From the time of the Code of Hammurabi in the 17th century BCE, societies that have aspired to some level of freedom and personal autonomy have expressed awareness of the need for privacy. In North America, the modern era of awareness of privacy as a right to be enshrined in the law might be traced to the writings of Louis Brandeis and Samuel Warren, particularly their 1890 article “The Right to Privacy.”
Brandeis went on to become a leading member of the U.S. Supreme Court and one of his classic judgments was his dissent in Olmsted v. United States (1928).3 In what would become a landmark ruling, Brandeis extended his thinking on privacy, seeing it as a fundamental right requiring constitutional protection. He expressed concern over the dangers the state posed to individuals, calling it a “potential privacy invader.” The case involved the use of wiretapping of private telephone conversations in evidence to convict the accused of bootlegging. While the majority of the Supreme Court held that the use of the wiretaps did not constitute a violation of the Fourth Amendment of the U.S. Constitution, protecting against unreasonable search and seizures, Justice Brandeis’ dissent would resonate through the ensuing decades. His contention that there was full constitutional protection for the right to privacy would be finally assented to by a majority of the Court in Katz v. United States (1967).
What remains of keen interest to scholars and privacy advocates is Brandeis’ full awareness of the manner in which technological advances enabled government to invade privacy in ways not contemplated when the Fourth Amendment was enacted. He states:
[Constitutions] are not ephemeral documents, designed to meet passing occasions. They are, to use the words of Chief Justice Marshall ‘designed to approach immortality as nearly as human institutions can approach it.’ … “time works changes, brings into existence new conditions and purposes.”
His flexible approach is one that surely needs to be adopted as we examine privacy issues in the digital world of today. Internet privacy as it pertains to potential surveillance requires careful consideration not only of legitimate security concerns but the full extent of the right to privacy.
This year, many Canadians were transfixed by the prospect of a lawful access bill actually becoming law even in the face of substantial criticisms. Shortly after being introduced in Parliament, the Bill even got a name change. It became the Protecting Children From Internet Predators Act (Bill C-30), though one searches in vain for words like children and Internet predators in the body of the text.4 When questioned by a Member of Parliament on the floor of the House of Commons, Minister Toews stated that: “He (the MP) can either stand with us or with the child pornographers.”
The Bill is a point of departure for a discussion of the nature of the privacy interests and rights citizens possess in the digital age and how these might be impacted by lawful access proposals. For example, here is a brief summary of concerns raised by Commissioner Cavoukian, as quoted in a CBC News Report of April 25, 2012. She indicates that by accessing customer information such as the client’s name, phone number, IP address and subscriber date, one can find out “what web sites an individual has gone to, someone’s surfing habits online, what videos they’re viewing, what content they’ve read. You can infer, by connecting the dots of the surfing habit online, a great deal of very personal information about an individual.” All of this very personal information would become available without a warrant. Investigations and other consequences might well flow from knowledge of all of this information.
Perhaps it would be helpful to step back and examine a few of the philosophical and legal considerations respecting privacy and its loss. Supreme Court of Canada Chief Justice Beverly McLachlin provided some illuminating remarks about the importance of both access to information and privacy to the healthy functioning of Canadian democracy in a presentation she gave in 2009.5 She observed that the enactment of federal Privacy and Access to Information statutes took place on Canada Day in 1983, close to the coming into force of the Charter of Rights as part of the Constitution Act, 1982. They may therefore be viewed as companions to the Charter in important respects and she calls them “quasi-constitutional” in nature.
A powerful cri de coeur can be found in Neil Young’s 2007 album collection, Living With War, which documents the increasing anxiety and angst experienced by ordinary citizens in the Bush years. The narrator of the song cycle angrily denounces orders to spy on citizens and “tap our phones and computers” (“Let’s Impeach the President”). The jagged quality of the music helps convey Young’s response to the greedheads ransacking his country, while government simultaneously suppresses dissent. His fears recall those of an earlier era, when individuals like the great civil rights crusader and humanitarian Martin Luther King were spied on and threatened with exposure. Of course, there is a rich legal tradition of protecting privacy rights to be found in Canadian case law. The justices in these cases endeavour to balance Charter values and rights with law enforcement objectives which the state alleges can only be achieved by way of some intrusion on privacy. Looking at the sea of case law, academic commentary and articles in response to the federal Lawful Access Bill (C-30), a few observations can be made.
Section 8 of the Charter protects against unreasonable search and seizure based on the reasonable expectation of privacy that a citizen possesses. The Supreme Court has spoken of the need for vigilance in protecting the integrity of personal information in an age of expanded means for snooping (R. v. Tessling). In R v. Plant, Justice Sopinka emphasized:
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society should wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual.
About Rob Normey
