Federal Privacy Commissioner George Radwanski

Privacy – not an absolute right
Owen Wood, CBC News Online
June 20, 2002

Ever since the terrorist attacks of September 11, the issue of security has been at the forefront in both Canada and the United States. A myriad of questions buzzed in the head of authorities and the common citizen.

How did the hijackers get into the U.S.? How did they get through airport security? How come nobody saw it coming? How do we make sure this never happens again?

The solution was obvious. Tighter security. More surveillance. Networks of personal information databases. A "fortress North America."

But it didn't take long for civil libertarians to realize what all this would mean for the average Canadian. What about individual rights? What about privacy?"

Fingers pointed back to George Orwell's 1984, the book that coined terms like "Big Brother is watching" and "the Thought Police" and showed what could happen if personal privacy was abolished.

Federal Privacy Commissioner George Radwanski doesn't see privacy as an absolute right and understands that sometimes our privacy is infringed upon in the name of security and public safety. However, he is concerned about new legislation that seems to be using September 11 and the public fear of terrorism as an excuse to invoke new powers of the state that go well beyond anti-terrorism.

Lately, Radwanski has been on the alert regarding a wide-range of privacy issues.

Privacy in the workplace

In April 2001, he said employees have a "fundamental, inherent right" to privacy in the workplace, including e-mail and Internet use. Employers justify monitoring how their computers are being used by saying they are responsible for ensuring a harassment-free environment (free of sexual pictures on computer screens, for example) as well as making sure workers aren't wasting their time. But in an article in The Globe & Mail Radwanski said, "Most of us would agree that an employer would have no business randomly or routinely pawing through the desk drawers of employees. What makes the content of a computer any different?"

Video surveillance

In October 2001, Radwanski wrote that the sort of video surveillance used by the RCMP in Kelowna, B.C., was unacceptable. In February, 24-hour video surveillance was installed in a park, which police said had been overrun by drug users and drunks. In fact, a survey of residents found 80 per cent were in favour of the camera. However, Radwanski said deterring crime "does not give police authorities unlimited power to violate the rights of Canadians… If we cannot walk or drive down a street without being systematically monitored by the cameras of the state, our lives and our society will be irretrievably altered."

Radwanski went on to address the larger issue of video surveillance and the perception that video surveillance cameras would make us safer from terrorist attacks. "Even if New York City had been endowed with so many surveillance cameras as to turn the whole city into a giant TV studio, this would have done nothing to prevent the terrorists from crashing aircraft into the World Trade Center," he wrote.

Radwanski also asked former Supreme Court justice Gérard La Forest (The Supreme Court's leading expert in privacy issues until his retirement in 1997) for his thoughts on the issue. In April 2002, La Forest wrote that " continuously recorded general video surveillance violates the Privacy Act" and "general video surveillance, whether or not recorded, violates section 8 of the charter." (Section 8 of the charter states "everyone has the right to be secure against unreasonable search or seizure.")

According to Radwanski, the RCMP has stopped tape recording what the Kelowna camera sees, but the area remains under surveillance.

Airline passenger information (part 1)

In November 2001, the privacy commissioner criticized Bill C-44, which would allow airlines to release crew and passenger information to Canadian authorities and foreign governments. To provide foreign countries with personal information about Canadian travellers is "an extremely serious matter" and it would violate the Personal Information Protection and Electronic Documents Act, Radwanski wrote in a letter to the federal transport minister.

Earlier that month, the United States invoked a law requiring foreign airlines to provide basic information on inbound passengers, such as names, birth dates and passport numbers. Radwanski wrote it is "repugnant" that the U.S. law is "effectively forcing" Canada to adopt Bill C-44 by saying it will refuse aircraft permission to enter the country unless they comply. But he says the Canadian government should do more to make sure that personal information about Canadians only be used for "the purposes of protecting national security, public safety or defence" and that "the information is not collected, used or disclosed for any other purpose."

On Dec. 6, 2001, Bill C-44 was passed by the House of Commons with Radwanski's concerns addressed.

Blood samples

In February 2002, he spoke out against Bill C-217, a proposed federal law that would force injured Canadians to provide blood samples to emergency workers worried about being infected with diseases such as hepatitis and HIV. Radwanski told the House of Commons justice committee that compulsory blood testing "is a massive violation of privacy."

"This bill would violate privacy in the most profound way possible – because it would take away the right to control access not only to the most sensitive private information about ourselves, but even to our physical selves as well, to our own bodies," he said.

As of June 2002, Bill C-217 had reached first reading in the Commons, which took place on February 5, 2001.

Customer and client information

In April 2002, Radwanski responded to complaints about Air Canada by saying the company had improperly shared private information about members of its Aeroplan Frequent Flyer Program. The problem was that it was the customers' responsibility to indicate they did not want the airline to share their information. This is called the "opt-out" approach, whereby individuals are required to take the initiative to inform companies they don't wish their information to be used. The other approach – "opt-in" – requires companies to ask for permission before sharing personal information about their clients, otherwise the information stays private.

Air Canada agreed to alter its Aeroplan program to address the privacy commissioner's concerns.

Airline passenger information (part 2)

In May 2002, Radwanski criticized Bill C-55, which would require airlines to hand over information on passengers to the RCMP and CSIS upon request. Although the provision is aimed at transportation security (as part of the bill's overall goal to fight terrorism), Radwanski said it "goes far beyond anti-terrorism" by giving the RCMP the power to search passenger lists for anyone wanted for any offense punishable by imprisonment of five years or more.

"The precedent set by this provision could ultimately open the door to practices similar to those that exist in societies where police routinely board trains or establish roadblocks to check identification papers in search of anyone of interest to the state," he wrote in a letter to the federal minister of transport. He also pointed out that the bill could set the stage for another "privacy-invasive measure" – compulsory national identity cards.

As of June 2002, Bill C-55 had gone as far as first reading in the House of Commons, which took place on April 29, 2002.

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