Privacy in Canada: Emerging Issues for Business and Society
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The Kelowna Chamber of Commerce
February 6, 2002
Kelowna, British Columbia
Privacy Commissioner of Canada
(Check Against Delivery)
I want to thank you all for coming here and giving me this opportunity to meet with you. Very frankly, I'm here to ask for your help.
You here in Kelowna are at the heart of a national test case about the most urgent and fundamental privacy issue facing Canada today - video surveillance of our public streets by the police, by the state.The choices you make will quite literally help determine what kind of society - how free a society - we have in Canada, not only for ourselves, but for our children and grandchildren.
That's how important this is, and that's why I'm here.
I want to talk with you about the implications of this one camera that's now in Kelowna, and the five more that are supposed to be installed, and those that will be added after that - and all the cameras in all the other cities that will follow suit if the warnings of the Privacy Commissioner are ignored. This camera is the thin edge of the wedge that will irrevocably change our whole notion of our rights and freedoms.
What I'm talking about is what Justice LaForest of the Supreme Court of Canada said in a 1990 decision:
"To permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society. . . We must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy."
I'm here to try to persuade you to think very hard about this - and to consider that trading away the fundamental right of privacy for an illusion of greater safety is not the step to take.
Let me begin by saying that I'm not some isolated, out-of-touch bureaucrat who has come here from Ottawa to try to tell you what to do. I spent most of my life as a journalist - as a reporter, a columnist and a newspaper editor. I've travelled widely, and I've seen what it's like where the freedoms we take for granted - such as privacy - don't exist.
The things I've seen have made me passionate about human freedom and dignity. And now I'm the Privacy Commissioner of Canada. I didn't appoint myself to be coming here and talking to you. I'm an Officer of Parliament, appointed by Parliament to independently oversee and defend the privacy rights of all Canadians.
I'm not part of the government; I don't answer to the government. I answer only to Parliament. Your own Member of Parliament, Werner Schmidt, voted in support of my appointment. And it was your own British Columbia Information and Privacy Commissioner, David Loukidelis, who filed a complaint with me alleging that the RCMP's surveillance camera here is a violation of privacy rights.
I investigated, as is my duty, and I found that the Privacy Act and your rights were in fact being violated. Systematically monitoring and observing the activities of vast numbers of law-abiding citizens as they go about their day-to-day lives is not a legitimate part of any RCMP operating program or activity.
The RCMP's response has been to take refuge in a technicality - to hide in a loophole. You see, the Privacy Act defines personal information as information about an identifiable individual that is "recorded in any form."
When this law was drafted nearly 20 years ago, that definition was meant to be as broad and all-inclusive as possible. No one was thinking in those days about the possibility of widespread real-time video surveillance. That's why the definition in the new privacy law for the private sector doesn't limit it to recorded information.
But what the RCMP has done is seize on that reference to "recorded," and said, in effect:
"Fine, we won't record continuously any more. We'll continue the constant surveillance through the camera, but we'll only push the record button when we want to."
That puts them within the letter - but not the spirit or the intent - of the law.
It's the very presence of video cameras - whether they are recording at any given moment or not - that creates the privacy-destroying sense of being under constant observation. I've tried to explain this to the RCMP.
I have tried to persuade the Commissioner of the RCMP that our national police force should adhere to a higher standard of respect for the rights of Canadians. I have tried to suggest that the RCMP should take far more seriously the strongest possible recommendation from the Officer of Parliament mandated to oversee the privacy rights of Canadians.
But I haven't had any success so far. What I'm told, instead, is that you, the people of Kelowna, want this camera.
So I'm appealing to you directly.
I'm asking you to take a fresh look at this - to look hard at what you're getting, and what you're giving up. Privacy - your right to control access to yourself and to information about yourself - is a fundamental human right, recognized as such by the United Nations. It is, as our Supreme Court has said, at the heart of liberty in a modern state. In fact, many believe it's the right from which our other freedoms flow - freedom of speech, freedom of thought, freedom of association, just about any freedom you can name.
But privacy is more than a human right - it's also an innate human need.
When you go home at night, you probably close the blinds. It's not because you're trying to hide something. You just instinctively need your privacy, your freedom from being observed.
If you're on a bus or a plane, and someone starts reading over your shoulder, you probably feel uncomfortable. What you're reading isn't a secret. It's just that your privacy is being invaded. If you've ever had your home or even your car broken into, you'll know that the sense of personal violation can be even worse than the actual loss of whatever was stolen.
This essential human need, and fundamental right, is in danger of slipping away from us. And once it's lost, it will be very, very hard to get it back.
We're living in a time when technological, social, and political developments threaten our privacy at every turn. That's why I believe that privacy will be the defining issue of this decade. We are at a crossroads:
If the choices we make allow privacy to be destroyed, freedom will be destroyed with it. And If privacy is the defining issue of the decade, I believe that video surveillance is the defining issue within that broader issue.
I know that some people say, "What's the harm? So there's a camera - big deal."
In fact, one of your business leaders was quoted as saying that having cameras everywhere would be no different that having a police officer on every corner . . . and nobody could object to that.
Well, there are places in the world where there's a police officer on every corner. They're called police states. That's not the way we do things in Canada.
We have a right to go about our lives - our lawful, peaceable business - without feeling that we're under the constant eye of agents of the state. So when you ask, "What's wrong with cameras?" My answer is that, for one thing, being watched changes the way we behave.
That's well known. In the late 1920s, Werner Heisenberg showed that you couldn't observe subatomic particles without changing their behaviour.
Ever since, physical and behavioural scientists have used the term "Heisenberg effect" to describe what they're all aware of - that being observed has real effects. The psychological impact of feeling under constant observation - the kind of thing we'll have if we allow surveillance cameras to proliferate - is enormous, incalculable.
Let's think about those police states I was talking about a moment ago, where people always feel watched by a visible or undercover police presence. The thing that has always struck me when I was travelling in countries that were not free, in police states, is the grimness and drabness of life that results from this utter lack of privacy.
There's a kind of sullenness in the air.
People know they're being watched - or worse, they're never quite sure whether they're being watched. They censor their speech and their behaviour. They hurry along the streets with their heads down.
They're reluctant to talk to, or even look at, any strangers. They even hesitate to make contact in public with people they do know. There is very little street life or spontaneity. You've probably felt this same phenomenon yourself, on a much smaller scale.
If a police car pulls alongside you while you're driving or stays right behind you, don't you automatically feel just a little paranoid and wonder if you've done anything wrong? You become self-conscious and maybe a little nervous. You might even drive over-cautiously, to the point of being dangerous. In short, you change your behaviour, just because you feel that you are under scrutiny by an agent of the state.
Is a police camera really any different?
Limiting the way the police collect information about us is fundamental to our freedoms in Canada. Some people are going to argue that it makes the job of the police harder. Well, we all want crime prevented, and criminals caught. Our police do a vital job, usually excellently. But in this country, in a free society, we don't give the police unlimited power to violate the rights of the citizenry.
We don't allow them to build dossiers on citizens "just in case."
We don't allow them to force people at random to identify themselves on the street.
We don't allow them to enter and search homes, or open mail, or wiretap phones, without a warrant.
Instead, we say that there always has to be a balance - a carefully reasoned balance - between the legitimate needs of law enforcement and security on one hand, and the need to maintain our rights and freedoms and values on the other. I suggest to you that video surveillance cameras on public streets needlessly and dangerously tip that balance.
You'll notice that I'm making a distinction here between cameras on public streets and those that are in private places open to the public, for instance in banks or convenience stores. First of all, in places such as stores there is an element of consent.
If you don't want to appear before a camera, you have the choice of refusing to enter a given store. But if we end up with cameras all over our public streets, short of levitating above them, you have no way of withholding consent and still getting from place to place.
Second, those cameras in private places are for a very limited kind of anti-crime purpose. There's no likelihood of anyone being interested more broadly in you as a citizen - who you meet, where you go, what you do.
I'm sure some of you are saying, "Come on: police cameras on the street make us feel safer." Look, we all want to feel safer. But we'd be safer if the police could come into our houses whenever they wanted, just to look around. They could catch more criminals if they were free to listen to all our telephone conversations, just to make sure we weren't committing a crime.
We could allow them to intercept and read all our mail and e-mail, just in case. These would be pretty effective means of making us safer-but no one in their right mind would argue for them.
We don't violate our most fundamental values, the very things that make our society worth living in, just because it makes us feel safer. Now, some of you may object that the video camera is in a public place, not a private one, so privacy isn't an issue.
How can it be reasonable to expect privacy in a city street?
My answer is that, obviously, there are degrees, gradations of privacy. You're entitled to more privacy in your own home than when you step out into the street. But you still have the right to expect some privacy when you step out your door.
Sure, you have to expect to be noticed, in passing. And people who know you may recognize you. But that's not the same as being systematically monitored and observed by anyone, let alone by the police.
Suppose a police officer decided to walk directly behind you on the street all day, quite obviously and deliberately following you everywhere you go. I'm sure you'd find that unacceptable, even if he wasn't saying a word to you or bothering you in any direct way. You'd probably consider it harassment - because he was invading your privacy.
How different is it, then, if your movements are simply tracked by a police officer watching you on screen as you pass from the range of one camera to the next?
So, I believe you do have a reasonable expectation of privacy when you're out in public. And more than that, you have a fundamental right to privacy. That's the problem with that popular term "reasonable expectation of privacy."
A notice telling you you're going to monitored or recorded by video cameras in a public place can tell you that it's not "reasonable" to expect any privacy. But your fundamental right to privacy can't be eliminated by signs telling you that this right is going to be ignored or trampled on.
But I know that many of you are going to say, "I've walked past the camera and it didn't bother me."
Okay, but that's one camera in one location. Soon there's supposed to be another five cameras. And if that makes people feel safer, won't they feel even safer if there are more cameras after that, in more places? The logical extension is cameras everywhere.
But even that is only the beginning. Video surveillance is just the first step. As the system stands right now, you are seen, but at least you can remain anonymous unless someone watching the videos knows you.
But what we call "function creep" virtually guarantees that if you put up enough cameras they'll soon be linked to biometric technology that will take away that anonymity.
Biometric facial recognition technology can analyze the image of your face, digitize it, classify it, and link it up to a police database.
That can be used to compare your face against the images of known criminals or suspects - or simply to identify you, to associate your face with your name and address.
This isn't science fiction, it's existing technology. It's already being used in some places. It was used at last year's Super Bowl. It was set up on the streets of Tampa, Florida, and a growing number of U.S. airports are adopting it. Again, you may say, "so what?"
"Let them compare me against anyone they want. As soon as the technology shows I'm not someone they're looking for, that's the end of it and no harm done. "
Trouble is, these biometric systems are far from foolproof.
They don't correctly match people to their own photos a lot of the time. They also match people to the wrong photos, photos of other people - falsely identifying them as someone the police can be looking for.
You could find yourself suddenly surrounded by police officers with guns drawn - just because the technology hiccupped. And it won't be long before we see these video surveillance systems linked to our driver's licence or passport photos. Before you know it, when you walk along the street, the police will know exactly who you are.
Your fundamental privacy right of anonymity will have disappeared.
In Canada, we don't allow the police to stop people at random and force them to identify themselves. You aren't even required to carry any identification. But now the technology will do it for them.
If some of you are still thinking, "So what? I've got nothing to hide," think a little longer. Think how easily the simple, innocent things you do can be misinterpreted by someone observing you.
Someone stops you on the street and asks for directions. You tell him what he wants to know, and maybe chat for a moment. Then he goes on his way.
What you don't know is that on the police screen, biometrics has identified him - rightly or wrongly - as a suspected terrorist. And, of course, your name and address are available too. The watchers have no way of knowing what was said, just that you met and talked.
Next thing you know - or rather, don't know - you're in a police database as a suspect yourself.
Or there's a coffee shop or little restaurant you like to go to regularly. The location's convenient, or you particularly like the food.
But you have no way of knowing that the police consider it an organized crime hangout. Because you're observed and identified as someone who goes there all the time, maybe you end up on some police list of suspicious characters - with no chance to ever explain yourself.
Maybe cameras were put up because prostitution is a problem in the area.
You're stopped by a prostitute who asks you to protect her - she says someone is stalking her and asks you to walk her down the street to her car.
The camera watches you, and you're now on record as accompanying a prostitute. You'd never know about any of these misinterpretations. Except maybe one day you apply for a job that requires a security clearance - and you can't get one, for some unexplained reason. Or you're refused entry to the United States.
As cameras multiply and observation increases, we'll learn to avoid doing things that could be misinterpreted.
And that's the whole point:
If you have to go through life knowing that everywhere you go, everyone you meet, everything you do, may be observed, scrutinized, cross-referenced, judged, maybe misinterpreted and used against you by persons unknown, by authorities of the state - if you have to go through life like that, you are not truly free.
Still, there will be some of you who say, "So, we feel a little less free, but we feel a lot safer. Isn't that a good trade?"
Let me ask, safer from what? What do you need to be so afraid of?
Contrary to what some of you may have been led to believe, Kelowna's crime rate has been declining steadily, without video surveillance.
In 1993, it was 185 per 1,000 population. In the year 2000, just before this video surveillance camera was first installed, the crime rate in Kelowna was 122 per 1,000 population.
That's the lowest it had been for 10 years.
And Kelowna is not an exception. Crime rates for B.C. have been declining since 1991, and for Canada as a whole, since 1992.
But even if you were in the midst of a crime wave, even if the streets of Kelowna were swarming with criminals, video surveillance wouldn't be an effective response because there is absolutely no evidence that video cameras actually reduce crime.
At best they displace it - move it from where the cameras are, to where they aren't.
Even a spokesman for your own RCMP detachment here in Kelowna, a Corporal Reg Burgess, was quoted in the Vancouver Sun last summer as saying the cameras would mostly displace crime.
He said crime would be displaced from downtown to your residential neighbourhoods - and that would be a good thing because homeowners would be quicker to call the police.
In December, I asked the RCMP Commissioner for figures on the number of arrests brought about by the camera since its installation - and for statistics comparing the overall crime rate in Kelowna during the months the camera has been used to the rate for the same period the previous year.
I was told the information doesn't exist - even though this is supposed to be a pilot project.
So there's no evidence here in Kelowna that this video surveillance has been effective. What about in other parts of the world?
In the U.S., the picture is no better. In Long Island, in Newark, and in Charleston, West Virginia, they set up video surveillance systems and found that they made no difference to crime rates.
In Mount Vernon, New York, they ran one of these systems for three years and then dismantled it because it didn't lead to a single arrest.
Last June, the city of Tampa in Florida installed a video surveillance system that included a biometric facial recognition system. The system never identified a single individual in the police's database of photographs.
What it did do was make a lot of false matches, including people of the wrong gender and with big differences in age or weight. In fact, the system was so inaccurate that the police department stopped using it a couple of months after it was installed.
The United Kingdom has more video surveillance cameras than any society in the world - more than 2 million of them, and the number is increasing every year. And the facts speak for themselves.
In Glasgow, they evaluated their surveillance system one year after it was set up. At first glance, it looked as though the crime rate had fallen. But a harder look at the statistics showed that crime had actually increased by 9%.
London has roughly 150,000 video surveillance cameras. Last year, it had more cameras than ever before.
And guess what? Last year, street crime in London increased by 40%.
My Office spoke last week with Jason Ditton, a professor of criminology in the faculty of law at the University of Sheffield in England. Professor Ditton is widely recognized as perhaps the world's leading expert on the effectiveness of open-street video surveillance. He's been studying it since 1993.
Here's what he told us:
"There isn't convincing evidence that open-street closed circuit TV reduces either crime or the fear of crime. Indeed, for every reliable study that shows a benefit, I can show another that contradicts it. If evidence of success is a prerequisite of installation, I can confirm that no such evidence exists."
And, you know, it really isn't surprising that video surveillance can at best displace crime, not reduce it. Logic tells us the same thing.
A whole lot of factors - social, psychological, economic, you name it - underlie criminal behaviour.
Putting up a bunch of cameras isn't going to make drug addicts quit cold turkey and go sip a latte at Starbucks instead. It isn't going to make prostitutes sign up for secretarial college. And it isn't going to make muggers or purse-snatchers repent their life of crime. it might just make them move away from the cameras by switching to home invasions or car-jackings.
And unlike a police officer on the beat, a video camera can't make you safer anyway. If you're being mugged or beaten up or stabbed, it can't jump down off the pole and rescue you.
By the time the police get there, the crime will probably be long over and the damage to you will be done - these things usually happen in a flash.
So, in summary, there is no convincing reason to believe that video surveillance cameras here in Kelowna will reduce crime or make you safer.
There is every reason to believe - to know - that they will reduce privacy, and contribute to creating a society where our fundamental rights and freedoms are greatly and permanently diminished.
That's why I'm here to try to persuade you to reconsider the course you're taking, and to make your voices heard.
I'd like to be able to say to the rest of Canada, when I go across the country speaking against the spread of these cameras: "Look at Kelowna. They took the time to think about the facts, to look at the evidence, to consider what they are about to lose, and they took the cameras down."
And I'm going to say to them what I say to you now:
Be an example of strength, not timidity. Base your decisions on facts, not on scare-mongering.
Build a genuinely safe free society, not a falsely safe police state.
Show your commitment to the values that make this country great.
Show that you think our country, our society, is worth preserving - and stand up for privacy.
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