Do we have a right to privacy? Always?

                    by Kenneth Bagnell

     It’s now many centuries since theologian Augustine spoke this historic view before his long ago death in 430 A.D.  “Since God is the highest good, he would not allow evil to exist unless, in his omnipotence, God saw that goodness would come out of evil.”   That’s probably the single hopeful aspect of the world’s current and most ugly scandal: the hacking of private nude photos of numerous American actresses who thought their online images were securely stored, thereby protected from the wide public.

       But they were stolen from the so-called security file, The Cloud, by hackers who then posted them on the internet. The most appropriate response to this hateful act comes from the much respected Jules Polonetsky, a  former New York lawyer and Congressman now head of the Future of Privacy Forum in Washington: “It should be treated like a sex crime,” he told The New York Times, “a privacy invasion taken to the extreme…  The bystanders who figure it’s okay should understand that they are harming other human beings by doing so.”

       The right to personal privacy is not a lot to ask, but the internet is virtually an invitation to abandon. In Canada, we’ve seen young girls in their idealistic naivety exploited this way, and when their images showed up on the web, taking their lives.  “Humans are risk-taking,” says psychologist and author Philip Carr -Gomm as he spoke last Saturday to a CBC radio interviewer on the issue: “The issue is not nakedness, it’s the violation of their privacy and that should be pursued to the full extent of the law.” His view has become public opinion, broad and strong in distain and disgust at what hackers have done. It’s reflected in an essay last Friday in The Globe & Mail in which columnist Leah McLaren writes: “These photos aren’t sex scandals: they’re sex crimes.”

    Given the broadly based and growing support for the right to privacy in our private lives, it’s worth examining how secure Canadians are in regard to the fact that we have, for over a quarter century, taken steps to guarantee personal privacy. Back in 1992, the eminent Supreme Court Justice, Gerard La Forest warned us that the emerging technology made it imperative that as citizens (and of course government) Canada’s law makers should take note and assure protection from the kind of invasion upon personal privacy made intrusive by the world wide web. “This,” he said, “is the time to begin.” A government paper of the day was just as candid: “The protection of privacy is essential to safeguard the type of society which Canadians, by the adoption of the Charter have elected to live in.” All this is laudable. 

      But what about the surveillance cameras which, as some tell me, are in every corner of the stores where we shop, all the doors to apartment lobbies and office buildings we enter. And so on and on. They provide us, indeed, with a sense of security. But as for the descriptive given them, “surveillance,” it does bring a certain wariness to the mind, a slight sense that what Huxley’s Brave New World of 1932 envisioned, a society in which protecting and serving “the system” matters most. There was, in his story, a “World Controller,” so that we the people would be kept in our places. So cameras are there to “help” us do just exactly that.  Every time I pass a certain store on Yonge Street in my neighborhood, a dark quiet place that sells security cameras that strike me as sinister, I wonder if I was recorded on tape when last week I made my visits for our congregation to a seniors’ residence, or a friend’s dwelling, or just in the elevator of that huge office tower. I wonder if there was a camera, and where it was.  It almost haunts me.        

    It’s no surprise to us that in matters of criminality, the US does act promptly. In November 2010, a report on the internet records, a man named Christopher Cheney, from Jacksonville, Florida, began to “hack” the private computer content of female movie stars. It’s said he was able — even though not greatly skilled — in breaking into about 100. One of the women, once she realized what happened, notified no less an organization than the FBI. Immediately, the FBI was on the case. Cheney was found and arrested in October, 2011. He confessed and, in early 2012, was given ten years.

     As an observer later noted on line: “Development of new technology does not stand still.” So investigators are better armed month by month to meet the hackers and beat them. Which is good news for all of us.  It seems logical to deduce that if the FBI did it then, the FBI will do it in this current US case. Moreover, if the FBI can do it, so should the RCMP. We know they are competent given their wide sweeps in which they’ve made almost coast to coast arrests over online child pornography. I know it’s unpleasant to mention, but I do so because the Mounties are reputed to be technologically competent: working out of a “high tech” base in Ottawa with a team of over 20 “high tech” investigators. Given that, they’re likely to be in the game with any hackers at work in Canada, thereby being a deterrent.  There’s at least a hope that if mischievous hackers ever get really effective in Canada, they’ll be met by Canadian investigators who will see that they have their day in court.

      For all this, there’s another side to this complex issue. As a lawyer-friend reminded me, we have always been obliged in law to make “full disclosure” of our finances when we file income tax returns, a legitimate and reasonable practice if we believe as a democracy that our taxes, well and fairly spread, serve the best interests of the citizenry. As for surveillance, cameras in the entries and lobbies of condominiums we live in can be legitimately defended. How? In part they are there for the safety of the residents, nannies coming and going, young children leaving alone for school, persons working until midnight returning home. And so on.

    The surveillance issue has inherent complexity but always comes down to this: competing interests which are often a stark reality. For an example, take the media and its treatment of Toronto’s highly controversial Mayor, Rob Ford. He and his family have had to put up with prying journalists. He doesn’t like it and neither does his family. But journalists will argue the other case: the public has the democratic “right to know,” especially when it’s about their Mayor. Correct. So the rights and wrongs of “intrusion” or “surveillance” are often made clear by the interplay of “competing interests.” As we ponder our own right to privacy we have to recognize the almost inevitable competing interests. They come, to be realistic, with the privilege we have of living in a democratic society. I guess we just have to understand the world as it now is.    

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All my past blogs are archived on my website: your comments are welcome there: www.kennethbagnell.com.