The Balance Between Privacy and Security
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The New Politics of Surveillance and Visibility Conference
Green College of the University of B.C.
May 24, 2003
Vancouver, British Columbia
Privacy Commissioner of Canada
(Check against delivery)
It's a great pleasure to have the opportunity to address this conference. The topic you're examining is a very important one, and I'm very impressed by the range and quality of speakers you've assembled.
In talking with you today, I want to focus on the balance between our fundamental human right of privacy and our need as a society for security against crime and terrorism. In particular, I want to focus on one of the most important privacy issues facing Canadian society today: video surveillance of public places.
This is something that has reared its head in a number of cities in Canada, including Kelowna, Baie Comeau, Sudbury and London. It's also been considered and debated-though not nearly thoughtfully enough-in Vancouver, Toronto, Windsor, Edmonton, Calgary and Hamilton.
This phenomenon was well underway before the terrorist attacks of September 11, 2001. But it has received a tremendous boost from those attacks. In fact, it is clear that law enforcement and other state agencies have seized on the September 11 attacks as an opportunity to push for their privacy-invasive agendas-not just video surveillance, but monitoring of our communications, removal of our right to anonymity, and tracking us as we travel.
I have never claimed that privacy is an absolute right. In fact, I have repeatedly made clear that there are circumstances where it is legitimate and necessary to sacrifice some elements of privacy in the interests of security. And I have never once raised privacy objections to any genuine anti-terrorist or security measures.
But the burden of proof must always be on those who say that such a sacrifice is necessary.
I therefore believe that any proposed measure to limit or infringe privacy must meet four very specific criteria. First, it has to be demonstrably necessary to meet a specific need-an actual need, not a potential or speculative one. Second, it must be demonstrably likely to be effective in addressing that need. Third, the loss of privacy 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 believe we must rigorously apply these four criteria to any security or anti-terrorist initiative that threatens to infringe or limit privacy. I've applied them to several such initiatives, including the Canada Customs and Revenue Agency's proposed "Big Brother" database of the travel patterns of innocent Canadians-which, to its credit, the Government has stepped back from and scaled down to make it much more privacy-friendly. I've also applied the test to the Government's "Lawful Access" proposals to monitor our Internet communications and activities, the Minister of Immigration's campaign for a national identity card with biometric identifiers, and the provisions of Bill C-17, the Public Safety Act, that would put Canadian air travellers through a virtual police line-up to ensure that they're not wanted for anything. None of these initiatives begins to meet the test. Nor does video surveillance of public streets.
Some time ago a complaint was filed with my Office regarding the RCMP's video surveillance of streets in Kelowna. I concluded that though the RCMP was acting within the formal letter of the Privacy Act, it was violating the Act's spirit and intent. This surveillance was an unjustifiable infringement of privacy, and I very strongly recommended that it cease.
The response of the RCMP and of the Federal Government was to ignore my recommendation. No amount of persuasion made any difference to them. Even a legal opinion from former Justice La Forest of the Supreme Court of Canada, who concluded that this form of street surveillance violates the Canadian Charter of Rights and Freedoms, was brushed aside.
Therefore it was my duty to launch an action in the B.C. Supreme Court, seeking a declaration that the RCMP's video surveillance of streets in Kelowna is a violation of the Canadian Charter of Rights and Freedoms.
You'd think that the Government of Canada, faced with a challenge like that, would be eager to present its side of the story-especially considering that it has held so stubbornly to its position, despite the recommendations of the Officer of Parliament mandated to oversee and defend the privacy rights of Canadians and the formal legal opinion of a distinguished former Justice of the Supreme Court. You'd think that the Government would be more than willing to make its case to the court-if it thinks it has a defensible case.
So what has the Government of Canada done? Has it laid out its case? Has it set out, passionately and with commitment, why it considers it necessary for the greater good of Canadian society that it allow its police force, the RCMP, to take this drastically privacy-invasive step?
No, it hasn't. The Government of Canada has, instead, taken the extraordinary position in court that the Privacy Commissioner of Canada should not have the right to ask the courts to determine whether a major intrusion on privacy is contrary to the privacy protections in the Canadian Charter of Rights and Freedoms.
I won't comment on the legal merits of this position, since it's before the courts. But the Government's behaviour in taking this course is another matter: what is the Government so afraid of? If it thinks it has a strong case, why doesn't it present it? Why waste time and public funds with procedural manoeuvring designed to keep this case from being heard on its merits for years, instead of letting this very significant public issue be decided by the court?
I think you can guess why. It's one of the oldest tricks in the book. If you think you have an indefensible case, delay, delay, delay, and hope the problem will somehow go away.
And so the Government's behaviour should send a powerful message to every municipality and every police force that's considering installing street video surveillance: Don't do it, because the Government of Canada has studied the matter carefully and knows it can't withstand a Charter challenge. Sooner or later, this practice will be struck down by the courts, and the more municipalities and police forces invest in putting up street surveillance networks that will have to be dismantled, the more taxpayers' money will have been recklessly wasted.
Let me now talk a little about why I believe that police video surveillance of public streets is so wrong.
Advocates of surveillance claim that if we want security, we can't have privacy. They claim that we have to choose between having one or having the other.
That is a fundamental misstatement of the issue. We do not have to choose between privacy and security. We have to balance them. There is no reason we cannot have both privacy and security if we apply our minds to the question of how to balance them.
How we handle this will determine what kind of society-how free a society-we have in Canada, not only for ourselves, but also for our children and grandchildren.
Video surveillance of public streets is the thin edge of the wedge that will irrevocably undermine the kind of free society we all want to live in.
What I'm talking about is what former Justice La Forest said in a 1990 decision:
"To permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society . . . We must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy."
Take a moment to think about what it would mean to lose privacy as we know it.
Privacy-your right to control access to yourself and to information about yourself-is a fundamental human right, recognized as such by the United Nations.
It is, as Justice La Forest said, "at the heart of liberty in a modern state." It's sometimes called the right from which all our other freedoms flow. Freedom of speech, freedom of thought, freedom of association, freedom of conscience are all grounded in the notion that individuals have a right to a private sphere of thought and action that is no business of others-including the state.
Privacy is also an innate human need.
When you go home at night, you probably close the blinds. It's not because 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 a 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 personal violation can be even worse than the actual loss of whatever was stolen.
This essential human need and fundamental right is in danger of slipping away from us. 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 if privacy is the defining issue of the decade, video surveillance defines and crystallizes the issue of privacy.
I know that some people say, "What's the harm? So there's a camera-big deal."
Well, for one thing, being watched changes the way we behave.
That's well known. Ever since the 1920s, when Werner Heisenberg showed that observing subatomic particles changed their behaviour, physical and behavioural scientists have used the term "Heisenberg effect" to describe what they're all aware of-that being observed has real effects. The psychological impact of feeling under constant observation-the kind of thing we'll have if we allow surveillance cameras of the state to proliferate-is enormous, incalculable.
One business leader in Kelowna said: "What's the big deal? Having surveillance cameras on the streets is the same as having a police officer on every corner-and nobody would object to that." Well, there are places where there's a police officer on every corner-they're called police states.
Think about what life is like in those police states, where people always feel watched by a visible or undercover police presence.
The thing that has always struck me when I was travelling in countries that were not free, in police states, is the grimness and drabness of life that results from this utter lack of privacy. There's a kind of sullenness in the air.
People know they're being watched-or worse, they're never quite sure whether they're being watched. They censor their speech and their behaviour. They hurry along the streets with their heads down. They're reluctant to talk to strangers, or even to people they do know. There is very little street life or spontaneity.
You've probably felt this same phenomenon yourself, on a much smaller scale. If a police car pulls alongside you while you're driving or stays right behind you, don't you wonder if you've done anything wrong?
You become self-conscious and maybe a little nervous. You might even drive over-cautiously, to the point of being dangerous. In short, you change your behaviour, just because you feel that you are under scrutiny by an agent of the state.
Is a police camera really any different?
Limiting the way the police collect information about us is fundamental to our freedoms in Canada. Yes, it makes the job of the police harder. But in a free society, we don't give the police unlimited power just because we want crimes prevented and criminals apprehended.
We don't allow the police to build dossiers on citizens "just in case." We don't allow them to force people at random to identify themselves on the street. We don't allow them to enter and search homes, or open mail, or wiretap phones, without a warrant.
Instead, we demand a carefully reasoned balance between the legitimate needs of law enforcement and security on one hand, and the need to maintain our rights and freedoms and values on the other. Video surveillance cameras on public streets needlessly and dangerously tip that balance.
You'll notice that I'm distinguishing between cameras on public streets and those that are in private places open to the public, for instance in banks or convenience stores. There are good reasons for that.
First of all, in places such as stores there is an element of consent. If you don't want to appear on camera, you have the choice of refusing to enter a given store. But if we end up with cameras all over our public streets, short of levitating above them, you have no way of withholding consent and still getting from place to place.
Second, cameras in private places are for a limited anti-crime purpose. The store-owners and bank managers are not interested in monitoring you-who you meet, where you go, what you do.
Similarly, there's an obvious need to distinguish generalized video surveillance of public streets from specific monitoring of exceptionally high-risk, high-security areas, such as Parliament Hill, legislatures, courts, or airports, for example. Cameras set up in those areas are for a very limited and specific purpose, not for generally keeping an eye on the public.
Some people object that video surveillance cameras are in public places, not in private ones, so privacy isn't an issue. How can it be reasonable to expect privacy in a city street? My answer is that, obviously, there are degrees, gradations of privacy.
You're entitled to more privacy in your own home than when you step out into the street. But you still have the right to expect some privacy when you step out your door. You have to expect to be noticed, and even recognized by people who know you. But that's not the same as being systematically monitored and observed by the police.
If you're on a street chatting with a friend or on a cell phone, you can expect that strangers passing by may overhear you. But if a stranger stops and stands close to you and listens, you'll probably feel that your privacy is being invaded.
And if someone across the street or on top of a building were listening to your conversation through a remote-sensing microphone, you would certainly believe that your right to privacy was being violated.
If a police officer decided to walk directly behind you on the street all day, following you everywhere you go, you'd probably consider it unacceptable, maybe even harassment. How different is it if your movements are tracked by a police officer watching you on screen?
So, you do have an expectation of privacy when you're out in public.
And more than that, you have a fundamental right to privacy. That's the problem with that term the courts use, "reasonable expectation of privacy."
A notice telling you you're going to be monitored or recorded by video cameras in a public place can tell you that it's not "reasonable" to expect any privacy.
That's what the police departments frequently propose-erecting large signs saying, "You have entered a video monitored zone, established for your safety".
But those signs can't magically erase your fundamental right to privacy. A fundamental right can't be eliminated simply by putting up signs telling you that it's going to be ignored or trampled on.
And video surveillance is just the first step. As most of these systems stand right now, you are seen but you remain anonymous.
But the technology exists to take away that anonymity, and proponents of video surveillance openly admit that they want to use it.
Biometric facial recognition technology can analyze the image of your face, digitize it, classify it, and link it up to a police database. That can be used to compare your face against the images of known criminals or suspects-or simply to identify you, to associate your face with your name and address.
This isn't science fiction; it's existing technology, and it's been used-at the 2001 Super Bowl, on the streets of Tampa, Florida, and in a growing number of U.S. airports.
Again, some people say, "So what? As long as the technology shows I'm not someone they're looking for, that's the end of it. "
But these biometric systems are far from foolproof. They don't correctly match people to their own photos a lot of the time. Or they match people to the wrong photos, photos of other people-falsely identifying them as someone the police can be looking for. You could find yourself suddenly surrounded by police officers with guns drawn-just because the technology hiccuped.
And it won't be long before we see these video surveillance systems linked to our driver's license or passport photos. Before you know it, when you walk along the street, the police will know exactly who you are. Your fundamental privacy right of anonymity will have disappeared.
In Canada, we don't allow the police to stop people at random and force them to identify themselves. You aren't even required to carry any identification. But now the technology will do it for them.
Again, a lot of people say, "So what? I've got nothing to hide." Frankly, I think that's naïve, when you think how easily the simple, innocent things you do can be misinterpreted by someone observing you.
Suppose someone stops you on the street and asks for directions. You tell him what he wants to know, and maybe chat for a moment. Then he goes on his way.
What you don't know is that on the police screen, he's been biometrically identified-rightly or wrongly-as a suspected terrorist. And, of course, your name and address are available too. The watchers have no way of knowing what was said, just that you met and talked.
Next thing you know-or rather, don't know-you're in a police database as a suspect yourself.
Or there's a little restaurant you go to regularly. The location's convenient, you like the food. But unbeknownst to you, the police consider it an organized crime hangout. Because you're observed and identified as someone who goes there all the time, you end up on some police list of suspicious characters-with no chance to ever explain yourself.
You'd never know about such misinterpretations. Except maybe one day you apply for a job that requires a security clearance-and you can't get one, for some unexplained reason. Or you're refused entry to the United States.
As cameras multiply and observation increases, we'll learn to avoid doing things that could be misinterpreted.
And that's the whole point about surveillance-not just video surveillance, but things like tracking us as we travel, snooping through our communications, and monitoring our daily activities. If you have to go through life knowing that everywhere you go, everyone you meet, everything you do, may be observed, scrutinized, cross-referenced, judged, maybe misinterpreted and used against you by persons unknown, by authorities of the state-if you have to go through life like that, you are no longer truly free. You'll start thinking twice about doing some of the most innocent things, for fear of how they might look to the unseen watchers. That's the opposite of a free society.
That's why I took such a strong stand against the Canada Customs and Revenue Agency's proposed "Big Brother" 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.
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 that we were able to resolve this issue. National Revenue Minister Caplan agreed to make major changes 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.
That's the good news-a very important victory for the privacy rights of Canadians. But there remains the problem of the Government's "Lawful Access" proposals, the warrant provisions of Bill C-17, and the so-called "debate" on a national identity card.
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. Monitoring of our communications activities and reading habits; forcing us to in effect identify ourselves to the police when we travel; the removal of our right to anonymity-on all of these counts, what has long been unthinkable in a free society threatens to become, not just thinkable, but a fait accompli.
The way to respond to that threat is to insist that any proposed infringement of privacy in the interest of security is subjected to a rigorous test of justification. Let me now come back to those four criteria-necessity, effectiveness, proportionality and availability of a less privacy-invasive alternative-and apply them to video surveillance:
First, necessity. Is crime so spiralling out of control in Canada, that the enormously invasive remedy of police cameras is necessary? Actually it's not.
Crime rates in Canada have decreased over the years. Here in B.C., crime rates have decreased by 25 per cent over the last decade. There is no evidence of some huge new crime wave that makes it urgent and necessary to turn to video surveillance cameras as a solution.
But even if there were, that still brings us to the next test-are video surveillance cameras on public streets effective in reducing crime?
The simple answer is that they are not. Video surveillance cameras do not reduce crime. All the available evidence indicates that at very best they displace it-move it from where the cameras are, to where they aren't.
Some time ago, I asked the RCMP Commissioner for figures on the number of arrests brought about by the Kelowna camera since its installation-and for statistics comparing the overall crime rate in Kelowna during the time the camera has been used to the rate for the same period the previous year. I was told the information doesn't exist-even though this is supposed to be a pilot project.
If he's looked around at the experience of other cities, he'll be even more reluctant to go after that information. In London, Ontario, an evaluation of the downtown video surveillance system revealed that general crime in the area had increased by 25 per cent since the cameras were installed.
In the U.S., the picture is no better. In Long Island, in Newark, and in Charleston, West Virginia, they set up video surveillance systems and found that they made no difference to crime rates.
In Mount Vernon, New York, they ran one of these systems for three years and then dismantled it because it didn't lead to a single arrest.
In Tampa, the police video surveillance system included biometric facial recognition capabilities. The system never identified a single individual in the police's database of photographs. What it did do was make a lot of false matches, including people of the wrong gender and with big differences in age or weight.
In fact, the system was so inaccurate that the police department stopped using it a couple of months after it was installed.
The United Kingdom has more video surveillance cameras than any society in the world-more than two million of them, and the number is increasing every year.
And the facts speak for themselves.
In Glasgow, they evaluated their surveillance system one year after it was set up. The statistics showed that crime had actually increased by 9%.
London has roughly 150,000 video surveillance cameras. In 2001, when it had more cameras than ever before, street crime increased by 40%.
Dr. Jason Ditton, a criminologist at the University of Sheffield, is one of the world's leading experts on street video surveillance. He's been studying it since 1993.
Here's what he told us when we spoke to him last year:
"There isn't convincing evidence that open-street closed circuit TV reduces either crime or the fear of crime. Indeed, for every reliable study that shows a benefit, I can show another that contradicts it. If evidence of success is a prerequisite of installation, I can confirm that no such evidence exists."
Of course, it shouldn't come as any surprise that video surveillance is ineffective. Logic tells us the same thing.
A whole lot of factors-social, psychological, economic-underlie criminal behaviour.
Putting up a bunch of cameras isn't going to make drug addicts quit cold turkey and go sip a latte at Starbucks instead. It isn't going to make prostitutes sign up for secretarial college. And it isn't going to make muggers or purse-snatchers repent their life of crime. It might just make them move away from the cameras by switching to home invasions or car-jackings-or simply move their activities from camera-laden downtown streets to residential neighborhoods.
And unlike a police officer on the beat, a video camera can't protect you. If you're being mugged or beaten up or stabbed, it can't jump down off the pole and rescue you. By the time the police get there, the crime will probably be long over and the damage to you will be done.
I know that some people say that cameras in the streets make them feel safer. I understand that need to feel safer.
But we are talking about a severe infringement of a fundamental human right. We don't do that just because something makes us feel safer. It can only be justified if it actually makes us safer. And in any event, an illusion of safety-a false sense of security-can of course be very dangerous.
So, in summary, there is no reason to believe that video surveillance is in any way effective.
That brings us to the third test-proportionality. I don't need to belabour this one. Since there are no demonstrable safety benefits, the harm these cameras cause can hardly be proportional.
And the final test-are there less privacy-invasive alternatives?
Of course there are-things like neighbourhood watch programs, or greater police presence on the streets. Or improved street lighting, which recently was found by a team of experts to have reduced crime in various cities between 7 and 30 per cent. And there are broader initiatives that may go deeper towards the roots of the problem-initiatives in social policy, economic policy, education and rehabilitation programs, and urban development.
So, we do not need to choose between security and privacy-we can have both. We need to choose between basing decisions on scare-mongering and basing them on facts; between a falsely safe police state and a genuinely safe free society; between violating a fundamental right for no appreciable security benefit, and affirming the right from which all freedoms flow-the right to privacy.
I believe that the choice for Canadians is clear.
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