Establishing a Right to Privacy

“The Government of Canada is collecting too much information about some air travellers and is not always safeguarding it properly, Privacy Commissioner Jennifer Stoddart found in an audit published with her annual report today.

The audit of the privacy policies and practices of the Canadian Air Transport Security Authority (CATSA) concluded that the agency was reaching beyond its mandate by completing security reports on incidents which were not related to aviation security.”

  • News release from the Privacy Commissioner on the “Audit of airport security measures flags concerns about over-collection and safeguarding of travellers’ personal information (2010-2011 Annual Report to Parliament on the Privacy Act examines the stewardship of personal information by Canada’s airport security authority, the RCMP and other federal departments and agencies”. November 17, 2011)

I first heard of the concept of a Right to Privacy at the turn of the century. It was at that time that I picked up a book called “E.con: How the Internet Undermines Democracy”. The concept is rather simple. Westminster Democracies develop due to an implicit understanding: ideas matter more than the person who represents them. This was the rule in all capitals. They could have been political capitals like London, Ottawa or Washington. Or they could have been financial or territorial capitals like Albany, New York, Toronto or Chicago. In all places, ideas mattered.

One of the simple reasons for this was that technology in 18th, 19th or 20th Centuries were arcane. It was difficult to follow someone at a distance. Consequently, the spy industry was full of human capital. This meant that mistakes were possible. People could be bribed, eluded or deceived. It was nearly impossible to figure out what was true and even harder to prove it. This is why journalists developed the habit of having two different independent sources, and why politicians always tried to get a leaked package of government files to make their claims.

Just to tell you how easy it was to slip away just look at the ancestry of Kim Cattrall. In August 2009, Ms. Cattrall took part in a BBC TV show called “Who Do You Think You Are?”. It was later rebroadcast for a North American Audience. The show provided a way for those who were famous to look at their ancestry. In Kim’s case one obvious issue stood out: her grandfather. He had disappeared in 1938. This left a hole in her mothers’ and aunts’ lives. Throughout the broadcast, a couple of things had become clear. Firstly, her grandfather had not died.

Secondly, he had not moved very far away. It turns out that he managed to disguise his identity enough that he remarried. So with two wives and no divorce, it was obvious that he was a bigamist. Furthermore, her Grandfather, George Baugh was living a couple of counties over from his first family. In 1961, he emigrated to Australia without anyone else being the wiser. This story of the analog age is not uncommon. People could emphasize different parts of their name or change the spelling with ease. This type of space meant that people had an inherent ability to be private. If you did not like something, one could move, change their name or just disappear. Without social media, search engines, email or other digital tools, it was difficult to find out people’s past.

Consequently, honour and people’s present lives became important. A long pedigree, especially with a long family history, was just as good as a resume. It was a way to prioritize people, their knowledge and experience as being valuable or not. So it might be no surprise that the Kennedys or the Kings produced political dynasties. The Rt. Hon. William Lyon Mackenzie King was the grandson of William Lyon Mackenzie. While, John F. Kennedy had power in his blood. Rose, his mother, was the eldest child of John “Honey Fitz” Fitzgerald, a prominent Boston political figure who was the city’s mayor and a three-term member of Congress. However, it did not end there. His father was Joseph Patrick “Joe” Kennedy, Sr. JFK’s father was a prominent American businessman, investor, and political figure. He was the 44th United States Ambassador to the United Kingdom,the 1st Chairman of the Maritime Commission and the 1st Chairman of the Securities and Exchange Commission. One can look at Al Gore, who was the son of Albert Gore, Sr., a U.S. Representative who later served as a U.S. Senator from Tennessee, and Pauline LaFon Gore, one of the first women to graduate from Vanderbilt University Law School. In the analog age, history was good and family history was better.

This is why politicians were very comfortable with being imperfect. Presidents’ Clinton and Kennedy had affairs. Prime Ministers’ Sir John A MacDonald and Churchill were famous drunks. William Lyon Mackenzie King communed with spirits. While, Thomas Jefferson likely impregnated one of his slaves and as a result had a child out of wedlock. Politicians knew that being imperfect had few consequences. For journalists, it was hard to prove. Rumour was easy to hear, but solid proof was hard to get. To save one from lawyers and editors, a solid story had to be backed up with hard paper work, pictures and other evidence. Ideas ran on the newsprint of the day.

This has now changed. Technology now makes it possible for people to be tracked. We can think of the famous recording of the Rodney King beating. Or, one can look at Closed Circuit Television (CCTV) use in the UK and the US. It has been estimated that the UK has 1.85 million CCTV cameras.  The use of CCTV in the United States is less common, however, as of 1998, 3,000 CCTV systems were in use in New York City. While, there are more than 10,000 CCTV systems in Chicago.

Government agencies can control and manipulate huge amounts of data. Just take the NSA Electronic Surveillance Programme. Under the George W. Bush administration, the National Security Administration (NSA) was provided with complete access to all fiber optic communications between some of the nation’s major telecommunication companies’ major interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. Through this access, the NSA was able to track most of the data traffic throughout the US and other countries. This was not possible until the development of digital technologies including computers. Our present technology allows people to be identified from space.

Consequently, for our democracy to survive, some have argued that a “Right to Privacy” is necessary. I tend to agree. Entrenched or not, we need to have a way of defending ourselves against the increasing powerful intrusion of the state. My examples for this point are Sean Bruyea and Sylvain Chartrand.

Both are veterans who are critics of the government policy. In 2010, CBC reported that the Privacy Commissioner found “that Veterans Affairs officials broke the law by sharing his sensitive personal and medical information”. An outspoken opponent to the 2006 Veteran’s Charter, Mr Bruyea’s detailed medical and psychological diagnosis and treatment had been included in “a minister’s briefing notes”. For Bruyea to get any sort of justice, this former veteran had to bring a “$400,000 court action against the federal government” after the Privacy Commissioner’s findings and a call by that same commissioner for the federal government to apologize to all veterans.

Then, on November 7th, 2011, CBC reported that “Sylvain Chartrand, who suffers from post-traumatic stress disorder after serving in Bosnia, says his file was accessed more than 4,000 times between 2003 and 2010”. Things are so bad at the Veterans Affairs department that the Federal Privacy Commission said that “an audit into Veterans Affairs Canada and how it handles privacy issues will be released in early 2012”. So if former soldiers can be treated badly, imagine how other citizens can be treated.

Well we do not have to. Even though, according to the Privacy Commissioner’s website, “The Office of the Privacy Commissioner of Canada has been working for many years to ensure that security measures at airports and border crossings do not unduly infringe on the privacy of Canadians”; the Privacy Commissioner has recently released a report noting large scale breaches at our airports and border crossings.

In my humble opinion, the present system does not allow for enough private space in this discussion of public sector encroachment on privacy. So what changes can be recommended? I think a good model might be the Human Rights Commission. While in the last ten years, there have been some questions about them, it is clear that a big reason for our Canadian social harmony comes from our ability to work within quasi-judicial bodies to defend rights. Unlike our American cousins, Canadians do not need to have a big legal fight to correct social injustices. While this means we cannot point to important cases – like Brown v. the Topeka Board of Education or Roe vs. Wade -, to reaffirm our rights, we also do not demagogue such cases either. This allows for a conversation to happen but it also allows government to be chastened. To know that there are limits and consequences to privacy breaches.

Furthermore, such a change does not bring up Constitutionals issues. An entrenched right, for example, means that we have to figure out where it fits in the pantheon of other rights. Is it more important than equality rights but less important than language rights? Or is it vice versa or neither? Having a commission, with quasi-judicial status, might be a place to start. What is clear though, is that our present system is not an end point. If Liberalism is about caring for “the other”, we have something to add to Canada’s political conversation. For the present Conservative government has shown that they do not understand the need have reverence and respect for the privacy of our citizens. This must change. This is where the Liberal Party can stand. This is our future.

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