Technology and its Effects on Criminal Responsibility, Security and Criminal Justice
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16th International Conference
December 10, 2002
Charleston, South Carolina, U.S.
Privacy Commissioner of Canada
(Check Against Delivery)
I very much welcome this opportunity to meet with you today.
Few issues are more important or timely than the role of technology in law enforcement and enhancing security. It's understandable, in a period of great insecurity and fear, that people are looking to technology to make them feel safer.
But by making it easier for police forces and security agencies to collect, store, analyze, cross-reference and share personal information, technology has the effect of increasing the power of the state to intrude on the privacy of its citizens.
So, before we put too much faith in technology, it's important that consider under what circumstances it will actually make us safer, not just make us feel safer. And it's important that we look at the cost-not the cost in dollars and cents, but the costs to our fundamental rights and liberties.
In the situation we are now experiencing, few issues are more important or timely than the appropriate balance between security and privacy.
The choices that free and democratic societies around the globe make in this regard, in this difficult time of challenge, will quite literally determine what kind of world we create not only for ourselves but what kind of world we leave to our children and grandchildren.
As Justice Thurgood Marshall of the U.S. Supreme Court so eloquently put it:
"History teaches us that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure."
In few societies are those choices more urgent and sensitive than here in the United States.
The U.S. and Canada share not only a border but also exceptionally close bonds - of friendship, of language, of many shared values, and many common elements of culture.
All Canadians were deeply affected by the tragic events of September 11. And all Canadians continue to stand with our American friends and neighbours in sympathy and support.
But as close as we are to the United States in so many ways, Canada is also a very different country. We differ, for instance, in our political culture, in the weight we attach to various values, and in the way we approach many issues.
One such difference is reflected in the role that I play as Privacy Commissioner of Canada.
I am an independent Officer of Parliament, our national legislature, appointed for a fixed seven-year term to oversee and defend the privacy rights of all Canadians. I have oversight over compliance with Canada's two privacy laws, that cover the public and the private sectors, and I am mandated to comment and advise on all matters that affect the privacy rights of Canadians.
This means that whenever there are policy issues that are likely to affect those rights, the voice of privacy is right there at the table, in an institutionalized and official way. There is, at present, no counterpart to this Canadian approach in the U.S. federal system.
It's from the perspective of my responsibilities in Canada that I speak to you this morning.
It is certainly not my role or my intention to tell people in any other country, including this one, what they should do. But it is also true that in the wake of September 11, law enforcement and security measures are increasingly being globalized - so it is important to look at privacy, as well, in an international context.
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.
In Canada, I have made clear that as Privacy Commissioner and an Officer of Parliament, I have absolutely no intention of being an obstacle to protecting the public.
But when people are frightened for their safety, when we've seen the horrors of which today's breed of terrorists are capable - and there may be more - it's easy to lose perspective. It's easy to fall into the trap of thinking that security is all that matters and that privacy is a luxury.
But such excesses can only reward and encourage terrorism, not diminish it. They can only devastate our lives, not safeguard them.
Of course we all want to be safe. But we could be safer from terrorism if we permanently evacuated all the high-rise office towers. If we closed down the subways. If we forever grounded all airplanes.
But no reasonable person would argue for adopting such measures. We'd say, "We want to be safe - but not at the price of sacrificing our whole way of life."
The same reasoning should apply, in my view, to arguments that privacy should indiscriminately be sacrificed on the altar of enhanced security.
Privacy is a fundamental human right, recognized as such by the United Nations. It is, as Justice La Forest of the Supreme Court of Canada has said, "at the heart of liberty in a modern state."
That's because there can be no real freedom without privacy. If we must live our lives knowing that at any given moment someone - and particularly agents of the state - may be metaphorically or quite literally looking over our shoulder, we are not truly free.
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 it or somehow use it to our detriment, we are not truly free.
Many have suggested, in fact, that privacy is the right from which all others flow - freedom of speech, freedom of association, freedom of choice, any freedom you can name.
That's why lack of real privacy is a distinguishing characteristic of so many totalitarian societies. And it's why privacy and the other cherished freedoms and values that define our respective societies are not frills or luxuries in the current situation.
Terrorism is not an action; it is an effect. The essence of terrorism is the impact it is intended to have on those who witness it - the capacity to frighten, to demoralize, to sap the will of a society to resist whatever it is that the terrorists want.
Usually, that's something fairly specific - independence for a particular area, or installation of a particular government. But by all accounts, the goals of the current terrorist movement are much broader and more diffuse - it is the whole nature of American society, and by extension of all our Western societies, that they seek to attack and undermine. Our freedoms and values, very much including privacy, are precisely the target.
Far from making us safer, every ill-considered reduction of those freedoms - every needless encroachment on privacy - would be a victory for terrorism, a proof of effectiveness in disrupting our society that could only encourage further outrages.
I know that it's become almost a cliché to say that if we do or don't do this or that, "the terrorists win." But when it comes to sacrificing a fundamental right such as privacy, you don't have to take my word for it.
Consider instead the words of no lesser an authority on the aims of the September 11 terrorists than Osama bin Laden, who in one of his statements about a month after the attacks predicted that "freedom and human rights in America are doomed. The U.S. government will lead the American people - and the West in general - into an unbearable hell and a choking life."
The attacks of September 11 broke great taboos. They assaulted the very concept of civilization, of civilized behavior, as our societies know it. There's no question that they tore a hole in the fabric of all our Western societies.
Our challenge is to urgently mend that hole and reinforce the fabric, by reaffirming with all the more vigor and clarity the rights, freedoms and values that are the very definition of our way of life.
And so with regard to privacy - that core right, that fundamental right - our challenge, in your society as in mine, is to guard against intrusions based on reflex, on convenience or on ulterior motives.
We must guard against falling prey to the illusion that wholesale erosion of privacy is a reasonable, necessary or effective way to enhance security.
We must guard against the tendency of governments to create new data bases of privacy-invasive information on justified, exceptional grounds of enhancing security, and then seek to use that information for a whole range of other law enforcement or governmental purposes that have nothing to do with anti-terrorism - simply because it's there.
And we must guard against the eagerness of law enforcement bodies and other agencies of the state to use the response to September 11 as a Trojan horse for acquiring new invasive powers or abolishing established safeguards simply because it suits them to do so.
It may be tempting to think that we'll be safer if privacy is brushed aside and there is a lot more wholesale, indiscriminate gathering of information about everyone. But, in fact, I think we'd probably be a lot less safe.
Who would sift through all that additional information? Imagine the resources it would take.
The most likely result of a personal information glut would be to shift resources and attention away from the more targeted activities that are the only effective approach to terrorism. We'd only be creating a thicker forest of information in which the terrorists could hide.
We need, rather, to distinguish between information and intelligence. More information about everyone isn't likely to accomplish anything except violating people's privacy and turning every citizen into a suspect. Intelligence - directed, suspicion-based contacts, inquiries and searches - is a very different matter.
What is needed, to make us safer from terrorism, is not mindless invasion of privacy, but more and better intelligence, in both senses of the word.
Perhaps it will be necessary to accept some new intrusive measures to enhance security. But these choices must be made calmly, carefully and case by case.
The burden of proof must always be on those who suggest that some new intrusion or limitation on privacy is needed in the name of security.
In Canada, I have suggested that any such proposed measure must meet a four-part test:
It must be demonstrably necessary in order to meet some specific need.
It must be demonstrably likely to be effective in achieving its intended purpose. In other words, it must be likely to actually make us significantly safer, not just make us feel safer.
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 - that's the test that I believe can allow us to take all appropriate measures to enhance security, without unduly sacrificing privacy.
It's a test on which I believe we must resolutely insist.
And it's a test that many of the intrusive technological measures that are reflexively being proposed in various countries, measures such as creating electronic dossiers of personal information on every citizen, biometric national identity cards, video surveillance of public streets and massive retention of internet data, wouldn't even begin to meet.
One of the clearest lessons of history is that the greatest threats to liberty come not when times are tranquil and all is well, but in times of turmoil, when fidelity to values and principle seems an extravagance we cannot afford.
And history also teaches us that whenever we have given in to that kind of thinking, we have lived to regret it.
At the time, the loss of freedom might seem small, trivial even, when placed in the balance of the security we seek.
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 today, in the wake of September 11, is to refuse to allow the fundamental right to privacy to be nibbled away, for expedience, and by parts.
If we truly believe that the right to privacy is, at its heart, the respect that society pays to the inviolability of the individual, then we must demand and accept no less.
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