The recent case involving the Canada Revenue Agency and eBay took an interesting (and perhaps somewhat ironic) twist on access to information. Without getting into too much detail, the essence of the issue was this: CRA wanted eBay Canada to cough up information on folks known as “Power Sellers” – those that sell a lot of stuff on eBay. Presumably so that CRA could helpfully remind those folks of their tax obligations in the unfortunate event they somehow forgot to report all the income they made in Canada by selling on eBay.
eBay Canada’s response was that the legal entity in Canada did not in fact own that information and it was also not stored in Canada. Rather, the information was owned by some of its affiliates and stored in the US, outside of Canadian jurisdiction. So they couldn’t provide the information, they asserted.
Unfortunately (for eBay) it came out that eBay Canada was able to access the information even though it didn’t own the data. In fact, it had to be able to access that information in order to run its business. So the court ruled in favour of the CRA, with this rather cogent analysis:
The issue as to the reach of section 231.2 when information, though stored electronically outside Canada, is available to and used by those in Canada, must be approached from the point of view of the realities of today’s world. Such information cannot truly be said to “reside” only in one place or be “owned” by only one person. The reality is that the information is readily and instantaneously available to those within the group of eBay entities in a variety of places. It is irrelevant where the electronically-stored information is located or who as among those entities, if any, by agreement or otherwise asserts “ownership” of the information. It is “both here and there” to use the words of Justice Binnie in Society of Composers, Authors and Music Publishers of Canada v. Canadian Ass’n of Internet Providers, [2004] 2 S.C.R. 427 at paragraph 59. It is instructive to review his reasons, for the Court, at paragraphs 57 to 63 in dealing with whether jurisdiction may be exercised in Canada respecting certain Internet communications, including an important reference to Libman v. The Queen, [1985] 2 SCR 178 and the concept of a “real and substantial link”.
The implications in this case are relatively clear. In other cases, it may become less so. For example, what happens with this concept when someone who once stored their docs on their local hard drive starts using Google Docs, only to find out that the authorities in whatever far-flung jurisdiction have ordered an affiliate of Google to disclose that information? Or in the near future when things like Prism get to a point where users aren’t even sure whether their data is here, there, or elsewhere. Interesting times, indeed.
