TECHNO-TONOMYPrivacy & Autonomy in a

Networked WorldLearning Module 2:

Legislating Privacy: Your Rights

Learning Module 2: Legislating Privacy

Privacy & Law

• International law

• Charter of Rights and Freedoms

• Federal and provincial laws

• Common law/case law

International Law

• Universal Declaration of Human Rights:Article 12

No one shall be subjected to arbitrary interference with his/her privacy, family, home, or correspondence, nor to attacks upon his/her honour and reputation. Everyone has the right to protection of the law against such interferences or attacks.

• International Covenant on Civil and Political Rights

The Charter

The Supreme Court of Canada has recognized a Constitutional right to privacy in several sections of the Charter which are at the very core of liberty in Canadian Society and are rooted in individual autonomy and dignity.

The Charter

• The right to life, liberty and security of person (section 7);

• The right to be free from unreasonable search and seizure (section 8);

• Freedom of thought opinion and belief (section 2);

The Charter

• The right to consult legal counsel in private (section 10);

• The right not to incriminate oneself (section 11 and 13); and

• The right to equality (section 15(1)).

Section 7

Life, Liberty & Security of the Person

R. v. Buzzelli

Mr. Buzzelli was arrested for a crime. • While he was in the back of the police car, the police officer took a

picture of him without his permission. • The prosecution tried to introduce the picture as evidence at trial

for identification purposes, however the Court said that the police (acting as agents of the government) had no right to photograph Mr. Buzzeli without his permission.

• This was a violation of his “right to life, liberty, and security of person.”

Section 8

Freedom from unreasonable search and seizure

R. v. Dyment

Police cannot take bodily samples from you without your permission or a warrant from a judge. You have a privacy interest in your bodily tissue.

Section 8

Freedom from unreasonable search and seizure

R. v. Tessling

RCMP use a FLIR “Forward looking infra-red” camera to detect heat escaping into the air from a house, as a method for locating marijuana grow operations. Once the heat left the house and entered the air, it was no longer in a protected, private area. The police were free to use their technology to collect this information.

Privacy &The Internet

• Consider these cases in the context of the Internet. – What implications might they have in an

online environment? – When you are using the Internet, are you in

a public or a private place? – Do you have a privacy interest in activities

you perform in an online environment?

Discussion

What if your city decided to install video surveillance cameras in high traffic areas to control crime? The video would be monitored by trained camera operators and the tapes can be viewed by police at any time.

• How do you feel about this idea? • How would this proposal affect your privacy interests? • Is the prevention of crime a good justification for the

resulting loss of privacy? • Can you expect a right of privacy in public places?

Should there be any limits on this right?

Federal Legislation

• Privacy Act

• Personal Information Protection and Electronic Documents Act (PIPEDA)

• Canada Criminal Code

Privacy Act

• Protects the privacy of individuals regarding their personal information held by government institutions

• Provides these individuals with a right to access that information

• Government cannot collect personal information about you unless the information relates directly to an operating program or activity of a government institution

Privacy Act

• Government must usually tell people the purpose for which the information is being collected. The personal information collected is to be used only for the purposes for which it was collected.

• Government institution must make efforts to ensure the personal information is complete and correct.

• If you discover that an error has been made in the information that the government institution has about you, you should notify the institution in writing.

PIPEDA

• Outlines the rights of individuals to control the collection, use, and disclosure of their personal information by commercial organizations

• Specifies what personal information can be collected from you and how the information can be used.

• Gives individuals the right to correct false information on a website.

Criminal Code of Canada

• Provisions directed to the protection of private property

• Right of the individual to be free from bodily injury.

• Other sections of the Code make it a crime to intercept private communications without permission.

Provincial Privacy Legislation

• Varies from province to province

• Some have legislation which regulates privacy with respect to:– Activities of the provincial government– Activities of businesses and individuals

operating in the province– Health information

The Common Law

When looking at cases which are not covered by legislation, courts will look to see whether there is a “reasonable expectation of privacy”

Consider the case of R. v. Weir:

• Do emails carry a reasonable expectation of privacy?

Legislating Privacy

• Laws are limited with respect to governing privacy on the Internet

• Difficult to control the Internet because it creates a global community and Canadian laws only apply within Canada

Ethical Issues

Even though laws may be limited, users can play a role in shaping the “unwritten rules” and etiquette that govern the internet, and the use of other new technologies.

Legislating Privacy: Summary

• In Canada, international laws, the Charter, federal and provincial legislation, and common law all govern the protection of privacy.

• The Privacy Act and the Protection of Informational Privacy and Electronic Documents Act are the primary pieces of federal legislation regulating the use of personal information by public and private bodies.

Legislating Privacy: Summary

• It is difficult for nations to regulate individuals’ behavior on the internet, due to the fast pace of technological advancement and the existence of a global network. Courts will determine if there is a “reasonable expectation of privacy” in activities conducted on the internet and in use of other new technologies.

• Internet users have the power to shape and regulate the Internet themselves. As Internet users, we have a responsibility to advocate for responsible and ethical use of new technologies.

Legislating Privacy: Questions

• Summarize the protections of privacy that we have in Canada.

• Why is it difficult for governments to make laws regulating the internet and other new technologies?

• Do you agree that we have a responsibility to advocate for responsible and ethical use of technologies? If so, what are some ways that we can do this?

Legislating Privacy: Questions

• Locate your provincial privacy legislation. Summarize the key points:

– What is the purpose of this Act?– What type of information is being regulated?– What can the government do with this legislation?– What are your rights?