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Why Canadian law needs to protect ambient privacy

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Image: Petter Lagson/Unsplash

Privacy was something that used to be taken for granted.

Ordinarily, the private life of an individual was not open to scrutiny, while public life was the concern of law and order and decency. In communication terms, privacy meant that only the addressee could open letters or telegrams and telephone operators would not listen in to conversations. Unauthorised disclosure could be sanctioned.

In Canada, the vast majority (92 per cent) of Canadians have expressed "some level of concern about the protection of privacy," according to a 2018-2019 survey conducted by the Office of the Privacy Commissioner of Canada. The biggest concern was around how their online personal information could be used, with most saying they feel little to no control over how their personal information is being used by companies or by government. About two-thirds said government should be responsible for keeping their personal information secure.

In "Privacy Is the New Wilderness We Must Protect" Maciej Ceglowski calls for an updated concept of privacy as a public good if we are to save our rights as individuals in today's digital world.

Ceglowski calls this ambient privacy -- "the understanding that there is value in having our everyday interactions with one another remain outside the reach of monitoring, and that the small details of our daily lives should pass by unremembered. What we do at home, work, church, school, or in our leisure time does not belong in a permanent record. Not every conversation needs to be a deposition."

Canadian federal privacy commissioner Daniel Therrien has argued  for a law with a "rights-based foundation." Privacy should be "more than a set of technical or procedural rules, settings, controls and safeguards, but a fundamental right and precondition for the exercise of other fundamental rights, including freedom, equality…and democracy," Therrien told the annual International Association of Privacy Professionals' symposium held last May in Toronto.

"Events of the past year have highlighted like never before the urgent need to modernize the way privacy rights are protected in this country," said Therrien, referring to the scandal in which Cambridge Analytica siphoned off personal data from millions of Facebook users without their consent and used them for political purposes. An investigation conducted by Therrien's office has determined that Facebook has committed serious violations of Canadian privacy laws.

The digital surveillance system functions effectively and efficiently because it is automated. Computers monitor and sift, identifying key attributes, making connections and assessing probabilities. Commercial entities and security services use that data: the former to compile marketing trends and the latter to assess imminent culpability. China is using deep-learning systems to search in real time through video feeds capable of capturing millions of faces. State security is building an archive that will be used to identify suspicious behaviour in order to predict who will become an "unsafe" social actor.

In this context, Ceglowski argues:

"Our discourse around privacy needs to expand to address foundational questions about the role of automation: To what extent is living in a surveillance-saturated world compatible with pluralism and democracy? What are the consequences of raising a generation of children whose every action feeds into a corporate database? What does it mean to be manipulated from an early age by machine learning algorithms that adaptively learn to shape our behavior?"

The alternative is a world with no ambient privacy and little data protection, dominated by hostile governments and big corporations. It is the kind of dystopia that George Orwell identified in his novel Nineteen Eighty-Four in which "Power is in tearing human minds to pieces and putting them together again in new shapes of your own choosing."

What shall we do to prevent it?

Philip Lee is WACC general secretary and editor of its international journal Media Development. His edited publications include The Democratization of Communication (1995), Many Voices, One Vision: The Right to Communicate in Practice (2004); Communicating Peace: Entertaining Angels Unawares (2008); and Public Memory, Public Media, and the Politics of Justice (ed. with Pradip N. Thomas) (2012).

WACC Global is an international NGO that promotes communication as a basic human right, essential to people's dignity and community.

Image: Petter Lagson/Unsplash

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