Defining Privacy
A critical investigation of Canadian political discourse

Introduction

Introduction

Privacy is difficult to define. It encompasses the personal, social, technological, and legal domains of society in ways that overlap and diverge. Traditionally, privacy has been articulated as an issue of protecting one’s personal space from intrusion, but with the rapid increase and ubiquity of information technology, the distinction between personal and public space is no longer easily identified.

The protection of privacy in Canada is regulated by laws at both levels of provincial and federal government. The majority of these laws are concerned with the privacy of personal information, in terms of how it is collected, used, stored, shared, and destroyed. Yet, in the case of federal privacy legislation, an actual definition of privacy has not been written in to the law.

Without an understanding of what privacy means, at least in terms of the two core federal privacy statutes, it is hard to manage expectations regarding when, where, and how much privacy will be afforded under Canadian law. By examining federal privacy legislation and the transcripts of political debates, this thesis will endeavour to construct a definition of privacy as it is commonly used by those who are responsible for the creation and enactment of privacy legislation, the politicians themselves.

This will involve a two-stage text analysis of the transcripts of the political debates that occurred in the House of Commons, commonly known as Hansard, between the years 2006 and 2015. The first stage will use computerized techniques to discover trends and patterns in word use over the ten-year period under investigation. The second stage will build on the first, with a focused critical analysis of the discourse of a single debate, which will be identified based on the results from the first stage of analysis.

Both stages of analysis will be supported by a comprehensive review of privacy legislation in Canada, including the historical basis for the enactment of the laws, and the legal literature produced as a result of their enforcement. These analyses will result in a clarification of the meaning of privacy as it is used by those who have the power to determine how much, or how little the privacy of Canadians is protected by the law.

In order to understand what privacy means to federal politicians in the context of their work, the system of politics in Canada must first be understood. The following section is a brief introduction to Canadian federal politics in terms of how it is organized and structured to support the creation and enactment of legislation.

The Canadian System of Government

The entirety of this section is described in terms of the Parliamentary publication House of Commons Procedure and Practice, 2nd Edition, edited by Audrey O’Brien and Marc Bosc. This publication includes information about precedents current to 2009, the midway point of the period under study. While Parliamentary procedures can and do change, the information provided here applies to the entirety of the study, unless otherwise noted. Canada is a parliamentary democracy, which is a system of government that holds that the law is the supreme authority (O’Brien and Bosc). The law is communicated through carefully worded documents known as legislation, which serves the purpose of regulating what may or may not be done in Canada (O’Brien and Bosc). The power to create legislation resides in the Legislature, which includes the House of Commons and the Senate, and the Crown, which is represented by the Governor General (O’Brien and Bosc).

The ‘Crown’ is the term used in Canada to describe the state, which is the country’s supreme authority (O’Brien and Bosc). This term is a recognition of the British Monarch, who is the formal head of state in Canada (O’Brien and Bosc). The Crown is represented by the Governor General, who is elected by the Queen on the advice of the Prime Minister of Canada. While the role of the Governor General is seen to be mostly symbolic, the Crown retains the “right to be consulted, to encourage and to warn” (O’Brien and Bosc). The primary responsibility of the Governor General in terms of legislative power is the granting or withholding of Royal Assent, which is required before a Bill can become a statute that determines the law (O’Brien and Bosc).

The Legislature consists of the Senate, also called the Upper House, and the House of Commons, which both have equal status in terms of privilege and power (O’Brien and Bosc). Senators are appointed by the Governor General, on the recommendation of the Prime Minister (O’Brien and Bosc). The House of Commons consists of elected Members of Parliament (MPs) (O’Brien and Bosc). Both the Senate and the House have a fixed number of seats based on the distribution of the population in the provinces and territories (O’Brien and Bosc). These numbers are periodically adjusted to reflect changes in the population (O’Brien and Bosc).

Both the Senate and the House of Commons must adopt the same legislation before it can be granted Royal Assent, and legislation can be introduced in either place (O’Brien and Bosc). The seating arrangement in both Houses is organized in terms of political party membership, where the Members affiliated with the governing political party sit to the right of the Speaker of the House, while the other Members sit to the left (O’Brien and Bosc). Political parties are distinguished in terms of their ideology, which involves the system of values that underlies the belief in how Canada ought to be governed (Dijk, p.17; Fairclough, p.32; O’Brien and Bosc).

In the House of Commons, the political party with the highest number of elected MPs forms what is referred to as the government, while the MPs from the other parties are called the opposition, the largest of which is called the Official Opposition (O’Brien and Bosc). The Prime Minister, who is the leader of the governing party, along with the Cabinet, consisting of select members of the government, has the additional power of enacting government policies and programs, so long as they are accountable to and retain the confidence of the entire House of Commons (O’Brien and Bosc).

Elections determine what can be called the ‘lifecycle of Parliament’ (O’Brien and Bosc).In this sense, the term ‘Parliament’ refers both to the institution itself (made up of the Crown, Senate, and House of Commons) and the period of time within which the institution exercises its powers (O’Brien and Bosc). A Parliament is dissolved when the Governor General calls an election, beginning again when the new Parliament is formed as a result of an election (O’Brien and Bosc). The House of Commons has a constitutionally-determined lifespan of five years, though elections can occur at any time within that period (O’Brien and Bosc). Legislation was introduced by the government in 2007 mandating that a fixed-date general election must occur every four years, on the third Monday in October (Library of Parliament). The first of these fixed-date elections occurred in 2015 (Library of Parliament).

Parliaments are divided into time periods known as Sessions, which consist of a variable number of different sittings (O’Brien and Bosc). Sessions begin with a Speech from the Throne and end when Parliament is prorogued or dissolved (O’Brien and Bosc). While prorogation is only the end of a Session, and not a Parliament, it signals the end of all proceedings before Parliament, meaning that any ‘unfinished business’ is effectively dead, and must be reintroduced as if it had never existed when the new session starts (O’Brien and Bosc). This applies to Bills that have not yet received Royal Assent, although this has occasionally been overruled in the case of unanimous consent among the members of the House (O’Brien and Bosc).

A ‘sitting’ is a meeting of the House of Commons that occurs when Parliament is in session (O’Brien and Bosc). It follows a structured program consisting of a recurring sequence of business, including daily and routine proceedings, government orders, Bills from Private Members’, and adjournment proceedings (O’Brien and Bosc). The entirety of this program is published in a number of different publications, depending on content (O’Brien and Bosc). One of these publications is the House of Commons Debates, otherwise known as Hansard, which is the transcribed, edited, and corrected record of what is said in the House (O’Brien and Bosc). The proceedings of the Senate are also published as Hansard, but in terms of this research, the use of the term Hansard will refer exclusively to the House of Commons.

The collection of texts selected for analysis in this thesis spans the entirety of the 39th to the 41st Parliaments, which cover a ten year period between 2006 and 2015. This collection comprises the entirety of The Right Honourable Stephen Harper’s Conservative government in the House of Commons. While the 41st Parliament was a period of majority governance for the Conservative Party of Canada, the 39th and the 40th were both periods of minority governance (O’Brien and Bosc). A minority government occurs when a political party wins the most seats in the election, but not enough seats to hold a majority in the House of Commons, which during the time covered by this study, was 308 seats (Library of Parliament). The legislative power of the governing party is concentrated in the ability of Members to vote for or against proposed legislation, which means that a minority government has less of an influence on the outcomes of votes, and the subsequent legislative process of turning Bills into statutes (O’Brien and Bosc).

In terms of the House of Commons, the examination and enactment of legislation comprises a significant amount of the time spent in Parliament (O’Brien and Bosc). In order for a Bill to become a law it must first pass through a long procedural chain of standardized motions; in fact, the debate and resulting decisions about bills in the House of Commons are not actually about the Bills themselves, rather, they are focused on the motions required to accompany them (O’Brien and Bosc). Though there can be differences in procedure and ordering, all Bills pass through the same stages, these are: a first reading; a second reading, involving a debatable motion and vote; a committee stage, which happens outside of the House; a report stage, where the report from the committee is presented to the House and debated; and finally, a third reading involving another debatable motion and vote (O’Brien and Bosc). Once a Bill passes through these stages, it is referred to the Senate, and then to the Governor General for Royal Assent (O’Brien and Bosc).

This process is what makes the transcripts of Hansard such a compelling resource. The interpretation of the meaning and intent of statutes can be aided in part by what Canadian legal scholar Ruth Sullivan describes as “extrinsic materials”, which includes Hansard (p.659). She argues that the extensive discussion and debate by MPs of issues before the House provides strong evidence for understanding the underlying intent of the decisions that are ultimately made (659). In the case of this investigation, this means that the ways in which MPs discuss and debate privacy will provide persuasive evidence for determining what privacy actually means in the context of the House of Commons, and in the privacy legislation itself.

Purpose, Objectives, and Research Questions

The purpose of this research is to determine the meaning of privacy as it was used by the Members of the House of Commons between the 39th and 41st Parliaments.

Three interrelated objectives will serve this purpose. The first objective will be to understand what privacy has historically meant in Canada by conducting a review of the legislation, standing committee reports, and jurisprudence that pertain to Canadian privacy issues, as well as a review of the literature that contributed to the creation of these documents.

The second objective will measure the occurrence of the word ‘privacy’ within the context of its use in the House of Commons. This first stage of text analysis will ask the following questions: how many times does the word ‘privacy’ appear in the transcripts of Hansard, and is there an observable change in the frequency of use over the period under observation? Also, are there observable patterns of language use when ‘privacy’ is viewed in the context of the sentence within which it appears, and do these patterns change over time?

The third objective of this research will explain the trends regarding the frequency and contextual patterns observed in the first stage of analysis by asking the following question: why do Members of Parliament use the word ‘privacy’ in the way in which it has been observed, and how does the language used in the House of Commons contribute to an overall understanding of the meaning of the word?

These objectives and research questions will help to answer the primary research question underlying the purpose of this thesis, which is: what is the meaning of privacy in the House of Commons as it was recorded in Hansard between the 39th to the 41st Parliaments?

The linguist Michael Stubbs argues that our understanding of language is mediated by a cultural understanding of how combinations of words can be combined to create meaning (Words and Phrases 3). The outcome of the textual analysis of Hansard will be more than just a list of words related to privacy and the number of times they were used; it will provide a deeper rationale for the meaning of privacy as it is used in the context of the House of Commons, which includes the beliefs, expectations, and evaluations of the MPs themselves (Stubbs, Words and Phrases 6).

The power in a parliamentary democracy such as Canada is expressed through the rule of law, which is carried out through the enactment of legislation that determines what can and can’t be done in society. Privacy legislation in Canada generally determines what can and can’t be done with regard to the personal information of citizens. In order to understand the law, we must understand its intent, and in the case of privacy law, this requires an understanding the meaning of privacy itself. While none of the federal privacy legislation contains a definition of the word privacy, its meaning can be ascertained through an examination of language and context within which it is used.

Methods of Analysis

The two stages of analysis that will comprise the bulk of the research in this thesis will consist of two different but complementary approaches to the study of language in use. The first stage will involve the computerized processing of the entire body of text, while the second stage will involve a critical investigation of a specific parliamentary debate, selected based on the trends identified in the initial text analysis.

Computerized Text Analysis

Hansard is a very large body of text. Between 2006 and 2014, almost 69 million words were spoken and transcribed. The entirety of this text will be analyzed using natural language processing techniques in the Python coding language in order to collect data about patterns related to the use of the word ‘privacy’, as well as the phrases and sentences in which it appears. The purpose of this first stage of analysis is to uncover trends in word use over time, as well as to determine what other types of words are used in conjunction with ‘privacy’.

Critical Discourse Analysis

The findings from the text analysis research will be used to inform the next stage of the research, which will consist of a Critical Discourse Analysis of specific trends in language use found in Hansard. While computerized text analysis is a form of “distant reading”, a term coined by Franco Moretti that refers to analyzing a text “from a distance” (“Conjectures on World Literature”, 57), Critical Discourse Analysis requires conducting a “close reading” of a text as a means of uncovering the ways in which language can be used as tool of social power and dominance in society (Taylor 5; Van Dijk “Critical Discourse Analysis”, 352).

Through a distant and deep textual analysis of the transcripts of Hansard, this thesis will endeavour to construct a meaningful definition of privacy as it is used by the MPs who represent the citizens of Canada in the House of Commons. Privacy can no longer be conceptualized as an issue of distinguishing the difference between what is public and what is private space. Information technology has evolved in such a way that makes this distinction meaningless. The structure of the internet lends itself to a landscape that includes pockets of digital private spaces enclosed within very large and penetrable public spaces; an example of this is online banking, which involves the access of highly secure information via mobile devices on public wi-fi networks. Mobile devices themselves leave a trail of data behind them, which includes not only the location of the device, but what kinds of things it has been used for; this includes the contents of text messages and emails, web browsing histories, and in some cases, physiological data such as heart rate. The unintended disclosure or consolidation of this personal data can lead to a range of harmful consequences for individuals, such as identity theft or fraud. But it is the awareness of these consequences that lead individuals to make decisions that affect society as a whole. The knowledge that one’s digital life is not secure contributes to what Canadian legal scholar Daniel Solove describes as a ‘chilling effect’ on society (765), regardless of whether the privacy issue involves overt breaches of personal information or more passive methods of surveillance like security cameras. This ‘chilling effect’ is harmful because it narrows the free expression of individuals in society, which runs counter to the normative ideals of the parliamentary democracy within which Canadians are governed.

By determining the meaning of privacy as it is understood by MPs, we can better understand the intent of the legislation in terms of when, where, and how the protection of privacy can be expected in Canada. This knowledge can empower citizens to speak up when their expectations of privacy are not met, or when they are blatantly disregarded.

Structure of this Thesis

This thesis will be arranged as a series of chapters that focus on the distinct stages of this research. This chapter has provided the introductory context in terms of the purpose of the entire thesis, which is an investigation of the discourse of privacy in the House of Commons as a means of constructing a definition of privacy that can inform the privacy expectations of Canadian citizens. Chapter 2 will contain a comprehensive review of federal privacy legislation in Canada, including its history and the jurisprudence that relates to its enforcement. Chapter 3 will include the first stage of the text analysis, which will involve a complete methodological description as well as the results from the analysis itself. Chapter 4 will focus on the second stage of the text analysis, which will include a comprehensive explanation of the methodology of Critical Discourse Analysis embedded with the actual analysis of a text. Chapter 5 will conclude the thesis, discussing the overall results, the limitations of the research, and areas of interest for further study.

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