Legal Commentary

Federal Privacy Commissioner Jennifer Stoddart recently published her 2007-08 annual report to Parliament on the Privacy Act.

The report highlights concerns over the general increase in surveillance and the government’s lack of recognition that collecting and analysing a plethora of personal information from ordinary people may not be the best way to protect us.

The Privacy Act deals with Ottawa’s privacy obligations.

The commissioner is concerned that our privacy rights are eroded every time the government offsets pledges for greater efficiency, service and safety with our personal and private information.

“There must be wider recognition of the reality that with each well-intentioned promise comes an increased erosion of privacy, risk of data security, diminished intellectual freedom and less personal autonomy,” she writes.

“The Orwellian dystopia was predicated on a totalitarian society. In our democracy, benevolent intentions appear to be pushing us toward a surveillance society.”

The report addresses this tension by suggesting a privacy test that would require the state to consider whether:

- There is a need that clearly outweighs the privacy loss.

- The privacy intrusion is proportionate to the benefit to be gained.

- There are other, less-intrusive mechanisms to achieve the same goal.

The report also comments on two well-intentioned government initiatives: Canada’s Passenger Protect Program, or no-fly list, to prevent terrorist incidents on commercial aircraft; and enhanced driver’s licences, meant to provide Canadians with an alternative form of identification for crossing the U.S. border.

The report does not take issue with the government’s intentions, but rather the inevitable increased surveillance of Canadians and concerns such federal initiatives may not always clear privacy test thresholds.

The Passenger Protect Program lets Ottawa secretly use personal information to determine who may or may not board aircraft. The report says there’s a lack of positive evidence of the effectiveness of no-fly lists, and the program raises profound concerns about privacy and fundamental rights protected by the Canadian Charter of Rights and Freedoms.

The driver’s licences are enhanced with RFID chips carrying information similar to that found on passports. Concerns have been raised about the personal information this will divulge, the potential for covert location tracking, and Ottawa’s inability to supervise receipt and use of this information by U.S. officials.

The report concludes by noting the commission’s efforts to protect privacy in the public sector are hindered by a badly outdated privacy law.

The commissioner calls for a commitment from the government to reform the law by bringing it into the 21st century, and to protect and respect individual privacy.