Computers, Freedom and Privacy
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13th Annual Conference
April 2, 2003
New York, New York
Privacy Commissioner of Canada
(Check against delivery)
I very much welcome the opportunity to address this conference. Computers, Freedom and Privacy has a long tradition of bringing together powerful minds and original thinkers, to address timely and important questions.
Today, a year and a half after the attacks of September 11, and at a time of war and of anxiety about possible further attacks, 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 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 have historically shared 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 we 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.
This is not to suggest that these differences make us superior. It is simply to say that such differences in approach are natural among sovereign countries with differing histories, traditions, and circumstances.
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 today.
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 and in the current atmosphere of war, law enforcement and security measures are increasingly being globalized - so it is important to look at privacy, as well, in an international context.
After September 11, it was obviously necessary to improve security against terrorism, in the U.S., of course, but in other countries as well. People everywhere were outraged by the attacks - and more than that, they were frightened. It was clear that there was a real need both to enhance security and to address the psychological impact of the attacks, the crippling fear that had taken hold of people.
That's the essence of terrorism - 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.
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 freedoms 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. They are what this situation is all about.
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 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 less a source 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."
So we have to proceed very carefully. If all the initiatives that are being implemented or contemplated in various countries were followed through to their logical conclusion, privacy - and with it freedom as we know it - would soon be a distant memory.
The intimate details of our daily lives, captured through commercial transactions and innocent interactions with government agencies, would be systematically recorded, tracked and analyzed. Dossiers about us would be assembled and made available for potential use against us by state agencies.
State authorities would be able to easily access records of every e-mail we send, every cell phone call we make, and every Web site we visit and Web page we look at.
We would be fingerprinted or retina-scanned, and this biometric information would be placed on compulsory national ID cards that we would have to produce to police on demand.
Our movements through the streets would be relentlessly observed through police video surveillance cameras. Face-recognition technologies would allow the police to identify us by name and address as we go about our law-abiding business.
I am well aware that all this may sound, to most people, like alarmist exaggeration. And I am not predicting that it will all necessarily happen. But the fact is that the privacy-invasive measures being implemented or developed right now would have been considered unthinkable in most Western countries just a few years ago. And once the precedents have been established and the principles accepted, further intrusions are only a matter of degree.
We are told, of course, that we are in a war against terrorism, so exceptional sacrifices have to be made, precautions have to be taken.
But it is important to remember that this "war" is different from others that we have endured. A war against terrorism is a war against a phenomenon, not against a nation-state. Wars that are fought between nation-states, or even civil wars that are fought within a country, are finite. They may drag on for a long time, but eventually someone wins and someone loses or a stalemate is identified, and the terms of peace are established.
But if we apply the premises of war to the challenges of dealing with terrorism, we will by definition be committing ourselves to a "war" with no possible end - because there is no single, definable enemy. Any group of individuals, or even any single individual, that is willing to commit public mayhem in support of any particular cause is thereby a terrorist. And so for every particular group or faction of terrorists that is neutralized, another one may readily spring up.
This means that there can never be a moment when it will be possible to declare a definitive victory in a "war" against terrorism. In fact, such a war will be eerily reminiscent of Orwell's 1984, which takes place against the background of a mysterious chronic war in which it is never clear just who the enemy is or who is winning or losing.
We need to recognize, therefore, that any intrusions or limitations on the fundamental human right of privacy that are imposed as a purported wartime measure against terrorism will likely never be rescinded. What we are confronting is the prospect of a permanent redefinition of our societies.
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. And, in fact, I have not opposed a single genuine anti-terrorist measure.
But our challenge in the face of terrorism is not just to protect the public from further attacks. It is to say to the terrorists that we will prevail, 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, 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 other purposes that have nothing to do with anti-terrorism.
And we must guard against the eagerness of state authorities to use 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 intrusive measures such as massive electronic dossiers of personal information on every citizen, biometric national identity cards, general video surveillance of public streets and blanket retention of internet data, wouldn't even begin to meet.
I said earlier that I would never presume to tell people in another country what to do. But in truth I do want to urge people in this country, and in all the countries represented here, to think hard - to look hard at these invasions of privacy, to question them at every turn, and to insist that they be subjected to this test of justification. Because, once again, privacy has to be looked at internationally.
That's nowhere more true than in the relations between Canada and the U.S.
We have very close ties - political, cultural, historical, and especially economic. I think that's a good thing, as do most Canadians. But I can tell you that it's become very convenient for people proposing some new intrusion on our privacy in Canada to claim that pressure from the U.S. will require it sooner or later.
Of course Canadians want to continue to have close economic ties with the U.S. But it alarms many of us when we are told that if we want to preserve our economic ties - if we want access to U.S. markets, if we want our goods to cross the border freely, if we want to be able to travel to the U.S. - we have to accept the destruction of our privacy rights.
I don't believe that privacy advocates in this country want that -I don't think you want anyone else's privacy rights destroyed, any more than your own.
But we live in an interconnected world. Globalization is not just a buzzword; it is a fact of our lives. And it's true now, more than ever, that an injustice to one is an injustice to all. That's not just philosophy anymore. Privacy will be weakened nationally, in every nation, if we do not struggle to protect it internationally.
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 shadow of a long, hard war against terrorism, 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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