ARCHIVED - Speeches
National Press Club
January 30, 2003
Privacy Commissioner of Canada
As you know, yesterday I presented Parliament and Canadians with my Annual Report.
Normally, that would have been a pleasant occasion for me. It was less pleasant because the message that I had to deliver was a grim one.
The right of privacy is at the core of the basic freedoms of our society.
Privacy is sometimes described as "the right from which all freedoms flow."
Freedom of speech, of thought, of association, to name just a few, are grounded in the idea that we have a private sphere of thought and action that is our business and nobody else's-not our neighbours', not our employers', not some telemarketer's, and certainly not the state's.
In Canada today that fundamental human right is under unprecedented assault.
My Annual Report describes in detail a series of Government initiatives that will cut the heart out of privacy rights in this country-rights that are well-established in the common law, in our privacy statutes, and in the Canadian Charter of Rights and Freedoms.
These initiatives grew out of the call for increased security after September 11, and anti-terrorism is their purported rationale.
But the aspects that present the greatest threat to privacy either have nothing to do with anti-terrorism, or will do nothing to enhance security. The Government is simply using September 11 as an excuse for measures that have no place in a free and democratic society.
As Privacy Commissioner, I have always made it clear that I will never stand in the way of measures that are necessary to protect us against terrorism, even if they involve some new intrusion or limitation on privacy.
And I have not, in fact, raised privacy objections against a single genuine anti-terrorist measure.
What I have opposed - and must oppose - is the extension of anti-terrorism measures to unrelated purposes, and intrusions on privacy whose value as anti-terrorism measures has not been demonstrated.
My Report focuses on the Canada Customs and Revenue Agency's new "Big Brother" passenger database; the provisions of Bill C-17, the Public Safety Act; the "Lawful Access" proposals to enhance state powers to monitor our communications; the proposal for a national ID card with biometric identifiers; and the Government's support of police video surveillance of public streets.
These initiatives, in and of themselves, are all cause for deep concern because of the way they violate our privacy.
But they are even more disturbing because of the thresholds they cross and the doors they open.
Each of these measures establishes a dangerous new principle of acceptable privacy invasion: the creation of dossiers on law-abiding citizens; mandatory self-identification to the police; monitoring of our communications activities and reading habits; the removal of our right to anonymity; and systematic police observation of law-abiding citizens on public streets.
If these measures are allowed to go forward and the principles they represent are accepted, there is a very real prospect that before long Canada will be scarcely recognizable as a free society. Here, instead, is what it may look like:
All our travel outside the country will be systematically recorded, tracked and analyzed. Dossiers about us will be available for use against us by virtually every federal department and agency.
Any time we travel within Canada, we will have to identify ourselves to police so that they can check whether we are wanted for anything.
State authorities will be able to access records of every e-mail we send, every cellular phone call we make, and every Web site we visit.
We will all be fingerprinted or retina-scanned by the government, and this biometric information will be placed on compulsory national ID cards that we will have to produce to police on demand.
Our movements through the streets will be relentlessly observed through police video surveillance cameras. Face-recognition technologies linked to those cameras will allow the police to identify us by name and address as we go about our law-abiding business.
I am well aware that all this may sound, to most people, like alarmist exaggeration. And I am not predicting that it will necessarily happen.
But the fact is that the privacy-invasive measures being implemented or developed right now would have been considered unthinkable in our country just a year ago. And once the precedents have been established and the principles accepted, further intrusions are only a matter of degree.
The situation is all the more worrisome because the Government is doing all this in blatant disregard of the concerns that it is my duty as Privacy Commissioner to express.
I am an ombudsman. I work primarily through persuasion and cooperative discussion behind the scenes. That is part of my mandate, it's the way it's the way I have sought to operate since my appointment, and it has produced many successful outcomes.
That long-standing and very successful model of protecting privacy appears to be breaking down.
Governmental disregard of my objections and concerns-concerns that, I might add, are echoed by privacy advocates, civil libertarians, eminent legal experts, and provincial privacy commissioners across the country-is moving beyond isolated instances and becoming systematic.
This puts a fundamental right of every Canadian profoundly at risk.
If the Government can, with impunity, simply brush aside the Privacy Commissioner's warnings and do as it pleases, then privacy protection in this country will be progressively weakened, and worse and worse intrusions will be inevitable.
As I said, I have never opposed genuine anti-terrorism measures, even if they result in some infringement of privacy. What I have insisted upon is that any such proposed measure must meet a four-part test of justification.
The measure must be demonstrably necessary in order to meet some specific need.
It must be likely to be effective in achieving its intended purpose.
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-this is the test that allows us to take appropriate measures to enhance security, without unduly sacrificing privacy. I believe we must resolutely insist on it.
But each time I have applied this test to the Government's initiatives, and found them to come up far, far short, the Government has simply brushed my concerns aside.
This undermines the whole edifice of privacy protection that has been in place in this country for nearly two decades.
It is important for us all, as Canadians, to think hard about what it will mean to lose our privacy.
If someone intrudes on our privacy-by peering into our home, going through the personal things in our office desk, reading over our shoulder on a bus or airplane, or eavesdropping on our conversation-we feel uncomfortable, even violated.
Imagine how we will feel if it becomes routine for bureaucrats, police officers and other agents of the state to paw through the details of our lives: where and when we travel, and with whom; the friends and acquaintances with whom we have telephone conversations or e-mail correspondence; what we are interested in reading or researching; where we like to go and what we like to do.
A popular response is: "If you have nothing to hide, you have nothing to fear."
By that reasoning, we shouldn't mind if the police were free to come into our homes at any time just to look around, if all our telephone conversations were monitored, if all our mail were read, if all the protections developed over centuries were swept away.
The truth is that we all do have something to hide, not because it's criminal or shameful, but because it's private.
We calibrate what we reveal about ourselves to others. Most of us are willing to have a few things known about us by a stranger, more by an acquaintance, and the most by a very close friend or a romantic partner.
The right not to be known against our will - indeed, the right to be anonymous except when we choose to identify ourselves - is at the very core of human dignity, autonomy and freedom.
If we allow the state to sweep away the normal walls of privacy that protect the details of our lives, we will consign ourselves to living in a fishbowl.
Even if we suffered no other specific harm as a result, that alone would profoundly change the way we live our lives. Ask anyone who has lived in a totalitarian society.
But there also will be tangible, specific harm.
The more information government compiles about us, the more of it will be wrong. That's simply a fact of life.
If the state is systematically assessing our behaviour and making judgements about us, wrong information and misinterpretations will have real consequences.
Decisions may be made on the basis of wrong facts, incomplete or out-of-context information or incorrect assumptions, without our ever having the chance to find out about it, let alone to set the record straight.
That possibility alone will, over time, make us increasingly think twice about what we do, where we go, with whom we associate, because we will learn to be concerned about how it might look to the state's ubiquitous watchers.
You stopped in Thailand during a business trip, and liked it so much that you're thinking of going back on a vacation. But might repeat travel to Thailand get you flagged as a possible pedophile going there for the child sex trade? Could you find yourself detained for questioning every time you travel? Might you be denied security clearances, or refused entry into the United States?
You're browsing on the Internet and you're idly curious about al-Qaeda propaganda. But could visiting such Web sites get you identified as a potential terrorist and bring CSIS or RCMP officers knocking on your door?
You develop a friendship or work closely with someone, and it would make sense to travel on some trips together. But what if, three or four years from now, authorities were to suspect this person of some wrongdoing, and their database showed your past association? Could you be in trouble yourself? Should you start being more careful about whom you associate with?
That sort of life is characteristic of totalitarian countries, not a free and open society like Canada. It is where we are headed, if the Government's current initiatives are allowed to proceed.
Canada has, over the course of its history, developed a healthy balance between the powers of the state and the rights of the individual.
Our crime rates have been comparatively low and our social order has been strong. Individual freedom and diversity have flourished to a degree that is the envy of much of the world. That's why so many immigrants from all over the world have chosen to make Canada their home.
But now we face having that successful balance changed, by a Government that has lost its moral compass with regard to the fundamental human right of privacy.
The Government seems to be convinced that privacy must be sacrificed bit by bit, day by day. It is prepared to sacrifice privacy in order to reassure a frightened public-even if all it does is make people feel safer, rather than make them actually safer. Worse, it is prepared to sacrifice privacy simply to mollify an insistent U.S. government, and to satisfy police and security forces that see an opportunity to expand their powers.
Canada is on the verge of being transformed into a society where the state is much more intrusive and where individual rights and freedoms are correspondingly reduced. And we face having this transformation occur without the analysis, debate or even understanding that it deserves.
The place to stop unjustified intrusions on a fundamental human right such as privacy is right at the outset, at the very first attempt to enter where the state has no business treading. Otherwise, the terrain will have been conceded, and the battle lost.
If the Government's current initiatives are allowed to go forward, there is a very real risk that privacy as we know it will soon become a distant, irretrievable memory.
As an ombudsman I don't have the power to stop this.
That power lies in public outcry and Parliamentary action. That may well be all that stands between us and the permanent loss of our privacy rights and important elements of our freedom.
Accordingly, with the release of this Annual Report, I am urging all Canadians, including Members of Parliament and Senators, to take a stand for privacy and freedom.
I urge Canadians to tell this Government that privacy can only be infringed with the strongest justification-and that simply blurting out "September 11" or "the Americans made us do it" is just not good enough.
I urge Canadians to tell the Government, in the clearest possible terms, that they will not accept the erosion of our fundamental right to privacy, and the undermining of the means by which it is protected.