Privacy - The Defining Issue of this Decade
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Arthur Kroeger College of Public Affairs and the School of Journalism and Communication
March 7, 2002
Privacy Commissioner of Canada
(Check Against Delivery)
I want to thank the Arthur Kroeger College of Public Affairs and the School of Journalism and Mass Communication for this opportunity to meet with you today.
As someone who comes from a background in journalism and who has spent his whole adult life involved in public policy in one way or another, I feel a real kinship with all of you in this room. Needless to say, I think you've all made wonderful career choices!
I want to talk to you a little today about my role as Privacy Commissioner. But more important, I want to raise some issues you may not have considered, pose questions you may not have asked and point out risks you may not have contemplated, about the right to privacy and its place in a modern society.
First, a bit about my role.
I'm an independent Officer of Parliament, which means I don't work for the government and I don't answer to the government. I work only for the people of Canada, and I answer only to our national Parliament.
My mandate is to oversee and champion the privacy rights of all Canadians.
I have oversight over two important pieces of legislation - the Privacy Act that applies to all federal government institutions, and the new Personal Information Protection and Electronic Documents Act that extends privacy protection rights to our dealings with the private sector.
My mandate is to ensure that these laws are obeyed - and, more generally, to ensure that Canadians are aware of their privacy rights and that those rights are respected.
So what is this "privacy" that I'm talking about?
There are many definitions, but I define it as the right to control access to oneself and to personal information about oneself.
Privacy is a fundamental human right, recognized as such by the United Nations. Indeed, it is the right from which all our other freedoms flow - freedom of speech, freedom of association, freedom of thought, virtually any freedom you can name.
To me, that's almost self-evident: How can we be truly free if our every move is watched, our every activity known, our every preference monitored? That's why lack of privacy is a defining characteristic of so many totalitarian societies.
But privacy is more than a fundamental human right - it's also an innate human need.
When you go home at night, you probably close the blinds. It's not that 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 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 intrusion, of having your privacy violated, can be even more painful than the loss of whatever was stolen.
And yet, almost every day, in some new and creative way, that innate human need, that fundamental human right - the right to privacy - is being chipped away. Sometimes the diminution is subtle, sometimes it's a full frontal attack - but the process is begun and it is a challenge we must answer.
Until recently, our privacy was protected pretty much by default.
As long as information about us was in paper records scattered over a whole variety of locations, someone would have had to go to a great deal of trouble to systematically violate the privacy of any of us.
But new information technologies have swept away those barriers of time and distance and cost. Now someone sitting at a computer terminal can compile a detailed dossier on any of us quite literally in minutes, if not seconds. And that's to say nothing of all the other new technologies - of surveillance, of location, of identification, of genetic analysis.
Now our privacy is under assault as never before.
Certainly there can be no more appropriate audience to discuss these issues than one made up of journalism and public affairs students, for in a very real sense, you will be on the frontlines of these concerns in the years ahead.
You will be the ones raising the alarms and crafting the policies. You will be the ones informing the public and setting the national agenda. And you will be the ones, as citizens, who must live in the world that is being created today.
The choices that we make - the choices that you make - will quite literally determine not only what kind of society we have for ourselves, but what kind of society we leave for our children and our grandchildren.
That's why I believe that privacy will be the defining issue of this new decade.
The choices we make now are likely to be irrevocable, both for individuals and for society.
Once the right to privacy has been lost, once private information about you - whether accurate or not - is in the public domain, it is virtually impossible to recover it. What is known cannot become unknown. What is learned cannot become unlearned.
Anytime you are dealing with the irreversible, it pays to be careful.
Second, this generation - your generation - faces threats to privacy that previous generations simply couldn't imagine, from all those new technologies that I've mentioned, and the many that will follow.
We are at a crossroads.
Just as the mechanization and technology of the industrial revolution ushered in important new debates over wages and working conditions and the rights of workers, so too does the information age raise new questions about individual rights.
Indeed, many of the great social and technological developments of the past brought with them previously unexplored questions about how we organize ourselves as a society, or relate to one another as citizens.
Just consider the women's liberation movement of the 1960's and '70's. Attitudes, practices and policies that were totally acceptable in the world of "Leave it To Beaver" are anathema in the world of "Ally McBeal". Discriminatory laws have been changed - or struck down. New policies have been put in place. The workplace has changed and a new mindset taken over.
Similarly with the environmental movement, beginning with the Club of Rome Report in 1972 and then with the release of the Brundtland Report in 1987, there was a fundamental re-examination of our relationship to the world around us.
Again, laws were changed and a new awareness was created. As a result, the concept of sustainable development has gone from a lofty ideal to a principle of sound business practice that many companies have made part of their daily operations.
Today, I believe a similar awareness is being created with respect to privacy. A realization that a right which was once taken for granted can now too easily be taken for good.
Now we are being forced, for the first time, to really think hard about privacy. Awareness is growing, attitudes are changing - but we still have a long way to go.
And right now, we're seeing something new and disturbing. I and my predecessors have always had excellent compliance when we've investigated a complaint and found that some behavior violates privacy rights.
But now some violators of privacy rights are becoming nervous about the rightful importance that privacy is starting to assume, and they're trying to dig in their heels.
I issue a finding that the RCMP's use of a video surveillance camera on a public street in Kelowna, British Columbia, is a grave violation of privacy rights, and the RCMP responds: "But people in Kelowna like it."
I issue a finding that Canada Post is violating the Privacy Act by selling people's change of address information to mailers without their explicit consent, and Canada Post mounts a PR offensive saying: "Radwanski is trying create a problem where none exists - there haven't been many complaints."
That takes us back to what I was saying a moment ago about the evolution of thinking in society.
Just a few decades ago, employers were saying: "Women don't want access to executive jobs. They're happier staying home with the kids."
Polluters were saying: "Nobody cares about the environment. All that matters is jobs."
And then a few brave people at first, then a growing number, and finally a tidal wave of public opinion began saying: "How dare you make such an argument."
And that's what we need now - an ever-growing wave of respect for privacy rights and contempt for arrogant violators of privacy.
My job as Privacy Commissioner is to help create that wave, to be one of those initially lonely voices on some important privacy issues, and to hope that others join me.
I need the help of all Canadians - and particularly of people like you, with your particular interests in journalism and in public policy - to help ensure that important challenges to privacy are recognized and overcome.
Let me touch on just a few.
From Vancouver to Halifax and in cities right across Canada, local officials are considering the use of police video surveillance cameras on city streets. This means that every step you take on the streets of our Canadian cities and towns could soon be watched, monitored by agents of the state - Orwell's 1984, just a few years behind schedule.
And with the biometric technologies already available today, your image can be digitized, classified and checked against images of known or suspected criminals, or used to connect your face with your name, address and other personal information.
Video surveillance of public streets is being pushed as a means of reducing crime. Trouble is, there's no evidence that it's necessary or effective.
Crime rates in Canada have been falling steadily, not increasing, over the past five years. So it's fair to ask why we need such a dramatically intrusive new measure.
Even more important, there's no solid evidence anywhere in the world that street video cameras are effective in reducing or deterring crime. At most, they displace it from where the cameras are to where they aren't.
London, England has more street surveillance cameras than any other city in the Western world, and last year it had more street cameras than ever before - and last year in London, street crime went up 40 per cent.
So what these cameras do is take away our privacy without giving anything back in return. We have a right to go about our peaceful, law-abiding business on our public streets without feeling under the systematic, relentless eye of agents of the state.
Or here's a very different example of the assault on privacy: those "anonymous" surveys you receive in the mail. Once they get through all that stuff about what kind of toothpaste you prefer, they ask lots of personal questions - age, income levels, gender, marital status, interests, etc. And because they don't ask for your name or address, people tend to be much more forthcoming in these surveys - after all, they're "anonymous".
What we don't realize is that the company sponsoring the survey may have included a code on the return envelope that corresponds to your name and address, allowing the company to surreptitiously identify every respondent. The bottom line? Never assume you are anonymous - always think very carefully about what information you provide.
As students, you need to be particularly careful, because businesses have been collecting information about you, and your colleagues, for years. In the United States, some students are filling in exhaustive questionnaires in return for free computers or help with tuition costs.
Why this focus on students? Three reasons. First, once your personal information is out there, it's there forever and for everyone. Best to get it early while you're still cooperative.
Second, while it may not seem likely now, one day you will have money! In fact, your greatest consuming years are just ahead of you as you get your first jobs, buy or upgrade cars and purchase your first home. By learning about you today, companies will be able to sell to you tomorrow.
And third, students are particularly vulnerable to giving out private information because they want to get that first job. Too often, they tell potential employers far too much and, unfortunately, employers know that.
It's no surprise then, that some technology marketers are trading computers and internet access in exchange for the right to track what students do online.
Others have bought the information collected by students who sold magazine subscriptions as fundraising for the school. Those subscriptions of course, include names, addresses and other personally identifiable information, not the least of which was information about hobbies, interests and even levels of income.
Now, you may say, what's the big deal? So what if somebody knows my surfing or magazine-reading habits, even what I buy or where I go?
Well, the big deal is that information from one or more sources can be used to make assumptions about you that can fundamentally affect your life. Sometimes the simplest of activities can be construed in the most bizarre ways.
Suppose you go to Las Vegas three or four times a year to visit a relative or a close friend. If your travel habits became known - for example, by someone getting access to your credit card or debit card records - you might look like a compulsive gambler. That could affect your ability to get a job or a bank loan.
Or maybe you work for a company that likes to give bottles of wine or liquor as gifts to clients. As a junior employee, it's your job is to go to the liquor store regularly to stock up. Again, if your purchasing patterns became known, it could look like you have a real drinking problem, affecting everything from your ability to land a better job to your chances of getting insurance.
If you have to go through life knowing that everything you buy, everywhere you go, everyone you meet, anything you do may be observed, recorded, scrutinized, cross-referenced, judged, maybe misinterpreted and used against you by persons unknown - if you have to go through life like that, you're not truly free.
Maybe you'll think twice about a purchase, because of how it might look to someone. Maybe you won't take that trip, because someone might draw the wrong conclusion about you.
Lack of privacy makes us less free, and the more easily our privacy can be invaded - whether by private interests or by agents of the state - the less freedom we have.
Now, I'm not saying that we need to hide all information about ourselves. A complex society like ours cannot function without information, including personal information.
I have always made it clear that privacy is not an absolute right. There are times when some aspect of privacy must be limited to meet some other vital and legitimate social need, such as security.
But we need to be aware and we need to be cautious. Cautious about the information we give and the powers we bestow. Cautious about the thin edge of the wedge becoming an intrusive stiletto. And cautious about the kinds of policies we accept from our governments, our retailers and our employers.
The starting point is that people have the right to privacy. We have the right to control access to our person and to our personal information.
We need to make loss of privacy the exception, not the new way of doing business. And we need to have an attitudinal change that both recognizes the threats and places limits upon them.
The burden of proof must always be on those who say that a new intrusion on privacy is necessary to meet some important social need.
Every such proposal should be calmly and carefully assessed on its own merit. It should be tested against four key criteria:
Is it demonstrably necessary to address some specific problem?
Is it demonstrably likely to be effective in addressing that problem?
Is the reduction in privacy proportional to the benefit to be derived?
And is there no other, less privacy-invasive alternative that could accomplish the same purpose?
This kind of thinking is especially necessary in the wake of September 11.
Immediately after the terrorist attacks, the idea of scrapping privacy in return for greater security looked pretty appealing.
In fact, surveys showed that support among Canadians for such things as mandatory fingerprinting and national ID cards was up around 80 per cent in the days after September 11.
This reaction was both understandable and dangerous. Understandable because fear was rampant and such alternatives promised an easy solution. And dangerous because they threatened to take us down a path that would undermine the very differences which separate us from our adversaries.
A national ID card, for instance, would take away our privacy right of anonymity, without making us in any way safer.
Identification documents that must be carried at all times effectively become an internal passport without which we're nobody. That makes them a powerful tool of state control - take them away, and a person can't function in society. We don't live in a country where the police can stop us at any time, and say: "Your papers, please." And there's no reason why we should.
Such ID cards wouldn't pass the tests I mentioned a moment ago. They certainly wouldn't pass the test of effectiveness. Terrorists who have been quietly in place for a long time - like many of those involved in September 11 - wouldn't have any trouble getting getting an ID card, and tourists and visitors wouldn't have one.
Fortunately, the reflexive enthusiasm for such ill-considered measures seems to have faded. But it is certainly easier to sell all sorts of privacy-invasive ideas these days simply be invoking September 11 like a password.
So we have to keep insisting on 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 on the other.
We must remember that a government pervasive enough to protect us from every possible threat would be pervasive enough to strip us of every existing freedom.
Nor should we be under any illusions that new intrusions by government would only be for a limited time or purpose. These things have a way of becoming more pervasive, not less; of becoming more entrenched, not less.
Just remember that income taxes were supposed to be a temporary measure to help finance the First World War. And Social Insurance Numbers were only supposed to be used for administering the social insurance system.
So we have to be very careful whenever someone proposes to limit our right to privacy, just for a little while or just because the benefits will be very attractive.
I have found, in fact, that the greatest threats to privacy seldom come from those who want to do something really bad. They come from those who argue, with the very best intentions, that privacy needs to be sacrificed on the altar of some greater good - efficiency, better customer service, improved delivery of government programs, enhanced security.
More than half a century ago, Justice William O. Douglas cautioned that "To be let alone is indeed the beginning of all freedom." Today, at the start of the 21st century, that right to be left alone is under siege as never before.
And ultimately its protection cannot be secured only through privacy commissioners such as myself. The fact is, I can't do it alone. I need the help of every Canadian. I need your help.
As journalists, I urge you to bring these issues to the forefront of public discussion. As policy makers, I urge you to consider the privacy implications of everything you do. And as citizens, I urge you to take up this important cause.
Don't let the right to privacy slip away through indifference or inattention. Because as Justice LaForest of the Supreme Court of Canada so eloquently put it: "Privacy is at the heart of liberty in a modern state."
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