Making a Case for Privacy as a Human Right

Maia Stevenson

Being a law student interested in privacy rights, I frequently hear the following two comments, respectively:

Only people who have something to hide are worried about privacy”,

 and

Privacy is a concern for the privileged”.

I disagree with both comments.

Before I interned with the Privacy, Technology, and Surveillance Project at the Canadian Civil Liberties Association this summer, and before I began law school, I had a fairly robust sense of why I disagreed with the comment that privacy is only a concern for those who are breaking the law.

I disagree because of an appreciation for the value of political dissent and because of an unwillingness to fully welcome any government, including a modern, liberal, democratic one, into one’s home, personal relationships, and inner intellectual life. While as Canadians, we may not feel like we live in a police or surveillance state, one where activists, political dissidents, and other citizens are spied upon and persecuted, such realities are close enough at hand[1] to warrant appropriate safeguards for Canadians’ privacy.

It is not only drug traffickers and child pornographers who value a right to privacy: other political, religious, moral, artistic, and personal opinions and expression, especially those that deviate from a norm, are stifled or self-censored when citizens do not believe that they have a space in which to exist, develop, and share, shielded from the eye of the state, the public, or their peers.[2] Even if you don’t believe that you will never be in need of this sphere of privacy, the fact remains that our political and legal systems are built upon principles of freedom; they are strengthened when citizens have the theoretical capability of experimenting with opinions and ideas, without fear of serious repercussion. Privacy law protects the mind of the citizen as the most fundamental realm of individual privacy; it is not a crime to think about breaking the law, for example.

As for the comment that privacy is a concern only of the privileged…

Perhaps I hear this comment made in part because nowadays the phrase “privacy rights” calls to mind a locked iPhone containing encrypted communications, an embarrassing Internet browsing history, and online banking passwords. Not exactly the stuff of “human rights”.

Or maybe we find it hard to place value on something we regularly and freely relinquish to corporations in the name of convenience, efficiency, and connectivity.

Whatever the reasons, I agree that if we’re abstractly ranking Charter rights Maslow’s hierarchy style, then privacy rights seem to intuitively come second to other human rights; I think, the idea goes, that it is only after one has secured more basic human rights that the value of a private life starts to take form.

However, it is misleading to think of human rights in distinct silos. Issues of equality, race, and class overlap frequently with issues of privacy. Invasions of privacy by the state as they occur on the ground in Canada disproportionately affect the members of poor, racialized communities. The degree of privacy one enjoys is correlated to their wealth and historic interaction with the state: how advanced is your technology, how long is your driveway, how high is your fence, are you a guest, tenant or property owner, how good is your lawyer, how assertive of your rights is it safe for you to be in front of an armed policeman?

The CCLA is intervening in a case at the Supreme Court of Canada this autumn in which the police, without reason or warrant, walked into the backyard of a young black man, and after an exchange, arrested his friend/guest.[3] This occurred in a social housing complex in the neighborhood I lived in this summer in Toronto. To the CCLA and others, this case raises important issues at the intersection of privacy, race, and class:

In Canadian law, the Edwards test is used to determine whether or not someone has a “reasonable expectation of privacy” (REP) in a space. According to this test, the type of property and the control and ownership of that property (or lack thereof), factor greatly in the determination of the REP. The result is that the privacy of those who can prove a certain type of residency (exclusive occupation of a space, ownership) is more readily recognized than the privacy of those in other types of residency (non-exclusive occupation, non-ownership). Someone who lives in a social housing complex or an apartment building, someone who is temporarily living rent free at a friend’s or partner’s residence, or someone who doesn’t have a place to live at all, likely has less of a right to privacy than someone with a fence, a long driveway, and space reserved exclusively for themselves. Logically, this answer to the question of “what was your reasonable expectation of privacy?” makes sense: I live in the country, my driveway is a kilometer, I have clearly demarcated property lines; suffice to say I would be very shocked to encounter anyone but my family in my backyard. But are logical answers enough of a reason to continue using a question that yields discriminatory results, in an area as important as the state’s interaction with citizens?

This is but one example of how “privacy rights” are not free-floating, second-order human rights. To say that privacy is a concern of the privileged is to assume that we all experience “rights and freedoms” in the same way. The privacy that a citizen is afforded is closely related to the respect her state has for her, her human dignity, and her freedom, all of which are subject to differential treatment.

 

 

[1] Russia, China, Turkey, Saudi Arabia, for example.

[2] For scholarly work on the importance of privacy, see: James Rachels, “Why is Privacy Important?” (1975) 4 Philosophy & Public Affairs; Jean Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002); Julie Inness, Privacy, Intimacy, and Isolation (New York: Oxford University, 1996); Stanley Benn, A Theory of Freedom (Cambridge: Cambridge University Press, 1988); Robert Gerstein, “Intimacy and Privacy” (1978) 89 Ethics.

[3] You can read R v Le, 2018 ONCA 56 here: https://www.canlii.org/en/on/onca/doc/2018/2018onca56/2018onca56.pdf

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