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THE RILEY REPORT - November 2004
from Thomas B. Riley 
www.rileyis.com
Following is the Riley Report for November
2004. Please feel free to pass this on as you see fit. If you wish to use any or part of the Report in an offline publication please acknowledge the author or contact the author if to be fully republished offline. If you are not currently subscribed to the Riley Report (there is no charge) you can email
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Security Vs Privacy: Examining the Issues, examines the emerging issues and tensions between developments in security and antiterrorism laws and privacy. This paper looks at a number of technology initiatives and program to enhance security in the "war on terrorism." It also examines some of the key privacy issues that have arisen in many jurisdictions and how in some countries governments, human rights groups, legal experts and privacy advocates are addressing these concerns. This Report is a comparative analysis of these developments in the United States, Canada and the United Kingdom In September 2003 Riley Information Services researched and wrote a paper on Security and Privacy. Since that time many new issues have arisen resulting in an updated paper: Security vs. Privacy: Updating the issues. http://www.rileyis.com/publications/index.html
Security vs. Privacy: Updated Issues
It is recognized that effective antiterrorism laws and security initiatives are needed given the events of the past few years. There have been some amendments to existing privacy law and regulations. The main issue at hand is how much of an impact this is having on fundamental rights that Canadians and Americans, and citizens in all the democracies, take for granted. The changes to security laws since autumn 2003 have brought us airline passenger information databases, lawful access rights to government information that was once protected by legal instruments, proposed national identity cards, biometric passports, radio frequency identifier chips (RFID), and Internet and video surveillance.
When we move to the international arena we find stricter measures related to border crossings - of both people and information - and the pressure to accept international standards. Canadians face the additional pressures of aligning their security and privacy standards to assist the United States in protecting entry of terrorists into North America. These developments have raised many serious privacy issues. Privacy laws embody the premise of trust and confidence between the citizenry and the government when it comes to the delivery mechanisms and ingrained e-government programs. Legislative and regulatory changes now being made in the security and privacy side of government cannot be viewed in a vacuum. Changes made by governments and changing attitudes of the citizens in the
environment of world "terrorism" are continually evolving and can potentially impact on the citizen at all levels of society.
Privacy is the right to have an individual's personal information protected from the undue prying eyes of governments and of organizations seeking to use such personal information for trade and profit, without the consent of the individual, except in exceptional circumstances dictated by law. Privacy is the right to have certain aspects of our life protected by legal boundaries so as individuals we may choose to share or communicate information about ourselves as we wish and at our discretion. The new rules laid out for people to have access to their own personal data represent a transfer of power from the state to the citizen in that the citizen now has some control over personal information.
The dichotomies and tensions between security and privacy in Canada are the more important issues driving the security and privacy debate. Canadians have indicated that they are willing to give up some of their privacy for increased security. However, this does not mean that Canadians do not continue to consider privacy as an important value in their lives and an essential human right. Any discussions of tensions between security and privacy need to be analyzed in the context of information rights and the degree to which they have become accepted in society.
Information rights have been on the rise in the past thirty years. Freedom of Information and Privacy are concepts that have become intertwined into our societies and governments during the past two hundred years. These concepts form a philosophy of a particular nature, reflecting the culture in the society, articulated by a particular class of thinkers, and then adopted by those in power who agree or have themselves developed and accepted the concepts. Once the philosophical precepts are articulated in a particular society, through the political mechanisms of a given country or jurisdiction, there then emerges the process within public administrative agencies to ensure the integrity of the philosophical consensus reached in that particular society is truly met. This is why most countries with such laws have independent commissioners, administrative bodies, or the courts as oversight bodies, ensuring the precepts of the law and the rights of individuals are maintained. Such laws strengthen institutions, such as public sector organizations and related government organizations.
Institutions include tribunals, labour commissions, human rights commissions, and others that have been developed to build stable democracies. Transparency mechanisms also change the nature of the relationship between the citizen and the State. The State was once defined as the government - the two intertwined as one. Then, in time, during the mid to late twentieth centuries, institutions of the state that service the needs of society, including non-governmental bodies that have close ties to government, were considered collectively as the State.
Research for this paper reinforces this view, as governments around the world, Canada included, do form Task Forces and Advisory Committees to advise the governments on the evolving number of technology issues in relation to security and the strategy needed to deal with the new threats of terrorism. Now, with the rise and development of so many accountability and transparency mechanisms, the state can be defined as the collective body known as the "citizenry." This is because so many people, in the last few decades,have experienced the benefits of accountability laws, appeals bodies, and human rightsand labour commissions, for example, in order to address some grievance with government. The cumulative use of these organizations at many levels has moved most of the democratic and developing democratic countries to more transparent societies and has devolved a certain power to the citizen.
Freedom of information (FOI) and Privacy laws represent the flow of human rights and obligations of governments worldwide, to continually build structures that result in good governance and lead to security and peace in our democratic societies. Stability is what all societies seek. FOI and privacy laws contribute to the continual change and development that we are witnessing as new democracies rise to the fore. Existing laws are now being challenged because of the emergence of global terrorism and the subsequent feelings of insecurity that citizens in many societies around the world are now experiencing. But many countries are seeking to ensure the rights so fought for are not curbed, and that the fundamental shape and form of these FOI and Privacy laws are kept.
These information and privacy statutes, and many other laws, have transformed our collective societies in the democratic world. Politicians and public servants are more accountable to the wider citizenry than ever before. There are many examples of this: expenses of politicians and public servants being made public, reports on mismanagement and expenditures, environmental assessment reports, health issues, education, policy studies developed by governments, and other examples that cover the whole spectrum of government.
These laws reflect the development of human rights and accountability organizations and have brought forward obligations that governments have to the people. This evolution is important to the debate, as research has shown there are widespread concerns over fundamental changes being made to existing public safety, security, antiterrorism and related laws. Yet, existing accountability laws, and the continuing right of free expression in our society, is having an impact. There are serious worries about the direction our society might be going when security has become such an overriding issue.
However, groups and citizens have had some success in getting changes or limitations to some of the more widespread proposals. Since 9/11, while Canadians, and citizens in other countries such as the USA and the UK, continue to show strong support for privacy values, they indicated that they trusted their government to protect their freedoms in the course of developing antiterrorism measures.
The core values of privacy rights are set out in a list of ten Fair Information Practices in Directives of the European Commission, the Organization for Economic and Cooperative Developments Code of Practice on Privacy and the United Nations Declaration. These practices are the foundation of what privacy analysts look for when assessing the impacts of security, antiterrorism and public safety legislation. They are also widely seen in the privacy community as providing the basic elements of good information management, which many privacy advocates argue is the underpinning of both good security and good privacy protection.
Information Management is a process that contributes to and serves to strengthen good governance, accountability and transparency. Good information practices can help to weed out and purge much information that is opinion, false or incorrect in some aspects. In different conferences and seminars, legal experts, civil libertarians and privacy advocates, have expressed concerns about the actual and potential threat to their civil liberties due to different antiterrorism laws. Stories in the media of arrests of immigrants, targeted as potential terrorists, Canadian citizens being turned back at the US borders for various security reasons, and Canadians of foreign extraction being arrested in foreign countries as potential terrorists, has created a sense of unease.
There has been clear recognition that tighter security laws are needed but that our traditional values, not just of privacy but essential current civil liberties and human rights are respected. New antiterrorism laws in Canada, the USA, the United Kingdom, and many other European countries have raised the specter of more and more citizens and groups in our societies coming under increasing surveillance by the state.
The 2004 Security and Privacy paper assesses these developments and looks at this emerging phenomenon. The question is: What is the reality of the situation of the tension between security and privacy? These are important issues for our times in which we are seeing many changes from the war on terror to extensive technological implementations which, some contend, is leading us to a surveillance society from which we might not be able to retreat.
Note: The Security vs. Privacy: Updating the Issues paper on which this Riley Report is based, contains an extensive analysis of changes to security and antiterrorism laws, as well an assessment of the human rights and privacy issues. The full paper can be found at: http://www.rileyis.com/publications/index.html
For fuller details on this concept of information sharing please go to the latest paper from Riley Information Services Inc., E-government: The Digital Divide and Information Sharing: Examining the Issues at: www.rileyis.com/publications/research_papers/track04/index.htm
Thomas Riley is available for consultations, preparation of reports, presenting workshops or delivering speeches at conferences and seminars on e-government, e-governance and e-democracy. Please contact me at the email address below for further details.
Thomas B. Riley
Executive Director and Chair
Commonwealth Centre for E-Governance
www.electronicgov.net
Visiting Professor, University of Glasgow
President, Riley Information Services Inc.
www.rileyis.com