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Appearance of the Privacy Commissioner of Canada to the Standing Committee on Human Rights & the Status of Persons with Disabilities

November 21, 1996
Ottawa, Ontario

Bruce Phillips
Privacy Commissioner of Canada
(Check Against Delivery)

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Seven years ago, that talented academic, and now British Columbia's Information and Privacy Commissioner, David Flaherty, wrote a seminal book about protecting privacy in what he called surveillance societies. Dr. Flaherty argued that individuals in the Western world are increasingly subject to surveillance through the use of private sector and public sector databases, a phenomenon that is transforming the quality of our lives. As Dr. Flaherty so eloquently summed up the surveillance phenomenon, "In the waning years of the twentieth century, our technocratic societies can accomplish what George Orwell could only fantasize about in the aftermath of the Second World War."

The movement continues unabated and, coupled with society's demand for personal security, efficiency and profit, conspires to push privacy's back to the wall. This is the temper of our times.

Although you have heard some of this before, I think the message bears repeating because of the implications for the privacy of us all. I hope you will join me in reflecting on what we stand to lose, as individuals, as a society, if we allow this hard won human right to slip from our grasp.

Let me give you just a few examples of how that surveillance society has already become entrenched:

• in late September 1996, the government introduced amendments to the Criminal Code to allow the government to ask a judge for authority to place an electronic device on an individual to monitor his or her movements. The device can be used if there are reasonable grounds to fear that the individual will commit a serious personal injury offence against someone else, even if the purported victim is not named. The individual being monitored need not even have been charged with or convicted of any offence.
• an American direct marketing company sells a list with the addresses of some 80 million U.S. households organized by ethnic group. Among the 35 groups singled out are Armenians and Jews. The information includes both the number of children and their age range. Wouldn't a terrorist organization love to get hold of that list!
• another service, available through the Internet, can track down any of 160 million individuals living in the United States. The information includes the address, telephone number, names of household members and dates of birth, and the listings of up to 10 neighbours
• British Columbia's Pharmanet program stores all prescription records in a provincial database, linked by name to patients. B.C. residents cannot opt out of this government collection of what could be highly sensitive medical information. While designed to help prevent conflicting medication, a major cause of hospital admissions, the information can be shared with others, including police, for purposes completely unrelated to health care.
• Human Resources Canada proposes to match returning travellers' customs declarations with unemployment insurance claims to identify cheaters. Travellers have never been told that these forms would be used for an entirely unrelated purpose, detecting false insurance claims.
• the United States military has begun taking DNA samples from two million American service personnel to help identify battle casualties. However, the DNA will also be available to police for criminal investigations, thus providing in an instant what they could never otherwise hope to obtain, a DNA database of about two million individuals who are not even remotely suspected of having committed a crime.
• in the United Kingdom, some 200,000 surveillance cameras are in use. In at least one city they have been installed in residential neighbourhoods and can look into residences. Many of these cameras have powerful zoom lenses and can see at night.
• technology can now make and store a digital image of your face, then link up with a camera to find your face in a crowd, for example, a political demonstration. The manufacturers of one such imaging system claim that by 1997 their product will be able to scan a database of 50 million faces in less than a minute.
• other devices can electronically sniff your luggage for contraband, scan beneath clothing to detect guns and drugs from a range of 12 feet or more, look through building walls to detect activity and, programmed to recognize your voice, pluck your telephone conversations out of the air. All of these technologies operate without your knowledge.

Some of the measures I have described appear to be beneficial. Some may seem a little absurd. And some seem not too troubling at first glance. But others send chills up and down your spine.

Let's take a closer look at some of these ostensibly beneficial forms of monitoring, surveillance cameras, for example. It is difficult to argue that a single surveillance camera in an underground parking garage constitutes a grave threat to privacy. It may prevent some criminal activity, make people feel safer entering a garage, and help catch those who commit crimes.

However, when the number of cameras increases to the point at which we cannot lead normal lives outside the baleful glare of a camera, surveillance begins to inhibit normal human activity. Simon Davies, whom you heard during your roundtable discussions, describes the widespread use of surveillance cameras as akin to issuing a general search warrant on the entire population. In a society that prides itself on limiting the powers of the state to intrude into our lives, this type of largely unregulated surveillance is alarming. We appear ready to have technology circumscribe our lives in exchange for questionable benefits. Do surveillance cameras actually reduce crime, or do they simply displace it to areas not under surveillance? And if every place is under surveillance, have we built a gulag?

And what of those devices I mentioned that can search people or peer into their homes without their knowledge? We may accept the necessity if the person is a terrorist. But is it acceptable for everyone? The state needs no warrant to conduct a search with these devices. Yet, a police officer would almost certainly need a warrant to conduct a physical search of your body or your home.

Mr. Justice La Forest, in his dissent in the Supreme Court of Canada decision, R. v. Silveira, noted the principle of the sanctity of the home which even the King himself could not overrule "without the authority of a judicially issued warrant. That principle has remained ever since as a bulwark for the protection of the individual against the state. It affords the individual a measure of privacy and tranquility against the overwhelming power of the state."

How will our Supreme Court react to technologies which allow the state to see through the walls of the very home that has so long been protected from arbitrary intrusions?

The technology behind today's surveillance society is changing the nature of human relationships. It is threatening the very existence of a hard won and fundamental human right, the right to privacy. We may have come a long way since the days when one's home was one's castle and one's body was one's own. Unfortunately we seem to be going in the wrong direction.

What is privacy?

Privacy is not simply an abstract notion that intrigues academics, confounds their students, but matters to no one else. Intrusions into our personal lives have concrete, real-world consequences. They shape how we lead our lives. The limits of our personal privacy define in large part the limits of our freedom. As Mr. Justice La Forest stated in the Supreme Court of Canada's 1990 Duarte decision, "it has long been recognized that this freedom not to re compiled to share our confidences with others is the very hallmark of a free society". Columbia University professor Alan Westin is equally forceful, describing privacy as being at the heart of liberty in a modern state.

In another sense, privacy means protection against physical intrusions against the person, such as assaults, or physical searches by police. It can be the right to protection from intrusions against one's property, such as one's home. It may mean the right to protection from surveillance by cameras or eavesdropping devices or, perhaps, researchers. It may mean the right not to have your personality appropriated. And finally, privacy is also about information. The task force report which led to early privacy legislation observed that "this notion [of information privacy] derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain as he sees fit."

And privacy is exhaustible. Once you lose it, it cannot be retrieved or regenerated. Just look at Prince Charles and Lady Diana, the players in one of the world's favourite soap operas. Can either of them ever hope to regain the privacy that they have lost through the interception of their telephone calls? Can the man who tests HIV positive regain control of this sensitive personal information once it has been released into the community? Can the woman whose DNA test reveals the presence of the gene for Huntingdon's disease ever hope to get a job or life insurance? Can someone whose personal information is intercepted on the information highway ever hope to re-establish control over that information?

What is protecting our privacy?

In the past 50 years, privacy has taken its place alongside other human rights in international conventions, constitutional law, federal and provincial legislation and professional codes of conduct. Our courts too have increasingly come to speak of the privacy rights of Canadians.

International law (to which Canada adheres) acknowledges everyone's right to life, liberty and security of the person and states that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation." Canada also adheres to the OECD Guidelines which establish minimum standards for handling personal information. However, unlike international law which protects broad privacy rights, the Guidelines , like the federal Privacy Act, protect only one aspect of privacy, the privacy of personal data.

Canada also has constitutional privacy protection, perhaps not through explicit language in the Canadian Charter of Rights and Freedoms, but through thoughtful interpretations of two provisions; section 7, the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, and section 8, the right to be secure against unreasonable search or seizure.

Court decisions interpreting the Charter as offering privacy protection have most often arisen in the context of the criminal law. However, the Supreme Court of Canada has also made it clear that the Charter is relevant to privacy concerns outside the criminal context. In a recent decision Mr. Justice La Forest reinforced this notion. He wrote that section 8...

"draws a line between the rights of the state and the rights of the citizen, and not just those of an accused. It is a public right, enjoyed by all of us. It is important for everyone, not only an accused, that police (or what is even more dangerous for the public, other agents of the state) do not break into private premises without warrant."

Canadians benefit from data protection legislation such as the federal Privacy Act, and similar provincial laws. And other laws range from privacy torts in four provinces to those governing credit reporting and medical confidentiality. But faced with modern threats to privacy, our laws remain dangerously porous. Outside Quebec, there exists no general private sector data protection legislation.

As well, our laws have not kept up with advances in technology. We now face the absurd situation where it is a criminal offence in Canada to eavesdrop without the consent of one of the persons being listened to. Yet it is not a criminal offence to conduct highly intrusive video surveillance of those same persons as long as you don't listen to what they say.

The complicating factors

Protection of privacy is thus hindered by incomplete and ineffective privacy laws. That alone is not an insurmountable problem. However, a host of other factors have conspired to impede effective privacy protection in Canada.

The first such factor is the public mood, or rather, the apparent shift in the public mood towards what a cynic might call "personal security at all costs, security at any cost". Privacy is cited as the roadblock in debates about public security. Privacy is blamed for hindering effective law enforcement or endangering public security. Inevitably, the truth lies elsewhere but the process may be something more complex.

The second factor is the demand for government efficiency, the siren song of our times. Governments search for greater efficiency at less cost. Noble goals, but in too many cases taxpayers' privacy becomes the first casualty of the war on the bottom line. Government databases hold a wealth of information about individuals which could be sold to private sector interests, offsetting the cost of government operations.

Governments could enhance efficiency by mixing and matching data. Compare data of those who travelled abroad with those who claimed unemployment insurance to see if they were really available for work. Compare unemployment insurance files with income tax returns to detect fraud. Exchange information with the provinces to ensure that people are not abusing their welfare privileges.

The third factor militating against rational protection of privacy, is the marketing power of the high technology industry and the potential economic returns from the products. Think of the money to be gained by persuading the public that surveillance cameras are an indispensable tool for ensuring security and protecting property. Think of the returns for the biotechnological testing industry if government and industry can be convinced that employees and clients should have DNA tests.

Nowhere in the marketing pitch for these technologies is one likely to hear an acknowledgement that they carry a large, hidden, price, your privacy. And the marketing power of these industries, their drive for profits, overwhelms the less well-financed voices defending privacy. Privacy commissioners, human rights organizations and individual citizens have none of the financial clout to counter these sophisticated marketing campaigns which extol the virtues of surveillance, while ignoring the profound damage it does to our autonomy.

Our society is mesmerized by technology. This gee-whiz attitude to technology regards each new development as more like a toy, and less like what it can become in the wrong hands, an intrusive weapon.

Privacy advocates have also learned that the mere existence of an intrusive technology or a collection of personal information seems to beg its further use. Just as a gas expands to fit its container, potentially intrusive technologies will expand in search of new applications.

Among the greatest challenges that we face is recognizing the privacy threats. Rarely can we identify a single incident, a single technology, a single government policy, that constitutes such a threat to our society that the public springs to its feet in protest. Instead, intrusions insinuate themselves into our daily lives, one by one, little by little. Yet the end result is dramatic, and the realization of the damage may come too late.

Of course you have nothing to hide. But that is not the point. Even if you have nothing to hide, you have a great deal to lose. You have your autonomy, your sense of anonymity, your right to go about your business unmolested. And even if you have nothing to hide, surveillance will subtly alter your behavior. Take away your privacy and you take away your dignity, your control over your life.

Preventing the death of privacy

I have tried to identify just some of the sobering challenges, the impediments to protecting privacy as we head into the third millennium. But how about a few solutions? I don't want to leave you long on criticism, short on substance.

Filling the gaps left by our patchwork of privacy laws is an obvious priority. In particular, Canada needs an extension of data protection laws to cover the information handling practices of the private sector. Except for Quebec, no Canadian province has broad data protection legislation governing the private sector. I am greatly encouraged that the federal Minister of Justice is committed to introducing private sector data protection legislation for industries subject to federal regulation. But filling the gaps in data protection legislation is not enough.

Legislators have a central role in pushing privacy to the fore in the human rights and political discourse of our country. We need to remind Canadians that privacy is not a peripheral matter. It is a core value from which so many other democratic rights flow.

Perhaps most important, we need to shape a new ethical framework for society, infused with respect for privacy. Like it or not, technology has changed our relationships as human beings. What ethical principles must we instill in our society to adapt to this change, yet protect this right?

All citizens should have the right to demand that any potentially intrusive technology be subject to an assessment of its privacy implications, a sort of privacy audit, before it is introduced to run amok in society.

And citizens must have the right to use privacy-enhancing technologies. By that I mean, those technologies that safeguard our privacy by minimizing or eliminating collection of identifiable data. Just as technology can intrude, technology can protect against intrusion. For example, we can use cryptography to protect personal communications, or spend anonymous digital cash in financial transactions. Wherever possible, protective features should be built into the technology. And access to such privacy enhancing features should be free. Nor should we have to justify our desire to use them to protect their privacy. Instead, the onus should be on those who want to limit use of these protective technologies to prove the need to do so.

Above all, we must not allow ourselves to be seduced by the flawed logic that more surveillance means a better, more secure, society. What is at stake here is the quality of our lives. Surely, the memory of the authoritarian regimes that scar the history of this century, and indeed last night's newscasts and this morning's newspapers, will reinforce our distaste for surveillance societies. I hope we will be able to look back upon the last years of this millennium as those that gave birth to a new appreciation of privacy, not one that presided over the dying gasps of a fundamental social value.