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Privacy and State Investigations Using New Technologies

By Jim Chen et al.

Part of my research focuses on trying to understand how privacy laws and interests are challenged by technological change in the context of post-9/11 government surveillance.

Countries such as Canada have constitutional protections against unreasonable state searches. In Canada and elsewhere, legal analysis has traditionally emphasized the individual rights aspects of privacy in the context of police investigations. This view has sometimes led to the notion that privacy is a competing interest with security hence privacy must be diluted to protect the public against criminals and terrorists.

In an era where governments are deploying powerful information, communication, and genetic technologies that greatly enhance their ability to collect, use and share personal information as part of their investigations, a broader consideration of the privacy interests at stake is required.

The problem is that within a 'surveillance society' where we are increasingly watched by the state through close-circuit television (or digital) cameras or cameras that can peer through our walls to take heat pictures (i.e., Forward Looking Infra-Red technology), software programs that log every keystroke we make, etc. there is a danger of unduly encroaching on values that keep our democracies vibrant and secure. Privacy is an enabler, for instance, of freedom of expression and the right to engage in political dissent.

From a substantive theoretical perspectives, we are heading down the road where our governments are deploying powerful new technologies to keep us safe ... but with the unintended effect of undermining our safety, at least in the long run. It's not so much that the machines are controlling us, but more that we are adopting technologies (ostensibly for sound policy reasons) that may end up backfiring. It's getting so bad I recently worried that even Santa might be tracking us.

One example: if an identifiable group believes it is being unfairly targeted by ongoing (and surreptitious) surveillance then members of this group may be less willing to help authorities with investigations, making us all less secure.

Our research team's comparative survey of nine countries (Canada, the United States, France, Hungary, Spain, Mexico, Japan, China and Brazil) suggests that individuals in these countries believe their governments have not struck the right balance in protecting their privacy, leading to views that their privacy interests are being undermined by a combination of legal reforms and the usage of powerful new surveillance technologies.

Some privacy researchers are relying on earlier concepts of the 'social' value of privacy (an idea developed by Priscilla Regan in her book Legislating Privacy). The social value of privacy can be understood a broader societal interest in privacy beyond the interests of particular individuals.

As such, the preservation of the social value of privacy can be portrayed as consistent--and not competing--with security interests. In an article, I've argued the Canadian Supreme Court implicitly recognized the social value of privacy so that, for state searches to be constitutionally permissible, the government must establish that it has reasonable policies and practices in place to govern its personal information collection practices.

(On the other hand, 'privacy panic' can also lead to legislative over-reach such as the zany law introduced last week by the U.S. Congress to force all cell phones manufacturers to install 'beeps' when a picture is taken! As always, it's all about striking the right balance ... )

Full post as published by Law and Technology Theory on February 03, 2009 (boomark / email).