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November 1999

PRIVACY AS A HUMAN RIGHT - THE WAVE OF THE FUTURE

By Thomas B. Riley

Summary: It is evident that privacy is emerging as an important international issue. It is also clear that the emergence of ever pervasive and intrusive technologies is representing a threat to not only our privacy but our fundamental freedoms as citizens. We are building mechanisms, and accepting them by allowing their implementation and use, in which we are, virtually, potentially building an electronic prison for ourselves. The potential mechanisms for the diminishment of our basic freedoms are now being put in place. Why the erosion of our privacy rights is related to the erosion of our basic freedoms is explored in this column. These threats make way for the argument that we must enshrine privacy as a basic human right.. We need an international convention to achieve this.

“The argument that only the guilty “have something to hide” builds on the flawed notion that privacy is about keeping unpalatable secrets. Yet scratch even the most ardent advocate of unfettered technology and you will find a topic that triggers some reserve; personal finances, sexual preferences, medical conditions - we all have “something to hide” and a right to hide it. Truly these matters are no-one else’s (or very few people’s) business. Those who have had the misfortune to live in states that treat the individual’s information as their own understand how this builds social control and weakens the individual.”

Bruce Phillips, Privacy Commissioner of Canada
Annual Report, 1999.

In an opening essay to his Annual Report Canada’s Privacy Commissioner, Bruce Phillips eloquently makes the case as to why privacy is not dead, as many have argued. He makes specific references to the Economist’s May 1, 1999 article on the death of privacy and Professor Reg Whittaker’s ( York University, Toronto) book The End of Privacy: How Total Surveillance is Becoming a Reality.

The Privacy Commissioner not only makes the case for a robust debate on the need for privacy but also illustrates how acceptances of new technologies are presenting ever-growing threats to our essential freedoms. As he writes, “the real problem is not the technology, or even some of its seductive promises of convenience, security and efficiency. It is our failure to comprehend the heavy costs that come with the benefits of technology’s unchecked insinuation into every facet of modern life…. We are effectively building ourselves an electronic Gulag.”

He sees the increased loss of privacy through the intrusiveness of surveillance technologies as concomitant to the threat of the loss of hard won freedoms. He argues that “perhaps not enough people yet realize that privacy and freedom are inextricably linked; one cannot exist without the other…. But this failure to understand the link is pervasive and leads to many dubious notions taking root.”

Privacy advocates, he contends use and do enjoy the fruits and benefits of technology but, at the same time, the flaws of technology do not blind the same advocates. The are not Luddites, as many may contend. “Human values,” writes the Commissioner, “ not technology, must drive the bus. We can build privacy and data security into information technologies if we are determined to do so.”

He asks, is privacy dead? In answer to the question he poses, he concludes:

“Assuredly it is struggling, but struggle is the eternal and unchanging fate of all freedoms. Freedoms, once lost, can only be regained at the cost of great effort and pain. None can say with certainty that privacy will not be lost here. But if freedom survives at all, so too will privacy, because by definition freedom cannot exist without the right to a life free of surveillance and regimentation.”

The message of the Commissioner’s Annual Report is a timely one. It succinctly raises the very real threats that technology poses to both our democratic freedoms and our essential human rights in a free society. The topic of this piece is the focus we must begin to put on privacy as a human right.

Privacy has now become a major issue internationally. The rise of intrusive technologies and the Internet has resulted in a surge in awareness about the importance of privacy. On the Internet a lot of pressure is being put on companies to develop privacy policies to protect consumers who are liberally sharing their personal information in this new environment. The rush by large corporations to engage in electronic commerce (e-commerce) has meant more personal information is being gathered, shared, sold, and disseminated, than ever before.

The transition from the Paper Age to the Digital Age has brought with it new issues surrounding the usage of personal information. In the past, especially prior to the rise of the personal computer, international information networks, and the Internet, information was often difficult to retrieve, or necessitated a laborious process.

Now information from around the globe can be at one’s fingertips with the touch of a stroke on a keyboard. Any curious citizen can browse the Internet, use search engines to find out whatever kind of information he/she is seeking from either web sites or a multitude of other Internet related sources. This creates a whole new dimension to the issue of how personal information is used in today’s rapidly changing society. We are in the midst of an information free fall in terms of how our personal information is being used and bandied about.

However, the privacy issue moves far beyond protecting personal information on the Internet. In a larger sense our privacy is being violated daily as new and all encompassing surveillance technologies come on the market. The Canadian Privacy Commissioner’s Annual Report makes this abundantly clear.

Surveys show that a large majority of the citizens shopping online want to ensure that their personal information is protected, secure and confidential. When surveyed the public asserts strongly of their fear of privacy invasion in our new technological environments. At the same time many of these same people freely use the new technologies that are slowly eroding our freedoms. With each use of these technologies, without debating the long-term deleterious effects on us as a society, we build an ever-tightening electronic noose around society’s collective neck. There are many examples of how technology is being used to snoop into our lives from the cameras in the corner shop and in every shopping mall to the ever increasing emergence of personal smart card technologies, being developed by governments, that contain millions of bytes of our personal information.

Technology has meant a wide-scale loss of privacy in comparison to what we enjoyed just twenty years ago. It is not just our personal information that is being abused. We are subject to almost daily scrutiny of our lives. In most countries now video surveillance cameras are accepted as a way of life to combat crime. Computers can now talk to other computers and, if properly programmed, can exchange information between machines automatically. Computers can monitor every aspect of our online activities. In the work place, electronic monitoring of employees is not unusual. In many corporations it is becoming a standard practice in the name of administrative efficiency. In the industrialized countries there are billions of bits of information shared daily. At the same time the prying, ever watchful eye of the camera is increasingly panning more and more of our lives. The problem lies not just with the business world but also with governments who find these technologies more and more persuasive to execute their programs.

Citizens often willingly give up their information so they can receive some benefit that a retailer is offering. Geo positioning satellite (GPS) technology can now send email, faxes and messages to our pagers and, now, even to our cars. But that same technology can also pinpoint exactly where we are at any given time of the day. Whether we are in our car and just a short walk away from where we parked, someone somewhere will be able to know our location. This is just another bit of information that will end up somewhere in a database for possible current or future use by someone.

Employers can monitor every aspect of employees’ movements through these technologies. And all of this will be in the name of administrative efficiency, monitoring productivity and being cost effective. In time, governments will find persuasive reasons to also monitor our activities. It appears that society is whistling cheerfully as we descend willingly into the fast approaching dark tunnel of encroaching technological tyranny. The threats to our freedoms are even wider than George Orwell or Aldous Huxley might have ever imagined.

The Ontario Government has announced plans of the possibility of developing smart cards that will combine a citizen’s driver’s license, health card, birth certificates and fishing licenses. It will contain a person’s personal information on a small chip. The Ontario government argues that the card will contain the individual’s unique fingerprint and thus have the needed privacy and security. But the problem with such technologies is that privacy laws cannot adequately protect the citizen. In time, such unique identifiers can be expanded for usage by more and more government agencies. Soon this could become a card that you must produce on demand. To not do so could tag the citizen “as suspicious” with possibly something to hide because he/she does not want to provide the identity card. The personal information could still be protected by a privacy act but such protection cannot guard against the human consequences. Such a unique identifier eventually will dehumanize the individual. It has the potential to remove freedom of choice when dealing with a government agency. Cards such as this only serve to diminish the dignity of individuals and rob them of the uniqueness of their individuality.

British Telecom (BT) is developing software, which will allow the computer to determine if you are under stress or upset. The computer can then automatically stop or filter out email or other electronic messages (such as voice mail) coming to the individual. This technology will sound enticing to the worker trying to cope in today’s frantic environment. But what could start out as a volunteer application of filtering out messages when upset or under stress could turn into another surreptitious surveillance technology. In the industrialized democracies of the world we are heading towards the total surveillance society as citizens eagerly glom onto the latest technological wizardry.

Also in Britain a scientist has developed a chip which he has implanted in himself. The chip is connected to computer that can monitor his every movement. This same scientist acknowledged there are privacy implications of such a technology. But the frightening aspect of this is that such a technology, once on the market, will end up being used. Only an outcry of public indignation can stop the development and implementation of such technologies.

The irony of all this is that it is occurring in democratic societies where only a few seem to be vigilante enough to speak out and to warn the rest of us of the dangers of where we as societies are taking ourselves. In authoritarian and non-democratic countries surveillance technologies are instruments to ensure a compliant citizenry. In these same countries the ruling governments attempt to put strict controls on the Internet because they fear the medium and its capacity to allow people to not only express their ideas but to be able to communicate to anyone or anywhere in the world. Thus, in democratic countries it is important that we continue to debate the issues and educate the citizenry on the dangers posed by the new technologies. This is not an argument to arrest the development of technology but rather to harness its potential harmful results. We need an ongoing debate on these issues. Educating the public is a good start.

Under the current, proposed privacy law, known as Bill C-6, now working its way through Parliament this fall, the Federal Privacy Commissioner is going to have a mandate to educate Canadians about their new privacy rights. This is perhaps one of the most crucial provisions in the whole legislation. It is through forums, such as in the Canadian Privacy Commissioner’s Annual Report and educational programs, that people’s awareness will be raised. of the need to strike a balance between the development and usage of new technologies and potential threats to our freedoms. Armed with knowledge people can then make their informed decisions. The Privacy Commissioner is playing an important role by not only stressing that privacy is not dead but also enjoining people to join this important debate. The current Canadian Bill is about the rights of the individual in relation to the protection of their individual privacy. A right is only as valuable as it is exercised by the citizenry. It is the exercising of our inherent rights that makes our society healthier and democracy stronger. Thus it will be important to ensure that Canadians are informed of their new privacy rights under this new Act. It is hoped that there will be sufficient funds forthcoming from the Government to ensure that this mandate is fulfilled.

This then leads to the importance of why privacy should be perceived and dealt with as a human right. Canadian Senator Sheila Finestone is currently drafting a Bill to affirm privacy as a human rights instrument. It is not known when this Bill will be ready or come before the Senate, though it is anticipated to be tabled in the Senate sometime in late spring or early summer.

Valerie Steeves, adjunct professor at Carleton University and a well known Canadian human rights and privacy advocate, said that this is a crucial right for all Canadians: “this Bill is an important step because it provides the umbrella legislation, which places C-6 and the Privacy Act in a human rights context.” It is going to be crucial that privacy is seen and understood in a human rights context if we are going to have a debate about privacy and our fundamental freedoms. Human rights developed within the framework of democratic rights. The two are inextricably linked.

On a wider, international scale it is becoming essential that privacy be enacted as a human right. Current privacy laws are only a finger in the dike trying to hold back the billions of pieces of information now floating around cyberspace. A broad right is needed that is not only enshrined in law but will create a culture around privacy as a human right.

The Europeans recognize that privacy, as a human right, is implicit in their laws. Some form of international convention on privacy as a basic human right is needed.

All these developments suggest a need for an International Privacy and Human Rights Bill. It is essential that such an instrument be agreed upon as a defense against the darker forces of technology that could erode our basic democratic rights. In a civil society it is crucial that we have such instruments that balance our individual rights against the wider forces that drive society. Perhaps the proposed Canadian Bill of Privacy Rights could be the banner to bring this awareness to the wider world beyond those countries that do not have some form of privacy or data protection law. The Canadian proposal could, conceivably, be a model for an International Declaration of the Right to Privacy.

This article was also published in Access Reports/Freedom of Information, Lynchburg, Virginia, October, 1999. Any permission to publish this offline should be sought by the author. Any citations from the article should credit both the author and Access Reports. 
See: http://www.accessreports.com

For a copy of the Canadian Privacy Commissioner’s Annual Report go to:
http:// www.privcom.gc.ca. 

For a hard copy write to: 
The Privacy Commissioner of Canada
112 Kent Street, Ottawa, Ontario
Canada K1A 1H3

Thomas B. Riley
President, Riley Information Services Inc.
July, 1999

With author attribution, this document may be freely copied in whole or in part for online distribution.
Any offline use requires the author's permission.