Freedom of Information and Privacy

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Address to FOIP '99

June 7 & 8, 1999
Edmonton, Alberta

Bruce Phillips
Privacy Commissioner of Canada
(Check against delivery)

This is, I'm sure, the largest single audience of information and privacy specialists I have ever attended, and I'm flattered. Alberta came a bit late to this whole issue but the size of this crowd is evidence that when the people of Alberta decide to do something, they do it right! And they do it big! And, I want to offer you my heartiest congratulations.

I am also a great fan of the Office of the Information and Privacy Commissioner of Alberta, and of Frank Work and Bob Clark, and the job that they are doing in Alberta. You have here some powerful advocates on behalf of these two extraordinarily important democratic rights: the right of citizens to know what their government is doing, and the right of citizens to retain some control over their own personal lives.

I am acutely conscious that this is both a Freedom of Information and a Privacy conference. And I would be the last person in the world to undervalue the importance of access laws. In my earlier configuration as a journalist, I was one of the people who fought hard to get access legislation at the federal level. And it may be that most people here are more interested or involved in access than in privacy, but that's good because I can take the opportunity to do some missionary work with you.

There is one point I'd like to make, however. It is regrettable, from my point of view, being a privacy commissioner, that frequently these two issues, access to general government records and privacy, get lumped together. They do so particularly for bureaucratic convenience and they are frequently in the same statute, as they are in Alberta, British Columbia, and Ontario. And it tends to lead people into thinking that they are merely flip sides of the same coin. That somehow or other, privacy is the obverse of freedom of information. On the one hand, you have freedom of information, so what's that other thing? It must be anti-freedom of information.

This is a concept that does a disservice to both of these issues.

The fact is these two concepts meet at only one point. Where Freedom of Information laws exist in harmony with privacy legislation, they are obliged to take account of the fact that the material in government files, if it is personal in nature, must be given special treatment to all the other material. Thereafter, these two things part company.

Freedom of information is a fairly modern notion and it is intended to promote more accountable government. It reflects the democratic ideal that government belongs to the governed and, therefore, should be open and transparent. This is an entirely commendable development in the evolution of democratic government and it is hard to imagine Canada without some of these laws.

And while it has been frequently inconvenient for politicians and bureaucrats, nevertheless, the culture is slowly, very painfully sometimes, but assuredly, taking root that government is answerable and people are entitled to know how it works.

But it is a fact that many democratic governments do not have such laws and yet freedom exists in those countries in the sense that they have free and universal suffrage.

Although, they may be less open or modern than they could be or should be, they are free countries nevertheless without the advantage of Freedom of information or access laws. And, of course, Freedom of Information only applies to government records, and nothing else.

On the other hand, privacy (and it is a very poor word to describe what's involved here) is a multi-dimensional value that touches almost every aspect of every person's life. It relates not just to personal information contained in government records, but to almost every level and nature of social integration, in terms of your relationship with your employer, with your friends, with the business you run, with your doctor, with your politicians, with your every interaction. Privacy cannot be extricated from your own personal life.

Privacy concerns itself with the relationship of the individual to society as a whole, and it crops up as an issue almost every where, not just in government records. Privacy is the issue of how much individuals are able to control their own lives. And it boils down to this: If there isn't any, you don't have a life anymore. I put it this way: you might still have a free society without access laws, and many states do; but without privacy, however, you will not have a free society.

Some of you may think this is an exaggeration. If so, I invite you to consider this: if you would really measure the extent to which liberty, personal freedom, autonomy, and dignity of the individual are extant in any society, look first to the degree of privacy enjoyed by its inhabitants.

And think back upon the experience of our own century (or half-century) and those states whose first acts was to remove the privacy of the individual. There is a striking correlation between the amount of privacy (which I define merely as the degree to which we are going to respect each other as individual human beings) and how free that society is. That is the basic underlying issue and it goes well beyond access to government records.

The first target of the tyrant wherever he or she may live is the private lives of the subjects. Put people under effective surveillance, and you have deprived them of that basic of tool of personal control of their own lives.

I know this sounds a bit apocalyptic in good old freedom-loving Canada, and that it can't happen here, and so forth. Perhaps not, but it is never wise to take freedoms, particularly, personal freedoms of this kind, for granted.

So, how are we faring in this country? Well, the game isn't over, but privacy is behind on points.

Let me share some interesting indicators of what is transpiring all around us, some horror stories, if you like.

A.C. Neilson, the market rating company, has patented a facial recognition system that secretly identifies shoppers to track their buying habits, (so that when you go shopping somewhere, your face is going to be recognized and your buying habits are going to be tracked.)

The Quebec government is considering the creation of a central computer database on every Quebecer including names, photographs and basic identifying information. (There is the beginning here of the kinds of regimes and systems that this country was founded to get around, which is registering and stamping you and having you in a government record where they know where you are at all times and in all places.)

If you are one of 7.2 million Air Miles Cardholders, every time you swipe that card, you are sharing your buying decisions with the 134 corporate sponsors of the Air Miles program. The company sorts and packages that data on behalf of its corporate sponsors and what one knows, so do all the others.

The government of Iceland (a country with a long history of deep reverence for democratic systems) is establishing a database that will contain the personal, health and genetic information of the entire population. A privately funded company has been granted exclusive rights to run this database to identify families in which specific diseases occur, trace the inheritance of the disease and identity the genetic basis of the disease. All Icelanders are part of the database unless they opt out and the process for doing so is complex. To add insult to injury, people who choose to opt out cannot have the data already present in the database removed.

A new Whitehorse telephone directory includes not only the usual names, addresses, and telephone numbers, but also occupations and other personal information. The residents were never asked for consent and they have no legal recourse.

And finally, let me read you a little bit that appeared in the sober journal, "The Economist" under the title, "The End of Privacy".

"The volume of data recorded about people will continue to expand dramatically. Disputes about privacy will become more bitter. Attempts to restrain the surveillance society through new laws will intensify.

Yet here is a bold prediction: all these efforts to hold back the rising tide of electronic intrusion into privacy will fail... people will have to start assuming that they simply have no privacy. This will constitute one of the greatest social changes of modern times."

If that forecast is right, they are certainly correct in saying that this will be one of the greatest social changes of all time.

They then go on to say:

"Privacy is doomed for the same reason that it has been eroded so fast over the past two decades. Presented with the prospect of its loss, many might prefer to eschew even the huge benefits that the new information economy promises. But they will not, in practice, be offered that choice. Instead, each benefit-safer streets, cheaper communications, more entertainment-will seem worth the surrender of a bit more personal information. Privacy is a residual value, hard to define or protect in the abstract. the cumulative effect of these bargains-each attractive on their own-will be the end of privacy."

I think you have to take that kind of a statement seriously. It is already happening, because we have a society that too easily accepts the immediate, practical short-term advantages of giving up bits and pieces of personal information without adequately considering the long-term implications of the incremental loss of privacy.

You know, freedom does not often disappear in one cataclysmic burst, it usually withers away inch by inch thanks to the indifference and apathy of the public.

I believe in the long run that the doomsayers of "The Economist" will be proved wrong, but it is going to be a tough fight.

The same week that this article came out, another book with the same title came out by a respected author, Reg Whitaker, a Canadian political scientist. Whitaker compares the current evolution of society to Jeremy Bentham's famous 18th Century concept of the Panopticon. This was a prison built with a central tower from which guards could observe the inmates around the perimeter, but the inmates could not see into the tower. The tower might be unoccupied but its visibility tricked prisoners into thinking guards were watching all the time. Hence, prisoners would consider themselves under constant surveillance at all times and this would produce more subdued and well-behaved prisoners. Whitaker sees modern society evolving in the same way.

He is certainly right because if you come to the conclusion that you are under surveillance by somebody, somewhere, all the time, night and day, it is certainly going to alter your behavior.

And that is what "The Economist" is saying and that is what society is saying will happen if we fail to take account of the swiftly changing social environment that technology is bringing to us. Simply put, we have to pay more attention to it.

I think "The Economist" is wrong by saying that the public is utterly indifferent. Certainly not, if you look around this room, or if you take account of things such as Bill C-54 that is going through the Canadian Parliament at this time. And there are some other encouraging measures of that kind as well. But, there is a real battle in front of us.

I think the real problem is not the existence of technology, which is always neutral. And society always has the tools of salvation in its own hands. It's the failure of society to comprehend the costs as well as the benefits of the unchecked insinuation of technology into our society.

It is very hard for the ordinary person these days, beset by all the problems of daily modern living, always to be aware of the deeper, underlying currents of change that are shifting the whole basis of society.

The immediate value of a price discount of a loyalty shopping card is very easy to grasp, certainly easier to grasp than the long term implications of giving away for subsequent traffic by unknown people, for unknown purposes, the wealth of your personal information.

Until we solve the problem of public ignorance of what is happening, we are going to continue to be confronted by rapid erosion of our privacy.

I have great confidence of my fellow Canadians and of like-minded people around the world, that once they are armed with a true understanding, they will not fail to respond to the challenge that is presented, of the need to get a grip on technology and what it is doing.

When people realize that privacy and freedom are essentially inter-changeable words, that one cannot exist without the other, then I think we will have achieved something.

It is one of the more encouraging aspects of Bill C-54, now before the House, that there is contained therein a mandate for the Privacy Commissioner of Canada to go forth and educate the Canadian public about these matters. We have tried to do our best on that side since I took this job, but always without any resources or mandate.

The government now recognizes that an informed public is a sine qua non if privacy is to survive the technological challenge of the immediate future. Although I will not be around, because my term comes to an end next year, my successor will have the opportunity to deal with the number one problem here, which is essentially public ignorance.

There are a couple of other issues that I would like to briefly touch upon here and one is the health information highway. I am aware of the Alberta health act and the possible implications of the highway here as well as elsewhere. But I have to tell you that I am grossly unhappy about the present state of public information on this subject, and, quite frankly, I blame the politicians and the bureaucrats who I do not think are leveling with the Canadian public about the implications of the so-called health information highway.

We have made numerous efforts to obtain from them a reasonably good description of what it is they have in mind. And they keep telling us not to worry, that they do not have in mind some sort of seamless system of exchanging people's personal health information among all the components of the health care industry. But when I read their words, I came to a different conclusion.

The following language is taken right out of a Health Canada Discussion Paper. The paper proposes a longitudinal tracking system, the intent of which is to, "follow the movements of people within the formal health care system over extended periods of time." Further, that system plans to encompass, "the entire array of socially determined roles, personality traits, attitudes, behaviors, values, relative power and influence that characterize the lives of men and women in Canadian society."

That to me is breath-takingly intrusive and people ought to know that this is what they are talking about.

Elsewhere in their report, although they make kind mention of the need to respect privacy, nevertheless they keep talking about integrated databases covering the whole of the Canadian population.

To me, if it walks like a duck, and it talks like a duck, etc.,

And yet when we ask for a schematic of just exactly what information they propose to exchange, how they propose to exchange it, and what will be the rights of the individuals with respect to consent to the use of this information, we get no answers.

I am always prepared to concede in the case of a great many of these informational exchanges, the good faith of the promoters and the possible social benefits. Nevertheless, I take the position that in a decent, civil society, an individual's right to control the use of that information must find and receive its due respect. And when we are dealing with health information, we are dealing with nothing more or less than the sanctity of the doctor-patient relationship.

When you go to the doctor and you produce a whole range of intimate, personal information, you do so on the expectation that it is between you and the doctor. Unless I am greatly mistaken, what is proposed here would vitiate, destroy, erode and wipe out the confidentiality of the doctor-patient relationship.

If I am wrong, let them prove it. If there are bureaucrats here in the know, I'd like to hear your assurances, I'd like to hear your guarantees. But in the absence of evidence to the contrary, my suspicions remain. We simply cannot go on trampling over people's privacy rights this way.

This is what we are up against: people making claims on your personal life against the convenience it might offer them for some public policy purpose without any evidence of personal consent.

I urge public servants to put yourselves, you the bureaucrats, into the boots of the ordinary citizens, who are starting to feel just a little bit beaten down, with cameras staring down on them everywhere they go, required to give up ever more bits of personal information, and getting less and less consent to the use that personal information. We've got to put a stop to this, to draw the line.

The argument usually put to this is that, "Well, we'll achieve cheaper programs, we'll stop the fraud, we'll catch the cheats."

Those are all good arguments, but it is the cumulative loss here that concerns me. You can always make a plausible case for giving up a little bit more of your freedom, but if you give it up a bit here, a bit there, a bit more, pretty soon there is none left. And you end up on one side of this keyhole, all naked and shivering, and there is the rest of the world looking through at you, only you don't know which person is looking at you at any given time and what they are making of what they see.

That is how I see the situation developing.

We do now have, however, before the House of Commons, Bill C-54, which proposes to extend data protection law to the private sector in Canada. It is not a perfect bill but it is a good start. I hope that Parliament presses ahead with it.

I know there are people in the province Alberta who are uneasy with this bill because it proposes to invoke the Trade and Commerce powers of the British North America Act which will allow the Government of Canada some entry into the informational trading practices in the provinces.

I hope the provinces will see this not as a challenge to their authority but as an invitation, as it is intended to be, to pass similar harmonizing legislation in their own jurisdictions to ensure that we have a standard level of legal privacy rights in the informational field right across this country. That is the objective, it is not the purpose of the federal government to trammel upon provincial rights, we need this in this country.

Alberta now has it as it affects provincial and municipal records, but not in the entire commercial world where a great deal of this traffic takes place.

Furthermore, we are all well behind the province of Quebec which is the single Canadian jurisdiction to have passed private sector privacy legislation some seven or eight years ago, and it is working quite well in spite of all the early predictions of business interests that the sky would fall if they had to live up to some basic minimum standard of decency in the handling of their client information.

Well, I hope I have left you with a few thoughts on this subject. If I've offended anybody, I hope I didn't offend anybody I didn't mean to. Thanks for listening.

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