Defining Privacy
A critical investigation of Canadian political discourse

Privacy

2 Introduction

Privacy is a uniquely personal, social, technological, and legal issue. The personal aspect of privacy concerns what some consider to be a “right to be left alone”, whether that means solitude behind the walls of one’s own home, or the ability to be anonymous in public spaces. Socially, privacy is the ability for an individual to maintain control over their personal information while simultaneously contributing to the increasing information needs of society. This issue has been characterized as a balance between the competing needs of confidentiality and access to information. Technologically, the idea of privacy continues to evolve, as individuals become more willing to trade a greater amount of personal information for access to goods, services, and social networks. Yet the use, disclosure, and ownership of that information by government and business is increasingly unclear, especially when seemingly disparate pieces of information can be linked in such a way that individuals can become identifiable. Privacy law is important when harms occur from privacy violations, yet none of the Canadian legislation responsible for the protection of privacy provide a definition or explanation of what privacy actually means.

Shelia Finestone, a former Member of Parliament and Senator, wrote the following description of privacy in a report to the Standing Committee on Human Rights and the Status of Persons with Disabilities. Her characterization of the complexity of the issue perfectly covers the topics that will be investigated in this chapter.

To experts, privacy is the right to enjoy private space, to conduct private communications, to be free from surveillance and to respect the sanctity of one’s body. To the average Canadian, privacy is a question of power – the ability to control one’s personal information and to remain anonymous by choice (Finestone v).

Purpose of this Chapter

The purpose of this chapter is to uncover what privacy has historically meant in Canada, and more specifically, within the domain of Canadian federal politics. The boundaries of this investigation will primarily include references to Canadian legislation and scholarship, though concepts from seminal literature in the philosophy of privacy will be included as a means of guiding and framing the review.

Reports to Standing Committees, such as the source from the quote above, can provide valuable insight into the spirit and meaning of legislation, helping to clarify core concepts and guiding principles in ways the wording of the legislation cannot. These reports are included in Sullivan’s concept of “extrinsic materials” (659), and they consist of non-partisan and carefully reasoned conclusions regarding issues under legislative review (684). In some cases, these reports play a major role in the crafting of legislation before it is passed (Sullivan 684), while in others, they constitute the legislated mandatory review of a law after a specific time has passed.

On the other hand, jurisprudence and judgments from court cases involve the legal interpretation of legislation, which helps to clarify the real-world context of the law and its effect on Canadians. This chapter will examine key court cases involving federal privacy legislation in an attempt to understand the meaning of privacy, both in support of and as a result of the Canadian privacy legislation that has been created with the intention of privacy protection.

Overview of this Chapter

This chapter will begin with Section 2.1, which includes a description of the federal legislation in Canada that regulates the issue of privacy, as well as international agreements to which Canada is a member. This includes the Canadian Charter of Rights and Freedoms, the Privacy Act, the Personal Information and Protection of Electronic Documents Act (PIPEDA), as well as brief descriptions of the Criminal Code and the Telecommunications Act. International agreements including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Organisation for Economic Co-operation and Development guidelines concerning privacy and transborder data flows will also be discussed, as they have all influenced Canadian privacy legislation in some way.

Section 2.2 will uncover the definitions and taxonomies of privacy that have informed and influenced Canadian jurisprudence. The courts are responsible for interpreting Canadian legislation, and their subsequent rulings often bring more meaning to the laws than the wording of the laws themselves. Especially important in this section is a discussion of what it means to have a ‘reasonable expectation of privacy’. This phrase appears over and over in both the legislation and the courts, yet without an understanding of the meaning of privacy, it is hard to know how and when to reasonably expect it.

Section 2.3 will discuss the function of privacy for individuals and for society as a whole. A common argument in defence of less privacy, the ‘nothing to hide’ argument, will be discussed and contrasted with the understanding of privacy developed in the chapter. Finally, the section and chapter will conclude with a review of the concept of privacy as power.

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