The Challenges Posed to Privacy by Technology
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Chamber of Commerce of Thérèse-de-Blainville
January 28, 1998
(Check against delivery)
Today I have the daunting task of painting a picture for you that is at once complex and simple of the impact of technology on privacy-all within a space of 15 to 20 minutes. The task is complex because our privacy has to be protected in a world in which new technologies are developing at a stupefying pace, technologies that are often used against us as mechanisms of surveillance and control rather than aids to serve us. All this within a world in which the information that we require is scattered to the four corners of the planet but is readily accessible to those who have computers, fax-modems and access to the Internet; in short, in a world where we have lost control over our personal information, information that defines us as human beings. The task is, therefore, virtually impossible.
It is also simple, in the sense that privacy is nothing more nor less than the notion that we cannot live in a free and democratic society without protecting the intimacy of our private lives. Thus the evolution of technology obliges us to reconsider our basic values and often sorely won rights. We are, ladies and gentlemen, at a crossroads. Let me explain.
Ten years ago one could still choose to remain anonymous and be simply Mr. an Mrs. Average Citizen. The concept of privacy was only starting to emerge. If we really think about it, it was a time when the government and the private sector had access to a great deal of personal information about us, but this information was unconnected and was in the form of loose ends. The constant growth of computerization and telecommunications has undoubtedly upset this delicate balance by eliminating two built-in mechanisms that protected our privacy: the sheer volume of paper that our information represented before the age of the computer, and the great difficulty-even impossibility-of cross-checking information in various files and organizations.
Technology swept us into the information era, which we have now clearly gone beyond. In my view, we are now in the middle of the communications era. We use technology-whether wisely or unwisely-without really thinking about the implications and consequences of our choices for our privacy and without first reflecting on our social responsibilities.
Quebec, to some extent, is able to avoid this gradual invasion of people's lives because it is the only Canadian province to have adopted legislation on the protection of personal information in both the public and private sectors. Some even go so far as to say that Quebec has the best privacy protection system anywhere. These laws allow citizens to have access to files concerning them in the hands of governments and businesses; they can also insist that the content be corrected, disallow the communication of this information to third parties and lodge complaints about unethical practices to the Commission d'accès à l'information.
Even here in Quebec, however, as you undoubtedly are aware, infractions are still committed, despite the privacy legislation and the Civil Code. To prove the point, we need only recall certain recent scandals which made the headlines, including that involving access to an individual's tax file by departmental political assistants and traffic in personal information by former Hydro-Québec and Quebec Revenue department employees. These horror stories showed Quebeckers that, even with the best laws that there are, only increased awareness will make possible a systematic struggle against such illegal practices which spring from an innate desire to pry into the affairs of others or merely from the lure of gain.
The process of raising people's awareness of the importance of protecting personal information is well under way in Quebec. The offences mentioned earlier provide a good illustration of the fact that traffic in personal data exists in all parts of the country and the fact that so much is being said about it means that these invasions of privacy are indeed infringements of laws that work.
I would now like to devote a few moments to the federal agency that I represent today, the Office of the Privacy Commissioner of Canada.
Our Commissioner is an Officer of Parliament whose primary role is to limit federal indiscretions in regard to your personal information. The Commissioner is at the same time an independent investigator, an auditor and, occasionally, a critic of the workings of the federal government. His powers derive essentially from the Privacy Act. This act applies to the hundred or so federal agencies under its jurisdiction. Our Commissioner does not have a right of review over information collected or controlled by provincial or municipal governments, or the private sector.
That having been said, the key element of the federal act is its regulation of the collection, use and disclosure of personal information. It spells out the right of individuals to consult information that concerns them and to ask that it be corrected if need be. If such individuals are dissatisfied with the replies to their requests, or if they are of the opinion that the collection, use or disclosure of their personal information contravenes the Act, they can complain to us. The technology-push of recent years causes us particular concern, especially because of the perceptions of governments. All too often governments view technology as the ultimate solution to their systems-management problems, and often it is our right of privacy that suffers.
Here in Quebec, think of the almost unlimited powers of Revenue Quebec in computer matching-all in the name of the struggle against moonlighting. Revenue Quebec now has a free hand to ferret about in our affairs and draw conclusions that can be erroneous. By way of example, the fact that Mme X has a BMW despite earning only the salary of a receptionist would be enough to attract the attention of Revenue Quebec: Mme X must certainly have other sources of undeclared income! In fact, Mme X may have scrimped and saved for a long time for this little luxury (maybe even a used one), and she may be able to maintain it only by adopting a modest lifestyle. That is her choice.
The federal government is just as guilty. Let us take the example of data matching currently carried out by Human Resources Canada in the administration of its employment insurance program, about which you have perhaps already heard from the media. I would remind you that all travellers who return to Canada by a common carrier must fill in a card and submit it to the customs officers upon arrival. This collection of data is carried out strictly for Canada Customs purposes.
Commonly referred to as the E-311 card, it includes the following information collected from each traveller: name, address, date of birth, flight number, carrier's name, point of origin, date of departure from Canada, date of return, value of products purchased, amount of personal exemption claimed and place of arrival. I should stress that we determined in the course of an investigation that only the name, address, date of birth and duration of the trip are relevant to the Department of Human Resources for matching purposes. All too often the collection of personal information goes well beyond what is needed.
Human Resources Canada matches these cards with claimants' employment insurance files to determine whether they received benefits while abroad. In doing so, the Department hopes to catch abusers, whom it believes to be legion. Consulted on this project in 1995, the Office of the Commissioner asked Human Resources Canada and Revenue Canada to justify the project, its costs and benefits. The project consisted of four stages: a feasibility study including a cost-benefit analysis, a second feasibility study, a six-month pilot project and full implementation at the end of 1997. It should be noted that the Department of Human Resources promised at the outset that it would not take any punitive measures against the alleged abusers.
From the outset, the Office of the Commissioner had expressed its misgivings in connection with this project. It is important to understand clearly that the Office's standpoint is not intended to protect abusers. Its misgivings arise from the fact that the Government is conducting searches in the files of honest travellers and employment insurance claimants in order to catch a few abusers.
The Office of the Commissioner was also disturbed by the fact that travellers were not told that their E311 cards were going to be used for other than customs purposes and that there was no written agreement on the conditions of the exchange. During the ensuing discussions, the Office's personnel were assured that all these concerns would be resolved before the project's final implementation.
One month after its study of the matching proposal submitted in February 1996, the Office of the Commissioner informed the Department that it would not oppose the pilot project. Upon implementation of the project, however, Revenue Canada provided Human Resources with all the E311 cards stored since 1992-despite the fact that these cards were supposed to be destroyed after two years. Human Resources then decided, contrary to its promise, to prosecute persons identified before December 1994.
After having tried to mediate with the two departments concerned and met with refusals, the Office of the Commissioner then sought the legal opinion of an eminent constitutional law expert. The expert consulted concluded that this was indeed a breach of section 8 of the Canadian Charter of Rights and Freedoms and that the Government had no solid grounds to justify such a search of the files. According to this lawyer, the data matching program had the same effect as giving our police forces full powers to search our homes without first obtaining a search warrant duly signed by a judge.
Finally, I have to ask myself the following question. If this department has a role to serve the public, do our fellow citizens who are in need of government assistance constantly have to prove their innocence in the face of assumptions that they are abusers?
Departmental investigators went so far as to ask women on maternity leave to prove to them that they did indeed have their children with them while travelling. This practice was discontinued, however, when the Chair of the Quebec Conseil du statut de la femme [Council on the status of women] raised objections.
The prominent media coverage of these prosecutions led to a nation-wide debate, a debate that divided the country. Those who stood for a hard-line approach, emphasizing the need for sound management of public funds, commended the move. Their opponents, the defenders of human rights, maintained that the matching was so extensive that it infringed the Privacy Act and constituted a threat to fundamental rights. In short, since the consultations and recommendations of the Office of the Commissioner had no effect, the matter will be brought before the courts. The court will examine the legality of the Human Resources project in the light of the Canadian Charter of Rights and Freedoms and the Privacy Act of Canada.
The private sector, for its part, is also strongly inclined to use surveillance technologies. For example, some insurance companies are showing increasing interest in the results of DNA tests to eliminate or select clients prone to make claims for serious illnesses, and some companies even require their employees to undergo such tests. Employers, for their part, want to make use of the results of urine samples taken on site to detect drug consumption-illicit or otherwise.
Let us never forget that our personal information is recorded somewhere in a computer file. I am referring here to documents that define us as individuals, namely our medical records, our financial transaction records, our choices in reading material and videos, and our personal communications. This information has commercial value, as the case of Hydro-Québec clearly illustrates. Our society's criminal elements are also interested in our personal data: stealing a person's identity can prove to be lucrative. Every day our newspapers publish stories about this. Consequently we need to be on our guard.
Today we are living in a world that is not only entirely decompartmentalized but that is also highly advanced technologically. To understand the stakes involved, we must realize that from the moment that we get up to the moment that we go to bed we are subjected to various forms of surveillance, each one more insidious and invasive than its predecessor. Our least movements and gestures in our apartment building, on the highway, at the automated teller, at the office, at the computer, at the doctor's, on the telephone or during our moments of relaxation are noted, analysed and documented for various purposes.
To these must be added other types of mechanisms for intruding into our privacy: the various electronic systems that make it possible to spy on employees' movements, productivity and slightest gestures; the use of satellites for various purposes, as was the case last month here in Quebec to trace a stolen vehicle; toll highways like the one in Toronto, which make it possible to follow people's movements; etc. There is also increasing talk about the imminent adoption of smart cards in several countries, to be used as national identity cards on which virtually our entire lives would be recorded: social insurance number, prior convictions and health record, with the subsequent addition of our credit rating, employment history-and that's not the half of it!
Despite all that, we must not give up the fight. Even though we have not perhaps been able to stem entirely the incursions into our private lives made possible by the technological developments of recent years, we have nevertheless succeeded in serving notice on the invaders that there will be a price to pay, and that this will be the loss of our confidence, our votes and our financial support. Laws must be supported by the will of the people.
If we want to ensure and maintain respect for our private lives, foremost among our concerns should be that for the value of the human person, which implies that as human beings we have a basic right to privacy rather than having to manoeuvre constantly to prove our innocence.
As I told you at the beginning of my address, we are at a crossroads where we have to choose the kind of society we want. Either we accept that technology works against us, as foreseen by George Orwell in his novel 1984 where the individual lives in a world of sterile but effective surveillance, or we harness technology to bring about the imaginary society referred to by Voltaire in his philosophical work Candide-a world in which we can all "cultivate our gardens." Personally, I would perhaps add: "alone, and free and removed from all surveillance." I shall now leave you at this crossroads, free to decide which path to follow. Nevertheless, I would urge you who represent business and public life to take decisions in your everyday dealings that will-I am fully confident-result in increased protection for the privacy of personal information and, in short, the privacy of each and every one.
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