International Human Rights Day Public Forum
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December 10, 2001
St. John's, Newfoundland
Privacy Commissioner of Canada
(Check Against Delivery)
I want to congratulate the Newfoundland-Labrador Human Rights Association for its continuing efforts to mark International Human Rights Day. Over the past 10 years you have used the occasion of International Human Rights Day to focus on a wide range of human rights concerns - including the rights of the child, the rights of seniors, and rights within the legal system.
International Human Rights Day has the potential to focus global attention on some of the most important issues that the world faces, issues that are crucial to many who are denied rights we sometimes take for granted. It also has the potential to remind us that no right can be taken for granted - they are far too precious.
In my view, the right to privacy is fundamental to our other human rights, because it makes it possible to exercise them. In a sense, privacy is a gateway right: Protect it, and the other rights we value are enhanced. Open it to abuse, and all our other rights are seriously diminished.
Why is the right to privacy so crucial? Because it creates a protective perimeter around other rights - a no-fly zone guarding against incursions against all of our liberties.
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 or somehow use it to our detriment, then we are not truly free. Destroy privacy and you destroy freedom.
In the words of former Supreme Court Justice Gerald La Forest: "Privacy is at the heart of liberty in a modern state."
In the wake of the tragic events of September 11, the challenge for all Canadians is to ensure that the fundamental right of privacy does not fall victim to a climate of fear and uncertainty. The challenge for government is to protect the security of Canadians without diminishing our liberty.
To get a sense of how we must go about protecting the right to privacy in the future, it is worth considering how the right developed in the past.
One of the most famous definitions of privacy was expressed in the late 19th century by two American legal scholars as "the right to be let alone." That was the definition that Louis Brandeis and Samuel Warren offered in an 1890 Harvard Law Review article. What prompted them to right the article? It wasn't a government action. It was a newspaper's society page coverage of a breakfast party that Warren hosted in connection with his daughter's wedding.
As Warren and Brandeis put it: "Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life; and numerous mechanical devices threaten to make good the prediction that 'what is whispered in the closet shall be proclaimed from the rooftops.'"
Imagine how they would have felt about 24-hour news networks!
What I find interesting about the article is that it was prompted by the development of new technologies - such as photography and improved newspaper technologies.
That is one of the things that makes the right to privacy unique from most other rights. Most rights are enhanced by new technologies. The Gutenburg press, the telephone, television and the Internet expanded the right of free speech, providing more avenues of expression. Transportation technology expands the right of free association.
But new technologies pose a potential threat to the right of privacy. That is why I believe that privacy will be the defining issue of this decade. The technological capacity that can improve our lives - even enhance many of our rights - can also diminish our privacy.
And it is hard for the law to keep up.
As recently as 1983, when the Privacy Act was passed by Parliament, no one was thinking of biometric scanning of faces for comparison with photos in data bases. No one was thinking of real-time video monitoring. Few were thinking of smart cards. Almost no one had even heard of the Internet, much less the data collection and data mining it facilitates.
New technological tools make it possible to stitch together fragments of information to shape a profile of each of us. That profile may or may not be accurate. It may or may not be complete. It may or may not offer a fair representation of us. But it can travel through cyberspace, through government bureaucracies, and through corporate data banks reaching a wider potential audience than ever before.
Many of you will have had the unfortunate experience, while browsing the Web, of accidentally logging on to a site that is of no interest to you, and then being haunted by that accident for a long time afterwards.
You need only be on the site for a couple of seconds, but that's long enough to carve out a new dimension to your cyber-profile. With the accidental click of a mouse, you get a cookie on your hard drive and yourself on a series of mailing lists. And not long afterward you're receiving personalized, unsolicited emails touting all sorts of products and services that you have no interest in.
That's an annoyance. An inconvenience. If the site you accidentally logged onto was pornographic, it can be deeply offensive. And, depending on what your new cyber-profile looks like and who might find out about it, it can be a grave threat to your reputation.
This is the result of a technology that is smart in a number of ways - but not smart at all when it comes to the ability to put information intro context.
It's not necessarily a matter of having something to hide. It could be as a result of an accident or a mistake, as with those websites. Or you could be someone who has the task of buying corporate gifts for her company's clients. As a result, you buy a lot of fine wines. It's part of your job - but if your credit card records were to suddenly become available, it would be part of your profile, unexplained and out of context. Suddenly, you look like an alcoholic. That would impress your banker or a potential employer.
Or you could have a parent living in Las Vegas whom you visit frequently. That just makes you a good son or daughter. But it could make also you look like a compulsive gambler.
Whatever the reason you've wound up with this information about you in a file somewhere-even if you do like to drink wine, or gamble-the core issue is the same: Don't you have a right to have that information kept confidential? Nobody likes the feeling of being watched. In today's wired society, that feeling is more disturbing than ever.
That's why the federal government brought in the Personal Information Protection and Electronic Documents Act, which began coming into effect on January 1st of this year, and is gradually being phased in.
The law protects our privacy rights in dealings with the private sector. What it says, in a nutshell, is this:
Apart from some very limited exceptions, no private sector organization covered under the law can collect, use or disclose personal information about someone without their consent.
It can collect, use or disclose that information only for the purpose for which they gave consent. And even with consent, it can only collect information that a reasonable person would consider appropriate under the circumstances.
People have the right to see the personal information that is held about them, and to correct any inaccuracies.
There is oversight, through me and my office, to ensure that the law is respected, and there is redress if someone's rights are violated.
Given that the threats to privacy have widened in this technological age, it is not surprising that our understanding of the nature of the right of privacy has also taken on new dimensions. Privacy has become appreciated as the right to enjoy private space, to conduct private communications, and to be free from surveillance. To the average Canadian, privacy is the ability to control one's personal information and to remain anonymous by choice.
But as I pointed out, our ability to do that faces escalating challenge as new technologies are developed. As I mentioned, the drafters of the Privacy Act almost 20 years ago could not have anticipated many of the technologies that have been introduced since then. Laws can be changed - but not as quickly as technology.
That is where my role as Canada's Privacy Commissioner comes in. I and my office have the ability to take changing circumstances into account. We are able to provide the flexibility needed to keep principles constant in the face of real-world change.
Let me give you an example. Customs officers, acting on behalf of the Department of Citizenship and Immigration, were routinely opening international mail that passed a certain weight threshold. Strictly speaking, that was legal. The intention of the law was to allow them to open parcels, but not letters. The weight test may have made sense when the law was passed. But times change. Today, courier services are more broadly used. They encase ordinary mail in heavy courier envelopes - legally turning them into parcels, and making them eligible for examination.
Applying the law was simple. But it didn't make any sense. Why should the right of privacy be sacrificed because someone put a regular-sized envelope into a bigger package?
That's why I'm very glad that the Minister of National Revenue agreed to change customs procedures. Now, customs officials must exclude the weight of the outer envelope in distinguishing mail from parcels.
The law wasn't changed, but privacy rights didn't stay stagnant either. Government was simply persuaded that for the principle to remain consistent, the application had to be flexible.
The challenge of balancing the need for security against the right to privacy has never been an easy one. On September 11, it became even more difficult.
The attacks of September 11 assaulted the very concept of civilization, of civilized behaviour as our society knows it. There is no question that they tore a hole in the fabric of the western world.
Our challenge is to mend that hole and reinforce the fabric. No question about it, that includes a need for heightened security, a need to re-establish public confidence and sense of safety. But it also must include a reaffirmation of the rights, freedoms and values that are the very definition of Canada.
Let me be clear on one point. I do not argue that privacy is an absolute right. I do not even argue that there may not be a need for some new measures to meet the kinds of security risks we are now facing, measures that may even invade privacy to some extent.
But I have argued and will continue to argue that while privacy may not be an absolute right, neither is it a dispensable luxury.
We cannot simply throw away our rights in order to ensure our safety. In fact, that would be self-defeating.
Why self-defeating? Look at it this way: From all accounts, the goal of the perpetrators of the September 11th act of terrorism was to advance more than a specific demand or pursue a specific grievance. Rather, it was to undermine our way of life. The target was our freedoms and values - very much including the right to privacy.
In fact, if you read the first-hand accounts of the victims of the Taliban, it is clear that most of the totalitarian laws they put in place - restricting the rights of women and men to read, watch and do what the wished - depended on an absence of privacy. Laws against watching television or videos, against reading certain books, against keeping certain artistic objects in one's home - privacy was the gateway that each of them had to cross.
For that reason, every ill-considered reduction or our freedom - every needless encroachment on our privacy - would be a victory for terrorism. It would offer proof of terrorism's effectiveness in disrupting our society - and thus provide an inducement to further outrages.
I suppose we could make ourselves safer from terrorist attack if we permanently suspended all air flights, evacuated all of our high-rises, and ended all large sports and entertainment events. We would be somewhat safer - but we would be a lot less free.
What we gain in safety must be measured against what we would lose in other regards. And nowhere is that more true than in the case of privacy.
That is why I believe that any new measure that infringes privacy in the interest of enhancing public security must meet a stringent test, according to four criteria.
First, any proposed measure to limit or infringe privacy must be necessary to address a specific problem.
Second, it must be likely to be effective in addressing that problem-in other words, it must make us safer, not just make us feel safer.
Third, the degree of intrusion or limitation of privacy must be proportional to the security benefit to be derived. It can't be a sledgehammer used to kill a fly.
Finally, there must be no less privacy intrusive measure that would achieve the same result.
Necessity, effectiveness, proportionality, and the absence of a less privacy intrusive alternative-these are the tests that we should apply to any proposed new measure that would limit privacy rights.
A good example of where I used these tests was the approach I took to Bill C-36, the Anti-Terrorism Act. The provisions that concerned me were those allowing the government to issue certificates that would remove information, and possibly whole departments or, conceivably, all departments, from the application of the Privacy Act.
The government's intent was to ensure that an individual could not access personal information about himself if that would be detrimental to national security, defence, or international relations. There are certain exemptions in the Privacy Act and the Personal Information Protection and Electronic Documents (PIPED) Act that prevent that, but a Federal Court judge can review the exercise of those exemptions, and order the disclosure of the information. The Federal Court has exercised this power only four times in the nearly 20 years that the Privacy Act has been in effect. The government's stated intent with Bill C-36 was to ensure that the mere possibility, however remote, of such forced disclosure would not deter foreign countries from sharing sensitive anti-terrorism information with Canada.
The provisions as drafted went far beyond the government's stated intent.
Rather than only prohibit disclosure about and to a given individual, the provisions would have permitted the Attorney-General to issue certificates prohibiting the disclosure of any information under the Privacy Act (and the PIPED Act). That would have made it possible for the Minister to issue blanket certificates that applied to an entire agency or department of the Government, or indeed to every agency and department.
The provisions went on to state that when a certificate was issued, the Privacy Act - in its entirety - would not apply. This meant that if an individual's personal information was the object of a certificate, he would not only be unable to obtain access to his information - he would lose all the protections of the Act regarding collection, use and disclosure of personal information, including the right to an independent review by the Privacy Commissioner. If blanket certificates were issued, all Canadians would lose those protections. The Act could, in effect, be abrogated at ministerial discretion.
I recommended several specific amendments.
I recommended that the Minister should only be able to issue a certificate after an application for review of an invoked exemption was made to the Federal Court. This would preserve intact the oversight powers of the Privacy Commissioner up to that point, including the power to investigate complaints and make recommendations.
I further recommended that it should be specified that any such certificate would apply only to information about a particular individual, to preclude the issuance of blanket certificates.
Finally, I recommended that it should be specified that when a certificate is issued, it affects only the individual's right to obtain access to his personal information; even for that individual, all the other protections of the Act and oversight of them by the Privacy Commissioner would remain intact.
The government addressed every one of these concerns and recommendations in its amendments.
A certificate can be issued only after a court or tribunal has ordered release of information, and the issuance of that certificate can be appealed to the Federal Court of Appeal. All the powers of the Privacy Commissioner to investigate any given complaint and make recommendations up to that point remain intact.
A certificate thus issued can only apply to information about a particular individual, precluding blanket certificates. And the amendments explicitly state that when a certificate is issued, all the other privacy-protecting provisions of the legislation remain intact.
I also identified privacy problems with Bill C-44, the government's anti-terrorism bill dealing with transportation security. The bill would authorize aircraft operators to disregard the Personal Information Protection and Electronic Documents Actand provide the authorities of foreign countries with "any" personal information about Canadian travellers required by the laws of such countries.
This is particularly troubling when the laws of those countries, as in the case of the U.S., provide no safeguards or restrictions as to how such information may subsequently be used or to what third parties, including other countries, it may be disclosed.
This effectively would allow the Government of Canada to use information-exchange agreements with the U.S. and other countries to repatriate this personal information about Canadians. For any purposes other than security, such a "windfall" acquisition of otherwise-protected personal information would be simply inappropriate.
I've asked for an amendment to the Bill so that the government of Canada can't be the back-door beneficiary of this forced intrusion into the privacy rights of Canadians.
That's one of the reasons to have a Privacy Commissioner. My job is to press for the privacy rights of Canadians, and not back down. You're better off catching these problems at the stage of drafting legislation, rather than challenging them later in court.
These are examples of the approach I believe we should take when we see the interests of privacy and security colliding. We need to look at any proposed infringement on privacy and ask ourselves: Does it really make us safer? How much? Does it limit our freedom? In what way? In effect, we need to do a cost-benefit analysis - the cost to our privacy versus the benefit to our security.
Take airport searches of luggage to scan for weapons. What is the cost to our privacy? When an official searches your luggage, or even your person, and finds no weapon, you go about your business. You might have been delayed, even inconvenienced, but that's the end of it. There is no record. You walk away.
The benefit, of course, is enhanced safety. The chances of your plane being blown up or taken over by terrorists is significantly decreased. Hopefully eliminated.
From my point of view, that passes any reasonable cost-benefit analysis.
But what about the proposal we sometimes hear to require all Canadians to carry national ID cards?
What is the cost? The very important privacy right of anonymity, the right to not have to produce identification on demand as we go about our daily lives. That's a big cost.
What is the benefit? How would it enhance security? Any terrorist who had established themselves here would probably be able to get such an ID card. And let's face it, the card wouldn't list their occupation as "terrorist." In any event, they can always claim to be tourists - who wouldn't have to carry such cards.
The national ID card proposal clearly fails the cost-benefit analysis.
The same is true of another proposal that is often put forward: putting video surveillance cameras all over our streets. The city of Tampa, Florida has already launched such a program, as an attempt to counter terrorism as well as regular crime.
But look at the cost: having your identity and activities routinely recorded, sorted and stored in a database --where the information may be stored forever, where you have no control over what's done with it or who has access to it. That's the kind of treatment that is usually reserved for people who have earned the attention of the authorities - not people who are not even accused of doing anything illegal.
The cost is great. What's the benefit? Even if so many surveillance cameras had been placed in New York to turn the city into a virtual TV studio, it would have done nothing to stop the terrorists from crashing airplanes into the World Trade Center.
If we had a camera on every busy street corner in Canada, who would be monitoring all of the screens? We don't have enough highly-trained anti-terrorism experts to do the job. And what would they be looking for?
That's one that clearly fails the cost-benefit analysis. And yet it's beginning to happen in Canada. A number of cities have experimented with public video surveillance systems, and more are contemplating installing them.
As I said recently in my findings on a complaint about video surveillance of a public street in downtown Kelowna by the RCMP, which was acting as a municipal police force, few privacy issues will do more to shape our world than the choices we make about video surveillance.
If we can't walk or drive down a street without being systematically monitored by the cameras of the state, our lives and our society will be irretrievably altered. The psychological impact of having to live with a sense of constantly being observed will be enormous. We will adapt to it. But our right to feel anonymous and private as we go about our day-to-day lives will have been lost.
And video surveillance in public places doesn't cease to violate privacy rights if it is only observing and not recording. That's the legal sophistry the RCMP took refuge in: they didn't remove the camera, as I recommended; they simply stopped recording.
That put them within the letter, though not the spirit, of the law. The Privacy Act limits its provisions to personal information "recorded in any form." Observing people on the streets through video cameras without routinely making a recording complies with the letter of the Privacy Act. But it still disregards the privacy rights of Canadians. The very presence of video cameras, whether they are recording at any given moment or not, is what creates the privacy-destroying sense of being observed.
We can give in to fear, and cast aside rights that we have worked hard to achieve - but that would only result in the defeat of democracy, not its triumph.
We can make security our one and only priority, and not worry about primary rights like privacy. That way, we can keep our society safe - but it would be a society very different from the one that existed on September 10th. We would be trading a secure and dynamic society for a secure and bleak one.
Or we can recognize that rights must be balanced against one another. We can insist that any intrusion on our right to privacy be justified - with the burden of argument on those who would do the intruding. We can separate genuine threats from imaginary ones, and effective antidotes from counterproductive placebos.
Yes, it is true, as we have heard so often - our world changed on September 11th. But even in this changed world, law-abiding people want, need and deserve the right to privacy. They want and need the right to enjoy private space. They want and need the right to conduct private communications, and to be free from surveillance.
Just as we did over one hundred years ago, we want and need the right to be left alone.
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