Public Safety and Privacy: An Inevitable Conflict?
Reboot Communications Public Safety Conference
Strategies for Public Safety Technology and Counter-Terrorism: Prevention, Protection and Pursuit
April 27, 2004
Ottawa, Ontario
Address by Jennifer Stoddart
Privacy Commissioner of Canada
(check against delivery)
Good afternoon.
I'm very pleased to be here today. The other speakers brought together for this conference are a true who's who of the security and counterterrorism world. It is really my first opportunity to address this community since I assumed my role as Privacy Commissioner of Canada in December. I very much appreciate the opportunity to share my views with you about the complex relationship between privacy and security.
For those in the audience who may not be familiar with my role, I am an Agent of Parliament, which means that I report directly to the House of Commons and the Senate, and not to any government minister. Parliament has seen fit to assign independent agents to watch over a few areas that are critical to the integrity of our democratic system and for those officers who report directly to it.
My office oversees two federal privacy laws. We are responsible for ensuring that confidential information about our personal lives is adequately protected from abuse or unwarranted public release. With threats to privacy mounting daily, the integrity, autonomy and role of this office are more important than ever before.
There is no equivalent role in the US, but I am pleased to see that the position of Chief Privacy Officer is gaining prominence within some key organizations. For example, the appointment of Nuala O'Connor Kelly as Chief Privacy Officer for the White House's Department of Homeland Security last year can be seen as a positive development. When I met with her in February of this year, we agreed to keep in touch on matters of mutual interest. My office also has an ongoing relationship with UK counterparts and I recently met with Commissioner Richard Thomas.
Monitoring Legislation
Another responsibility that we have is to monitor trends in the use and treatment of personal information.
Part of our job is to keep track of what other countries are doing with respect to law enforcement and national security and it has been difficult to ignore the debate taking place south of the border over the PATRIOT Act and the CAPPS II.
I read just last week that some elements of CAPPS II have been reworked to improve the handling of personal information. This leaves room for cautious optimism. Earlier in the month, I read with interest the comments made by the General Counsel of the Electronic Privacy Information Centre before the House Committee examining this system.
His view was that while most of the post 9/11 debate over security and liberty understandably has focused on the PATRIOT Act, the serious problems inherent in CAPPS II will have a more direct and immediate impact on most Americans.
He went on to explain to the Committee that "while we all agree that there is a clear need for enhanced aviation security, there are many reasons to question whether CAPPS II is the right approach, both from a security perspective and in terms of its detrimental impact on our traditional liberties."
This is a valuable statement — we can all agree that improvements need to be made to security, but agreeing on the approach, and how far to go in implementing it, is the true essence of the debate. The way we address security needs to reflect the fundamental values that our society needs.
We were strongly opposed to recent amendments to the Public Safety Act, Bill C-7, because the legislation remains far too broad and because it sets out a general, rather than specific, regime for co-opting private sector organizations by pressing them into service in support of law enforcement activities.
We are not alone. Many individuals and organizations and many Parliamentarians have expressed serious concerns about the implications of Bill C-7 for privacy and human rights.
Bill C-7, along with much of the anti-terrorism legislation that has been passed here and abroad, is based on the premise that the more information the state has about everyone, regardless of whether they have done anything to incur suspicion, the safer we will be.
That is an assumption that needs careful examination and it is a question that is outside my area of expertise. However, I am prepared to suggest that it is not clear how reducing the freedoms of all individuals in society will prevent further threats to public safety by terrorists on a political mission.
As law enforcement and national security organizations collect more information about more individuals and use that information, there is an increasing possibility that people will be subjected to unnecessary scrutiny, that more people will be singled out, and that more people will be treated unfairly.
The other issue is that you simply cannot rely on stereotypes to make judgments about the security risk posed by an individual, but there is a general belief that the alternative to doing so is to collect more information on everyone. I don't see that as an appropriate answer.
My hope is that law enforcement, national security agencies and policy makers will bring their expertise to bear on the fundamental values that our society represents, among them privacy. It is my hope that your communities will find ways to use the personal information that is already collected much more efficiently.
I will elaborate on my comment about efficient data use in a moment, but first I want to share with you some views that I have about privacy as it relates to your work.
My office recognizes that the role of the law enforcement and national security official is important in a democratic society and that these jobs are difficult. The nature of our society is truly reflected in the way in which you do your jobs.
Privacy and security are both parts of our social existence and I view security as a prerequisite for democratic values to flourish. Historically, stability and personal security have been the pre-conditions of the emergence of democratic institutions. We all recognize that democracies need environments of individual safety and collective security so that individual citizens can, in fact, exercise the human rights which are the hallmark of our chosen form of political organization.
Security and Social Relations in the Urban Environment
The challenges faced by the law enforcement and national security community are not simply a result of the emergence of a new form of terrorism. Over the last several decades we have witnessed the development of a mass urban society. Almost one-third of Canadians live in the three largest census metropolitan areas, Toronto, Montreal and Vancouver. The social relations in a city are different from those in a rural community and this has implications for privacy.
The anonymity of an urban society provides us with a measure of privacy and, in many respects, those of us living in cities have far more privacy than ever before. Our growing wealth means that we now have large, more private homes. Many of us living in the cities don't even know the names of our neighbors and this is a stark contrast with the character of many towns and villages.
One privacy researcher suggests that high levels of scrutiny within a community diminishes the need for government intervention because people feel pressure to conform. Those of you who have lived in a small village know that such places often need minimal policing because the perpetrators of crime are more easily known.
This is where law enforcement comes in. From a law enforcement perspective, anonymity can weaken our sense of responsibility and it weakens social controls. Anonymity gives us freedom that can be abused.
The shift to the mass urban society may be improving a person's ability to control some aspects of his or her privacy, whether to engage or disengage from the wider culture, and this can pose a challenge for law enforcement and national security.
Social Values and Efficient Information Use
Within that context, we count on you as key players in the evolution of our society's values over the coming years. My hope is that law enforcement, national security agencies and policy makers will make a concerted effort to seek ways to enhance the fundamental values that our society represents, among them human rights and privacy.
One way for you to respect privacy is to find ways to use more efficiently the personal information that you already collect. We would urge you to improve the quality of the information already in your possession. I note that your keynote speaker from yesterday, Richard Clarke, the former senior White House Advisor on counter-terrorism, can attest to the fact that timely information sharing is crucial for national security.
Auditor General Sheila Fraser raised serious concerns in her recent report on national security in Canada. For example, she found that there were major deficiencies in inter-agency communication, resulting in gaps in intelligence coverage as well as duplication of efforts.
Her office found that watch lists to screen visa applicants, refugee claimants and travelers seeking to enter Canada are in disarray. She reported that on average, more than 25,000 Canadian passports are reported lost or stolen each year, and yet the border watch lists do not contain the list of lost and stolen Canadian passports. The Passport Office has its own database that includes lost or stolen passports, but it is not linked or reconciled with the RCMP's.
The Auditor General also reported that in some situations, departmental officials would not share or examine the possibility of sharing information, based on the assumption that it would contravene the principles of the Privacy Act.
The Auditor General's report recognizes that the Privacy Act accommodates the sharing of information among federal agencies in a variety of situations, including for reasons of national security.
My office supports strengthening of the management framework for security and intelligence so that the gaps and deficiencies she identified can be addressed. Let me be clear on this. I do not see privacy as an inflexible right — though it is truly a fundamental value in society.
Nor do I see privacy in contradiction with security. The Public Policy Forum of Canada held a security and privacy seminar last fall and concluded that, from both a public policy and public interest perspective, a new hybrid had to be found; a fusion between privacy and security is needed. Privacy principles need to be built into security systems and security requirements need to be respected in developing regimes to protect privacy.
Conclusion
So, in closing, let me say that my office inevitably surveys the landscape of legislation and policy decisions to improve public security through a lens that assesses the impact on citizens' privacy. But just because we do so does not mean that we will always argue against new uses for personal information or additional sharing of that information in specific circumstances. In some cases privacy needs shoring up and in other cases it may need to adjust to further the public good.
My message to you is that law enforcement, national security agencies and policy makers should and must make the additional effort to incorporate fundamental values such as privacy in the design of their policies and programs.
I certainly hope that the federal government's new national security policy reflects these values and I look forward to working with officials to ensure this. |
