How technology impacts privacy.

By Patricia Jordan

Did you know that most colour printers leave an identifier code on each piece of paper that is printed? Although that sounds unlikely, it is true. Several years ago, the United States Secret Service asked manufacturers of colour printers and photocopiers to include technology in their products that would allow them to track the source of print material. Initially, the request was made so that the Secret Service could track counterfeiters.

The technology behind the identifier code is ingenious. It is a series of yellow tracking dots that are invisible to the eye under normal light. They are often printed across the entire page, including blank portions of the page. These yellow tracking dots can be viewed with a blue LED light in a darkened room, under magnification or by using a high-resolution flatbed scanner. Zooming in will reveal the yellow dots when they are present. To enhance the dots more clearly, you can use software like Adobe Photoshop to show the blue channel of the image where the dots are more visible. The dots are printed in a specific pattern that allows authorities to identify the individual who printed a particular piece of paper based on the printer. The dots can identify the serial number of the printer and often includes the time and date the page was printed. The Electronic Frontier Foundation (EFF) has deciphered many marking schemes used by manufacturers. EFF has published a list of colour printer and photocopier manufacturers that use this technology on their website at www.eff.org. Monochrome laser printers and inkjets do not appear to leave identifier code.

I spoke about identifier code with J. Geoffrey Howard, a Partner and Head of Gowling Lafleur Henderson LLP’s Vancouver Employment and Labour Law practise. He also practises in the area of privacy law. I asked if it is a human rights or privacy law violation for government and manufacturers of printers to track the activity of customers without their knowledge or consent. He commented, “This type of data collection does not really infringe human rights laws, such as the B.C. Human Rights Code, since they mainly focus on preventing and remedying discrimination. However, any attempts to collect and use this data against individuals by private sector actors or even government may breach privacy laws, such as B.C.’s private sector Personal Information Protection Act (PIPA). While in many cases the information about the printer relates to a corporate owner or user of the machine, in some cases, the owner or user (e.g. a lessee) will be an individual and thus such information, together with the document itself, is arguably ‘personal information’ about them. PIPA regulates the collection, use and disclosure of personal information and generally requires some sort of consent (e.g. implicit, negative option or express) to any collection, use or disclosure of personal information. If the government wants to use such information to investigate a crime, for example, they will normally have to get a warrant to get it. Unless there are new laws passed, the machine manufacturers and other parties who can say where a particular machine is by serial number, should probably decline to provide location information if requested by a non-law enforcement agency and even by a law enforcement agency, unless the requestor can show lawful authority such as under a warrant.”

Patricia Jordan is the CBABC Web Manager. She welcomes your comments, questions and suggestions. Tel: 604-646-7861; Email: pjordan@bccba.org; visit: www.cba.org/bc.

This article was published in the June 2010 issue of BarTalk. © 2010 The Canadian Bar Association. All rights reserved.