Privacy at a Crossroads
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The Frontiers of Privacy and Security: New Challenges for a New Century conference
Presented by the Corporate Privacy & Information Access Branch and the IT Security, Common IT Services Branch of the B.C. Ministry of Management Services
February 13, 2003
Victoria, British Columbia
Privacy Commissioner of Canada
(Check against delivery)
The theme of this conference is: "Frontiers of Privacy and Security: New Challenges for a New Century." Nothing could be more timely.
Even before September 11th, it was my view that privacy would be the defining issue of this new decade.
That's because we are at a crossroads. On one hand, Canada's new private sector privacy law - which will come fully into effect next January - gives privacy a higher level of protection and recognition than ever before.
But on the other hand, technological advances - in information technologies, surveillance technologies, biometrics, genetics - have dramatically changed the balance.
Our privacy used to be protected pretty much by default, because someone would have had to go to a great deal of trouble to systematically invade the privacy of any one of us. Now it is we - as individuals and as a society - who must go to considerable trouble to ensure that privacy remains respected.
But the aftermath of September 11th has added a whole new dimension.
We are at a more decisive crossroads than ever, but now the time of decision is not a decade, let alone a century.
It is quite literally right now, in the coming weeks and months. The choices we make will determine not only what kind of society we have for ourselves, but what kind of society we leave to our children and grandchildren.
As many of you know, two weeks ago I presented Parliament and Canadians with my Annual Report.
The message that I had to deliver - and that I want to discuss with you this morning - is very frankly one that I never thought would be necessary in this country.
The right of privacy is at the core of the basic freedoms of our society.
Privacy is sometimes described, in fact, as "the right from which all freedoms flow."
Freedom of speech, of thought, of association, to name just a few, are grounded in the idea that we have a private sphere of thought and action that is our business and nobody else's-not our neighbours', not our employers', not some telemarketer's, and certainly not the state's.
And yet in Canada today, that fundamental human right is under unprecedented assault.
We are confronted with a series of Government initiatives that risk cutting the heart out of privacy rights in this country-rights that are well-established in the common law, in our privacy statutes, and in the Canadian Charter of Rights and Freedoms.
These initiatives grew out of the call for increased security after September 11, and anti-terrorism is their purported rationale.
But the aspects that present the greatest threat to privacy either have nothing at all to do with anti-terrorism, or they will do nothing to enhance security. The Government is simply using September 11 as an excuse for measures that have no place in a free and democratic society.
As Privacy Commissioner, I have always made it clear that I will never seek to stand in the way of measures that are necessary to protect us against terrorism, even if they involve some new intrusion or limitation on privacy.
And I have not, in fact, raised privacy objections against a single genuine anti-terrorist measure.
What I have opposed - and must oppose - is the extension of anti-terrorism measures to unrelated purposes, and intrusions on privacy whose value as anti-terrorism measures has not been demonstrated.
In particular, I am referring to the following: the Canada Customs and Revenue Agency's new "Big Brother" passenger database; the provisions of section 4.82 of Bill C-17, the Public Safety Act; the "Lawful Access" proposals to enhance state powers to monitor our communications; the proposal for a national ID card with biometric identifiers; and the Government's support of police video surveillance of public streets.
These initiatives, in and of themselves, are all cause for deep concern because of the way they violate our privacy.
But they are even more disturbing because of the thresholds they cross and the doors they open.
Each of these measures establishes a dangerous new principle of acceptable privacy invasion: the creation of dossiers on law-abiding citizens; mandatory self-identification to the police; monitoring of our communications activities and reading habits; the removal of our right to anonymity; and systematic police observation of law-abiding citizens on public streets.
If these measures are allowed to go forward and the principles they represent are accepted, there is a very real prospect that before long Canada will be scarcely recognizable as a free society. Here, instead, is what it may look like:
All our travel outside the country will be systematically recorded, tracked and analyzed. Dossiers about us will be available for use against us by virtually every federal department and agency.
Any time we travel within Canada, we will have to identify ourselves to police so that they can check whether we are wanted for anything.
State authorities will be able to access records of every e-mail we send, every cellular phone call we make, and every Web site we visit.
We will all be fingerprinted or retina-scanned by the government, and this biometric information will be placed on compulsory national ID cards that we will have to produce to police on demand. (This needless, senseless intrusion will, I might add, by our best calculations cost between $3 billion and $5 billion to implement the biometric ID cards and the network of readers for them. Minister Coderre hasn't been talking about that, so you're hearing it here first.)
Our movements through the streets will be relentlessly observed through police video surveillance cameras. Face-recognition technologies linked to those cameras will allow the police to identify us by name and address as we go about our law-abiding business.
I know that all this may sound, to most people, like alarmist exaggeration. And I am not predicting that it will necessarily happen.
But the fact is that the privacy-invasive measures being implemented or developed right now would have been considered unthinkable in our country just a year ago. And once the precedents have been established and the principles accepted, further intrusions are only a matter of degree.
The situation is all the more worrisome because the Government is doing all this in blatant disregard of the concerns that it is my duty as Privacy Commissioner to express.
In our system, the Privacy Commissioner of Canada is an ombudsman. I work primarily through persuasion and cooperative discussion behind the scenes. That is part of my mandate, it's the way it's the way I have sought to operate since my appointment, and it has produced many successful outcomes.
But now that long-standing and very successful model of protecting privacy appears to be breaking down.
Governmental disregard of my objections and concerns is moving beyond isolated instances and becoming systematic.
This is happening even though these concerns are echoed by privacy advocates, civil libertarians, eminent legal experts, and provincial privacy and territorial commissioners across the country, and since publication of my Report, by many others including the Canadian Labour Congress, the Council of Canadians and editorials in virtually every major newspaper from coast to coast.
This indifference on the part of the Government puts a fundamental right of every Canadian profoundly at risk.
If the Government can, with impunity, simply brush aside the Privacy Commissioner's warnings and do as it pleases, then privacy protection in this country will be progressively weakened, and worse and worse intrusions will be inevitable.
As I said, I have never opposed genuine anti-terrorism measures, even if they result in some infringement of privacy. What I have insisted upon is that any such proposed measure must meet a four-part test of justification.
The measure must be demonstrably necessary in order to meet some specific need.
It must be likely to be effective in achieving its intended purpose.
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-this is the test that allows us to take appropriate measures to enhance security, without unduly sacrificing privacy. I believe we must resolutely insist on it.
But each time I and my Office have applied this test to the Government's initiatives, and found them to come up far, far short, the Government has simply brushed our concerns aside.
This undermines the whole edifice of privacy protection that has been in place in this country for nearly two decades.
It is important for us all, as Canadians, to think hard about what it will mean to lose our privacy.
If someone intrudes on our privacy-by peering into our home, going through the personal things in our office desk, reading over our shoulder on a bus or airplane, or eavesdropping on our conversation-we feel uncomfortable, even violated.
Imagine how we will feel if it becomes routine for bureaucrats, police officers and other agents of the state to paw through the details of our lives: where and when we travel, and with whom; the friends and acquaintances with whom we have telephone conversations or e-mail correspondence; what we are interested in reading or researching; where we like to go and what we like to do.
A popular response is: "If you have nothing to hide, you have nothing to fear."
By that reasoning, we shouldn't mind if the police were free to come into our homes at any time just to look around, if all our telephone conversations were monitored, if all our mail were read, if all the protections developed over centuries were swept away.
The truth is that we all do have something to hide, not because it's criminal or shameful, but because it's private.
We calibrate what we reveal about ourselves to others. Most of us are willing to have a few things known about us by a stranger, more by an acquaintance, and the most by a very close friend or a romantic partner.
The right not to be known against our will - indeed, the right to be anonymous except when we choose to identify ourselves - is at the very core of human dignity, autonomy and freedom.
If we allow the state to sweep away the normal walls of privacy that protect the details of our lives, we will consign ourselves to living in a fishbowl.
Even if we suffered no other specific harm as a result, that alone would profoundly change the way we live our lives. Ask anyone who has lived in a totalitarian society.
But there also will be tangible, specific harm.
The more information government compiles about us, the more of it will be wrong. That's simply a fact of life.
If the state is systematically assessing our behaviour and making judgments about us, wrong information and misinterpretations will have real consequences.
Decisions may be made on the basis of wrong facts, incomplete or out-of-context information or incorrect assumptions, without our ever having the chance to find out about it, let alone to set the record straight.
That possibility alone will, over time, make us increasingly think twice about what we do, where we go, with whom we associate, because we will learn to be concerned about how it might look to the state's ubiquitous watchers.
You stopped in Thailand during a business trip, and liked it so much that you're thinking of going back on a vacation. But might repeat travel to Thailand get you flagged as a possible pedophile going there for the child sex trade? Could you find yourself detained for questioning every time you travel? Might you be denied security clearances, or refused entry into the United States?
You're browsing on the Internet and you're idly curious about al-Qaeda propaganda. But could visiting such Web sites get you identified as a potential terrorist and bring CSIS or RCMP officers knocking on your door?
You develop a friendship or work closely with someone, and it would make sense to travel on some trips together. But what if, three or four years from now, authorities were to suspect this person of some wrongdoing, and their database showed your past association? Could you be in trouble yourself? Should you start being more careful about whom you associate with?
You're stopped on the street by a stranger asking for directions. But if by then proliferating street video surveillance cameras are linked to biometric face-recognition technologies, what if the system immediately identifies the stranger - rightly or wrongly - as a known or suspected terrorist?
If the police officer then calls up your name and address by matching your image on the screen to your driver's license or passport photo, will you go into security files yourself as someone who had a street meeting with a terrorism suspect? Would you be smarter to just keep walking whenever any stranger tries to talk to you?
That sort of life is characteristic of totalitarian countries, not a free and open society like Canada. But it's where we are headed, if the Government's current initiatives are allowed to proceed.
Canada has, over the course of its history, developed a healthy balance between the powers of the state and the rights of the individual.
Our crime rates have been comparatively low and our social order has been strong. Individual freedom and diversity have flourished to a degree that is the envy of much of the world. That's why so many immigrants from all over the world have chosen to make Canada their home.
But now we face having that successful balance changed, by a Government that has lost its moral compass with regard to the fundamental human right of privacy.
The Government seems to be convinced that privacy must be sacrificed bit by bit, day by day.
It is prepared to sacrifice privacy in order to reassure a frightened public-even if all it does is make people feel safer, rather than make them actually safer. Worse, it is prepared to sacrifice privacy simply to mollify an insistent U.S. government, and to satisfy police and security forces that see an opportunity to expand their powers.
Canada is on the verge of being transformed into a society where the state is much more intrusive and where individual rights and freedoms are correspondingly reduced. And we face having this transformation occur without the analysis, debate or even understanding that it deserves.
I'm often asked these days why there hasn't been an even greater public outcry against all this.
Well, 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.
As Justice Thurgood Marshall of the United States 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 today's "times of urgency," it's especially true that privacy and the other cherished freedoms and values that define our society are not frills or luxuries. In a very real sense, they are what this situation is all about.
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 Western society 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 a source on the aims of the September 11 terrorists than Osama bin Laden, who in one of his televised 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 behaviour, 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 vigour 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 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 government to create new data bases of privacy-invasive information on justified, exceptional grounds of enhancing security, and then to 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, the reality is that 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.
The place to stop unjustified intrusions on a fundamental human right such as privacy is right at the outset, at the very first attempt to enter where the state has no business treading. Otherwise, the terrain will have been conceded, and the battle lost.
If the Government's current initiatives are allowed to go forward, there is a very real risk that privacy as we know it will soon become a distant, irretrievable memory.
As an ombudsman I don't have the power to stop this.
That power lies in public outcry and Parliamentary action. That may well be all that stands between us and the permanent loss of our privacy rights and important elements of our freedom.
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 - including Canadian 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. The 18th Century political philosopher Edmund Burke understood this danger when he wrote, "The true danger is when liberty is nibbled away, for expedience, and by parts."
Our challenge as Canadians today, in the face of the federal government's unprecedented and ill-considered assault on privacy, 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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