Charter Conference: Law and Practice 2002
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October 10, 2002
Privacy Commissioner of Canada
(Check Against Delivery)
I very much welcome this opportunity to meet with you today, to discuss the appropriate balance between security and privacy.
In the circumstances we are now experiencing, few issues are more important or more timely. And few people are better positioned to shape and guide public opinion than you as members of the legal profession.
The choices that free and democratic societies around the globe make in this regard, in this difficult time of challenge, will quite literally determine what kind of world we create not only for ourselves but what kind of world we leave to our children and grandchildren.
As Justice Thurgood Marshall of the U.S. Supreme Court so eloquently put it:
"History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. There is no doubt that the events of September 11.have created in us a sense of urgency. Future generations will consider how we dealt with this emergency, not only in the context of our acts of defence, but also in how we respected fundamental freedoms and liberties."
In few societies are those choices more urgent and sensitive than here in Canada.
That's because, in addition to the normal intensified concerns about security that are the case in so many countries, the Canadian government is coming under extraordinary - probably unique - pressure from the United States to adopt privacy-invasive security measures dictated south of the border.
Those measures risk profoundly altering the nature of Canadian society and the lives of Canadians not to make us appreciably safer, but to meet the security wishes - whether well-considered or not - of the United States.
Let me be very clear: I am not here to argue that privacy is an absolute right - or even that there may not be a need for some new privacy-invasive measures to meet the kinds of security threats that we're now facing.
Ever since September 11, in fact, I have repeatedly made clear that as Privacy Commissioner and an Officer of Parliament, I have absolutely no intention of being an obstacle to protecting the public.
But when people are frightened for their safety, when we've seen the horrors of which today's breed of terrorists are capable - and there may be more - it's easy to lose perspective. It's easy to fall into the trap of thinking that security is all that matters and that privacy is a luxury.
But such excesses can only reward and encourage terrorism, not diminish it. They can only devastate our lives, not safeguard them.
Of course we all want to be safe. But we could be safer from terrorism if we permanently evacuated all the high-rise office towers. If we closed down the subways. If we forever grounded all airplanes.
But no reasonable person would argue for adopting such measures. We'd say, "We want to be safe - but not at the price of sacrificing our whole way of life."
The same reasoning should apply, in my view, to arguments that privacy should indiscriminately be sacrificed on the altar of enhanced security.
Privacy is an innate, visceral human need.
When you go home at night, you probably close the curtains, draw the blinds - not because you're doing something bad, but because you need your privacy.
If you're on an airplane or a bus reading a book and someone starts reading over your shoulder, it probably makes you uncomfortable. It's not that what you're reading is secret or embarrassing - it's just that your privacy is being invaded.
If you've ever had the misfortune of having your home or even your car broken into, you know that the sense of intrusion - of having your privacy violated - can be even more painful than the loss of whatever was actually stolen.
But privacy is more than an innate human need. Privacy is a fundamental human right, recognized as such by the United Nations. It is, as Justice La Forest of the Supreme Court of Canada has said, "at the heart of liberty in a modern state."
That's because there can be no real freedom without privacy. If we must live our lives knowing that at any given moment someone - and particularly agents of the state - may be metaphorically or quite literally looking over our shoulder, we are not truly free.
If we have to weigh every action, every statement, every human contact, wondering who might find out about it, make a record of it, judge it, misconstrue it or somehow use it to our detriment, we are not truly free.
Many have suggested, in fact, that privacy is the right from which all others flow - freedom of speech, freedom of association, freedom of choice, any freedom you can name.
That's why lack of real privacy is a distinguishing characteristic of so many totalitarian societies. And it's why privacy and the other cherished freedoms and values that define our respective societies are not frills or luxuries in the current situation.
They are, in a very real sense, what this situation is all about.
Terrorism is not an action; it is an effect. The essence of terrorism is the impact it is intended to have on those who witness it - the capacity to frighten, to demoralize, to sap the will of a society to resist whatever it is that the terrorists want.
Usually, that's something fairly specific - independence for a particular area, or installation of a particular government. But by all accounts, the goals of the current terrorist movement are much broader and more diffuse - it is the whole nature of American society, and by extension of all our Western societies, that they seek to attack and undermine. Our freedoms and values, very much including privacy, are precisely the target.
Far from making us safer, every ill-considered reduction of those freedoms - every needless encroachment on privacy - would be a victory for terrorism, a proof of effectiveness in disrupting our society that could only encourage further outrages.
I know that it's become almost a cliché to say that if we do or don't do this or that, "the terrorists win." But when it comes to sacrificing a fundamental right such as privacy, you don't have to take my word for it.
Consider instead the words of no lesser an authority on the aims of the September 11 terrorists than Osama bin Laden, who in one of his statements about a month after the attacks predicted that "freedom and human rights in America are doomed. The U.S. government will lead the American people - and the West in general - into an unbearable hell and a choking life."
The attacks of September 11 broke great taboos. They assaulted the very concept of civilization, of civilized behavior, as our societies know it. There's no question that they tore a hole in the fabric of all our Western societies.
Our challenge is to urgently mend that hole and reinforce the fabric, by reaffirming with all the more vigor and clarity the rights, freedoms and values that are the very definition of our way of life.
And so with regard to privacy - that core right, that fundamental right - our challenge is to guard against intrusions based on reflex, on convenience or on ulterior motives.
We must guard against falling prey to the illusion that wholesale erosion of privacy is a reasonable, necessary or effective way to enhance security.
We must guard against the tendency of governments to create new data bases of privacy-invasive information on justified, exceptional grounds of enhancing security, and then seek to use that information for a whole range of other law enforcement or governmental purposes that have nothing to do with anti-terrorism - simply because it's there.
And we must guard against the eagerness of law enforcement bodies and other agencies of the state to use the response to September 11 as a Trojan horse for acquiring new invasive powers or abolishing established safeguards simply because it suits them to do so.
These are not merely theoretical concerns.
Right now, as we speak, the Canada Customs and Revenue Agency is busy setting up - over my very strong objections - a massive Big Brother database of the personal information of every Canadian air traveller. The government is going to have a six-year database of all your travel activities - every destination you fly to, who you travel with, how you pay for your ticket, how long you stay, how many pieces of baggage you check each time, even your dietary preferences.
And under the information-sharing provisions of the Customs Act, this information will be available for an almost limitless range of governmental purposes that have absolutely nothing to do with anti-terrorism.
Bill C-55, the anti-terrorism bill that died on the order paper when Parliament was prorogued but will be reintroduced, has a provision that effectively means mandatory self-identification to the police.
The RCMP would be authorized to scan airline passenger lists in search of anyone wanted on a warrant for any Criminal Code offence punishable by five or more years imprisonment.
Under the so-called "Lawful Access Initiative" proposal that the federal government has put forward, our Internet and telephone communications would be subject to unprecedented scrutiny.
September 11 was a tragedy and an outrage. We must not allow it to be turned by the state into an opportunity to intrude deeply into our lives for reasons that have nothing to do with anti-terrorism.
And even as far as terrorism is concerned, it may be tempting to think that we'll be safer if privacy is brushed aside and there is a lot more wholesale, indiscriminate gathering of information about everyone. But, in fact, I think we'd probably be a lot less safe.
Who would sift through all that additional information? Imagine the resources it would take.
The most likely result of a personal information glut would be to shift resources and attention away from the more targeted activities that are the only effective approach to terrorism. We'd only be creating a thicker forest of information in which the terrorists could hide.
We need, rather, to distinguish between information and intelligence. More information about everyone isn't likely to accomplish anything except violating people's privacy and turning every citizen into a suspect. Intelligence - directed, suspicion-based contacts, inquiries and searches - is a very different matter.
What is needed, to make us safer from terrorism, is not mindless invasion of privacy, but more and better intelligence, in both senses of the word.
Perhaps it will be necessary to accept some new intrusive measures to enhance security. But these choices must be made calmly, carefully and case by case.
The burden of proof must always be on those who suggest that some new intrusion or limitation on privacy is needed in the name of security.
In Canada, I have suggested that any such proposed measure must meet a four-part test:
It must be demonstrably necessary in order to meet some specific need.
It must be demonstrably likely to be effective in achieving its intended purpose. In other words, it must be likely to actually make us significantly safer, not just make us feel safer.
The intrusion on privacy must be proportional to the security benefit to be derived.
And it must be demonstrable that no other, less privacy-intrusive, measure would suffice to achieve the same purpose.
Necessity, effectiveness, proportionality, and lack of a less privacy-invasive alternative - that's the test that I believe can allow us to take all appropriate measures to enhance security, without unduly sacrificing privacy.
It's a test on which I believe we must resolutely insist.
And it's a test that many of the intrusive measures that are reflexively being proposed in various countries, measures including national identity cards, video surveillance of public streets and massive retention of internet data, wouldn't even begin to meet.
One of the clearest lessons of history is that the greatest threats to liberty come not when times are tranquil and all is well, but in times of turmoil, when fidelity to values and principle seems an extravagance we cannot afford.
And history also teaches us that whenever we have given in to that kind of thinking, we have lived to regret it.
At the time, the loss of freedom might seem small, trivial even, when placed in the balance of the security we seek.
And yet these incremental threats are the ones we must be most vigilant in resisting. Edmund Burke understood this danger when he wrote, "The true danger is when liberty is nibbled away, for expedience, and by parts."
Our challenge today, in the wake of September 11, is to refuse to allow the fundamental right to privacy to be nibbled away, for expedience, and by parts.
If we truly believe that the right to privacy is, at its heart, the respect that society pays to the inviolability of the individual, then we must demand and accept no less.
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