Privacy and the rule of law

Welcome to the Rule of Law Matters podcast. If you’re wondering what the rule of law means and why it matters, this is the podcast for you. This is season 1, episode 8. Privacy and the rule of law.

This podcast is brought to you by the Law Society of BC. The Law Society is a regulatory body that protects the public by enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law.

January 28 is International Data Privacy Day. Data Privacy Day highlights the impact technology is having on our privacy rights and underlines the importance of valuing and protecting personal information. We bring you this special episode, featuring remarks from lawyer Richard Peck, QC at our last Rule of Law Lecture. He highlights modern technology’s invasion into our privacy, how it compromises our freedoms, and how it all relates to the rule of law.

We’re also bringing him back for a short follow up interview, which we will play after his speech. We ask him how things have changed over the past year, whether things are better or worse, and whether controlling the spread of COVID-19 is a good reason to infringe privacy rights.

Richard Peck is the founding partner of Peck and Company. He has practiced law for over four decades and is widely regarded as one of the leading criminal lawyers in Canada.

Rick Peck’s speech from the Rule of Law Lecture

Seventy years ago, George Orwell's dystopian novel, Nineteen Eighty-Four, went to the printers. Satirical in form, it is a grim and depressing tale set in a futuristic totalitarian state where truth is banished, love is punished, and privacy is not possible under the omnipresent eye of Big Brother.

The story begins with the rebellious protagonist, Winston Smith, returning to his flat after a numbing day of work in his cubicle at the Ministry of Truth:

Behind Winston's back the voice from the telescreen was still babbling away... the telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision... he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time.

We will return to Winston's plight in due course.

In 1949 when the book was published, Orwell's reference to a TV screen that could both listen to and watch the viewer would have been seen as more fanciful than prescient – like Buck Rogers’s jet propelled backpack or Dick Tracy's two-way radio watch – the stuff of comic books.

Comparatively few households had a TV set. Even in 1984, when TVs had become ubiquitous, few would put much stock in the idea that a TV set could ever become a household spy.

Now, in 2019, matters have changed.

In an article published in the Globe and Mail earlier this month, the author Ziya Tong sets out a disturbing description of the ways in which technology is being used in the 21st century.

Tong notes that in England today there are 20 towns “where Big Brother doesn't just watch over you, he barks out orders and literally tells you what to do.” One such town is Middlesbrough, which has a network of 144 “speaking cameras.”

Here is an example: “To the lady in the brown dress, blonde hair, with the male in the black suit, could you please pick that cup up and put it in the bin.”

In North London similar cameras are installed at public housing developments and are seen to be oppressive when people standing outside their own homes are told that they are loitering.

In Romford, a town in east London, the Metropolitan Police recently tested controversial facial recognition cameras. Signs had been put up warning members of the public that automatic facial recognition cameras would film them from a parked police van.

The Independent reports that a man named John saw the signs, pulled the top of his jumper over the bottom of his face, put his head down and walked past these cameras. Moments later, a group of police officers stopped John, demanded to see his identification and became “accusatory and aggressive.” John, perhaps understandably, told them to go away, albeit in more profane language. They responded by issuing a penalty notice – a 90 pound fine – for public disorder, akin to our criminal code offence of causing a disturbance by swearing in a public place.

Tong notes, “Britain, home of George Orwell, has more than 6 million CCTVs... about one for every 10 people.”

In San Francisco and a number of other American cities, public buses are equipped with sophisticated audio surveillance systems to listen in on the conversations of passengers.

In Las Vegas, Detroit and Chicago there is what is euphemistically described as the “Intelli- streets” system, installed in streetlights and lampposts with microphones and cameras capable of secretly recording pedestrians' conversations.

Whether “intelli” refers to intelligent or intelligence gathering is something we may never know.

An even more pernicious use of technology involves so-called “stalkerware” apps. These apps use GPS to locate friends or wandering children. But they are also marketed towards jealous partners who want to monitor their spouses' whereabouts. As Elizabeth Renzetti, a journalist with the Globe and Mail, observed, while technology did not create stalkers, it certainly “provides a new, faster, stealthier pathway for [them] to travel.”

All of these, of course, come under the comforting heading of “safety measures.”

In 2014, Edward Snowden revealed that Britain's Government Communications Headquarters (the GCHQ) had been tapping into the home webcams of British citizens under a program called Optic Nerve.

It was noted that, in 2008, more than 1.8 million Yahoo! chat accounts were compromised as agents siphoned up millions of images through home laptop and desktop computer cameras. As Tong notes:

And while our fears tend to be directed to hackers spying through baby monitors, or peeping Toms peering through our windows, the biggest window into our private worlds stares right at us every day: the black pinhole of our webcams.

Much of this may seem like an excellent application of modern technology to detect and suppress crime until one recalls the cautionary words of President Franklin Roosevelt in his speech to Congress in 1941: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

As a society, we have become habituated not only to intrusion but also to an equally troublesome problem: self-divulgence.

We regularly, and of our own volition, give over personal information to non-state actors in the form of corporations such as Facebook, Google and Apple, usually through what is enticingly known as the “online experience.”

Jennifer Senior, a New York Times journalist, refers to this as the “privacy paradox,” the contradiction between our contempt for companies that engage in surveillance of our lives versus the willing consignment of our personal information for the convenience of online services.

These services are held out as being free of charge but the old adage holds: nothing is free in this life. We simply pay with a different form of currency, namely, our personal data.

Surveys going back decades show that Canadians place a high premium on personal privacy. So, what is going on here?

It would seem that the apparently benign experience of being online numbs our alertness to the dangers the Internet poses. We become lost in the experience, as if mesmerized. Any sense that we are under surveillance is rendered figmental. Yet when the intrusive nature of what is happening is brought to light, we become momentarily indignant and then fall back into the same pattern. This cycle has a familiar ring to it: a compulsive pattern of behaviour that is extremely difficult to break. In other words, we are addicts.

We have also become slaves to convenience. We now have the disembodied presence of Alexa in our homes. On verbal command, Alexa will turn on the lights, set the temperature and start the coffee. This saves us the trouble of having to flip a switch or two. But at what cost? We forget that Alexa responds to our commands by listening.

As we come to enjoy the ever-increasing benefits of our technologically mediated lives, the digital devices we engage with not only reshape our ideas about privacy, but also influence our behaviours at a subliminal level.

As Brett Frischmann and Evan Selinger explain in “Re-Engineering Humanity”:

We begin to “outsource” responsibility for intimate, self-defining assessments and judgments to programmers and the companies that employ them. Already, many people have learned to defer to algorithms when choosing which film to watch, which meal to cook, which news to follow, and even which person to date.... Given that the design and workings of algorithms are almost always hidden from us, it can be difficult if not impossible to know whether the choices being made on our behalf reflect our own best interests or those of corporations, governments, or other outside parties.

As much as we want to believe that technology strengthens our control over our lives, in the words of Frischmann and Selinger, “The goal of designing programmable worlds goes hand in hand with engineering predictable and programmable people.”

In the digital age, our right to be left alone is silently depleting to a point of no return.

As privacy recedes, so does autonomy, and autonomy is the essential building block of a liberal democracy.

In an essay on privacy written in 1980, Arthur Schafer stated:

The ideal of privacy is clearly one of the fundamental values of our culture. There is a close relation between the availability of a protected zone of privacy and the individual's ability freely to develop individuality and creativity. In a society which is frequently intolerant of, or hostile to, nonconformity, freedom from constant surveillance is an important precondition for the development of independent and critically-minded individuals.

The provenance of privacy lends itself to debate. Here is a brief lineage.

In 1604, in England, Semayne's Case established that we have the right to privacy in our homes, with the oft-quoted words, ”the house of everyone is to him as his castle and fortress.”

In 1765, Entick v. Carrington, recognized that privacy interests extend beyond the sanctity of the home to personal effects.

In 1849 in Prince Albert v. Strange, the Solicitor General Romilly, one of the great law reformers of his day, referred to the principle

that this Court will protect every person in the free and innocent use of his own property, and will prevent anyone from interfering with that use to the injury of the owner. A man has the right of property in the production of his mind, and incident to that right is the right of making the same public.

In the U.S. in 1888, Judge Cooley, in his text on Torts, had coined the phrase “the right to be left alone,” which was adopted two years later by Brandeis and Warren in their historic Harvard Law Review article “The Right to Privacy.”

Then in Olmstead v. U.S. in 1928, Brandeis J., dissenting, described privacy as “the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.”

In 1967, the United States Supreme Court, in its landmark privacy decision, US v. Katz, found that our right to privacy protects “people, not places.”

Canada's Supreme Court followed suit in 1984, formally enshrining our right to be left alone into our common law in Hunter v. Southam.

Four years later, in R. v. Dyment, Justice La Forest observed that:

[S]ociety has come to realize that privacy is at the heart of liberty in a modern state.... Grounded in man's physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of the democratic state.

Following that, in R. v. Duarte [1990] La Forest J., echoed the language of Romilly, and defined the right to privacy as “the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself.” So there is a short history of privacy – brief but sufficient for our purposes.

Now to the rule of law.

The phrase “the Rule of Law” trips readily off our tongues. We commonly refer to it as a pillar of democracy. The adjectives we use to describe it include “fundamental,” “foundational,” “indispensable.”

It is expressly referenced in our Constitution as a founding principle of our country.

It is explicit in the very oath we take when we are called to the bar – an oath which requires us to “uphold the rule of law and the rights and freedoms of all persons.”

In 2005, the Supreme Court of Canada said “The rule of law is a fundamental postulate of our constitutional structure that lies at the root of our system of government.” The late Tom Bingham devoted a whole book to it.

Indeed, the phrase has been repeated so often, in so many circumstances, that it has almost acquired the qualities of a faith – in the sense of a belief in a divine truth. As Hutchison and Monahan said in their book, Rule of Law, it is the “will-o'-the-wisp” of constitutional history, calling up the image of an elusive ball of fire that repeatedly appears and then vanishes.

How do we capture and express its meaning?

Bingham aptly identified its essential core which he said was that “all persons and authorities within the state, whether public or private, should be bound by and entitled to benefit of laws publicly made and publicly administered in the courts.”

Former Chief Justice Dickson of the Supreme Court of Canada added to this by saying, “The law must stand supreme as the source and fabric of all social organization.” That certainly adds to our understanding, but is that enough?

Robert Bolt's great play, A Man for all Seasons, provides another answer. There is a memorable scene in which Sir Thomas More is speaking with his son in law, Roper. Roper says that he would set aside every law in England to get at the Devil. More's reply is apt and descriptive:

And when the last law was down, and the Devil turned around on you where would you hide, Roper, the laws all being flat? This country's planted thick with laws – man's laws, not God's – and if you cut them down do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law for my own safety's sake.

The depth of those words was not lost on the American jurist, Felix Frankfurter, who saw the play late in life. When he heard More's reply, Frankfurter exclaimed, “That's it! That's it!”

Frankfurter immediately grasped that More's words went to the heart of our system of justice. He saw that the words express the need for the existence of law to ensure order and fairness in society.

He saw that the words express the necessity of everyone being equally subject to the law while, at the same time, having equal benefit of the law.

He saw that the words express that the laws are crafted by us. We decide – they are not imposed on us. They are the product of our will, our thinking, our creativity.

If we accept the premise that privacy is an essential value worth protecting, we must not remain complacent.

The fundamental problem is that the law has not kept pace with the development of technology. One wonders if it ever can given the increasing pace at which technology advances.

Decades ago, scholars and writers prophesized a dire state of affairs; few were inclined to listen.

In his famous work, Discipline and Punish, Michel Foucault paints a picture of contemporary society that resembles George Orwell's 1984. He spoke of Bentham's panopticon, a circular building designed with a tower at its center, surrounded by prison cells facing inward. The inmates stationed in the cells cannot see inside the tower, but the watchmen in the tower can always see inside the cells. The prisoners must assume they are always under observation and act accordingly, policing their own behaviour.

For Foucault, the panopticon operates as a metaphor for modern society: as surveillance creeps into ever more private aspects of our lives, in time, citizens too internalize the fear of being watched and, as a consequence, begin to regulate themselves. In his words:

He who is subjected to a field of visibility, and who knows it, assumes responsibility for the constraints of power; he makes them play spontaneously upon himself; he inscribes in himself the power relation in which he simultaneously plays both roles; he becomes the principle of his own subjection.

We have now come full circle. Back to Winston, our protagonist in 1984. The final paragraph of Winston's story sounds Orwell's cautionary bell:

Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.

We can only hope that Winston's story remains fiction.

---

Jon Festinger

Hello, I’m your host Jon Festinger. We’re very pleased to invite Rick Peck back today for a short follow up interview on what has changed since he gave that speech. Welcome Rick.

Rick Peck

Thank you.

Jon Festinger

It has been approximately a year and half since you made this speech. What has changed? Has surveillance and invasion of privacy gotten worse or better?

Rick Peck

I think it’s gotten more, is a simple way to respond. I think that one of the biggest changes that has been brought, arises from the pandemic and this notion, or practicality of having to work from home.

In one sense, working from home gives one a greater sense of personal privacy. You’re in the comfort of your own domain. On the other hand, virtually everything that happens in the course of doing your work involves doing meetings, over Zoom or that type of thing.

Then the question becomes what is happening to that data, what are people actually seeing, what is visible to the public, if the public is a part of that. So for instance, I think some of BC’s Court of Appeal hearings are done virtually and one can never know who is watching. Is the focus on the presenter, when you’re in your home? Is the focus on something on the wall behind you, something on the shelf?

One thing I’ve noticed, watching broadcast on Global TV, CNN, that type of thing, is that many of these interviews, thousands if not millions of people are watching. You’re seeing the person in the comfort of their home. Right behind them, usually there’s a bookshelf. You can pretty quickly divine what that person’s reading interests are. That usually is a question that you ask a friend, “What do you like to read?” in a personal communication. We’re giving up an awful lot to work from home, it seems to me. So I worry about that to some extent.

I also worry about things like online shopping, which is becoming common place. This is not the 1950s, when you got a Sears catalogue and you phone the company and said “send me the new chair for the barbeque area,” that type of thing. Everything is being ordered online and being delivered to home, and that data is being collected. Who collects it? What’s it being used for?

So what I’m getting to is that there seems to be a proliferation of interactions between the individual and the virtual world where all this data gets collected. What happens to it? I think we know what happens to some of it, because the next thing you know there’s an advertisement that pops up on your laptop.

I think there is pretty good information that some employers are checking that people are actually doing their work from home. They do it in part through a number of clicks on the mouse. They do it by reviewing emails that are sent. I understand that in the educational sphere, that some examinations are being taken by students, there is some kind of software or device that can check your eye movements to make sure you’re not cheating. So this whole notion of merging home and the workplace is, and should be, troubling.

Jon Festinger

So let me take it from there a little bit. I want to feed back to you two ideas based on what you said. The first is, that privacy very much had its origins and the notion of privacy in the home. There were certain physical places that were protected from intrusions at the origins of privacy law. And the home was first and foremost among them.

In the current world, in the current idiom, we’ve normalized the gathering of data from anywhere and the sharing of data to anywhere. Does that accurately describe, in your view, both the compromises we’ve made and how difficult I will be to get the genie back in the bottle?

Rick Peck

Yes, I think you’ve hit it on the head. The modern origin of privacy rights, I think I made that point in the speech I gave a year and a half ago, probably stems from the English case of Entick and Carrington. And that was the famous quote, “A man’s home is to him as a castle.” I think all of us have some sense that in the confines of our homes, this is our inner domain. This is our essential realm of privacy. And now we seem to be opening it up to the world. So I think that’s right. I think you’ve hit the nail on the head.

Jon Festinger

Well, thank you for your initial thoughts. Let me turn to one further and final question. That’s about COVID-19 and managing the pandemic itself. There has been great success shown in countries that use technology to aggressively track the spread of the disease, specifically using data from cell phones. Is that compromise of our privacy justified by public health reasons, in your view?

RICK PECK

I think that as Canadians, we have a certain ethos, a certain understanding that rights at some point have to give way in critical times, times of emergency. Clearly, this pandemic is such a time.

I think your use of the word compromise is apt. If you think back to our original constitution, and that notion or statement that I think reflects Canadian philosophy. And that is peace, order and good government. I think that underscores the sense that is embedded in our Charter of rights. This notion that in 1982 we were blessed with a Charter of rights, but with each of those rights comes with a certain degree of responsibility. In other words, in how you exercise those rights.

And I think we understand most of this. Again, going back to this notion of peace, order and good government, that we must exercise our rights responsibly. A simple example would be, I have freedom of expression. That doesn’t mean I can announce my views to the world in my neighbourhood at 2 o’clock in the morning through a boom box. I think we tend to be a very tolerant society, and that’s part of our ethos, I guess, our spirit.

I think we are more accepting of incursions but there is a limit to this. The illustration or example you give, about tracking people on cell phones, we would all tend to agree that we are giving up something in terms of personal privacy for the greater good. In other words, to address the current crisis that’s facing all of us in this pandemic.

So I don’t agree with people that say it’s an infringement of my rights for instance, to be asked to wear, or in some cases I suppose forced or ruled to wear a mask in government buildings. We see things on the news with people going into stores, throwing tantrums, sometimes getting violent because they’re being asked to leave because they refuse to wear a mask. I think most of us understand that we are being asked to wear a mask, not for our own protection as much as the protection of others. That is the trade-off on that small incursion into personal privacy.

This is a difficult question because you’re talking about a balancing act. You remember what Franklin Roosevelt said in 1941 when he addressed Congress in his famous speech before freedoms. He said those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

That’s a way of characterizing one aspect of it. On the other hand, there may be other times during the course of our lives, both personal and our greater social lives, that we are asked to take steps that may inconvenience us, that may intrude to some extent on our privacy, but we should be willing to do so to meet the crisis that’s facing us.

My concern really is, what control is there going to be over that data, that’s all gathered and collected somewhere as we move forward, when the crisis passes? In other words, what is going to happen with that data, who’s going to deal with it, is it going to be eliminated, destroyed or is it going to continue being used by various actors, governmental or perhaps otherwise, to our detriment or for purposes it was never intended for?

The other concern I have in a general sense is to what extent are these changes becoming normalized? Does this affect or lower our expectation of privacy in the long term? So there’s two different issues that arise but that kind of encapsulates my concerns.

JON FESTINGER

I think it encapsulates all of our concerns very well Mr. Peck. I think the test, the future test, I see, and I hope it’s far, far in the future, is that if things get so normalized that a government takes this kind of data and decides that because they need revenue, that they can commercialize it. They can sell it to commercial interests, which is what’s done all the time now by others who collect data. That would be the nightmare scenario. I think we’re a ways away from that. But the more we normalize, the closer we get to that sort of scenario.

I’ll give you the last word, but before I do, just want to say how much we all, and that includes the listeners, appreciate your follow up today on your magnificent rule of law talk from pre-COVID times.

RICK PECK

Just to comment on your last words, Jon, and that is that you talked about to what extent this becomes normalized at some point in the future and then perhaps, is used for purposes that it was never intended to. My concern is that the pace at which technology is developing really accelerates that future date. I think that it’s upon us perhaps.

VINNNIE YUEN

Thanks for listening.

I’m Vinnie Yuen, your producer for today.

If you want to find out more about the rule of law, visit the Law Society’s website at lawsociety.bc.ca.