Privacy, Security and the Vancouver 2010 Olympic Games
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Speaking points at the 2009 Reboot Conference
February 4, 2009
Victoria, British Columbia
Address by Chantal Bernier
Assistant Privacy Commissioner of Canada
(Check against delivery)
Welcome to this workshop on “Security, Privacy and Mega-Events: Vancouver 2010”. We will focus on the balance between privacy rights and national security in the context of the Olympics.
Particularly since 9/11, I am sure many of you have been wrestling with a new application, in my view unavoidable, of the balance between human rights and public safety. I stress the word “application” as the principles are, and must remain, the same. But as our courts have made clear, the change in context dictates a change in application.
The parameters for a new application are found in the Supreme Court of Canada’s interpretation of section 8 of the Charter.
These parameters are the backdrop to our conversation today so I would like to state them just to frame our discussion:
- While the right to security is seen as a pre-condition to the enjoyment of all other rights, including privacy, it may only intrude upon privacy according to the following considerations:
- The nature of the apprehended public safety risk
- The potential consequences of not taking protective measures
- The availability of alternative measures
- The likelihood of the contemplated danger actually existing.
- Moreover, the invasion of privacy must be justified according to valid objectives and assessed against reasonable expectations of privacy.
- And, the notion of “reasonable expectations of privacy” varies according to context.
Let us start from the premise that today we are examining the application of the right to privacy in a unique context.
So how is it unique?
- The very efficiency of the state intervention we are discussing resides in a high level of secrecy.
- The objective at hand, namely public safety, is contingent upon over-vigilance – therefore intervention that is, by definition, disproportionate to what may be the actual threat.
- Moreover, especially in the case of national security, intervention is preventive of an unknown scenario, rather than reactive to an actual, measurable event.
- The prevention is based on information gathering that is not only far-reaching, but in fact of undefined reach.
- The stakes are amazingly high.
- The margin for error is nil.
With that backdrop, here, I would put to you, are the questions we must ask of the public safety authorities to keep them accountable in relation to ensuring privacy at the Vancouver Olympic Games:
- First, in relation to governance: how are they ensuring the right to privacy in the security arrangements they are putting in place?
- Will someone in the RCMP, be specifically responsible for protecting the massive amounts of personal information collected at the Games?
- Will officers involved receive training or directions on protecting privacy?
- How will the RCMP ensure that the experience of the Games not instill in the force a culture of surveillance, that it not create a precedent in the mind of officers or the institution, for, so far, unprecedented intrusions? How will the force distinguish, for its members, the uniqueness of their intervention at the Games?
- To what extent will personal information be shared with foreign law enforcement and security agencies? Or with private security contractors?
- According to what protocols?
- How will law enforcement agencies ensure that the information they collect will be used solely for the purpose for which it is collected?
- How long will they keep it?
- Will it ever be destroyed?
- How will possible links to other databanks be managed?
- Second, in relation to the actual measures:
- What is the nature of the personal information that will be collected for public safety at the Games?
- On what categories of persons?
- How broad is the data collection, the “trawl” effect? Will the reach extend to family, friends, associates of persons concerned?
- What information will be provided to manage the expectation of privacy?
- Third, in relation to the justification for the measures that they intend to take:
- What is the nature of the threat that, in theory, dictates the measures?
- What do they reckon would be the consequences of not taking such measures?
- Have they always considered the least intrusive measures in relation to their objectives?
- How solid is their evidence for the threat they contemplate?
- Fourth, in relation to access:
- Will citizens—within the reasonable limits of national security requirements—be able to access their personal information?
- Will they be able to ask for corrections if necessary?
In one sentence, our challenge is this: keep accountable state authorities in spite of a certain level of secrecy and ensure proportionality even in response to an ill-defined need.
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