Finding the Balance Between Security and Privacy
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Public Policy Seminar Series
Library of Parliament
April 11, 2003
Privacy Commissioner of Canada
(Check against delivery)
I very much welcome this opportunity to speak with you on the subject of the balance between security and privacy.
No issue is more critical and timely.
It has been my view for some time that privacy will be the defining issue of this decade.
Our privacy used to be protected pretty much by default-because as long as our information was in paper records scattered over a lot of locations, someone would have had to go to a great deal of trouble to systematically invade the privacy of any one of us. But technological advances - in information technologies, surveillance technologies, biometrics, genetics - are increasingly capable of eradicating our privacy.
Now it is we - as individuals and as a society - who must go to considerable trouble to ensure that our privacy remains respected. The choices we make in facing this challenge will determine not only what kind of society we live in, but what kind of society we leave to our children and grandchildren.
The terrorist attacks of September 11th, and the fear and anxiety that followed them, added a whole new dimension. Suddenly, the challenge to privacy was about much more than technology-a lot of people were arguing that privacy was a luxury we couldn't afford in the face of terrorism.
Now the time of decision is not a decade, let alone a century. It is quite literally right now. It is upon us.
Early this year, in my Annual Report to Parliament and Canadians, I delivered a grim message. I drew attention to a series of Government initiatives that grew out of the call for increased anti-terrorism security after September 11. Taken together, they amounted to an unprecedented assault on the fundamental human right of privacy.
I'm pleased to be able to tell you that we now have a lot more reason to be hopeful. As I'll explain in more detail shortly, the Government has agreed to address the most pressing and troubling of those initiatives, and to eliminate its greatest threats to privacy.
While other challenges remain, I hope that the Government has begun to turn a corner. I hope that it is now taking seriously the concerns that I and others have raised, and beginning a genuinely enhanced effort to safeguard privacy.
That's good news for Canadians, because 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.
In the heightened security environment since the September 11 attacks, we've seen that some people are alarmingly willing to abandon privacy and all those freedoms that flow from it-to let the state stick its nose into our business in all sorts of new ways.
I have always made it clear that, as Privacy Commissioner, 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 never, 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 my Report, I drew particular attention to the Canada Customs and Revenue Agency's new database about airline passengers. I was very concerned about the privacy implications of a database containing extensive information on the foreign travel activities of all law-abiding Canadians-more than 30 data elements, including where and with whom we travel, method of payment for tickets, contact addresses and telephone numbers, even dietary and health-related requirements.
I was particularly concerned that, under the information-sharing provisions of the Customs Act, all this information would have been available for a virtually unlimited range of governmental and law enforcement purposes-everything from routine income tax investigations to flagging individuals as possible pedophiles simply because they travelled repeatedly to certain countries.
I'm very pleased to say that we've been able to resolve this issue. National Revenue Minister Caplan announced this week that major changes will be made to this initiative, to ensure that it achieves its legitimate security objectives without needlessly violating privacy.
There will be no dossiers of personal information about the lawful activities of all Canadians, for unrestricted potential use against them. The Minister has taken steps to eliminate the use of this information for fishing expeditions. It will not be used to identify everyone who has travelled to a particular country a certain number of times, or to routinely access travel profiles of
individuals for tax review purposes. Meal and health information will be eliminated outright. And the use and sharing of personal information about travel activities will be very significantly limited.
This is a very great victory for the privacy rights of Canadians. And it's more than that-it's a vindication of the way Parliament, some twenty years ago, chose to protect privacy in Canada.
The Canadian approach to privacy protection is based on an ombudsman model. As an ombudsman, I can't force the Government or anyone else to take any particular action or to do things any particular way. I have two pieces of legislation at hand, the Privacy Act and the Personal Information Protection and Electronic Documents Act, both of which set out privacy practices that Government and commercial organizations must follow. I examine what they're doing in terms of those statutes, and I draw conclusions about whether they're respecting the law. I have a solid investigative and analytic staff to support me on this. But, whatever my conclusions about what organizations are doing, I can only recommend to organizations what I believe they should do. I can't give them orders or impose my interpretation of the law on them.
That's why it's important that I use behind-the-scenes persuasion and dialogue-which is one reason that I'm able to accomplish a lot that the public doesn't hear about. It's only in those relatively rare-but very important-circumstances when persuasion, negotiation, and good sense don't work that privacy disagreements become news.
When persuasion doesn't work, no matter how much I appeal to people's good sense and commitment to the principles set out in the privacy laws, then I have to reach out to Canadians to let them know what is at stake. That's when recourse to public debate and other initiatives is necessary.
When I was unable to make any headway with the government on issues like the passenger database, I was forced to emphasize my concerns in my Annual Report. That led to an outpouring of public support. My concerns were echoed by privacy advocates, civil libertarians, eminent legal experts, and provincial privacy and territorial commissioners across the country, and by many others, including the Canadian Labour Congress, the Council of Canadians and editorialists in virtually every major newspaper from coast to coast.
Minister Caplan's announcement demonstrates that this ombudsman model, combining persuasion and dialogue with public pressure when necessary, is a very good and effective one. I very much appreciate the sensitivity she has ultimately shown to the importance of privacy rights.
But there are still crucial challenges confronting us, and we still need to keep working hard. In my Report, I also discussed 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. While I have reason to be cautiously hopeful, based on Minister Caplan's action in the case of the passenger database, the fact is that these initiatives, and my concerns about them, have not yet been addressed by the Government.
These initiatives, in and of themselves, violate our privacy. But they are even more disturbing because of the thresholds they cross and the doors they open.
They redefine privacy, and redraw the lines of what's an acceptable invasion of privacy. Mandatory self-identification to the police; monitoring of our communications activities and reading habits; the removal of our right to anonymity; systematic police observation of law-abiding citizens on public streets-on all of these counts, what has long been unthinkable in a free society threatens to become, not just thinkable, but a fait accompli.
It's because of their potential to transform our society that I've had to take such a strong stand against these measures.
Canada would be scarcely recognizable as a free society, if any time we travelled we had to identify ourselves to police so that they could check whether we were wanted for anything.
It would not be Canada if state authorities were able to easily access records of every e-mail we sent, every cellular phone call we made, and every Web site we visited.
The Canada we know does not fingerprint or retina-scan its citizens and put this biometric information on compulsory national ID cards that have to be produced to police on demand.
It would not be Canada if our movements through the streets were relentlessly observed through police video surveillance cameras, and if the police were able to identify us with face-recognition technologies as we went about our law-abiding business.
I don't want that version of Canada. I doubt if many of you here today want it. And I know that many, many Canadians don't want it, as became evident in the response to my Annual Report. So we need to continue to take a strong stand. We need to keep up the pressure on the Government, to encourage it to take the same responsible and thoughtful approach it finally took on the passenger database.
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.
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 have chosen to make Canada their home.
So we have to be very careful about changes to that successful balance, and about sacrifices of privacy, bit by bit, day by day, to reassure a frightened public-especially if all it does is make people feel safer, rather than make them actually safer.
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.
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.
And the time when that right of privacy is most threatened is when we forget just how fundamental it is-when it starts to look like a frill or luxury compared to the danger we are facing. As Justice Thurgood Marshall of the United States 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."
The fact is that in today's "times of urgency," 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.
As the Chief Justice of Canada's Supreme Court, Beverley McLachlin, said this week, "Obviously, when you're looking at responses to something like terrorism, you have to bear in mind that you don't want to destroy the very liberties, the modicum of equality that makes Canada what it is, because then the terrorists have won. There's two ways for terrorists to win. One is by military or other illegal force, but another way would be to simply erode the freedoms that distinguish us from non-democratic regimes."
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, or Justice McLachlin's, for that matter.
Consider instead the words of no lesser a source on the aims of the September 11 terrorists than Osama bin Laden. In one of his televised statements about a month after the attacks, he 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, 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 governments 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.
And 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-and we will risk seeing privacy become a distant, irretrievable memory.
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.
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 balanced against 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 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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