December 2005: The Right to Privacy—A New Oxymoron?

Our privacy shield is getting badly battered on every front
December 1, 2005

Privacy is an extremely complex human value, but it boils down to the need and “right to be let alone”--to be free of unwarranted intrusions into our daily lives, 24/7. Think of privacy as a cultural and legal shield protecting our bodies, minds, homes, and other private spaces, as well as our personal activities, communications, possessions, and information. Especially our personal information when, without our knowledge or consent, it is collected, used, and “shared” by governments, businesses, friends and foes in ways we might find invasive or unfair.

Privacy norms and rights protect all of humanity. It is a universal value because a reasonable degree of privacy is a precondition of individual dignity and autonomy, whomever and wherever we are. It’s about our ability to exclude others and control our reputations: what we choose to reveal about ourselves. How free would we be if our every inner thought, oral or written expression, activity, association and movement were known? If we were being watched, overheard, identified, measured, suspected, searched and reported at every turn?

The answer is: not at all. We’d turn into 1984 drones that would make the political correctness that straightjackets us today look like anarchy.

After basic needs, having a privacy shield is about as important as it gets. But our shield is getting badly battered on almost every front. As a global society, we’re letting down our guard.

Privacy under siege

It is a given that we must forgo some privacy in order to function, whether at work, purchasing or borrowing, claiming benefits, travelling, or joining clubs. We must prove our identities, that we are doing our job, eligible for a benefit, able to pay, and so on. We have obligations not to commit crimes or harm others. But, otherwise, we should be free to go about our daily lives without fear of unwarranted intrusion or surveillance by governments, businesses, employers, or anyone else. We are free, aren’t we?

Many believe that, right now, in 2005, privacy and freedom are under siege all over the world--that, in many respects and despite privacy laws and commissioners to protect us, it’s like the Wild West out there.

Hyperbole? Think about governments and the modern-day equivalents of the Cold War: the wars on drugs, illegal immigration, pornography, money laundering, and now terrorism. Led, and often coerced, by the allegedly freedom-loving U.S. Bush administration, governments are casting very wide nets over their citizens and visitors. These amount to huge, permanent, and dangerous fishing expeditions, plain and simple.

Like most Canadians, I liked knowing our security agencies were keeping tabs on foreign spies and dangerous subversives. But now we’re all suspects in a misguided, wasteful, technology-based witch-hunt--looking for needles in a haystack.

Let’s be clear: 9/11 and the Madrid and London bombings were horrible. But we are being totally snowed by a trumped- up terrorist threat. According to the American State Department’s own figures, an average of 1,500 people a year have been killed by terrorists since 2000 (vs. 100,000+ dead Iraqis and untold destruction). That makes the chance of any one of us being blown up this year about one in four million.

Governments have responded to this exaggerated threat with absurd overkill, but this has escaped the corporate media. Its screaming sensationalism, cheerleading, and borderline racism regarding the war on terror overwhelm the odd peep about the risks to privacy. We have been persuaded to expect and accept continuing rollbacks of our basic rights.

Largely unfettered, governments the world over are chipping away at the need to have reasonable and probable cause--

  • before videotaping, identifying and searching us (at borders, public buildings and events, while commuting);
  • before compiling, matching, using, and sharing our personal information in secret and from new sources (within and among governments, and from banks, airlines, etc.); and
  • before inspecting our e-mails and Web browsing activities (from anywhere).

It appears that suspicion of a crime isn’t needed any more. Is this goodbye to such constitutional niceties as protection against unreasonable search and seizure (of our person, possessions, and information)? To the presumption of innocence until proven guilty?

Imagine if you’re of Arab descent, or simply Muslim. The London police are openly targeting dark-skinned commuters. The United States has five million people in its terror watch list alone, and has imprisoned thousands of “enemy combatants” in a legal black hole without due process, indefinitely. This strikes me as a “modern” variation of Japanese internment camps. But it is far scarier as terrorism and counter-terrorism will never end in our grossly unequal world so dominated by political and religious extremism. Including ours.

How private are our bodies and minds these days? Once more or less the exclusive domain of the medical profession, many of us are forced to hand over our urine, blood, fingerprints, other body images, and even DNA samples and inner thoughts (that’s what lie detectors and psychological tests are for). Many of us are incessantly videotaped, audio-taped, scanned, walked through metal detectors, and subjected to random searches as a matter of routine.

Fearsome enemies, secret files, fingerprinting, random searches, constant surveillance, and demands to show identification used to be the defining characteristics of totalitarian regimes. We might now expect it when we travel, use public facilities, or come from certain countries. And, increasingly, we have to check our privacy at the door when we go to work (or school).

Our personal communications (and homes) aren’t so private any more, either, at least when we’re on the Internet or any kind of phone. The personal information on our home computers is vulnerable to theft from spy-ware, viruses, and hackers. We leave a data trail of our activities whenever we join, borrow, rent, or use cheques or plastic to order or buy something. Anyone can do a Google search on us or intercept our wireless communications. With inexpensive miniature cameras, listening and tracking devices, anyone can be a detective.

Our personal information was pretty well protected when it was entrusted to the Post Office or stored in filing cabinets all over town and country. Advances in computers and communications have enabled far more access to far more of our personal information far faster from far further away than ever before. And political, market, and technological forces are putting relentless pressure on collecting more and more of it.

Say hello to the global surveillance society and its sponsors: big government, big business, and the technology pushers

Look out for governments

Governments can roll back privacy rights due to their inherent ability to make their own rules. They are doing so now, in the name of the wars on crime and terrorism. But perfect security means zero privacy. How ironic that the United States is leading the charge to sacrifice individual rights at the “national security” altar. The USA Patriot Act is 340 pages of classic Orwellian newspeak. The word “homeland” is itself eerie, reminiscent of a rather discredited “fatherland” from long ago.

The USA Patriot Act authorizes the FBI to conduct “roving” (random) wiretaps and “sneak-and-peak” searches of premises on its own accord. A labyrinth of American police and security agencies can obtain access to massive amounts of travel, financial, medical, school, and even video-rental records, and to Web-browsing activities and e-mails. This includes personal information stored in Canada, at least if held by American-owned corporations. Don’t most of our e-mails go through the United States, even when we’re sending them next door? They’re vulnerable, too.

One of Tony Blair’s first public reactions to the London bombings was to muse about additional powers he can give the police and security establishment. The Canadian government is also on the privacy rollback trail:

  • The transport Minister has announced more video surveillance in our mass transit systems and more tracking of citizens, including a guilty-in-advance “no fly” list and the possibility of retina scans to identify both employees and passengers.
  • The customs agency wants to know what we think, by authorizing its border guards to rifle through the e-mails, notes and diaries we store in our computers. Not just for evidence of terrorism, but also of tax evasion, pornography, hate literature, and other possibly criminal activities.
  • Canadian police, CSIS, and other security agencies want access to our e-mails and other Internet activities, as well as our DNA, before we are convicted of anything.
  • Incredibly, our Chief Electoral Officer has openly speculated about making his voters’ lists available, even though it would violate his own Act.

Almost all of these invasive measures are, or would appear to be, without the need to show reasonable cause via a court order or Ministerial approval. Many would authorize increased secrecy, meaning a reduced need to reveal evidence, abuse, and mistakes. The federal Privacy Commissioner is sounding alarm bells and, if the government doesn’t listen, Charter challenges are likely. In the meantime, our liberties and tax dollars are going up in smoke.

. . . and monster corporations

Large corporations also have voracious appetites for personal information, in order to “know their customers” and to obtain the best possible return on their investment in human resources. “You can’t manage what you can’t measure,” so “know your employees” is an equal management imperative. Businesses can’t help themselves in forever compiling information on customers and prospects, monitoring and measuring their workforce, investigating their detractors, and so on. Their privacy report cards aren’t anything to brag about, either.

It is arguable that the greatest “Big Brother” threat comes from huge transnational corporations. Who knows us better than our employers and the financial, insurance, utility, retail, and other businesses with which we deal? Compare the centuries-old security of letter mail with that of newer, privately-owned communications alternatives. Post Offices neither record the covers of letters nor read their contents. In contrast, Internet-based, telephone and cable companies know about us in alarming detail: with whom we talk or correspond, what we write, the messages we leave, our Web- browsing activities, and downloads. Google is believed to have a huge global surveillance system in place right now.

Who invades privacy like the reputations-be-damned (and privately-owned) mass media? They and many other industries don’t just want to secrete or share our personal information; they want to publish and otherwise sell it. North American corporations, in particular, engage in “data mining,” “data matching,” “data profiling,” and “data warehousing” to exploit our personal information, like any other “resource.” They’re keeping increasing book on all of us, often beyond what they need to sell and service their products (unless it’s us they’re selling). So we suffer invasive requirements and questions, telemarketing, junk mail, spam, massive compromises of our personal data, and other spectacular breaches of privacy.

Personal information on more than 50 million American consumers was lost, stolen, and sometimes sold to thieves during the first half of 2005, and that’s only what has been reported. The consequences of identity theft are often never fully known, but they can be brutal: 1) the general unease about what might happen; 2) the burden of notifying government departments and credit bureaus; 3) of cancelling and applying for more plastic; 4) the horror of actual identity theft; 5) financial loss; 6) ruined reputations; and 7) stalking and assault. It can take years to recover.

A word or two on organizational theory, because businesses (and governments) don’t just invade privacy by mistake. “You can’t fight City Hall” speaks to an age-old power imbalance between a large, faceless bureaucracy and an individual citizen. We are still just individual citizens, but “City Hall” has been supplanted by much more powerful government agencies and corporations. These organizations covet their survival above all else, which means their interests trump ours and turn them into control freaks. It’s us they want to control, and our personal information in their hands gives them still more power.

They already have the financial and legal resources to investigate, discredit, outspend, and outwait just about any detractor, whether an individual customer, whistleblower, or litigant. During my 28 years in the privacy business, I have seen some of the most vicious smear campaigns and egregious abuses of institutional power imaginable. One mistake begets another. Groupthink sets in and ethics get lost, resulting in ruined careers, shattered lives, and even suicides. Often as not, the conspirators get off scot-free. At worst, victims who squawk are bribed to stay quiet.

Employees are particularly vulnerable because they’re beholden to their employers. I’ve always believed that CEOs should be subjected to the same ongoing nuisance and indignities they foist on their employees. If they were, there would be a lot less computer monitoring and video surveillance, fewer demands for ID and drug tests, less extreme performance measurement systems, and so on.

When we are forced to give up our body fluids, images, and personal information against our will or without reasonable cause, we’ve been violated. Once again, some of the most invasive practices are most prevalent in the “land of the free.” It’s not coincidental that the United States is the only major nation in the Western world without comprehensive privacy legislation covering the private sector. That would be anti-business, I guess.

. . . and the technology pushers

Knowing an easy mark when they see one, businesses and their “research institutes” and consultants are falling all over themselves devising and flogging a never-ending barrage of “new, improved” computer, communications, identification, testing, surveillance, and other privacy-invasive technologies. There appears to be little compunction to introduce them, despite the old truism that technology is often like a hammer in search of a nail to bang on. We would be the nails.

Technology is the great enabler--the means by which governments and business watch and search us, intercept our communications, compile and exchange our personal information, etc. New surveillance and identification technologies such as biometrics provide almost countless new methods for collecting more of our personal information, and matching and correlating it. Biometrics promises the means to use our fingerprints, faces, retinas, voices, and signatures as “safe and secure” means to authenticate and “survey” us. This could include the ultimate surveillance tool, the automated merger of computer databases (our digital beings) with our video images and voice communications.

Huge corporate databases of our private finances, communications, purchases, travel, and other activities used to be independent silos. The various computer systems were incompatible or they relied on unique alpha-numeric identifiers, so they couldn’t “talk” to each other. But the sophisticated data-matching programs that exist today are eliminating that protection and so almost limitless “warehousing” of our personal information is now in fashion.

These private sector databases are sitting ducks for our inquisitors, and governments are even compelling businesses to retain them longer, just in case. The Canadian government apparently plans to compel the telecommunications industry to actually build wiretapping capabilities into its networks, so that it can conduct 24/7 surveillance of the e-mail, Internet, or phone use of up to 8,000 people, all at once.

Personal information in a file or database represents us in our absence. It is used to make decisions about us, yet we rarely see the complete file. It’s often inaccurate, incomplete, or out-of-date, and that it is increasingly available to others is cause for concern. When we are mistaken, suspected, rejected, or convicted based on inaccurate or incomplete information we don’t even know about or can’t contest, we’ve been violated. When personal information collected for one purpose is subsequently used or “shared” for another purpose without our consent, we’ve been violated.

It is also entirely predictable that a very large proportion of the money being thrown at homeland security will be totally wasted on unnecessary and unfeasible projects and technologies that will either crash before take-off or sink under their own weight. There are considerably more spectacular system failures year after year than reported in the press. Take your pick: the scope was too ambitious (or kept changing), the technology untried, the cost too great, or the benefits unproven. There are almost always less invasive ways of achieving the same purpose.

Governments have a particular talent for huge cost overruns on systems projects--and the seeming inability to pull the plug once a befuddled project gets entrenched. The vendors and consultants get the profits, and we get the tab.

The cost of equipping and maintaining global surveillance systems is already hugely expensive, even at minimum wage. But the 4.2 million surveillance cameras in Britain didn’t prevent the London subway bombings. That they helped identify the odd (quite dead) terrorist doesn’t come close to justifying their multi-billion dollar cost.

Targeting the innocent to capture the few is an extremely shaky premise. Do we have to accept the inconvenience, embarrassment, and absurdity of ID cards, scans, searches, and security guards at unthreatened places and events? These measures won’t stop a determined terrorist who, in any case, can simply change targets. Can we really protect every person and every place? Aren’t nuclear reactors more important? Is this permanent?

For technologies that actually work at monitoring, measuring, and matching us, the search for nails to bang on is never-ending. Too often, we fall victim to “enemy creep,” “function creep” and “technology creep,” known collectively as a slippery slope where, bit by bit, our privacy is further eroded. The once single-purpose SIN becoming almost a “universal” identifier is a good example, as is the growing use of surveillance cameras to monitor peaceful protests. Satellite imaging and tracking devices used to be restricted to military applications.

Being first on the block to introduce a new and untried technology is no virtue when individual privacy is at stake. That a technology might be capable of capturing and distributing our personal information doesn’t make it right. Microsoft is apparently willing to design e-mail censorship programs to make a sale to China. What is it (and other corporations) doing for governments in the name of national security? Are we already buying computers and Internet services with secret back doors?

The military-industrial complex revisited

Our fear of crime and terrorism is a major force supporting this onslaught on our privacy and freedom, and it is a false fear. I can’t say “boo” when I fly without getting arrested. But I can write it now. The security procedures at airports (and our borders, buildings, events, and subways) are a most colossal waste of our time and tax dollars. They make the gun registry program look like a piker!

Has anyone done a cost-benefit analysis? There have been hundreds of billions of airline flights since the 1930s, and under a thousand skyjackings, fewer than 10 a year since 1990. Most of these were by asylum-seekers and extortionists. Islamic terrorists barely make the charts! The risk of flying is practically nonexistent, especially on domestic flights.

It is true that “America-haters” are everywhere, and even the mightiest military power the world has ever known can’t guard itself against possibly hundreds of thousands of religious and/or patriotic fanatics willing to give up their lives to attack their occupiers, anywhere. But who hates Canada, exactly? Wasn’t the 1985 Air India disaster the last real terrorist act “chez nous?” Wasn’t that about Punjab?

Again, it’s horrible that 1,500 people are being killed each year by terrorists. But this compares to 25,000 people dying from hunger and poverty every single day. Ten million children who die each year of malnutrition and preventable disease. Two million from industrial illnesses and accidents. Six hundred thousand from air pollution.

America’s war on terror began in earnest against possibly a few thousand rag-tag Islamic fanatics living in caves. The United States is currently spending almost $100 billion a year in Afghanistan and Iraq alone, and the bill could reach $1.3 trillion by 2010. Worldwide, hundreds of billions of dollars a year are being spent on militarism and “security,” causing incalculable death, destruction, and intrusion on innocent people.

This is surely madness. Neither the war on Iraq nor terrorism constitutes a “just war,” as both are premised on lies and deception. Saddam Hussein didn’t have any WMDs or pose a legitimate threat, and neither do we. We are already talking about enormous nuisance and cost to travellers, commuters, employees, and billions of others in endless line-ups, the indignity of being fingerprinted and searched, the feeling of being watched all the time, racial profiling, and on and on and on. Enough of these misplaced priorities. Attack human suffering, not us! That’s the most effective way to reduce terrorism.

Dwight Eisenhower warned of the “military-industrial complex” some 50 years ago. It’s much bigger and more powerful now, but it’s had to make more room for security organizations. Add the police, prison, and private security guards, their suppliers and families, and one comes to appreciate that some very high-powered agencies and corporations and many hundreds of millions of people (aka voters) around the world have a vested interest in exaggerating the danger. The CIA over-estimated the Soviet threat for decades. Nothing has changed.

The complicit mainstream media almost does the job on its own, continuing to scare the hell out of us daily with its non-stop coverage of terrorist acts (anywhere in the world will do). In fact, 9/11 and every sensationalized terrorist attack since then serves Bush’s foreign “policy” perfectly--going to war, if necessary, to protect its business interests and wealth, such as continuing American access to resources, markets, and personal information on anyone that moves.

The Bush administration has an unending capacity to violate international law (not to mention a few Commandments): to invade other countries and rain death and destruction upon helpless people, to renege or drag its heels on arms control and environmental agreements, and to refuse to abide by international court and trade tribunal rulings. It won’t change, so our privacy is in big trouble, too.

In fact, the United States is leading the invasion of our privacy (and many other individual rights and freedoms), and Canada and most other nations are essentially toeing the American line. Yet the Bush administration can’t be trusted to protect our security, let alone our privacy. The Americans created this mess--and we’re letting them lead us out of it? George Bush as our global chief of police, chief magistrate, prison warden, and executioner? No, thanks.

The limits to privacy

Reasonable people agree that it’s worth giving up some of our privacy to counter a terrorist or any other legitimate threat. Safety trumps privacy, no question. What we need is a proper balance between privacy and security, but right now we are getting hammered by governments and businesses, and their technologies.

The privacy shield surrounding our minds, bodies, homes and possessions is not holding up. Our work and personal activities and communications are much more susceptible to surveillance and interception than ever before. Our personal information is increasingly being hoarded and “shared” by big government and big business. They don’t need as much as they say, and they won’t necessarily take very good care of it. They are prone to mistakes and abuse that can cost us dearly.

Too many of us seem complacent--too willing to accept and even expect inconveniences and indignities of all sorts, even though they serve no useful purpose. The “I’ve-got-nothing-to-hide” crowd are the most naïve, first because they are usually unaware of how much of themselves is exposed, and, secondly, for trusting huge government agencies and corporations to operate in their best interests. Others have simply tuned out, having lost faith that anything can be done about it, anyway.

We have to get more alarmed that technology is being used to monitor and control us, by recording and tracking us, telephoning and spamming us, counting our rivets, keystrokes and calls, and even telling us what to do. Who among us wants to be constantly tracked, matched, measured, profiled, sold, suspected, and mistaken--by a machine?

We have to recognize that, while the police and security agencies are doing some excellent work, they are exploiting our false fear of crime and terrorism far beyond logical and ethical limits. They have concocted a convenient partnership with security and technology firms which grows their power and profits at our expense. They want more resources, authority and secrecy, and less accountability. They want to know more about everyday citizens and consumers, and their appetite is growing. Our political “masters” aren’t doing enough to rein them in.

If we don’t rein them in, we will continue to lose our right to be left alone. We’ll be less free to be ourselves; to enjoy our solitude or anonymity as we move about; to the privacy of our bodies and minds; to express ourselves without fear; and to protect our reputations and families. Meaning we’ll continue to lose our autonomy and dignity as human beings, all over the world. And, like our deteriorating environment, it will be even worse for our children and theirs.

When we lose our privacy, there is often no recovery. For all of our technological advances, we haven’t learned how to erase memories, prejudices, and the collective trauma that the loss of dignity causes.

Not yet, anyway.

(Richard Sharp is an MBA grad who has been a privacy advocate, coordinator, and consultant since 1977, perhaps longer than anyone else in Canada. In subsequent articles for The Monitor, he will examine workplace privacy and suggest 10 things our privacy commissioners could do to make themselves heroes. He welcomes your comments or queries at [email protected])



“Think of privacy as a societal and legal shield protecting our bodies, minds, homes, possessions, activities, and—especially—our personal information. But advances in computers and communications technologies now enable far more access to far more of our personal information, far faster, and from far further away.”

“Arguably, the greatest ‘Big Brother’ threat today comes from huge transnational corporations. Who knows us better than our employers and the financial, insurance, utility, retail, and other businesses with which we deal?”

“Secret files, fingerprinting, random searches, constant surveillance, and demands to show identification used to be the defining characteristics of totalitarian regimes. Today the United States—the ‘land of the free’—is leading the invasion of our privacy, rights and freedoms, with other nations, including Canada, toeing the American line.”

“It’s not a coincidence that the United States is the only major Western nation without comprehensive privacy legislation. The Bush administration can’t be trusted to protect our security, let alone privacy. George Bush as our global chief of police, chief magistrate, prison warden and executioner? No, thanks.”

“The corporate media’s screaming sensationalism, cheerleading, and borderline racism in covering the U.S. ‘war on terror’ overwhelms the occasional peep of concern about the risks to people’s privacy.”