Freedom of Information and Protection of Privacy Conference
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June 13, 2002
Privacy Commissioner of Canada
(Check Against Delivery)
Shortly after September 11th, Newsweek magazine ran a cartoon of a man sitting at his computer. On the screen were two boxes. In one box was the word "freedom". In the other was the word "security". The caption read simply, "click on one".
In the wake of the terrible events of September 11th, that indeed seemed to many to be the choice: freedom or security. You could have one or the other, but not both.
I would argue that this is a false choice; that there is a middle ground which both respects our freedom and protects our security.
Before exploring this further, I would like to take a moment to talk about privacy- why it's so important and why we must never sacrifice privacy needlessly.
To begin with, privacy is a fundamental human right, recognized as such by the United Nations. Indeed, many have argued that 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?
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.
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 we do have critically important choices to make.
One of those crucial choices is how we respond to the challenge of balancing privacy and security in the wake of September 11. Although even talking choices in this context is misleading, because it suggests that we have to give up either privacy or security. I'm not convinced that there is an inevitable trade-off.
We are continually being told that the tragic events of September 11 fundamentally changed the world, that we have to sacrifice privacy for security in the fight against terrorism.
When people are frightened for their safety they may be more willing to tolerate limitations on their rights as long as they feel safe. This is a natural and human reaction. But the instinctive, unreasoned response isn't always the right one.
When we've seen the horrors of which these terrorists are capable-and there may be more-it's easy to fall into the trap of thinking that privacy is a luxury.
I want to take a slightly different view. The challenge now for me as Privacy Commissioner, and indeed for all Canadians, is to ensure that the fundamental human right, and fundamental Canadian value of privacy does not fall victim to this climate of fear and uncertainty.
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.
I have repeatedly stated publicly, especially since the tragic events of September 11, that I have absolutely no intention of being an obstacle to protecting our society. There clearly can be circumstances where it is legitimate and necessary to sacrifice some elements of privacy in the interests of vital security precautions. But the burden of proof must always be on those who say that any given sacrifice is necessary.
This is the approach I have taken to the Canadian government's anti-terrorism legislation.
I have taken the position that any proposed measure to limit or infringe privacy must meet four very specific criteria. First, it has to be demonstrably necessary to address a specific problem. Second, it must be demonstrably likely to be effective in addressing that problem. Third, it must be proportional to the security benefit to be derived. And, finally it must be demonstrable that no less privacy-invasive measure would suffice to achieve the same result.
I initially applied these criteria to Bill C-36, the Anti-Terrorism Act, that was introduced in October, 2001.
Applying those four tests to this legislation, it was clear to me that, with one glaring exception, the additional powers granted to the state to fight terrorism were reasonable and proportional.
Under existing provisions in Canada's privacy legislation, an individual's access to his or her own personal information can be denied if there are legitimate security or law enforcement reasons.
Bill C-36 went much further. Rather than just prohibit disclosure about, and to, a given individual, the provisions would have permitted the Attorney-General - the Minister of Justice - to issue certificates prohibiting the disclosure of any information, including all the information held in an entire agency or department of the Government.
If such a blanket certificate were issued, Canadians would have lost fundamental privacy rights, including the right to an independent review by the Privacy Commissioner.
Even worse, the Bill provided that when a certificate was issued, the Privacy Act would not apply - not just the access provisions, but the whole Act. In other words, with a single blanket certificate, by the stroke of a pen, a Justice Minister would have been able to wipe out all the privacy protection that Canadians now have.
Fortunately, the government eventually accepted the need to introduce amendments that narrowed this provision to its original intent and safeguarded the integrity of Canada's privacy laws. At the same time, the government ensured its ability to restrict access to personal information by a specific individual where there are legitimate security or law enforcement reasons.
Similarly, the government agreed with me on the need to amend Bill C-44 that authorizes Canadian air carriers to divulge passenger information to the customs and immigration authorities of a foreign state. At my request, the government introduced amendments so that no personal information about passengers provided to a foreign state could find its way back to the Canadian government, except for specific limited purposes relating to national security, public safety, and defence.
This is an example of how a Privacy Commissioner can protect rights. Canadians and their elected representatives appear to understand that well-intentioned measures to bolster security must not unnecessarily erode our privacy. But they sometimes need to be reminded, or nudged, or even pushed hard. That's the job of a vigilant Privacy Commissioner.
That is why I have taken a very strong position against one section of Bill C-55, the proposed Public Safety Act, that is now before Parliament.
As you probably know, Bill C-55 replaced Bill C-42 that was originally introduced last fall. This is an omnibus Bill that amends several pieces of legislation. My concerns focus on a small part of the legislation-a few provisions that amend the Aeronautics Act.
My primary concern is with section 4.82 that gives the RCMP and the Canadian Security Intelligence Service (CSIS) unrestricted access to personal information of air travellers. These provisions threaten to fundamentally and unnecessarily alter the balance between individuals and the state that exists and should exist in a free society such as Canada.
Giving the RCMP and CSIS unrestricted access to the personal information of all travellers on flights within Canada and on international flights is effectively the same as requiring everyone to inform the RCMP and CSIS every time they take a flight. Since we are required to identify ourselves to airlines as a condition of air travel and since section 4.82 would give the RCMP and CSIS unrestricted access to the passenger information obtained by airlines, this would set the extraordinarily privacy-invasive precedent of effectively requiring compulsory self-identification to the police.
This is an astounding and unnecessary privacy-invasive measure. In Canada, we don't have to check in with the police, we don't have to identify ourselves on request unless we are being arrested or carrying out a licensed activity such as driving an automobile.
In Canada we can go about our daily lives anonymously with regard to the state. We don't have to identify ourselves to police, we don't have to present our papers, and we don't have to pass through check points. This right to be anonymous is so much a part of our lives that we take it for granted. Bill C-55 threatens to overturn this fundamental principle.
I would have no privacy objection if the provisions of section 4.82 were limited to screening passenger information against data bases of known and suspected terrorists, and if all information that did not produce a match against these data bases were to be immediately destroyed
Such an exceptional measure can be justified to combat terrorism, but the legislation goes far beyond anti-terrorism.
The legislation allows the RCMP to obtain and scan passenger lists in search of anyone subject to an outstanding warrant for any offense punishable by imprisonment of five years or more. This has no apparent connection to the purported anti-terrorism purpose of Bill C-55 or even to transportation security. It appears, rather, to be a dramatic expansion of privacy-invasive police powers without any explanation or justification as to its necessity.
As I mentioned a moment ago, any proposed measure to limit or infringe privacy must meet four very specific criteria.
Shortly after this bill was introduced, I asked the Minister of Transport to provide me with information to help me determine if the provisions in section 4.82 met these criteria.
I wanted to know if there has been an increase in the number or percentage of individuals sought on Canadian warrants for offences punishable by imprisonment for five years or more who have evaded capture.
I asked whether there were new factors that have arisen since Bill C-42 was introduced in November, 2001 that now make it necessary for the RCMP to scan passenger information in search of individuals with outstanding warrants when it was not necessary at that time.
I asked the Minister to explain why he thought that individuals who are wanted on warrants for such offences as fraudulently altering brands on cattle, taking possession of drift timber or unauthorized use of a computer-all Criminal Code offences punishable by prison terms of five or more years-posed a threat to public safety when they're aboard an aircraft. Or even, for that matter, how many instances there have been of individuals wanted for more serious offences such as murder or armed robbery actually committing any violent acts aboard an aircraft.
And I asked why it's necessary to give CSIS and the RCMP open-ended authority to retain the personal information of unlimited numbers of law-abiding Canadian travellers in order to search for possible suspicious travel patterns, given the powers that these agencies already have and the additional powers they were given under the Anti-Terrorism Act.
I didn't get an answer to any of these questions. No one has told me why this dramatic new measure is suddenly necessary.
Will it be effective? I don't think that's at all obvious. For one thing, fugitives from justice aren't likely to fly under their own names, once they know the police are checking passenger lists. For another, under those circumstances, all but the most deeply stupid are likely to switch to travelling by train, bus or car.
Is the measure proportional to the increase in public safety? Again, I am not aware of any instances where even wanted murderers, kidnappers or armed robbers have taken actions aboard an aircraft that posed a threat to security. If we were to start giving the police major new privacy-invasive powers based merely on what "could" happen rather than on what does happen or is reasonably likely to happen, we truly would be well on the way to becoming a police state.
Are there other, less intrusive ways to address these problems? Of course there are. If a police force is concerned that someone wanted for a grave offence may try to leave a city, the police can - and do - alert airport authorities, post police officers at train and bus stations and take other measures to apprehend the person without requiring all travellers to identify themselves.
Lawrence MacAulay, the Solicitor General of Canada and the Minister responsible for the RCMP, has tried to justify this extraordinary proposal by invoking the spectre of aircraft teeming with fugitive murderers, kidnappers and armed robbers. But apart from the fact that there has been absolutely no substantiation of this supposed problem, there are more than 150 Criminal Code offences that are punishable by sentences of five years or more, many of them entirely non-violent.
Minister MacAulay also attempted to justify these provisions by suggesting that since the RCMP and CSIS will be using this information to identify potential terrorists, Canadians would expect the RCMP to also use this information to apprehend wanted criminals.
This is deeply disingenuous. Section 4.82 specifically states that identifying persons for whom a warrant has been issued is to be one of the purposes of obtaining passenger information from airlines. So we are not talking about the RCMP one day incidentally discovering that a wanted criminal is on board an aircraft. We are talking about the RCMP deliberately fishing through passenger lists for people wanted for more than 150 offences.
This idea that, just because we have collected information for one purpose, we might as well use it for other purposes is a fundamental violation of basic fair information practices. We even have a name for it-"function creep". Although in this case, function creep hardly seems adequate-function leap would be more appropriate.
Still, some of you may be asking yourselves, what's the problem? Don't we want to make it as easy as possible for the police to capture people for whom a warrant has been issued?
There are several problems with this proposal. Let me talk briefly about two of them.
First, I want to return to the problem of function creep. Governments collect a great deal of information about their citizens, much of it highly sensitive. We provide this information, sometimes because we are forced to, but also because we are promised that it will only be used for the purpose for which it was collected. If governments, and law enforcement agencies, are able to use information for other purposes, just because it's there, a basic fundamental promise will have been broken.
There's almost no end to the number of ways that the state could make use of our income tax records, our health records, and other personal information, all justified on the grounds that it will save money, increase efficiency or make our society safer.
We don't allow the police to enter our homes any time they want, just to make sure that no wanted criminals are lurking there or that we aren't breaking any laws. We don't allow them to listen to all our telephone conversations or open all our mail, just to make sure no crimes are
being planned. And we don't allow them to stop us on the streets and check our IDs, just to make sure we don't happen to be wanted for one of 150 crimes.
But if we allow them to do this with regard to airplane passengers, a very important threshold will have been crossed. If it's acceptable to require de facto compulsory self-identification to the police by air travellers for a whole range of law enforcement purposes, why limit it to air travellers?
How long before someone argues that if air passenger information is being checked for fugitives, it's only logical to do the same thing with trains, buses, car rentals. Why not roadblocks where drivers are checked at random to make sure they aren't wanted for something? Why not stop people on the street and demand identification.
The place to stop unwarranted, unjustified intrusions on privacy is at the outset, at the very first such intrusion. Otherwise, it just becomes harder and harder.
Then, of course, there are also the immediate, practical considerations for air travellers If Bill C-55 is passed with section 4.82 intact, you should count yourself lucky if you have an unusual name.
Otherwise, particularly given the relatively low level of identity authentication on domestic flights, you stand a real chance of being detained by police if you happen to have a name similar to that of someone who is wanted on one of those warrants for any of 150 offences. With a name like mine, it's not too bad. But if your name is, say, Paul Martin, well, directory assistance lists 269 across Canada. If one of your namesakes happens to be wanted, it'll be up to you to establish your identity and satisfy the police that you're not the one who's a fugitive.
If that happens often enough, the next thing we'll hear is that the solution is
yet another privacy-invasive new measure - a compulsory national identity card and identity number. More function creep.
None of this is as far-fetched as you might think. Solicitor-General MacAulay has also attempted to justify the provision I have just been describing by saying that "Since the events of September 11th, Canadians live in a changed security environment, and expect the police to use all reasonable tools to ensure their safety."
When the Solicitor-General of Canada - the minister whose duties include ensuring that federal law enforcement authorities respect our rights - invokes September 11 to justify privacy intrusions such as screening airline passengers for Criminal Code warrants unrelated to terrorism or such as RCMP video surveillance of public streets in the small British Columbia town of Kelowna, that alone is cause for worry.
We do indeed live in a changed security environment since September 11-with regard to necessary and justified security measures against terrorism. But the new police powers being proposed in section 4.82 have nothing to do with anti-terrorism or security. To use public fears of terrorism as an excuse to expand the powers of the state and erode fundamental human rights for reasons that have nothing to do with anti-terrorism would, quite frankly, be inexcusable.
Let me repeat: I will never allow my office to stand in the way of the genuine security of Canadians. Especially following September 11th, it is crucial to walk a very careful line in that respect. But neither will I stand aside and see privacy rights sacrificed to hysteria.
And I use that word hysteria advisedly. One of the clearest lessons of history is that the greatest threats to liberty come not when times are tranquil and all is well. The threats come in times of turmoil, when fidelity to principle seems an extravagance we cannot afford.
History also teaches that whenever we have given in to that kind of thinking, we have lived to regret it.
We have regretted it because we have done to ourselves what we most feared from others-we have diminished our fundamental rights. And, we have adopted the very practices which differentiate us from our adversaries.
At the time, this loss of freedom might seem small, trivial even, when placed in the balance of the security we seek. The measures may appear harmless, nothing to worry too much about.
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 is to not to allow our fundamental right to privacy to be nibbled away, for expedience, and by parts, but to make our voices heard and to take the longer view.
If we truly believe that the right to privacy is, at its heart, the respect society pays to the inviolability of the individual, then we must demand and accept no less.
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