The Internet, The Law and Evolving Public Policy: Protection of Privacy, and Hate Literature

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Address to the Library of Parliament Seminar Series

March 20, 1998
Ottawa, Ontario

Brian Foran
Director, Issues Management & Assessment
(Check Against Delivery)


A couple of days ago, the three of us enjoyed a stimulating discussion and we began to wonder how to translate that same energy to this session. Because we all recognized that giving or attending speeches builds on that article of faith that speakers can actually impart any knowledge or that audiences can hope to gain any.

Someone once characterized speeches as the process by which information passes from the notes of the speaker to the notes of the audience without any resistance in the minds of either.

So we agreed that we would try to provide ample time at the end of the panel so that you have an opportunity to comment and to ask questions, because you are where the real debate begins and ends.

The topic of today's panel begs the question whether two of the three elements, privacy and the Internet, are mutually exclusive. During what might jokingly be called my privacy career, I have come to view the problem as simply the relationship between privacy and technology. How can we maintain a degree of personal autonomy and control in the face of new information and communications technologies, of which the Internet is yet another manifestation?

In order to answer that, we must first attempt to define what we mean by privacy. I say "attempt" because the issue of privacy is far more complex and touches our lives in far more ways that you might imagine. Most people don't really think much about their privacy until they lose it. But once lost, it is gone forever, you can't get it back.

Perhaps the classic formulation of privacy, "the right to be let alone", is at the heart of what we are all seeking to preserve, what might be called the core content of privacy. But, in 1996, such a phrase can only emphasize how quaint that expectation is in a society where e-mail, Internet, personal communications devices and bio-technologies have changed the very context of our lives.

So, perhaps, for today's discussion, we might best think of privacy as our right as individuals to control the flow of information about ourselves, the right to fair, reasonable and confidential information practices.

This claim of informational privacy is based on the democratic notion of self-determination or autonomy. It is fundamental to living in a civil society in mutual respect. And it dictates that no one should have more control over your information than you.

But the more that can be known about a person, the less that person's autonomy. And these days, in an information society, our individual autonomy and our sense of control are on the line. That is the heart of the privacy problem and that is why privacy has become such an emotionally-charged issue.

It all comes down to the degree to which we respect one another as unique individuals, each with our own set of values, which we are entitled to conceal or reveal as we choose. To truly respect your neighbour, you must grant that person a private life. If we discard this notion and simply treat one another as data subjects, we abandon that fundamental, democratic notion of autonomy and self-determination and we enter a world that will be disagreeable and distasteful to everyone.

So if there is any underlying agenda in the work that I do, it is to promote the perspective that all of our practices in the increasingly digital world must be informed by a sense of human, rather than technological, values and must take place in an environment of ethical principles. And that respect for the individual and for his or her privacy rights must be fundamental.

Technology has brought us into the Information Age, in some ways, without much contemplation of the social responsibilities involved. As was typical, the technologies preceded the development of ethics. And thus, we have not only the issues of hacking and unauthorized access into private, personal computer files, but also system pranks, vandalism, software piracy, electronic harassment, and bulletin boards of hate, pornography and violence.

Now ethical concerns have not been entirely absent in the enthusiasm and hype over the electronic highway. But all too often privacy is treated like the best family silverware, hidden away in a drawer. It's pretty, and it's nice to know that it's there, but it's only used when we're trying to impress the visitors. It is not recognized as a day to day value that has any real meaning in our lives. And that is often a problem, translating the somewhat nebulous notions of privacy into the practical environment of our daily lives. But I'm going to take a shot at it

Perhaps your view of privacy is that you don't care; you have nothing to hide. If that sums up how you feel, then it's just as well, because it's becoming just about impossible to hide, anything, anywhere. From the time we get up in the morning to the time we retire at night, we leave behind a trail of data for others to gather, merge, intercept and alter, analyze, massage and even sell, often without our knowledge or consent.

Think about what could be a typical day in your life. You leave home, after arming your home security system and often under the watchful eye of apartment cameras. You pull onto a new automated toll highway where electronic equipment records your entry and exit points to calculate your mileage and send you the bill.

Suddenly you're in a traffic jam and call the office from your cell phone. You also call your broker to discuss that new stock issue, then your doctor to see whether she has your test results. The doctor calls you back to discuss the findings and her treatment suggestions, and she then phones a new prescription to your pharmacy.

You finally get to the office, you pass security cameras and use your smart card to enter the premises. You log onto the computer, open and send some E-mail, both business and personal, then work on the draft report you promised for this afternoon.

At lunchtime, you visit to a bank machine for a cash infusion, the department store for a birthday gift (paid by plastic of course), and the drug store for your medication. Here the pharmacist calls up your complete drug history, confirms your drug plan entitlement and sends the details over the ether to the insurance company. You pay with plastic again.

Back at the office you complete the promised report, at half-speed, however, having taken some of the medication, and leave the office determined to have a quiet evening at home. On the way, you stop for groceries, using your loyalty card, pick up a video (where they already have your Social Insurance Number) and arrive home to a mail box full of never-to-be-repeated offers to make you a millionaire, if you will only return the enclosed card. How did they get your name?

Then, during your quiet evening at home you subscribe to a new magazine, return a warranty card for that new dishwasher, enter a contest and order merchandise over the phone, and provide your credit card number to pay for it. And you wonder where they got your name?

Your video turns out to be awful so you log onto Internet for a rousing political discussion with your favourite chat group, before arming your security system and retiring for the night.

Well there you have it. By the end of this day, someone (or many someones), somewhere, knows where you have been, has read your draft report and your E-mail, knows how many breaks you took and how slow you were preparing the report, listened in to your conversations with your broker and your doctor (which your car phone has effectively broadcast to the neighbourhood), examined your drug history, knows what you buy, what you eat, what you watch, what you read and your political views.

Well this paints an exaggerated but both a positive and negative side to technology's impact on our lives: Invariably, most of us embrace these technological marvels as we always have, for reasons of comfort and convenience, for better effectiveness and efficiency, in a word, for progress.

But latent in that seed of progress is always the germ of regress. New applications of technology will transform all aspects of our lives, but, in so doing, these new systems, telecommunications devices and bio-technologies have the power to strip us of any sense of personal privacy.

In that typical day you just lived, at the very least, you have contributed to a marketing gold mine. But more insidious is that there are people out there whom you and I don't know but who know a great deal about you and me. And not only do we not know who they are... we really don't know what information they have. We don't know how they got it and we don't know what they propose to do with it. In some sense, then, we have lost control over that information that defines us as individuals, our names, our habits, our preferences, our reputations... our lives.

Now we are all children of the fading 20th century. We all desperately want to believe in the idea of progress, particularly technological progress, and we all hope that the Electronic Highway will be the golden road that will revitalize stagnant economies, create meaningful jobs, defeat illiteracy and ignorance, bring the world together and achieve peace in our time. And, hey, if our privacy will be threatened along the way, so be it . Technology is progress -it's good and as such, it should shape new values rather than accommodate those, perhaps, old-fashioned notions of privacy, autonomy, or even human dignity.

However, the limits of our personal privacy define in large part the limits of our freedom. "...not to be compelled to share our confidences with others is the very hallmark of a free society", as Supreme Court Justice La Forest put it in a 1990 decision.

And in modern society, especially, control over information about ourselves is vital. No longer is the information on paper, perhaps locked in a file cabinet, the leak of which might reach a dozen people. Now you can leak to 40 million people worldwide in a handful of keystrokes. If your privacy is to be protected, you cannot afford to wait to vindicate it only after it has been violated. Your privacy is exhaustible. Once your personal information, be it medical records, financial information, tax files, personal views, are exposed, the genie can't be stuffed back into the bottle.

On a more plebian level, can someone who tests HIV positive regain control of this sensitive personal information once it has been released into the community? Losing control over this information can have devastating consequences for someone already facing an overwhelming crisis.

So how can we deal with these issues. The Office for which I work is a creation of the federal Privacy Act. The Commissioner is an independent ombudsman who investigates complaints from the Canadian public about the federal government's handling of personal information. We also monitor how the government collects, uses and discloses the personal information it needs to administer federal programs. Our office is a persuader, not an enforcer. But, if needed, we have the power to compel documents and evidence under oath, to report urgent matters directly to Parliament, and to take some complaints to Federal Court.

Perhaps our most important role is one not spelled out in the law; that is, to function as an educator and an advocate for Canadians' privacy rights. We would risk irrelevancy if we do not follow, and speak out on, the issues that potentially threaten our privacy.

This may sound reassuring but in fact, the Commissioner's jurisdiction is limited. So is that of our provincial counterparts with the sole exception of in Quebec where the provincial law applies to the private sector. And unlike the Quebec charter, there is no clearly stated privacy right in the Canadian Charter although the Supreme Court has interpreted privacy rights in Section 8, the right to be free from unreasonable search and seizure.

The Commissioner has described Canadians' privacy protection as a patchwork, and one in some serious need of patching.

I would like to reassure you that the Internet does not necessarily spell the end of privacy as we know it. The technology is both powerful and empowering. However, it is a tool like any other. The question is how are we going to apply it. Do we unleash it like the atom bomb, and damn the consequences? Or do we ensure that we are on that road properly equipped with brakes, headlights and seatbelts, and, not incidentally, some driver training?

We do not believe that technology is incompatible with the preservation of our values and our freedoms. Uses of technology are largely determined by the framework in which they are developed. It is fairly obvious that all infrastructures could have been designed differently if the first design priority had been human development rather than technological development.

So where does that leave us? Or, as someone once asked: "Is technology going to lead us to disaster, or can we get there on our own?"

The answer, I think, is simply that we must now make the effort to establish clear rules of the road to cover the privacy implications of the information highway generally. I know of no highway, electronic or conventional, that can function well without clear and consistent rules and effective and independent oversight.

It was Thoreau who said that inventions are but an improved means to an unimproved end. Here is our opportunity to prove that by marrying the technology with the values, we can move forward not only by improved means but also to an improved end.

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