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2.3 The Function of Privacy
If privacy served no function in society, there would be no need to create legislation to mandate its protection. In the words of the Task Force, “(i)n a world of total social cohesion and mutual trust, privacy might be unnecessary” (18). And even though Westin argues that privacy is a fundamental need, found both in humans and animals (9), this perception of privacy relies heavily on the spatial and personal concept of privacy, rather than the informational.
But as evinced by earlier sections of this chapter, informational privacy is the primary type of privacy protected by Canadian law. The law ensures that individuals have a claim to a reasonable expectation of the privacy of their personal information when it is obtained for government or commercial activities. Based on the examination of the phrase ‘reasonable expectation of privacy’ in the last section, an expectation of privacy is really an expectation of anonymity. This means that an individual may expect to be identified, but not identifiable by their personal information. The nuance between these terms, according to Slane and Austin, is in the understanding that there is a difference “between information that discloses substantive details about an individual’s identity and information that is used as an ‘identifier’” (500).
While a name, phone number, or address may be easily obtained by searching a phone book, other types of personal information are more related to a person’s ‘biographical core’. This type of information, according to Justice Sopinka in the ruling of R. v. Plant, can reveal “intimate details of the lifestyle and personal choices of the individual” (293, para. h). It is precisely to what extent this type of personal information needs protecting that the case of R. v. Spencer and others sought to determine.
The purpose of this section is to examine the function of informational privacy by revisiting two of Westin’s ‘states of privacy’, as well as his taxonomy of the function of privacy in society. This will be integrated with the taxonomy presented in the last section by R. v. Spencer. These interrelated concepts of privacy will be used to counter the ‘nothing to hide’ argument, which claims that privacy is unnecessary if one has nothing to hide. This section will end by returning to the philosophical questions posed by the Task Force concerning informational privacy and power.
Two of Westin’s four states of privacy–anonymity and reserve (31)–relate closely to another of his taxonomies examining the function of privacy for individuals in society. These functions are: personal autonomy; emotional release; self-evaluation; and limited and protected communication (Westin 32). As a review from the last section, the taxonomy of privacy presented in R. v. Spencer consists of privacy as secrecy, control, and anonymity (para. 38).
Personal autonomy, according to Westin, is “the desire to avoid being manipulated or dominated wholly by others” (33). This is achieved by keeping one’s “core self” private by sheltering the “ultimate secrets” of one’s hopes and fears from the view of even the most intimate companions (Westin 33). This is closely related to the state of reserve, or the psychological barrier in the mind of an individual that protects certain aspects of the self from others (Task Force 17; Westin, Privacy and Freedom 32).
Personal autonomy is also vital to the maintenance and development of one’s personal identity and sense of individuality (Westin 34). In this way, personal autonomy is closely aligned with privacy as anonymity and control. Without the freedom to experiment with thoughts and opinions anonymously, one may be subject to ridicule and shame by others, or worse, be subject to the control of those who know one’s secrets (Westin 33-34).
This argument for the necessity of privacy for the development of the self is not unique to Westin. In the 1800’s, John Stuart Mill argued in On Liberty that even in a perfectly representative democracy, individuals still need a space where they are free from the intrusion and will of the government and society (9). He introduced the idea of the ‘tyranny of the majority’ (Mill 10). The majority, or society itself, mustn’t have the power to impose “its own ideas and practices as rules of conduct on those who dissent from them” (Mill 10). What Mill is saying is that in a society where the majority has the power to elect the government, there also exists the power to influence other domains through custom and tradition. Individuals should be able to participate in society, while also having the right to retreat to a realm free from the influence of others.
Personal autonomy is threatened when others gain access to this core self, either purposefully or by accident. The dangers of accidental breaches of privacy are perhaps most famously articulated by Brandeis, writing that the well-meaning collection of information by the government is the most dangerous when conducted by those with excitement and good intentions, but a lack of understanding (Olmstead v. United States 479).
Emotional release refers to the ability for an individual to have moments “off stage” as a relief from the variety of roles that life demands (Westin 35). This relief can manifest in several different ways: as the freedom to ‘turn off’ after work or social obligations; as the ability to take a break from social or institutional norms of behaviour; as the opportunity to vent anger or frustration at ‘the system; or as the ability to manage bodily and sexual functions (Westin 35-36). If all of a person’s private transgressions were known, whether they are thoughts or behaviours, most people would be constantly facing the threat of punishment or scorn (Westin 35). The anonymity of emotional release allows people to function in society without fear of criticism or interference by others. This can also be viewed as the link between privacy and secrecy, where one may choose not to share personal information with anyone, even intimately.
Self-evaluation, Westin’s third function of privacy, allows individuals to take stock of their feelings, needs, and experiences in order to evaluate and then assert their independence (Westin 36-37). This function is closely related to reserve, in that privacy allows an individual to consider the alternatives and possible consequences of their actions before deciding how much of themselves to share with the world (Westin 36-37). This function of privacy relates to both the concepts of secrecy and control. One may spend time evaluating the self in secret, only to carefully control the aspects they wish to reveal after periods of reflection and deliberation.
And finally, the function of limited and protected communication concerns both anonymity and reserve, in that it provides an individual with the ability to share confidences with intimate companions, or with no one at all (Westin 38). This applies to the concept of privacy as secrecy, control and anonymity, where the disclosure of personal information requires a substantial degree of trust, such as in relationships like those between doctors and patients, or lawyers and clients.
What these functions of privacy add up to is the argument that privacy is essential to the development of a person’s complete and unique sense of self; as an individual, as a participant in intimate relationships; and in relation to society as a whole. Privacy allows individuals to ‘test out’ feelings, thoughts, and points of view without the fear of scorn, shame, or judgment, from the government or from the public.
Personal autonomy, emotional release, self-evaluation and the limiting or protecting of communication no longer occur only behind the physicality of closed doors. Almost every activity in daily life can now be recorded and stored as data in some way. A non-exhaustive list includes public and private surveillance cameras; textual communication like email, chat, or text messaging; web browsing histories and bookmarks; personal devices that track location, speed, sleep, and heart rate; automated payroll and tax filing services; online banking; and numerous other activities essential and unavoidable in daily life. This is all personal information, and taken as a whole, it can lead to a very complete and identifying picture of an individual’s biographical core.
At the individual level, widespread surveillance can result in what the Task Force describes as conformist behaviour, which is “induced by the certainty that one’s file exists and grows, coupled with the uncertainty as to what it contains and the uses to which it will be put” (18). When an person is aware that they are being observed, or even that there is a chance they are being observed, they may decide to change their behaviour or refrain from certain types of activities entirely (Westin 58). This is referred to as the ‘chilling effect of surveillance’, and it is harmful not just to individuals, but to society as a whole (Solove 765). The societal harm is in the narrowing of the expression of a range of viewpoints, thoughts, and opinions, and the decreasing freedom to participate in political activities (Solove 765).
Another potential harm from the collection and processing of large quantities of personal information are the effects of data mining. Data mining, or ‘knowledge discovery in databases’ (KDD), is the “non-trivial extraction of implicit, previously unknown, and potentially useful information of data” (Frawley, Piatetsky-Shapiro, and Matheus 58). Data mining allows for the description and potential prediction of behaviour of individuals and groups through the discovery of understandable information patterns in large databases. This activity may lead to a range of potential consequences for individuals, from the classification of people into larger groups based on an indistinguishable set of characteristics, to the denial of service or penalties for certain types of personal behaviours (Vedder 276). One potential application of data mining concerns the cost of insurance; people who wear a fitness tracking device, or consent to the monitoring of their unique driving habits may qualify for less expensive policies. But the collection of this data may lead to the discovery of other personal information, like an abnormal heart rate in the case of a fitness tracker, or the discovery that a driver may not be where they claim to be, based on the GPS logs from their vehicle. Or, as suggested by the Task Force, Westin, and Solove, the knowledge of the surveillance will simply lead people towards conformity by refraining from certain activities altogether, despite what they may desire or need.
The idea that privacy can promote the development of a person’s unique sense of individuality, which in turn can lead to the flourishing of a diverse and free society, stands in clear opposition to a privacy concept known as the ‘nothing to hide’ argument.
“I’ve Got Nothing to Hide” The ‘nothing to hide’ argument centres precisely on the surveillance and collection of the types of information described above. The argument, as described by Solove, is that there exists no threat to privacy as long as individuals are engaging in lawful activities (746). If surveillance uncovers illegal activity, then a person has no legitimate claim to privacy because what they are doing is wrong (Solove 747). Support for this argument rests on the logic that surveillance or data mining collects only particular types of information that will only be disclosed to a small group of people in business or government, and that the security interest in the collection of this information is higher than the embarrassment that one may feel if their privacy is breached (Solove 753).
The problem with this argument, according to Solove, is that it reduces privacy to the singular purpose of concealment or secrecy (Solove 764). While secrecy is one element of privacy, it is far from its only function. Each of Westin’s four functions of privacy stands in direct opposition to the ‘nothing to hide’ argument. Even the act of keeping secrets does not automatically imply illegal or immoral behaviour.
This sentiment is echoed in R. v. Spencer. Justice Cromwell, writing for the court in a case that involved the privacy interest of a defendant accused of accessing child pornography, an undeniably immoral offence. He states that the “nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought” (R. v. Spencer, para. 36).
So while the ‘nothing to hide’ argument focuses on privacy solely as a form of secrecy, it fails to acknowledge the other types of harm that can result from the erosion or lack of privacy (Solove 767), while disregarding the important and multiple functions privacy serves for the development of individuals, and society.
Edward Snowden summarizes this debate succinctly with the following statement from an Ask Me Anything discussion on Reddit. He says that “(a)rguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.”
Privacy and Power
The Task Force on Privacy and Computers, in their investigation of the“more general and less tangible” aspects of privacy, posed the following questions
What is the relationship between privacy and political power? Will current and projected uses of the computer lead to loss of individuality or to enforced conformity? Is the desire for informational privacy fundamentally social or anti-social? How can a balance be achieved between claims to personal privacy and claims, as legitimate but sometimes conflicting, for unimpeded access to information? (3)
What they saw as the common thread among these questions was the ability of computing to concentrate, disseminate, and redistribute personal information among organizations and government (Task Force 19). The transfer of personal information from one place to another, to them, was a fundamental redistribution of power; a power that could be used for good or for evil (Task Force 19-20). It is incredible that while this report was written in 1972, it describes so clearly the philosophical issues underlying the modern privacy debate.
Privacy ‘rights’ in Canada consist of the quasi-constitutional right to the protection of personal information held for government or commercial purposes, where a reasonable expectation of privacy exists. This does not constitute an explicit right to privacy. While the courts continue to interpret Canada’s existing privacy legislation in an attempt to clarify the meaning of privacy, none of the legislation provides a definition or an explanation of what privacy actually means, though meaning can be determined through the examination of Standing Committee Reports, and Supreme and lower court rulings, as the research in this section shows.
Another type of clarification can come from the description and debate provided by the authors of the legislation, the elected Members of Parliament. Sullivan states that “(w)hen the purpose of a provision is discussed or its meaning explained during the enactment process, and the legislation is then passed on that understanding, the explanation or discussion offers persuasive (if not conclusive) evidence of the legislature’s intent” (659).
The next chapter will conduct a text analysis on the transcripts of Hansard, the parliamentary debates in the House of Commons, in an attempt to uncover the meaning of privacy as it is understood by the those who have the responsibility for the creation and enactment of the legislation itself, Canada’s Members of Parliament.
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