope of a guarantee that is expressly provided for in the charters.”[63]

From that point onwards, the Court’s conclusions stand out as worthy of note. For example, the Tribunal’s ultra vires declaration of invalidity (“inoperative and invalid”) with regard to the offending bylaw, was also amended, retroactively, and read-down, to be a simple declaration of inoperability.[64] Then, the Tribunal’s compensatory damages award, although based on admittedly improper grounds, was also left to stand.[65] In addition, although conceding with regard to the Tribunal’s punitive damages, “that in civil law such damages are an exceptional remedy”,[66] the Tribunal’s award of same was left to stand without any consideration of the Supreme Court’s own longstanding test for such awards that was annunciated in Whiten.[67] Instead, the Court chose to follow (and affirm) the Tribunal’s reliance for its punitive damages award on de Montigny v. Brossard (Succession), 2010 SCC 51 (CanLII), [2010] 3 SCR 64 – which distinguished Whiten at its own paragraph 54,[68] and Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211 – which preceded Whiten in time by a full 6 (“six”) years but gave the test for “punitive damages” – being in the court’s discretion as opposed to mandatory, in cases alleging violation of the Quebec Charter.[69]

An onlooker may be excused for feeling that the offending conduct was stretched to fall within the test. To whit, the law states: “[i]n case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”[70]

Whereas, the cited case provided – and I think it useful to recite the entire paragraph, that:

Consequently, there will be unlawful and intentional interference within the meaning of the second paragraph of s.49 of the Charter when the person who commits the unlawful interference has a state of mind that implies a desire or intent to cause the consequences of his or her wrongful conduct, or when that person acts with full knowledge of the immediate and natural or at least extremely probable consequences that his or her conduct will cause. This test is not as strict as specific intent, but it does go beyond simple negligence. Thus, an individual’s recklessness, however wild and foolhardy, as to the consequences of his or her wrongful acts will not in itself satisfy this test.”[71] [Emphasis added].

Efforts by the mayor and council to comply with the law by amending the prayer and procedures around it to more closely follow apparently good caselaw, can hardly be seen as “unlawful and intentional interference”. The mayor’s boasts alone, showing his state of mind and intent to exercise his own rights to religious freedom, although admittedly “wild and foolhardy” for someone in his position, can hardly be elevated to any desire or intent to cause harm to Simoneau.

SHADOW IMPLICATIONS:

This decision clearly puts an end to overtly religious prayer, in public, before or during council meetings across Canada. However, like-minded councilors may still pray together on their own before entering the council chambers, and it is arguable that non-denominational prayers may still be acceptable – for now. Moments of silence appear to be fine, providing that there are no religious outbursts or cries of “Amen”, that would put such silence practices into disfavor, disrepute, or suspected lack of neutrality.

Does the Saguenay case explicitly overrule Allen (prayer, even if Christian, can be allowed in certain cases)? I would say yes! Does the Saguenay case invalidate Freitag’s obiter (non-denominational prayers might still be allowed, in certain cases and with proper safeguards)? I would say almost! The Supreme Court will likely wait until another case puts that practice squarely within its pleas for relief.

It would seem that freedom OF religion has now become freedom FROM religion under Canadian caselaw and Human Rights Codes. However, this wholesale move towards total religious neutrality puts Canada on a very slippery slope in the overly broad shadow now cast across all faiths by the decision. I will illustrate the potential reach of this “total religious neutrality” shadow in a series of hypothetical questions, backed by selected, additional quotations from the Supreme Court’s decision.

Generally:

  1. Will there come a time when no public official can mention, be seen to publicly celebrate or endorse, or even wish Canadians a “blessed”, or simply a “happy” Christmas Day, Boxing Day, Good Friday, or Easter Monday (Christianity), as it would interfere with the state’s duty of religious neutrality? This quagmire may also extend to other major faiths, banning or hindering participation in all prayers at or regarding, and all support (conceivably one day including financial support of cultural groups that may be used for religious activities, or cultural events with a religious context), including but not limited to Yom Kippur and Hannukah (Judaism), Diwali and the Hindi, Bengali, and Tamil New Years (Hinduism), Eid-al Fitr and Eid-al-Adha (Islam), and the Chinese New Year (Buddhism)? Will all Canadians be relegated to celebrating only the non-denominational Kwanza in December, or will that, too, be lost?

“This being said, it must be recognized that the Canadian cultural landscape includes many traditional and heritage practices that are religious in nature. Although it is clear that not all of these cultural expressions are in breach of the state’s duty of neutrality, there is also no doubt that the state may not consciously make a profession of faith or act so as to adopt or favour one religious view at the expense of all others.”[72] [Emphasis added].

  1. Will any adherent of any specific theistic faith be discouraged from participating in the rites and rituals of his or her own faith, just because they hold public office? It is, after all, the duty of politicians to “relate to” and otherwise “participate in” the daily lives and cultures of their constituents, to the extent able. Is engaging in a political campaign an “official duty” or “official function” of a political incumbent or aspirant?

“Where state officials, in the performance of their functions, profess, adopt or favour one belief to the exclusion of all others, the first two criteria for discrimination mentioned above, namely that there be an exclusion, distinction or preference and that it be based on religion, are met.”[73] [Emphasis added].

  1. Will this religious neutrality discourage the holders of sincere religious beliefs, from competing for or accepting public office, due to the restrictions that this would pose on their personal beliefs? The multiplicity of faiths in Canada means that not all can be accommodated during political and election season. Hence, some will be omitted and thus appear to be disfavoured, and those included might therefore appear to be favoured.

“The state, I should point out, does not have a freedom to believe or to manifest a belief; compliance with its duty of neutrality does not entail a reconciliation of rights. On the other hand, it goes without saying that the same restrictions do not apply to the exercise by state officials of their own freedom of conscience and religion when they are not acting in an official capacity. Although they are not entitled to use public powers to profess their beliefs, this does not affect their right to exercise this freedom on a personal basis.”[74] [Emphasis added].

  1. Will we witness a banning or blue-penciling (re-writing to conform to law) of the oaths and affirmations of the myriad professional bodies that refer to God or gods, simply because these licensing bodies take their self-regulatory powers from the state, and must therefore also be religiously neutral?
  1. How soon, until the very books of faith, are banned outright from public spaces, or simply excluded as the “hitherto devoid of religion” basis for taking any firm oath or making any binding affirmation in Canada’s courts and tribunals, and during the swearing-in ceremonies for public officials and lawyers?
  1. How many intentional practices, incidental government services, or implicitly personal actions will be curtailed due to the fact that they may, somehow, promote or favour one of the many possible faiths?

Europe:

  1. Will Canada move further along this spectrum to follow the European examples (Belgium, France, Germany, and Spain) of banning religious symbols, clothing, and practices in schools and public places? What, if any, will be the difference in treatment between a headscarf, a turban, a skull cap, prayer beads, a rosary, a kirpan,[75] and a crucifix; and who will have the final say?[76]
  1. What will be the effects on internationally guaranteed religious and cultural freedoms to which a multicultural Canada has acceded by its membership in global institutions, and its ratification of global treaties and accords that touch and concern human and cultural rights?[77]
  1. How – with the highest court in the land now having passed its judgement and short of taking a case outside Canada, can any Canadian Citizen or resident of sincere faith seek recourse and recompense for national and provincial violations of international law, with respect to their freedoms of religion, conscience, cultural enjoyment, and speech or expression in an “officially” multicultural Canada?
  1. With the rise of new faiths (such as Kopimism),[78] can atheism somehow or someday be deemed and construed as a religion, and therefore brought under that same rubric of laws constraining the others?[79]
  1. Is Canada, wittingly or unwittingly, setting itself up for intermittent and/or interminable religious conflict(s)?  Thoughts and prayers are often invoked in the case of any disaster around the world.  Will this phrase, also, soon be a relic?

CONCLUSION:

These are all hard questions to answer, today. However, as time progresses, we may see some or all of them answered in Canada’s Human Rights Tribunals, and courts of first and later review. This downhill snowball is now rolling, and gaining both speed and mass. If care is not taken, we’ll all face the choice to live (or leave) with its end-results – whether devastating, or neutral, or devastating in their neutrality.

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist.  He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in regulatory compliance, litigation, and business law and counseling.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy.  He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams.  Team consulting competencies have included program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

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[1] Reading in alphabetical order, these roughly 3 (“three”) dozen mainstream faiths would include the Ahmadiyya, Amish, Anglican, Ayyavazhi, Baha’i, Baptist, Buddhist, Catholic, Confucian, Coptic, Druze, Hindu, Eastern Orthodox (itself comprising some 18 independent denominations), Ethiopian Orthodox, Evangelical, Ismaili, Jain, Jewish, Lutheran, Mennonite, Methodist, Pentecostal, Rastafarian, Seventh Day Adventist, Shia, Shinto, Sikh, Sufi, Sunni, Tao, Rastafarian, Yazidi, Zaydi, and Zoroastrian.

See Wikipedia. Eastern Orthodox Church. Online: <http://en.wikipedia.org/wiki/Eastern_Orthodox_Church>

[2] These include Aum Shinkriyo, Cargo Cults, Falun Gong, Hare Krishna, Satanism, Vodun, Wicca, and even Kopimism which I wrote about in an earlier post. See e.g. Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: < https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[3] Traditional beliefs range from ancestor worship, through the veneration of spirits and natural phenomena (popular amongst the First Americans, the Peoples of all parts of Africa and Europe, and the Peoples of Asia and the Pacific) that still prevail to this day despite significant inroads made by those above mainstream religions. Countless examples abound that include Asatru, Candomble, Druidism, Ifa, Lukumi, Macumba, Mugyo, Santeria, Shamanism, Shenism, and Famadihana (which is the ritual exhumation and reburial of the dead). Additional, “new age” faiths would include the Nation of Islam, Rajneesh Movement, Scientology, Unificationism (Moonism), and certain forms of Yoga and Transcendental Meditation.

[4] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> This was a supermajority decision of 8 (“eight”) Justices of the Supreme Court of Canada, with the ninth and last Justice concurring.

[5] Indeed, to recognize Atheism as a functioning, fellow faith flower takes away this kind of power that it has to detour around and devour others. Perhaps this is a path worthy of pursuit.

[6] Government of Quebec. Charter of Human Rights and Freedoms. R.S.Q., chapter C-12.

Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html> Relevant provisions follow.

PART I: HUMAN RIGHTS AND FREEDOMS

CHAPTER I: FUNDAMENTAL FREEDOMS AND RIGHTS.

Fundamental freedoms

  1. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

1975, c. 6, s. 3.

9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.  1982, c. 61, s. 2.

CHAPTER I.1: RIGHT TO EQUAL RECOGNITION AND EXERCISE OF RIGHTS AND FREEDOMS

  1. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.  1975, c. 6, s. 10; 1977, c. 6, s. 1; 1978, c. 7, s. 112; 1980, c. 11, s. 34; 1982, c. 61, s. 3.

10.1. No one may harass a person on the basis of any ground mentioned in section 10.  1982, c. 61, s. 4.

  1. No one may distribute, publish or publicly exhibit a notice, symbol or sign involving discrimination, or authorize anyone to do so. 1975, c. 6, s. 11.
  1. No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there. 1975, c. 6, s. 15.

CHAPTER IV: ECONOMIC AND SOCIAL RIGHTS

  1. Every person has a right to information to the extent provided by law. 1975, c. 6, s. 44.

CHAPTER V: SPECIAL AND INTERPRETATIVE PROVISIONS

Recourse of victim for unlawful interference.

  1. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.

Punitive damages.

In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.  1975, c. 6, s. 49; 1999, c. 40, s. 46.

PART II: COMMISSION DES DROITS DE LA PERSONNE ET DES DROITS DE LA JEUNESSE

CHAPTER III: COMPLAINTS

  1. The commission may also apply to a tribunal for any appropriate measure against any person who attempts to take or takes reprisals against a person, group or organization having an interest in the handling of a case of discrimination or exploitation or having participated therein either as the victim, the complainant, a witness or otherwise.

The commission may, in particular, request the tribunal to order that, on such date as it deems fair and expedient under the circumstances, the injured person be instated in the position or dwelling he would have occupied had it not been for the contravention.  1975, c. 6, s. 82; 1989, c. 51, s. 5.

[7] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

GUARANTEE OF RIGHTS AND FREEDOMS

Rights and freedoms in Canada

  1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

  1. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

[8] Supra note 4.

[9] Supra note 5.

[10] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, File No.: 35496 (judgement released April 15, 2015). Online: <http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15288/index.do> at para. 9-10. Simoneau had also been joined in his complaint to the Commission by the MLQ. See Infra, note 12 herein and accompanying text.

[11] Id. The Bylaw was règlement vs-r-2008-40, city of Saguenay, November 3, 2008.

[12] Id.

[13] See Simoneau c. Tremblay, 2011 QCTDP 1, [2011] R.J.Q. 507, [2011] AZ-50722559, [2011] Q.H.R.T.J. No. 1 (QL), 2011 CarswellQue 7400 (WL Can.) Decision issued February 9, 2011. Online: <http://www.soquij.qc.ca/decisions/fr/50722559_an-1.doc> [Emphasis added]. *Original and quoted versions differ due to translation.

“[250] […] Given the findings resulting from the analysis of the religious nature of the prayer and the symbols, the Tribunal is of the view that the use of public power in order to display or convey a particular faith has the effect of imposing values and religious beliefs and practices on people who do not share them. In so doing, the City and the Mayor are favouring one religion over another, whereas under its duty of neutrality, the State should refrain from intervening such that a preference is exercised.”

“[251]     The reciting of a prayer and the exhibiting of religious symbols in the state-controlled space constituted by the meetings of the municipal council, where representatives of the people discuss questions of public interest, also have a non-trivial exclusionary effect that substantially stigmatizes people who do not share those values. As expert Baril indicated in his report and testimony, the fact that people are exposed against their will to symbols and symbolic representations, through an identity ritual such as the reciting of the prayer, makes that religious practice coercive, since the only way around it is to be physically or symbolically excluded.”

[252]      The religious content of the bylaw thus sends religious minorities and atheists the message that, in the public sphere, there is still a gap between them and the dominant religious culture conveyed by the political authorities. In Freitag, the Court of Appeal for Ontario concluded that the fact that a person must comply with the beliefs of the majority is a subtle and constant reminder of his or her difference from the majority: […]

[14] Id. [Emphasis added]. *Original and quoted versions differ due to translation.

“[210]     Moreover, as the Tribunal pointed out in Laval, it has been well established in the jurisprudence that [TRANSLATION] “the basic freedom that constitutes the freedom of religion and conscience compels the state to be neutral”. Owing to that obligation, the state authority cannot, because of its collective nature, make use of the power it exercises in order to promote the personal religious beliefs of the individuals who perform political functions, without interfering in a manner that is more than trivial or insubstantial in the right to the free exercise of religious belief or conscience.”

“[225]     For the following reasons, the Tribunal concludes that the reciting of the prayer at public Ville de Saguenay meetings and the presence of religious symbols in the rooms where the meetings are held impair Mr. Simoneau’s right to full and equal recognition of his freedom of conscience and religion without discrimination based on religion, namely, his right not to be subjected to, or forced to hold, a conviction or engage in a religious practice he does not believe in during public meetings led by people representing the political authority in the exercise of their duties.”

“[301] Due to the very nature of the freedom that the right to equality is combined with here, no accommodation would be able to actually guarantee the religious equality of the citizens. When the right to equality is combined with the State’s duty of religious neutrality, the duty to provide reasonable accommodation arises as a negative requirement that is unique in its ability to ensure, in such a context, the equality of all in the exercise of freedom of conscience and religion. Therefore, to ensure the religious equality of all citizens, regardless of their beliefs in this area, State officials gathered together for a political meeting held in a public space cannot fulfill their legal obligations other than by completely abstaining from praying and displaying religious symbols.”

[15] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), [2013] R.J.Q. 897, 363 D.L.R. (4th) 62, 76 C.H.R.R. D/430, [2013] AZ-50969282, [2013] Q.J. No. 5220 (QL), 2013 CarswellQue 7596 (WL Can.) Court of Appeal Case No.: No.: 200-09-007328-112 (150-53-000016-081). Decision issued May 27, 2013. Online: <http://www.canlii.org/en/qc/qcca/doc/2013/2013qcca936/2013qcca936.pdf>

[16] Id. at 59.

[17] Id. at 88.

[18] Id. at 94.

[19] Id. at 100.

[20] Id. at 102.

[21] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 106, 108.

[22] Id. at 115.

[23] Id. at 125.

[24] Id. at 130. See also para. 131.

[25] Id. at 152. See also Infra, note 29, 2015 SCC 16 at 116-17.

[26] Id. at 164.

[27] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 170.

[28] Id. at 132.

[29] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16.

[30] Id. at 6.

[31] Id. at 7.

[32] Id. at 12.

[33] Saguenay (Ville de) c. Mouvement laïque Québécois, 2013 QCCA 936 (CanLII), at 35, 37.

[37] “The issue in this appeal deals primarily with the religious neutrality of the State. It is a matter of importance to the legal system over which the Tribunal does not have exclusive jurisdiction. Given the nature of the principal issue raised in this case and the consequences that its response entails, I find that there is no need to pay any particular deference to the expertise of the Tribunal. It is thus according to the standard of review of correctness that this appeal must be must be decided.” (sic) [Emphasis added].

[34] Id. at 49.

[35] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 29.

[36] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[37] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 33.

[38] Coutu v. Tribunal des droits de la personne, [1993] R.J.Q. 2793 (C.A.).

[39] Commission scolaire Marguerite-Bourgeoys v. Gallardo, 2012 QCCA 908, [2012] R.J.Q. 1001, at paras. 47-51.

[40] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 49.

[41] Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47, 54-55, 60; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 23); and Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at paras. 14-15.

[42] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 50.

[43] Id. at 53, 61.

[44] Id. at 57.

[45] Id. at 64.

[46] Id. at 70.

[47] Id. at 75.

[48] Ibid.

[49] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 74.

[50] Id. at 77.

[51] Id. at 78.

[52] See Supra, note 6.

[53] See Supra, note 7.

[54] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 89-90. Indeed, the Supreme Court found at paragraph 100, that neither the old prayer alone, nor the new prayer with the Bylaw, could pass as non-religious, or religious but being of minimal interference with the rights of S, as they were far too religious and far too public. Indeed, at paragraph 101, the Supreme Court further found the Bylaw’s addition of two minutes that allowed those not in favour of staying for the prayer to exit the chamber “highlights the exclusive effect of the practice.”

[101] “(…) although the wording was modified somewhat by the By-law as of 2008, the new wording changed neither the nature nor the substance of the prayer. Both wordings constituted an invocation to God, attributing benefits enjoyed by the City and its citizens to him, and asking him to guide the council’s deliberations. (…) These recitals from the preamble show that the prayer was intended as support by the City for the religion professed by individual councillors.” 2015 SCC 16, at 100.

[55] Id. at 109.

[56] Allen v. Renfrew County, 2004 CanLII 13978 (ON SC), at 27, 69 O.R. (3d) 742, [2004] O.J. No. 1231. Online: <http://www.canlii.org/en/on/onsc/doc/2004/2004canlii13978/2004canlii13978.html>

[27] “The prayer in its present form is not in substance a religious observance, coercive or otherwise and it does not impose any burden on the applicant or any restriction on his exercise of his own beliefs. The recital of this prayer does not compel the applicant, in contrast to Freitag, to participate in a Christian or other denominational form of worship. The mere mention of God in the prayer in question is not in this court’s opinion, sufficient in its effect on the applicant to interfere in any material way with his religious beliefs.” 2004 CanLII 13978, at 27.

Allen v Renfrew had itself, been preceded by a ruling striking-down council prayer by the Court of Appeal for Ontario, which stated that a “non-denominational” prayer (similar, perhaps, to the one recited in the House of Commons) might have passed the section 1 balancing test of the Charter. See e.g. Freitag v. Penetanguishene (Town), 1999 CanLII 3786 (ON CA), at 51-52, 47 OR (3d) 301; 179 DLR (4th) 150; [1999] OJ No 3524 (QL). Online: <http://www.canlii.org/en/on/onca/doc/1999/1999canlii3786/1999canlii3786.html>

[57] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 127.

[58] Id. at 133, 134.

[59] Id. at 140.

[60] Id. at 144, 143.

[61] Constitution Act 1982. PART I: CANADIAN CHARTER OF RIGHTS AND FREEDOMS, Preamble.

Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982.  Online: <http://laws-lois.justice.gc.ca/eng/Const/page-15.html#h-44>

[62] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 147.

[63] Id. at 148.

[64] Id. at 151-154.

[65] Id. at 160.

[66] Id. at 161.

[67] Whiten v. Pilot Insurance Co., [2002] 1 SCR 595, 2002 SCC 18 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2002/2002scc18/2002scc18.html?autocompleteStr=whiten%20v.%20&autocompletePos=1>

[68] de Montigny v. Brossard (Succession), [2010] 3 SCR 64, 2010 SCC 51 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2010/2010scc51/2010scc51.html?autocompleteStr=2010%20scc%2051&autocompletePos=1>

[69] Quebec (Public Curator) v. Syndicat national des employés de l’hôpital St-Ferdinand, 1996 CanLII 172 (SCC), [1996] 3 SCR 211. Online: <http://www.canlii.org/en/ca/scc/doc/1996/1996canlii172/1996canlii172.html>

[70] Supra note 6. Quebec Charter of Human Rights and Freedoms, at section 49. R.S.Q., chapter C-12. Online: <http://www.canlii.org/en/qc/laws/stat/rsq-c-c-12/latest/rsq-c-c-12.html>

[71] Supra note 69. Quebec (Public Curator) v. Syndicat national, 1996 CanLII 172 (SCC), [1996] 3 SCR 211, at para. 121.

[72] Mouvement laïque Québécois v. Saguenay (City), 2015 SCC 16, at 87.

[73] Id. at 84.

[74] Id. at 119.

[75] But see contra, Multani v. Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, 2006 SCC 6 (CanLII). Online: <http://www.canlii.org/en/ca/scc/doc/2006/2006scc6/2006scc6.html>

In that now dated case, the Supreme Court of Canada ruled that the ban by a Quebec school authority on the carrying of kirpans by non-violent adherents of the Sikh faith, would violate section 2(a) – freedom of conscience and religion, of the Canadian Charter of Rights and Freedoms. It is now questionable whether this decision will be left to stand.

[76] See generally Human Rights Watch. Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. Posted December 22, 2010, on hrw.org. Online: <http://www.hrw.org/news/2010/12/21/questions-and-answers-restrictions-religious-dress-and-symbols-europe>

[77] Ibid. Fuller treatment of potentially impacted international rights and freedoms is beyond this limited blog post.

[78] Ekundayo George. Freedom of Religion in a Networked World – New Rivers to Cross? Posted February 5, 2012, on ogalaws.wordpress.com. Online: <https://ogalaws.wordpress.com/2012/02/05/freedom-of-religion-in-a-networked-world-new-rivers-to-cross/>

[79] See generally supra note 5, and accompanying text.

In his letter to shareholders that accompanied the 2014 annual report for Omaha, Nebraska’s sprawling Berkshire Hathaway Inc., Warren Buffet, the longtime chairman and chief executive officer, stated that he had chosen a successor, predicted potentially tougher times ahead in the quest for growth at the company, and identified 3 (“three”) historically recurrent business challenges that could fell even the oldest and largest of businesses:

 

“My successor will need one other particular strength: the ability to fight off the ABCs of business decay, which are arrogance, bureaucracy and complacency. When these corporate cancers metastasize, even the strongest of companies can falter. The examples available to prove the point are legion (…)” (Emphasis added).[1]

 

As shown in my May, 2014 post on corporate crisis management,[2] there are a whole host of “issues” that can befall a company, and severely damage or even destroy it if not properly addressed or prevented in the first instance. I would therefore not only echo Mr. Buffett on these three potential maladies that he has identified, but add 6 (“six”) more that I have repeatedly seen in my work experience and research, to total 9 (“nine”) such avoidable agents of business decay.

 

These other six, are:

  1. Debt;
  2. e-Issues (eCommerce, the environment, employment practices);
  3. Fiscal and Competitive Malfeasance (tax evasion, fraud and financial statement/disclosure issues, market abuses);
  4. GRC (governance, risk, and compliance) Failings;[3]
  5. Hue & Cry” (public reaction – including social media campaigns, boycott calls, and general “sanction or reaction traction” with regulators or prosecutors regarding an adverse event involving the company;
  6. i-Issues (most commonly being – incomplete or inappropriate preparation for surging demand, shoddy or absent contingency planning, insufficient capitalization, unreliable or skittish funding sources, and inattention to ongoing management obligations especially in supply chain quality control and general logistics, operations safety and security including cybersecurity, outsourcing and vendor competence and regulatory compliance, and oversight of all of these to include an adequate, available, and recommended internal whistleblower apparatus, and enforcing strict information governance and document retention policies).

 

A review of recent and historic business news will yield more than enough examples for each and every point, and so I will not go out of my way to name names. Suffice it to say, that if you want real business longevity for your venture – regardless of its current stage or state, then as with everything else, you need to look far beyond, and cover much more, than the mere basics or the ABC’s, and consistently so.

 

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in business law and counseling, diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Warren Buffet. Letter to Shareholders for Fiscal Year 2014, at page 37.  Posted on berkshirehathaway.com, February 2015. Online: <http://www.berkshirehathaway.com/letters/2014ltr.pdf>

See also Luciana Lopez and Jonathan Stempel.  Warren Buffett says Berkshire has ‘right person’ as heir.

Posted on reuters.com, February 28, 2015.  Online: <http://www.reuters.com/article/2015/02/28/us-berkshire-buffett-letter-idUSKBN0LW0MG20150228>

[2] Ekundayo George. Corporate Crisis Management 101 – The A, B, Cs of Lessons Learned.  Posted on ogalaws.wordpress.com, May 7, 2014. Online: <https://ogalaws.wordpress.com/2014/05/07/corporate-crisis-management-101-the-a-b-cs-of-lessons-learned/>

[3] Ekundayo George. Governance, Risk, and Compliance (GRC): a 4-part policy framework. Posted on ogalaws.wordpress.com, October 21, 2012. Online:<https://ogalaws.wordpress.com/2012/10/21/grc-an-overview-part-1/>

Looking back to 2013, I had predicted the 5 top technology trends (specifically for consumers) in that year, to be:

(i) Accelerated lived experience;

(ii) Bring Your Own Device (BYOD);

(iii) Crowdsourcing;

(iv) Distance education; and

(v) End-User legal authority/license autonomy/leveraged ability (EULA3). [1]

These pretty much held true, and even lasted both into and through 2014. The pace of instantaneous news, social tweets and alerts, and all manner of reality TV from financing pitches, through entire shows that are literally “celebrity selfie-cams”, to instantaneous gratification through crowd sourcing of funding, business and consumer information, and general gossip, have created this ever accelerating lived experience. Ever greater sales of handheld devices have forced employers to draft BYOD policies for employees too attached to their own devices to let them go, and all manner of distance education is now available for a fee, or for free in the ever-expanding offerings of Massive Open Online Course (MOOC).[2] As well, immersive gaming, as it develops with optional story lines, the move to taking software bits as building blocks for people to create their own widgets and full applications, and the myriad of customizable self-help, professional, and practical document templates available online, taken together, will only further speed EULA3.[3]

Fully justified then (and thankfully so) in my predictions, let us now move on to 2015-16, then. Here, in the midst of technology and its relentless forward motion, all I see – is “Paper”! This stands for:

Personalization;

A3 (aggregation, analytics, and advising);

Protection;

eMoney; and

Remoting. We will consider them in turn, and in that order.

Personalization:

Whether it is widgets, backgrounds, wallpapers, icons, ringtones, and home screen layouts of the ipod, android, iphone, desktop, laptop, or tablet,[4] personalization and customization are all the rage for maximizing the user-centric experience.

“The constantly connected consumers of today are extremely savvy, using all available channels and devices to research, review, compare prices and ultimately purchase products. Basic personalization (such as name and account personalization and dynamic interest or product content) no longer serves consumers’ demand for deeper levels of real-time personalized information. Increasingly, these savvy consumers are taking their business to companies that provide more than basic personalization and automated lifecycle campaigns. Customers now prefer brands that deliver individualized experiences that match their needs in the present moment”.[5]

Even giants of the online world, such as Yahoo,[6] have now realized that the way to truly reach and engage your customer, it to intimately know your customer for and through, “Real-time Marketing[7] and personalization practices. Personalization is based on gathering and analyzing observation data, to analyze and make predictions based upon what you know. This is why A3, which underlies real-time marketing, will also be a top trend for 2015-16, in my prediction.

A3 (Aggregation, Analytics, and Advising):

The SAS Institute, Inc., put out a 2013 white paper on demand sensing and shaping through big data analytics,[8] which perfectly sums-up the first stage of the real-time marketing process. In the second stage, I would add demand supporting and serving, which sustains that demand in existence by providing those cues to trigger it (familiarity, emotional advertising triggers, positive associations in product placement, and so forth), and thence return customers to your established, satisfaction-source.

Big Data (and its means of collection)[9] do have other applications beyond the pure consumer, however. These include generic disaster management applications,[10] and estimating or better “guess”-timating the true incremental and future impacts of climate change on humans and the environment.[11]

Protection:

With all of this data and its very many faces,[12] along with the potential to gather and analyze it, and the undisputed value of the end result in the predictive analytics space, there is a growing need at all levels, for more robust protective mechanisms – wherever it falls on the spectrum of privacy practices,[13] data governance and document preservation, or cybersecurity. IT in general, is looking forward to a banner year in 2015.[14] The IT security sub-sector, for its part, is not too far off, either, with a spate of increasingly spectacular, recent[15] and historical[16] hacks and cyberattacks drawing the attention of the risk management industry,[17] regulators,[18] private businesses,[19] and concerned citizens in an ongoing and multi-sided tussle,[20] both amongst themselves and with criminal elements. A very large data breach was just disclosed at Anthem Inc. (a health insurer with operations across 14 states), in which up to 80 million records of Personally Identifiable Information (PII) – but apparently no Personal Health Information (PHI), according to initial evaluations – are suspected to have been compromised.[21]

eMoney:

Despite the dangers and concerns, however, the pace of progress continues to pick-up, with electronic payments of the Paypal variety moving to Square and eMoney, in the largely unregulated (and hacked)[22] Bitcoin, and the more mainstream proposed and competing offerings of CurrentC from the Merchant Customer Exchange (MCX) – which was also hacked,[23] and Google Wallet, Softcard, and Apple Pay.

Remoting:

With ever-more personalized experiences being available through more and more interconnected devices, we are moving towards an Internet of Things (IoT) that raises even more cybersecurity concerns that now include remote access and remote control/takeover,[24] whether or not authorized or even traceable back to source.[25] This has led one commentator to describe this future state as the “Internet of Bad Things”.[26] Going further to consider the impetus for a change in our security mindset, consider the words of Dr. Arati Prabhakar, the director of the United States Defence Advanced Research Projects Agency (DARPA), when she said:

“The largest explosion of millisecond machine actions will take place when billions of IoT devices are deployed. Until we find a way to authenticate, view, audit, analyze and block IoT devices often connected to cloud computing, we frankly shouldn’t be putting IoT out there. As the security industry saying goes, “money trumps security,” and as increasingly more of these IoT product (sic) are released, cybersecurity will just be playing catch-up. With potentially billions of these devices being deployed all over the world, this could lead to a cyber attack free-for-all of catastrophic proportions.”[27]

However, remoting is not all doom and gloom. Witness the growing use of crowdfunding to raise money for important events, popular initiatives, or proposed or emerging or growing business ventures; and even the burgeoning business of “pay to watch” that has now gone from the original voyeur cams, through specialized YouTube channels where you can pay to watch people play video games,[28] or modern day South Korea, where people will pay to remotely watch someone – a “broadcast jockey” – do something as mundane as eating.[29] Drones, scene capture devices, and wearable devices in ever-lighter cameras (from glass and its successors, through GoPro, police cam, dash cam, spy cam, home surveillance, commercial and industrial surveillance, government surveillance, and mobile devices in any and all form factors now known or yet to come, and from the clunky to the micro- or nano-scale), will combine[30] to bring more, and ever uniquer, shareable, monetizable remoting experiences to come![31]

CONCLUSION

These then, are my PAPER predictions for technology in 2015-16 – Personalization, A3 (aggregation, analytics, and advising), Protections, eMoney, and Remoting. I think they will come to fruition, just as predicted, but we have to wait and see. Enjoy the view!

*****************************************************************

Author:

Ekundayo George is a lawyer and sociologist. He has also taken courses in organizational and micro-organizational behavior, and gained significant experiences in business law and counseling, diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America. See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

Trained in Legal Project Management (and having organized and managed several complex projects before practicing law), Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on complex engagements with multiple stakeholders and multidisciplinary teams. Team consulting competencies include program investigation, sub-contracted procurement of personnel and materials, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through tapping a highly-credentialed resource pool of contract professionals with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT). See, for example: http://www.simprime-ca.com.

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering of any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein. Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

[1] Ekundayo George. Ctrl-Shift-Del: 2013’s Top 5 Technology Trends for Consumers. Posted March 16, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/03/16/ctrl-shift-del-2013s-top-5-technology-trends-for-consumers/<

[2] Wikipedia.org. Massive Open Online Course (MOOC), a definition. Online: >http://en.wikipedia.org/wiki/Massive_open_online_course<

[3] Supra note 1.

[4] See e.g. selected Android personalization offerings, on display for download at the google store. Online:

>https://play.google.com/store/apps/category/PERSONALIZATION<

[5] Katrina Conn. Moving Beyond Basic Personalization to Real-Time Marketing. Posted January 7, 2014, on Clickz.com. Online: >http://www.clickz.com/clickz/column/2321243/moving-beyond-basic-personalization-to-real-time-marketing<

[6] Yahoo. The Balancing Act: Getting Personalization Right. Posted on yahoo.com. Online: >https://advertising.yahoo.com/Insights/BALANCING-ACT.html<

[7] Supra note 5. “Real-time marketing is the ongoing cycle of engagement, data management, analytical insights and optimization – performed continuously and immediately. In other words, it’s the streamlined management of data, transformed into actionable insight that is used to enhance your customer’s experience.”

[8] The SAS Institute. White Paper: Unlocking the Promise of Demand Sensing and Shaping Through Big Data Analytics – How to Apply High-Performance Analytics in Your Supply Chain. Published on idgenterprise.com, and visited February 2, 2015. Online: >http://resources.idgenterprise.com/original/AST-0112051_UnlockingPromise.pdf<

[9] Dennis Keohane. Aaron Levie, Box see drones and Internet of Things as data sources of the future. Posted September 23, 2014, on betaboston.com. Online: >http://betaboston.com/news/2014/09/23/aaron-levie-box-data-drones-internet-of-things/<

[10] See e.g. Robert A. Runge and Isabel Runge. Data-Driven Disaster Management. Posted October 29, 2014, on nextgov.com. Online: >http://www.nextgov.com/technology-news/tech-insider/2014/10/data-driven-disaster-management/97700/?oref=voicesmodule<

[11] See e.g. Chelsea Harvey. UN REPORT: Our Climate Change Future Is Terrifying And Emissions Need To Stop Completely As Soon As Possible. Posted November 4, 2014, on businessinsider.com. Online: >

http://www.businessinsider.com/un-climate-report-stop-all-greenhouse-emissions-2014-11

< ; See also Carl Zimmer. Ocean Life Faces Mass Extinction, Broad Study Says. Posted January 15, 2015, on nytimes.com. Online: >http://www.nytimes.com/2015/01/16/science/earth/study-raises-alarm-for-health-of-ocean-life.html?_r=0<

[12] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 1 – Form Factors). Posted November 1, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/11/01/the-100-faces-of-data-a-5-part-complex-systems-study-part-1/<

[13] Amber Hunt, The Cincinnati Enquirer. Experts: Wearable tech tests our privacy limits. Posted February 5, 2015, on usatoday.com. Online: >http://www.usatoday.com/story/tech/2015/02/05/tech-wearables-privacy/22955707/< In one of my earlier blogs (if updated), the “User-Generated Legality Issues” (UGLIs) created by these treasure troves of “quantified self” data available through wearable devices, would be “self-outing 104”.

See e.g. Ekundayo George. The Video Privacy Protection Act (VPPA) Amendment of 2012 – Self-Outing 103? Posted January 11, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/11/the-video-privacy-protection-act-vppa-amendment-of-2013-self-outing-103/<

[14] Steve Ranger. Bigger budgets, better tech: Why 2015 is a good year to be working in IT. Posted February 4, 2015, on techrepublic.com. Online: >http://www.techrepublic.com/blog/european-technology/bigger-budgets-better-tech-why-2015-is-a-good-year-to-be-working-in-it/?tag=nl.e101&s_cid=e101&ttag=e101&ftag=TRE684d531<

[15] Pedro Hernandez. Xbox Live, PSN Back Online After Holiday DDoS Attacks. Posted December 29, 2014, on eweek.com. Online: >http://www.eweek.com/security/xbox-live-psn-back-online-after-holiday-ddos-attacks.html< See also the comprehensive hacking and public shaming of Sony, through compromised emails.

[16] I referenced several of the more historical, spectacular hacks in this earlier blog post. Ekundayo George. Cybersecurity: Its not just about “B” for Bob, but also eCommerce, Structure, and Trust. Posted November 3, 2014, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2014/11/03/cybersecurity-its-not-just-about-b-for-bob-but-also-ecommerce-structure-and-trust/<

[17] Pinsent Masons (out-law.com), citing the Institute of Chartered Accountants in England and Wales (ICAEW).

Cyber risks evolving faster than business capabilities, says accountancy body. Posted October 30, 2014, on out-law.com. Online: >http://www.out-law.com/en/articles/2014/october/cyber-risks-evolving-faster-than-business-capabilities-says-accountancy-body/<

[18] Aliya Sternstein. Report: Agencies Aren’t Properly Vetting All Cyber Contractors. Published September 9, 2014, on nextgov.com. Online: >http://www.nextgov.com/cybersecurity/2014/09/agencies-contractor-employees-cyber-workforce/93620/<

[19] Aliya Sternstein. 97 Percent of Key Industries Doubt Security Compliance Can Defy Hackers. Posted July 10, 2014, on nextgov.com. Online: >http://www.nextgov.com/cybersecurity/2014/07/97-percent-key-industries-doubt-security-compliance-can-defy-hackers/88324/?oref=ng-relatedstories<

[20] See e.g. In the Matter of a Warrant to Search a Certain email Account Controlled and Maintained by Microsoft Corporation. Memorandum and Order of James C. Francis IV, United States Magistrate Judge, released April 25, 2014. 13 Mag. 3814, United States District Court for the Southern District of New York (SDNY). Online: >https://s3.amazonaws.com/s3.documentcloud.org/documents/1149373/in-re-matter-of-warrant.pdf<

Just reading through this decision, which from the first paragraph defines the complexity of this issue, shows the many interests, laws and policies, and considerations at stake in that constant tussle between individual rights and privacy, business interests (including the personalization push), and the mandates of law enforcement and national security – whether nationally and across borders, or when multiple nations do or claim to have a primary stake.

The further steps since taken in that ongoing effort by the United States government to access emails stored on servers that are physically located in Ireland, only further underline the complexities and interests at stake. See also Mark Scott. Ireland Lends Support to Microsoft in Email Privacy Case. Posted December 25, 2014, on bits.blogs.nytimes.com. Online:>http://bits.blogs.nytimes.com/2014/12/24/ireland-lends-support-to-microsoft-in-email-privacy-case/?_r=0&module=ArrowsNav&contentCollection=Technology&action=keypress&region=FixedLeft&pgtype=Blogs<

[21] Elizabeth Weise, USA Today. Massive breach at health care company Anthem Inc. Posted February 5, 2015, on usatoday.com. Online: >http://www.usatoday.com/story/tech/2015/02/04/health-care-anthem-hacked/22900925/<

[22] Zack Whittaker for Zero Day. Bitstamp exchange hacked, $5M worth of bitcoin stolen. Posted January 5, 2015, on zdnet.com. Online: >http://www.zdnet.com/article/bitstamp-bitcoin-exchange-suspended-amid-hack-concerns-heres-what-we-know/<

[23] Ryan Mac, Forbes Staff. Apple Pay Rival and Walmart-backed MCX Hacked, User Emails Snatched. Posted October 29, 2014, on forbes.com. Online: >http://www.forbes.com/sites/ryanmac/2014/10/29/apple-pay-rival-and-walmart-backed-mcx-hacked-user-emails-compromised/<

[24] Katie Fehrenbacher. The real breakthrough of Google Glass: controlling the internet of things. Posted March 23, 2013, on gigacom.com. Online: >https://gigaom.com/2013/03/23/the-real-breakthrough-of-google-glass-controlling-the-internet-of-things/<

[25] Larry Karisny. Getting Cybersecurity to Actually Work: More Connections, More Problems. Posted September 15, 2014, on digitalcommunities.com. >http://www.digitalcommunities.com/articles/Getting-Cybersecurity-to-Actually-Work.html<

“Before we discuss solutions to these cybersecurity problems, let’s take a look at what the future looks like in our continually interconnected world. From social media to smart phones apps to the IoT promise of smart everything, we are reaching a point of truly not knowing what is connect to what — and hackers know this. Take the Target breach — the attacker used backdoor access to the company’s energy management systems to then access a server containing confidential customer information. We are increasing (sic) digitizing our people and machine processes, and are beginning to lose control of what we are doing.”  

[26] Zach Ferres. The Internet of (Bad) Things. Posted November 5, 2014, on linkedin.com. Online: >https://www.linkedin.com/pulse/article/20141105140616-28760747-the-internet-of-bad-things<

[27] Larry Karisny. DARPA Director Calls for Cybersecurity Change. Posted November 7, 2014, on digitalcommunities.com. Online: >http://www.digitalcommunities.com/articles/DARPA-Director-Calls-for-Cybersecurity-Change.html<

[28] By Josh Warwick, video by Phil Allen. Meet the 21-year-old YouTuber who made millions playing video games. Posted October 16, 2014, on telegraph.co.uk. Online: >http://www.telegraph.co.uk/men/the-filter/11139724/Meet-the-21-year-old-YouTuber-who-made-millions-playing-video-games.html<

[29] Stephen Evans. The Koreans who televise themselves eating dinner. Posted February 4, 2015, on BBC.com. Online: >http://www.bbc.com/news/magazine-31130947<

[30] Luisa Rollenhagen. Guy Hacks Google Glass to Steer Drone. Posted August 23, 2013 on mashable.com. Online:

>http://mashable.com/2013/08/24/drone-pilots-google-glass/<

[31] See e.g. Erin Carson. 2015: 4 IT job skills for the new year. Posted January 8, 2015, on techrepublic.com. Online: >http://www.techrepublic.com/article/2015-4-it-job-skills-for-the-new-year/<

Canvassing conventional and learned wisdom, I would humbly say that at least one of my predictions (protections) is echoed and supported in the focus here on “security skills” in this piece by HR and IT professionals. Three of my other predictions (Remoting, A3, and Personalization) are at least strongly implicated, in the call for “versatility” and skills in “project management”. “Desktop support” is the fourth 2015 IT job skill set listed by Techrepublic.

Aereo has had quite an exciting ride since its advent on the business scene and unbridled challenge to incumbents in the media and broadcast space,[1] to its defense of several and serial legal and regulatory challenges that went as far as the United States Supreme Court,[2] its maneuvering to find some safe harbor that would permit continued operations,[3] and its eventual succumbing in filing for bankruptcy,[4] after losing the fight against a temporary injunction[5] that sounded the death knell of its business model.

 

Of course, if you subscribe to the “circle of life, death, and rebirth”, then an end may also be a beginning, as shown by regulatory hints or suggestions[6] that the copyright and broadcast rules may be changed or even go so far as to favour entities such as Aereo in the future.[7] However, we will only know and believe it when we can see, sell, order, download, and display it (and out of), prime time.

 

Whether the company was a little guy (with big funding), that was just too far ahead of its time,[8] or an upstart that flaunted the law and appropriately got slammed for it,[9] varies by audience. On that much, we can all continue to disagree. However, until such time as another Aereo rises, or the rules change to invite same, Aereo is a part of business and media history,[10] and rather unlikely to make a comeback.

 

In all corners of the media and infotainment space – both new and old, lessons have been taught, and hopefully learned.

_____________________________________________________

Author:

Ekundayo George is a lawyer and a sociologist.  He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling, diverse litigation, and regulatory compliance practice.  He is licensed to practice law in Ontario and Alberta, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America.  See, for example: http://www.ogalaws.com.  A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications through work in the Satellite Policy Branch, International Bureau, at the Federal Communications Commission, eCommerce, Outsourcing, and Cloud contracts); Financial Services, Healthcare, Entertainment, Real Estate and Zoning; International/cross-border trade and other service industry sub-sectors; and Environmental Law & Policy.  A published author on the National Security aspects of Environmental Law, he has also represented clients in courts and before regulatory bodies in both the United States and Canada, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

As a Lead Consultant and founder of a consulting subsidiary, Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant – sourcing, managing, and delivering on small, medium and large strategic projects with multiple stakeholders and multidisciplinary teams.  Our selected consulting competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education and Training; Law and Regulation; Policy and Plans; Statistics, Economics, and Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – also sometimes termed Information Communications Technologies (ICT) in other parts of the world.  See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred.  The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.  Past results are no guarantee of future success, and specific legal advice should be sought for particular matters through counsel of your choosing, based on such factors as you deem appropriate.

 

********************************************************************

[1] See Ekundayo George. WNET, THIRTEEN v. Aereo, Inc.: Antennas Jousting in and at Clouds, in the Eye of a Global Storm. Posted April 28, 2014, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2014/04/28/wnet-thirteen-v-aereo-inc-antennas-jousting-in-and-at-clouds-in-the-eye-of-a-global-storm/<

[2] See Ekundayo George. WNET THIRTEEN v. Aereo, Inc. – the United States Supreme Court (U.S.S.C.) Verdict. Posted June 26, 2014, on ogalaws.wordpress.com. Online: > https://ogalaws.wordpress.com/2014/06/26/wnet-thirteen-v-aereo-inc-the-united-states-supreme-court-u-s-s-c-verdict/<

[3] Aereo sought relief and an operating reprieve by way of the statutory licensing of cable transmissions through the below section of the Copyright Act; with itself to be deemed as a cable broadcaster in light of analysis within the United States Supreme Court’s ruling. However, the Copyright Office declined to grant it that status in a letter to Aereo of July 16, 2014, as the Aereo transmissions were not sufficiently “localized”. The Copyright Office did, however, accept the filing provisionally, pending further legislative or regulatory developments.

 

17 U.S. Code §111 – Limitations on exclusive rights: Secondary transmissions of broadcast programming by cable. See Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, United States Copyright Office. Letter to Aereo. Re Section 111 Statement of Account Filings, dated July 16, 2014. Posted on nab.org and visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/071614_Aereo_Copyright_Office_letter.pdf< See also Cornell Legal Information Institute (LII), 17 U.S.C. §111. Online: >http://www.law.cornell.edu/uscode/text/17/111<

 

Aereo also sought relief from the FCC, in having itself deemed a multichannel video program distributor (MVPD) over the internet. Noting a lack of clear legal rules that could assist new entrants in their challenge to incumbents, and their efforts at market expansion in favour of the consumer, Counsel for Aereo wrote in the letter, that:

 

“The Commission could provide such assurance to new market entrants like Aereo by defining or construing “MVPDs” to include systems that transmit linear channels of video programming to consumers via the internet—thereby securing to all MVPDs, in a technology-neutral way, the right to engage in timely, good faith negotiations to license channels by retransmission consent.”

 

After meeting with the FCC Commissioners and senior staffers to present its case and plea for an expedited notice of proposed rulemaking (NPRM) procedure, however, and before the Commission could issue a ruling on the matter, the New York Federal District Court made its adverse preliminary injunction ruling against Aereo.

 

“Finally, Aereo emphasized that timely Commission action is crucial to its ability to bring such a service to market. Issuing the proposed NPRM within the next several weeks, and adopting the proposed rule within several months thereafter, would support Aereo’s re-launch as a viable and sustainable new entrant in competition with incumbent MVPDs.”

 

See Seth Greenstein, Esq., of Constantine Cannon LLP, Counsel to Aereo. Letter to the Federal Communications Commission (FCC), Re: Ex Parte Presentation Notice, Interpretation of the Terms “Multichannel Video

Programming Distributor” and “Channel,” MB Docket No. 12-83, dated October 10, 2014. Published on apps.fcc.gov. Online: >http://apps.fcc.gov/ecfs/document/view?id=60000972464<

[4] On November 20, 2014, Aereo filed for protection from its creditors under Chapter 11 (reorganization) of the United States Bankruptcy Code, in the United States Bankruptcy Court for the Southern District of New York. The case number is 1:14-bk-13200. See Pacer for a fuller chronology of the petition. Online: >https://www.pacermonitor.com/public/case/5258727/Aereo,_Inc<

[5] See American Broadcast Companies, Inc., v. Aereo, Inc., 12-cv-1540, and WNET et al. v. Aereo, Inc., 12-cv-1543, October 23, 2014 temporary injunction Opinion and Order of The Honourable Alison J. Nathan, United States District Judge, in the United States District Court for the Southern District of New York. Posted on nab.org, visited November 25, 2014. Online: >http://www.nab.org/documents/newsRoom/pdfs/102314_Aereo_injunction.pdf<

 

“In light of the Supreme Court’s decision, Plaintiffs are now able to demonstrate a likelihood of success on the merits. The balance of hardships also now tips in their favor and, as previously held, an injunction would not disserve the public interest, Aereo I, 874 F. Supp. 2d at 403-404.”

Opinion and Order at page 16: III Conclusion.

 

The court in its ruling, soundly rejected both the Aereo’s arguments under 17 U.S.C. §111 (community antenna television system/cable broadcaster), and 17 U.S.C. §512(a) (innocent conduit). See also 17 U.S. Code §512 – Limitations on liability relating to material online. Published on Cornell Legal Information Institute (LII). Online: >http://www.law.cornell.edu/uscode/text/17/512<

[6] See T.C. Scottek. FCC considers backdoor rule change that could jumpstart the era of internet television. Posted May 23, 2012, on theverge.com. Online: >http://www.theverge.com/2012/5/23/3038777/fcc-rule-change-internet-tv-cable-mvpd< In 2012, conventional wisdom placed the FCC on the verge of re-interpreting the word “channel” under the Communications Act of 1934 (as amended by the Telecommunications Act of 1996), to be used both ““in a “container” sense, to refer to a range of frequencies used to transmit programming, and in a “content” sense to refer to the programming itself,”” which would have put internet television providers (online video distributors, or “OVDs”) such as Hulu and Netflix into the same category as mainstream cable and satellite companies – such as Comcast and TimeWarner, and forced the incumbent major networks to provide them with content as multichannel video programming distributors (MVPDs). However, the initiative did not hold its ground.

[7] Chairman Tom Wheeler, the United States Federal Communications Commission (FCC). Tech Transitions, Video, and the Future (Official FCC Blog). Posted October 28, 2014, on fcc.gov/blog. Online: >http://www.fcc.gov/blog/tech-transitions-video-and-future<

 

“The mantra “Competition, Competition, Competition” fits perfectly with consumers’ desires for video choices. That’s why I’m asking my fellow Commissioners to update video competition rules so our rules won’t act as a barrier to this kind of innovation. Specifically, I am asking the Commission to start a rulemaking proceeding in which we would modernize our interpretation of the term “multichannel video programming distributor” (MVPD) so that it is technology-neutral. The result of this technical adjustment will be to give MVPDs that use the Internet (or any other method of transmission) the same access to programming owned by cable operators and the same ability to negotiate to carry broadcast TV stations that Congress gave to satellite systems in order to ensure competitive video markets.”

 

“A key component of rules that spur competition is assuring the FCC’s rules are technology-neutral. That’s why the definition of an MVPD should turn on the services that a provider offers, not on how those services reach viewers. Twenty-first century consumers shouldn’t be shackled to rules that only recognize 20th century technology.” (Emphasis added).

 

[8] TMP Staff. Aereo bankruptcy: A visionary tech startup killed off by big media and courts? Posted November 22, 2014, on techmediapolitics.com. Online: >http://www.techmediapolitics.com/aereo-bankruptcy-a-visionary-tech-startup-killed-off-by-big-media-and-courts/<

[9] Joan E. Solsman. Aereo’s bankruptcy filing marks a fade to black: After months of “not dead yet” declarations, the streaming-TV startup files for Chapter 11 reorganization, the clearest sign that a Supreme Court ruling set it on a road to nowhere. Published November 21, 2014, on cnet.com. Online: >http://www.cnet.com/news/aereo-files-for-bankruptcy-protection/<

[10] See e.g. Aereo. The Next Chapter. Posted November 21, 2014, on blog.aereo.com. Online: >http://blog.aereo.com/2014/11/next-chapter/<

PREFACE:

Just the other day, when I was looking over a post on the 5 largest cyberbreaches of 2014 (to date),[1] my mind went back to the Case of Bob,[2] a malfeasing cyber breach insider, on whom I blogged in an earlier post.  The top 5 list sequenced a total of 309 million records.[3]  That is, I believe, enough to cover stealing one record each, from every Citizen of Canada (34 million), Italy (61 million), France (63 million), the United Kingdom (64 million), and Germany (82 million); at a total of 304 million records, according to their respective population counts in 2013.[4]  Looking only domestically, in the United States, this 309 million could account for the loss of a single record (e.g. social security number) for all but 6 million U.S. Citizens in a 315 million population count at 2013.[5]  That’s a whole lot of broken (out/into) records![6]

Clearly, this is a big and growing problem.  And so, I decided to look a little more closely at that list, focus-in on the non-American example of South Korea,[7] and lay-down a better understanding of why the cyber realm remains so hard to secure – not just from last year’s big breaches at Target,[8] Adobe,[9] and LivingSocial,[10] but persistently and consistently for even those most tech-savvy of U.S. businesses and veterans of the eCommerce and eBanking verticals, including Google/Gmail,[11] Home Depot,[12] JPMorgan Chase & Co,[13] and eBay;[14] along with assorted state and federal government entities.[15]

I will look at the problem from four angles: “B” for Bob, “E” for eCommerce, “S” for Structure, and “T” for Trust; addressing the challenges and opportunities in which, obviously requires certain “b-e-s-t” practices.  This is a simplification of an extremely complex issue, but a useful approach, nevertheless.

 

THE B-ANGLE:

Bob[16] was not the first, nor will he be the last insider to “go rogue”.  The debate continues on whether insiders or outsiders are the greater threat.

“The fact that the individual was reportedly able to access and then sell on vast quantities of customer information is very worrying. It should not be the case that an employee – and in this case a temporary consultant – is able to access and then download sensitive data without this suspicious activity being flagged up,” (…)[17]

“It would seem that this case is a classic example of the ‘insider threat’ – that is, the malicious abuse of privileged access. A breach of customer data can spell disaster for a business, due to the loss of customer confidence, revenue and the possibility of severe financial penalties if they are found to have been negligent in the protection of this information.”[18]

However, it is the safest and the highest of best practices, to do one’s utmost best to protect against both, and each through the other, in a figure of eight lattice-work.

Suggested solutions include: proper and more comprehensive onboarding and offboarding; segregation of duties; rigorous credentialing and authorization procedures; real-time access and event logging; training and discipline with enforced usage rules (BYOD, social media, portable media, telecommuting); behavioural guidance including full disclosure of privacy limitations and waivers as applicable (travel and mobile security, regulatory compliance, data governance, eDiscovery, and cybersecurity); and so forth – including ONGOING due diligence on ALL employees, vendors, contractors, and counterparties on these parameters.[19] Just as banks were looking to their law firms to harden cyber defences,[20] regulators and especially financial sector regulators, have also been increasingly focused on the issue of cybersecurity.

The question we need to all ask as regulators is should we be considering the cyber threat as something as fundamental to institutions as capital levels. I’m not saying yet that they’re equal but we should probably start discussing them in the same breath[.][21] The legal community has long weighed-in on this issue for and regarding others, but has only recently and so publicly, been forced to look at its own house, with some resulting and readily available, practical guidance on the starting point for a law firm cyber audit that is easily applicable to other industries.[22]

 

THE E-ANGLE:

eCommerce is a 5-edged sword (hard to see in reality – especially as anything easy to wield or even effective, but logically easy to conceptualize). There are the two (alleged) counterparties; there are each of the (apparent) originating and destination locations; and then there are the (acceptable, accredited, and accepted) payment parameters. These are the five.

Counterparties are “alleged” because one or more may be fictitious or on a borrowed or pilfered identity.  Originating and destination locations may be fronts, dead drops, or non-existent.  And the acceptable payment methods may have one party presenting something with false accreditation that is accepted as valid until it is too late to halt the deal;[23] something with proper accreditation that is intercepted before being properly accepted by the intended recipient;[24] or something with proper accreditation that is accepted by a fictitious or otherwise fraudulent counterparty.[25]

Albeit fraught with dangers, eCommerce has become indispensable in an interconnected, and beyond line of sight business world.  The best we can do is manage it, harden it in advance, and adapt as and when a new vulnerability is shown in this constant battle for sword edges between victims, and rogues.

 

THE S-ANGLE:

Now, we look back to South Korea, and ask whether there is any structural strength or weakness that makes the nation a recurring[26] and worthy[27] target for cybercrime; and the answer is a very loud yes.

With a wealthy and tech savvy population that has a GDP/PPP over US $33,000, South Korea in 2013, was Asia’s 4th largest economy, 12th largest in the world, and 10th largest, globally, in terms of trade in merchandise and services, alone.[28] In that same year, the economy grew by 2.8%, and had a projected 2014 growth forecast of 3.5-4%.[29]

Essentially, South Koreans are connected, mobile-friendly, and absolutely just love eCommerce.  Nearly 80% of the population is online, which makes it the most connected country in the world.[30]  Mobile penetration has also long been high,[31] with 75% of South Koreans using smartphones overall, and a 98% penetration rate for the 18-24 demographic.[32] On the subject of eCommerce, the consultant Borderfree, “found that an increasing number of South Koreans shop overseas retailers to find lower prices, leverage parcel forwarding to save on shipping costs and join online communities to resell imported items they don’t want.”[33]  Since at least 2008, it has been quite commonplace for South Koreans to send and receive gift certificates and discount coupons by mobile or smart phone, which can be redeemed just by showing the phone and having it scanned, making coupon clipping (and paper coupons), things of the past.[34]

“From smartphones with flexible, foldable screens to smart refrigerators where you can view the inside contents while shopping; or smart communities, where even your child’s wanderings can be tracked through a central operations centre, Korean companies are on the cutting edge of technology.  Each is vying to be the first to develop the Next Big Thing.”[35]

Hence it follows that if everything cyber-new is there, as in methods and applications in a target-rich environment, then every old and new form of cyber offence will also follow into this nation that is essentially structured and functions, as a massive testbed!

This factor is further underscored by the fact that: “South Koreans have on average five credit cards, compared to two in the U.S., and the country has the highest credit card penetration globally.  Consumers in South Korea also use credit more often.  There are 129.7 credit card transactions per year in South Korea, compared to 77.9 credit card transactions annually in the U.S.[36]  Newer technologies introduced will invariably have often unforeseen vulnerabilities that have yet to be patched, and credit card ownership and use have, to date, hardly proved to be entirely risk-free.

It is therefore no surprise that cyber-criminals will congregate at that confluence of high credit card use, high technology, extreme connectivity and mobility, and intense eCommerce that is South Korea.

 

THE T-ANGLE:

I have written, elsewhere, that data has very many “faces” – ranging through Form Factors, Applications, Categories, End-users, and Scale; and therefore presenting many attack surfaces vulnerable to myriad and multiplying attack vectors.[37]  Yes, we can (and must) generally trust the data of and provided by counterparties in an eCommerce-driven world, but why not also verify? Too few are taking the time to fully go through the steps, due to cost and time concerns.  When you receive an email, does the return email match the claimed sender, is the content their usual, are the links or required/suggested actions suspicious in any way?  When it is a business, does the contact information match what they list in a directory (remembering that the spoof site found through an internet search is still a spoof site)?  If this is a claimed professional, are they registered somewhere in a searchable official or regulatory database with the same contact data?  Finally, if it is a financial institution account communication, then do you do business with them?  If the answer is no, or your financial services provider does not send you such open login requests, then you should delete the message! These are very basic steps.

Forensic investigations, eDiscovery, disaster preparedness and recovery, and assessing the effect and impact of remediation measures are now greatly aided by better information governance;[38] as well as backups balanced with commonsense and due diligence in knowing what you are getting into with specific situations as a cloud vendor, a cloud user, or a basic data custodian.[39]

 

CONCLUSION:

Banks had all the money, but data custodians have all the data. Criminals therefore go after the motherlodes of data (financial services entities, telecommunications providers, medical legal and accounting professionals, governments, and other data-loaded intermediaries including high volume vendors – supermarkets, department stores, and hardware stores) where no shotguns or facemasks are needed, because they are unseen and can blend into that stream of blissfully unmonitored eCommerce.

Whether stupendously big, or comparatively small,[40] and even if we don’t hear about them publicly or immediately,[41] there will likely still be hacks for quite some time to come. However, all is far from lost, despite the mind-numbing possibility of staggering single and cumulative future data breaches in new markets,[42] and due to developing mobile and virtual payment and settlement solutions – regardless of the breach’s apparent or alleged nation of origin.

“However, I also think that all threats can be adequately considered when you focus on: (a) achieving buy-in to the need for security protocols and adherence thereto at all levels of the organization; (b) you budget accordingly for training, ERP, and the staff and tolls to deal with the threat universe; and (c) you assiduously enforce best practices, even when it makes (for some) the accessing of preferred apps. or sites inconvenient to impossible, or slows people down a little.  I call this cubing the B.”[43]

In the end, it all starts with leadership, because where there is no buy-in for doing what needs to be done from the higher-ups due to cost concerns, short sightedness, or bad advice, there will be little to no I.T. security budget, best practices will be whatever the heck everyone feels like doing at the time, and a breach will surely come.[44]

At the very least, then, in response to Bob & Co. and what they can do, you should sincerely cube that B!

_____________________________________________________

 

Author:

Ekundayo George is a lawyer and a sociologist. He has also taken courses in organizational and micro-organizational behavior, and has significant experienced in business law and counseling (incorporations, business plans, contracts and non-disclosure agreements, teaming and joint venture agreements), diverse litigation, and regulatory compliance practice. He is licensed to practice law in Ontario, Canada, as well as in New York, New Jersey, and Washington, D.C., in the United States of America (U.S. business advising, outsourcing and cross-border trade, technology contracts, and U.S. financing). See, for example: http://www.ogalaws.com. A writer, blogger, and avid reader, Mr. George has sector experience in Technology (Telecommunications, eCommerce, Outsourcing, Cloud), Financial Services, Healthcare, Entertainment, Real Estate and Zoning, International/cross-border trade, other services, and Environmental Law and Policy. He is a published author on the National Security aspects of Environmental Law, has represented clients in courts and before regulatory bodies in both Canada and the United States, and he enjoys complex systems analysis in legal, technological, and societal milieux.

 

Mr. George is also an experienced negotiator, facilitator, team leader, and strategic consultant- sourcing, managing, and delivering on large, strategic projects with multiple stakeholders and multidisciplinary teams. Our competencies include program investigation, sub-contracted procurement of personnel and materiel, and such diverse project deliverables as business process re-engineering, devising and delivering tailored training, and other targeted engagements through a highly-credentialed resource pool with several hundred years of combined expertise, in: Healthcare; Education & Training; Law & Regulation; Policy & Plans; Statistics, Economics, & Evaluations including feasibility studies; Infrastructure; and Information Technology/Information Systems (IT/IS) – sometimes also termed Information Communications Technologies, or ICT). See, for example: http://www.simprime-ca.com.

 

Hyperlinks to external sites are provided to readers of this blog as a courtesy and convenience, only, and no warranty is made or responsibility assumed by either or both of George Law Offices and Strategic IMPRIME Consulting & Advisory, Inc. (“S’imprime-ça”) including employees, agents, directors, officers, successors & assigns, in whole or in part for their content, accuracy, or availability.

 

This article creates no lawyer-client relationship, and is not intended or deemed legal advice, business advice, the rendering any professional service, or attorney advertising where restricted or barred. The author and affiliated entities specifically disclaim and reject any and all loss claimed, no matter howsoever resulting as alleged, due to any action or inaction done in reliance on the contents herein.

 

***********************************************************************

[1] Chris DiMarco. The top 5 largest cyberbreaches of 2014 (for now). Published October 9, 2014 on insidecounsel.com. Online: >http://www.insidecounsel.com/2014/10/09/the-top-5-largest-cyberbreaches-of-2014-for-now?page=1<

The writer gave these top 5, in ascending order, as: Gmail/Google (5 million), Korea Credit Bureau (20 million), Home Depot (56 million), JPMorgan & Chase Co. (83 million), and eBay (145 million). See also infra, notes 11-14, and 7.

[2] Ekundayo George. Cybersecurity: the Enemy is also (perhaps even more so), Within – the case of “Bob”. Published January 17, 2013 on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/17/cybersecurity-the-enemy-is-also-perhaps-even-more-so-within-the-case-of-bob/<

[3] Supra, note 1.

[4] See generally, Wikipedia.

[5] Id.

[6] This is especially true as a sixth big breach has been added since the list was first made, which now fully covers those 6 million “formerly” lucky U.S. Citizens. See e.g. Steve Kovach. Nearly 7 Million Dropbox Passwords Have Been Hacked. Published October 13, 2014, on businessinsider.com. Online: >http://www.businessinsider.com/dropbox-hacked-2014-10<

[7] Initially pegged at 20 million (which number I have retained), the Korea Credit Bureau breach was later re-calculated to have impacted 27 million South Koreans. See Steve Ragan. 27 million South Koreans affected by data breach. Published August 25, 2014, on csoonline.com. Online: >http://www.csoonline.com/article/2597617/data-protection/27-million-south-koreans-affected-by-data-breach.html<

[8] CBC News. Target data hack affected 70 million people. Published January 10, 2014, on cbc.ca. Online: >http://www.cbc.ca/news/business/target-data-hack-affected-70-million-people-1.2491431<

[9] Chris Welch. Over 150 million breached records from Adobe hack have surfaced online. Published November 7, 2013, on theverge.com. Online: >http://www.theverge.com/2013/11/7/5078560/over-150-million-breached-records-from-adobe-hack-surface-online<

[10] Rachel King for Zero Day. LivingSocial confirms hacking; More than 50 million accounts affected. Published April 26, 2013, on zdnet.com. Online: >http://www.zdnet.com/livingsocial-confirms-hacking-more-than-50-million-accounts-affected-7000014606/<

[11] See generally Google Corporate. Cleaning up after password dumps. Published September 10, 2014, on googleonlinesecurity.blogspot.ca. Online: >http://googleonlinesecurity.blogspot.ca/2014/09/cleaning-up-after-password-dumps.html<

[12] Ben Elgin, Michael Riley, and Dune Lawrence. Home Depot Hacked After Months of Security Warnings. Published September 18, 2014, on businessweek.com. Online: >http://www.businessweek.com/articles/2014-09-18/home-depot-hacked-wide-open<

[13] Jim Finkle and Karen Freifeld. States probe JPMorgan Chase as hack seen fueling fraud. Published Friday, October 3, 2014, on reuters.com. Online: >http://www.reuters.com/article/2014/10/03/us-jpmorgan-cybersecurity-idUSKCN0HS1ST20141003<

[14] Jennifer Abel. eBay hacked again? BBC reports hijacked seller accounts. Published September 23, 2014, on consumeraffairs.com. Online: >http://www.consumeraffairs.com/news/ebay-hacked-again-bbc-reports-hijacked-seller-accounts-092314.html<

[15] Administrative Office of the Washington Courts. Washington Courts Data Breach Information Center: Common Questions. Visited November 3, 2014 (regarding a data breach discovered in February/March, 2013). Online: >http://www.courts.wa.gov/newsinfo/?fa=newsinfo.displayContent&theFile=dataBreach/commonQuestions< ;

The Associated Press in Washington. Records of up to 25,000 Homeland Security staff hacked in cyber-attack.

Published Saturday August 23, 2014, on theguardian.com. Online: >http://www.theguardian.com/technology/2014/aug/23/homeland-security-25000-employees-hacked<

[16] Ekundayo George. Cybersecurity: the Enemy is also (perhaps even more so), Within – the case of “Bob”. Published January 17, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/01/17/cybersecurity-the-enemy-is-also-perhaps-even-more-so-within-the-case-of-bob/<

[17] Sophie Curtis. Credit card details of 20m South Koreans leaked. Published January 20, 2014, on telegraph.co.uk. Online: >http://www.telegraph.co.uk/technology/internet-security/10584348/Credit-card-details-of-20m-South-Koreans-leaked.html<, comments on the Korea Credit Bureau case by Matt Middleton-Leal, regional director for the UK and Ireland at security firm CyberArk.

[18] Id.

[19] Indeed, both of the monumental hacks – at Target and Korea Credit Bureau, were accomplished through third parties: Krebs on Security, Email Attack on Vendor Set Up Breach at Target. Published February 12, 2014, on Krebsonsecurity.com. Online: >http://krebsonsecurity.com/2014/02/email-attack-on-vendor-set-up-breach-at-target/< ; Lucian Ciolacu. Contractor with USB Stick Commits Biggest Credit Card Data Heist in South Korean History. Published January 21, 2014, on hotforsecurity.com. Online: >http://www.hotforsecurity.com/blog/contractor-with-usb-stick-commits-biggest-credit-card-data-heist-in-south-korean-history-7667.html<

As a result, some banks with their own compliance concerns, are now quite nervous about their law firms as vulnerable third parties. See e.g. Jennifer Smith and Emily Glazer of Dow Jones Business News. Banks Demand That Law Firms Harden Cyberattack Defenses. Published October 26, 2014, on nasdaq.com. Online: >

http://www.nasdaq.com/article/banks-demand-that-law-firms-harden-cyberattack-defenses-20141026-00022<

[20] Id. Jennifer Smith and Emily Glazer of Dow Jones Business News.

[21] Kara Scannell in New York. NY bank regulator targets cyber threat. Published October 6, 2014, on ft.com. Online: >http://www.ft.com/cms/s/0/5a981338-4cdf-11e4-a0d7-00144feab7de.html#axzz3HghMk1j4< quote of Benjamin Lawsky, Superintendent for New York’s Department of Financial Services.

[22] Sharon D. Nelson & John W. Simek. Clients Demand Law Firm Cyber Audits. Published in ABA Law Practice Magazine Vol 39, Number 6 (Nov./Dec. 2013) Online: >http://www.americanbar.org/publications/law_practice_magazine/2013/november-december/hot-buttons.html<

[23] As with a stolen credit card, a bounced cheque, or counterfeit cash, for example.

[24] As with a man in the middle attack (spoofed eCommerce website, or legitimate but infected site with cross-site scripting), for example.

[25] As in advance fee fraud, for example.

[26] In July of 2011, two websites (Cyworld and Nate) run by SK Communications of South Korea were breached, resulting in a loss of some 35 million records. “Hackers are believed to have stolen phone numbers, email addresses, names and encrypted information about the sites’ many millions of members.” See BBC. Millions hit in South Korean hack. Published July 28, 2011, on bbc.com. Online: >http://www.bbc.com/news/technology-14323787< . One year later, in July, 2012, South Korean authorities announced arrests in the case of hacks impacting 8.7 million users at KT Corp, the nation’s number one fixed line operator and number two mobile operator.

 

“The company says hackers stole subscribers’ names, phone and personal identification numbers, and then sold the data to telemarketers.”

 

“An illegally installed computer program had collected subscribers’ information over several months, KT Corp said.”

 

See BBC. South Korea arrests phone firm KT Corp hacking suspects. Published July 30, 2012, on bbc.com. Online: >

http://www.bbc.com/news/technology-19048494<

[27] To impact the Personally Identifiable Information (PII) records of 40% of an entire nation’s population in a single stroke, is certainly a major scoop, by any reckoning. Especially ironic, are the circumstances of this hack:

 

Customer details appear to have been swiped by a worker at the Korea Credit Bureau, a company that offers risk management and fraud detection services.” (Where were the vendor due diligence, segregation of duties, and the internal fraud controls?) (Emphasis added).

 

“The worker, who had access to various databases at the firm, is alleged to have secretly copied data onto an external drive over the course of a year and a half.” (Where were the access and event logs, “business need only” access privilege limitations, and random audits?) (Emphasis added).

 

See Sophia Yan and K.J. Kwon. Massive data theft hits 40% of South Koreans. Published January 21, 2014, on cnn.com. Online: >http://money.cnn.com/2014/01/21/technology/korea-data-hack/< See also supra, note 13, Jim Finkle and Karen Freifeld (JPMorgan Chase & Co.).

[28] Foreign and Commonwealth Office of the United Kingdom. Guidance: Overseas Business Risk – South Korea.

Last updated May 27, 2014, and published on gov.uk. Online: >https://www.gov.uk/government/publications/overseas-business-risk-south-korea/overseas-business-risk-south-korea<

[29] Id.

[30] Daniela Forte. South Korea Stands Out as Ecommerce Market for U.S. Retailers. Published June 19, 2014, on multichannelmerchant.com. Online: >http://multichannelmerchant.com/must-reads/south-korea-stands-out-in-ecommerce-market-for-u-s-retailers-19062014/<

[31] The Associated Press. Korea has nearly as many cell phones as people. Last updated January 28, 2009, and published on nbcnews.com. Online: >http://www.nbcnews.com/id/28893283/ns/technology_and_science-tech_and_gadgets/t/korea-has-nearly-many-cell-phones-people/#.VFKb0xbClGM<

[32] Id., and supra note 30.

[33] Supra note 30.

[34] Reuters. Paper is passe for tech-savvy South Koreans. Published Friday, May 9, 2008, on reuters.com. Online: >http://www.reuters.com/article/2008/05/09/us-korea-coupons-idUSS0914416520080509<

[35] Gordon Hamilton. Asia Pacific report: South Korea now a global technology tiger. Published November 25, 2013, on biv.com. Online: > http://www.biv.com/article/2013/11/asia-pacific-report-south-korea-now-a-global-techn/<

[36] Sarah Jones. South Korea boasts highest global credit card penetration: report. Published June 27, 2014, on luxurydaily.com. Online: >http://www.luxurydaily.com/south-korea-boasts-highest-global-credit-card-penetration-report/<

[37] Ekundayo George. The 100 “FACES” of Data: a 5-part Complex Systems Study (Part 1 – Form Factors). Published November 1, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/11/01/the-100-faces-of-data-a-5-part-complex-systems-study-part-1/<

[38] Ekundayo George. To Gatto from Zubulake: 2 Thumbs-up for Better Information Governance/Anti-Spoliation. Published March 31, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/03/31/to-gatto-from-zubulake-2-thumbs-up-for-better-information-governanceanti-spoliation/<

[39] Ekundayo George. Data Protection and Retention in the Cloud: Getting it Right. Published March 11, 2013, on ogalaws.wordpress.com. Online: >https://ogalaws.wordpress.com/2013/03/11/data-protection-and-retention-in-the-cloud-getting-it-right/< You cannot leave everything to a vendor or counterparty, if and when you are primarily responsible for your own security and the security of the data that you host at rest, in transit, or subject to access and change, for others.

[40] Terry Collins and Anne D’Innocenzio for The Associated Press. Twitter hackers nab data on 250,000 accounts. Published February 2, 2013, on ottawacitizen.com. Online: >http://www.ottawacitizen.com/business/Twitter+hackers+data+accounts/7911027/story.html<

[41] Ben Elgin, Dune Lawrence and Michael Riley. Coke Gets Hacked And Doesn’t Tell Anyone. Published November 4, 2012, on bloomberg.com. Online: >http://www.bloomberg.com/news/2012-11-04/coke-hacked-and-doesn-t-tell.html< This kind of silence is changing, however, due to increasing regulatory focus on cyber risks and cyber events, and a push for timely and full disclosure and remediation when it may impact the bottom line, systemically important entities, or public or investor confidence.

[42] China and India are the most populous nations on earth, with well over 1 Billion citizens, each; but comparatively (with all other nations) very low ratios of banked citizens, and citizens with access to organized credit facilities. The promised easing of China’s restrictions on foreign credit card issuers paves the way for many of the entry-market credit card products that we see in the West – secured cards, rechargeable cards, debit cards, and the like, along with the juicy fees for annual access, loading, overdrafts, late payments, cash advances, and per transaction. Of course, this will require the taking, keeping, and updating of vast amounts of data on a vast population; creating a single and captive, target rich environment of irresistible size that will remain very vulnerable to any lapses in data governance and/or cyber best practices. See generally Joe McDonald of The Associated Press. China easing credit card monopoly opening door for Visa, MasterCard. Published October 30, 2014, on ctvnews.ca. Online: >http://www.ctvnews.ca/business/china-easing-credit-card-monopoly-opening-door-for-visa-mastercard-1.2078518<

[43] Ekundayo George. Individual (allegedly) Wreaks Havoc with Former Employer – Another Teachable Moment in Infosec. Published May 16, 2013, on wordpress.ogalaws.com. Online: >https://ogalaws.wordpress.com/2013/05/16/individual-allegedly-wreaks-havoc-with-former-employer-another-teachable-moment-in-infosec-2/<

[44] See e.g. Supra note 12, Ben Elgin, Michael Riley, and Dune Lawrence (Home Depot).

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