New Intrusive Technologies and the Innovative Solutions Necessary To Protect Our Privacy

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Office of the Privacy Commissioner of Canada to Colloque Big Brother Quebec. Inc.

Montreal, Quebec
April 18, 1996

Eugene Oscapella
Barrister and Solicitor, Policy Advisor
(Check Against Delivery)


I cannot address the structure or activities of Quebec's Commission d'accès à l'information. I work almost exclusively for the federal Privacy Commission, the independent agency that attempts to prevent unnecessary intrusions by the federal government into personal information about you. It is from that perspective that I speak today.

However, I can say that the Quebec Commission is viewed as a Canadian pioneer. The authority of the Quebec Commission now extends to the private sector. The Quebec model is often cited by other privacy commissioners in Canada as one possible means of responding to the growing threat posed by the private sector to individual privacy.

The federal Privacy Commissioner is deeply concerned about the growing willingness of governments everywhere to seize technology as the solution to problems of government inefficiency, without considering the privacy implications of these actions. By linking records, they say, we can identify those who cheat on welfare. By assembling massive databases, they say, we can increase government efficiency. By pulling together health information in a central repository, we can better control our health care system. These may appear at first to be reasonable goals. The means to achieve these goals, applying technology to fix society's problems, is seductive. In this climate, the tendency is to ignore or overlook privacy concerns while pursuing some other noble social goal.

The Privacy Commissioner of Canada is equally concerned about the ever-growing ability of the private sector to intrude into our lives.

The question, however, is whether privacy commissions are of any real value in the face of these developments. For example, the federal Privacy Commissioner has no powers of enforcement. He has at best what we sometimes call the power to embarrass, the power to bring serious privacy intrusions by federal government departments to the public light. He can make reports to Parliament. But he cannot force anyone to do anything.

This audience might therefore, well ask then if the Office of the Privacy Commissioner of Canada, or any other privacy bodies in Canada, even those with some powers of enforcement, have any real impact in today's society. To me, the answer is yes, the Privacy Commissioner does have an important role, despite the limitations of his office. The Privacy Commissioner is in fact more than just a vehicle for Parliament to pretend it respects privacy principles, while ignoring them at every turn.

In case you think that I say this out of self-interest, for I make part of my living working for the Privacy Commissioner, let me explain just how and why the Privacy Commissioner is more than a figurehead.

Perhaps, first and foremost, the Privacy Commissioner's office serves as a vehicle for keeping the public informed about privacy issues. Over the past several years, the federal Privacy Commissioner has commissioned studies on the privacy implications of HIV/AIDS testing, drug testing and genetic testing. The office is keenly aware of the many privacy issues that flow from the Internet, encryption, censorship, monitoring electronic mail, the use of anonymous remailers, and monitoring browsing activities on the Internet, among them. The office monitors development in technology that have an impact on privacy.

The office attempts to alert Canadians to these issues, to remind them that there is a hidden price to pay for many new technologies and government initiatives, the loss of privacy.

Our office does research from a unique perspective, that of privacy. In the late 1980s, when everyone was awed by the prospects of genetic technology, we were asking what newly available genetic information about us might do to our private lives. We asked how it would affect our ability to find employment if employers had ready access to our genetic histories. We asked how this information might affect us if it fell into the hands of governments. Would governments use genetic information about us to try to discourage some of us from having children because we might risk passing on an undesirable or medically expensive genetic trait? Would it look for genetic links to anti-social traits? And we asked how we as individuals could be protected from acquiring intimate genetic information that we might not wish to have, the possibility of developing an incurable disease early in life, for example.

In short, we ask the privacy questions that need to be asked and that are sometimes overlooked during the enthusiastic rush to embrace new technologies.

Our office is also a place to complain when a government department oversteps its mandate and collects, uses or discloses personal information improperly. Our office investigates those complaints and conducts broad audits of government institutions to ensure that they comply with the federal Privacy Act. As I said before, we do not have the power to compel a government institution to follow our recommendations. But many, in fact, most, do follow our recommendations.

The Privacy Commissioner of Canada also plays a necessary role in shaping government policy on issues that have a privacy component. Last summer, Parliament enacted legislation allowing DNA samples to be taken in tightly controlled circumstances from persons suspected of serious crimes. The collection and use of DNA samples raises extremely complex privacy issues. Fortunately, the Department of Justice, in developing its legislation, listened to what we had said in our 1992 report on Genetic Testing and Privacy. It listened to many of the other recommendations we made when it placed a discussion paper on forensic DNA analysis before us. As a result, the legislation that Parliament ultimately enacted to allow the taking of DNA samples for identification purposes respects many of the privacy concerns we raised.

This legislation is now undergoing a second phase of development. The federal government is now developing legislation to allow DNA samples to be taken for a DNA database from those convicted of certain serious violent crimes. Once again, the office of the Privacy Commissioner of Canada will fight for important privacy values to be respected in this legislation.

The office has been actively involved in issues relating to the information highway, how to protect privacy in a world that is driven by technology. We are now contemplating how to protect privacy in the face of growing economic pressures in government to become more efficient by uniting departments and amassing personal information in data warehouses. We are looking at the privacy implications of the growing surveillance industry.

We have challenged attempts by governments and the private sector to introduce drug testing. We have spoken out strongly against such attempts by the private sector as well.

We remain connected to other privacy organizations in Canada and around the world. We are a focal point for pressures to prevent governments and private companies from consuming the last vestiges of privacy that remain in today's society.

True, we have not been able to stop every one of the many privacy intrusions that technology introduces with depressing frequency. But we have been able to make those who want to intrude upon your privacy more aware of the hostile response they may receive if they do.

We know that the federal Privacy Commissioner's mandate is not sufficiently broad to allow us to deal with the newest range of privacy threats, those from within the private sector. Intrusive technologies that were once available only to governments and large corporations are now available to even small companies. Surveillance cameras, monitoring equipment, the ability to listen in to telephone conversations and see what employees are doing on their computers, these are all available at modest cost. And too many companies have been brainwashed into thinking that the only way they can remain or become competitive is by spying on their employees.

In the end, perhaps the federal Privacy Commissioner's office is not as effective a guard dog (chiens de garde) as it might be. But it is much more than the passive collaborator of intrusive governments and private sector organizations. Still, those of us who work at the office know the limitations of our organization. We know that we need stronger privacy protection in this country. That is exactly what we are working towards.

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