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A Canadian Privacy Heritage Minute: Surveillance, Discipline, and Nursing Education

posted by:James Wishart // 11:59 PM // September 25, 2007 // ID TRAIL MIX


In this particular historical moment of fetishized “security” and state-sponsored surveillance carried out “for our own good,” it is tempting for some of us to think that we are reaching some low point in the history of privacy, where new technologies already allow the deployment of an Orwellian omniscience by states and corporations. This may indeed be so, but some research I did some years ago on the history of nursing education (of all things) has inclined me (a privacy advocacy neophyte) to wonder if the drive for total surveillance is neither novel nor dependent upon new technologies. In the spirit of Heritage Canada’s iconic television spots, I offer my own “Privacy Heritage Minute,” with all the skeletal theoretical framework, carefully-selected facts and simplistic moral that such an approach implies.

Prior to the 1950s, most Canadian nurses (who were predominantly young, white, unmarried women) were trained through an apprenticeship system, learning their craft by working for three years unpaid on hospital wards. This training was extremely arduous and strictly regimented, and was overseen by a limited number of paid nurse overseers and by senior nurse apprentices. The vast bulk of nursing labour in hospitals was completed by students, who lived on the hospital campus and seldom left the site until their training was complete.

Beginning in the late 19th century, it was understood that moral rectitude (read virginity) and feminine deference (read unquestioning obedience) were key characteristics of the ideal nurse. In part this was because prevailing models of health contained an unmistakably moral component (as arguably they still do – see the rhetoric around obesity, heart disease, HIV, etc.). Likewise hospitals, which were in competition for the dollars of wealthy patients and donors, used the image of the physically and morally clean (female) student nurse as advertising to convince the well-to-do of the safety and efficacy of institutional health care. [1]

Hospitals posted extensive lists of rules intended to ensure the proper behaviour of their student nurses. Obedience was far too important to be entrusted simply to sets of rules, however. As was explained in one nurses’ orientation manual, each individual would be “carefully watched to ensure strict obedience.” Surveillance, embodied in the policies, procedures, and the very architecture of the training school and Nurses’ Home, provided the disciplinary backbone for nursing training. Michel Foucault described similar developments with respect to 18th-century reform schools and prisons in Discipline and Punish: “We have here a sketch of an institution ... in which three procedures are integrated into a single mechanism: teaching proper, the acquisition of knowledge by the very practice of the pedagogical activity, and a reciprocal, hierarchised observation.”

Surveillance of student nurses began from the moment they applied to their training. Candidates underwent gynecological screening tests, which allowed hospital management to determine whether the candidates showed signs of sexually transmitted diseases, previous pregnancy, or loss of virginity. Applicants who showed evidence of such indiscretions were likely to be rejected as “not suitable to become a nurse.” This managerial anxiety over sexuality permeated the apprenticeship program. Of particular concern in these all-female spaces was homosexuality, a “vice” that dared not speak its name but that nevertheless attracted careful scrutiny by managers and hospital trustees. As one former nurse explained to me,

A rule was posted that ‘only one may bathe at a time’. We didn’t have time to wait in the mornings, so we often shared showers and tubs. The bathrooms were patrolled [by matrons] and so if a matronly voice said ‘is there only one of you in the tub,’ our rule was that only the one in the middle would call out ‘Yes, miss!’. I realized later that they were scared stiff of lesbianism.

In some residences, bath doors were designed like the swinging doors of saloons with spaces above and below, a technology of observation noted by Foucault at Paris-Duverney's Ecole Militaire. [2]

Surveillance was also trained upon the movements of apprentice nurses in their leisure time and private spaces. Purpose-built Nurses’ Homes were designed along panoptic principles, situating the Matron’s quarters adjacent to the main exit, an arrangement that gave the impression that the foyer was under constant supervision. Anyone entering or exiting the residence was required to sign a log, and bedrooms were checked for absent (or extra) bodies every evening. Strict curfews were enforced with the threat of dismissal, and reinforced with the possibility of character assassination for young women seen “out on the town” after curfew. In this latter area, the hospital enlisted the aid of the surrounding community as observers and judges of nurses’ conduct, and upright citizens regularly informed managers of suspected infractions by students.

On the hospital wards, surveillance took its shape via the ideology of scientific management. By the 1910’s, hospital managers had joined the cult of efficiency, and strongly believed that minute regulation of workers’ time and motion would lead to increased production and lower costs, concepts which fit awkwardly into the provision of health care but which nevertheless persist in hospital management to this day. [3] To this end, nurses were monitored carefully as they learned nursing tasks in a deskilled [4], routinized manner, with harsh discipline as the reward for lapses of technique or behaviour. A fundamental goal of this system was that students would internalize the observing eye, and like Jeremy Bentham’s panopticized prisoners, govern their behaviour according to the priorities of the institution.

Although there were obvious functional reasons for hospitals to maintain strict control over their unpaid labour force, the diligence with which such controls were implemented cannot be explained without attention to the larger discursive webs in which hospitals and nurses were caught. Rapid urbanisation and economic change in Canada, with the attendant increases in single women's urban employment and public visibility, fostered in the imaginations of civic leaders the spectre of the 'woman adrift', the young working girl living in unsupervised residences in an urban environment, untended by patriarchal authority. Promoting women's chaperoned boarding houses, the Toronto Star-Weekly prodaimed in 1917: "It would seem to be but our duty, from an economic as well as a humanitarian stand-point, to see that [the working girl] lives under conditions which tend to make her more efficient, as well as a worthy citizen. It is not too much to say that the future of our country lies in the hands of these girls.” This disingenuous language reflects (in part) anxieties about “degeneracy” that brought us such historical highlights as eugenic sterilization and the Chinese head tax. Regulation of the young female student nurses was thereby elevated to the level of a patriotic duty. Hospitals as major Canadian institutions bought into this wholesale, boasting that their system of discipline and training worked to produce “the best type of Canadian womanhood.”

With the future of the nation apparently at stake, there was little or no concern expressed about the privacy or autonomy of student nurses. [5] No privacy laws governed the surveillance of these young women – there were compelling moral, economic, political, medical, and other reasons to watch them, and so they were watched.

Without overstating the case, I wonder whether this Heritage Minute tells us a couple of things about reasonable expectations of privacy. To me it says that where fear and prejudice coalesce into social panic, surveillance is a ready tool for the identification and punishment of deviance, and privacy rights will be among the first in a long line of casualties. It also implies that surveillance technology takes the form of whatever is at hand. Hospitals used architectural techniques, documents, holes in walls, and human eyes to watch nurses, and socialized their students to watch themselves and each other. So although resisting the development of new methods of surveillance is important, it’s maybe just as important to keep our eyes on the core reasons why our privacy comes under constant assault. The longevity of the hospital system of nursing training suggests that where serious abrogations of privacy rights have apparent social or economic utility, or where they support the societal status quo, they may persist invisibly or unremarkably for decades.

Thank you. This has been a Canadian Privacy Heritage Minute brought to you by the idTrail.

[1] Even until the 1920’s, most hospital health care was “charitable,” reserved for persons who could not afford home visits by doctors and nurses. Hospitals had poor reputations as charnel-houses until they became the centralized repositories of expensive medical technologies like X-Rays, antiseptic operating theatres, and professional nursing care. This is a long story, for which there is not room here.
[2] Discipline and Punish (NY: Random House Vintage Books, 1979) at 172-173.
[3] Recently some RFID manufacturers and hospital administrators have proposed that increased efficiency could be achieved by attaching RFID tags to the bodies of hospital workers and patients, thus facilitating a constant surveillance of their motions through real-time monitoring from a central site.
[4] The “skill” level of the tasks taught to nurses is the subject of a healthy historical debate which has the “professional” status of nursing at stake in its outcome.
[5] Student nurses themselves expressed such concerns, and acted on them in important and effective ways, but that is a story for another time.

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The Wrong Kind of Privacy

posted by:Julie Shugarman // 11:59 PM // September 18, 2007 // ID TRAIL MIX


I recently received news that my friend Kelly was found dead in her single room occupancy [1] hotel in Vancouver, several days after she had died. [2]

I knew Kelly as a great force working to improve the lives of street level sex workers in Vancouver’s Downtown Eastside (DTES). Feeling far away and alone in my grief, I googled her to see whether anything had been written about her death. To my surprise, I found a handful of references to her (full name included) as a participant in a free heroin trial program, and identifying her as a woman living out of a shopping cart in Canada’s poorest postal code. I was frustrated and angry that this one-dimensional sketch of Kelly, involving incredibly private details about her life, was so accessible. My first instinct was to wonder whether she had consented to having her name published in these articles. But then a different, and rather more pressing set of questions struck me.

Why, when so few people took notice of her daily existence and suffering, when she was allowed to die almost invisibly – was it possible for me to access information about her health, [3] her poverty and her homelessness on the World Wide Web? I couldn’t shake the idea that Kelly had too much of the wrong kind of privacy.

Kelly didn’t need the state to be kept “out”. [4] She needed the state and society more broadly to be let “in”, to actively participate in her existence by recognizing her humanity and not remaining indifferent to her poverty. The privacy she needed is that which comes from access to private property and adequate housing. The privacy she needed was that which would have enabled her to develop her identity and sense of self outside of the apathetic public scrutiny that happens on the street where the privileged are indifferent voyeurs of suffering.

What is privacy, anyways?
I write this with the qualification that it is not entirely clear to me what privacy is. I am puzzled about what it means for something to be “private”, what it means for someone, or some identifiable group, to have a right or an interest in “privacy”, or what exactly happens when this peculiar thing known as “privacy” is lost.

Warren and Brandeis famously quoted Judge Cooley’s definition, describing privacy as a right “to be let alone”. [5] Westin is most frequently attributed with informing us that privacy is about a right to control information about ourselves. [6] Judith Jarvis Thompson said privacy is a reductive concept that essentially consists of clustered property rights and rights to ones own person. [7] Ruth Gavison and Anita Allen have identified privacy as a limitation of access to individuals. [8] Richard Bloustein outlined privacy as integral to human dignity. [9] Jeffrey Reiman offered a notion of privacy as critical for personhood formation. [10] Many other wise theorists have offered still more accounts of privacy, more attempts to define what remains, in many senses, opaque.

Legally, the concept of privacy has largely developed in the context of rights of the individual accused as against the state. The Supreme Court of Canada has ruled that privacy is an instrumental right – integral to the realization of fundamental entitlements such as liberty, security of the person, and equality. [11] Section 8 Charter jurisprudence instructs that there is a distinction to be drawn between public and private space – fostering the notion that we are, at least in some ways, entitled to less privacy in public. [12]

So what’s the problem?
Almost all of this theorizing and analysis seems to take for granted that everyone has access to private space. It assumes a means to limit or control access to oneself. It further assumes that while privacy may not be a fundamental right in and of itself, it is an intrinsic aspect of human life that must be vigilantly protected from theft by the state, the corporate world, or other actors. The reality is that this access and these means are far from universal and that sometimes state intervention and support is necessary in order to foster privacy and/or the ends that privacy aims to achieve (like dignity, autonomous decision-making, the ability to exercise even constrained ‘choice’ with respect to decisions of a private nature, etc.). [13]

The notion of an obligation on the state to protect vulnerable people, even from activities that occur in otherwise private settings, is not new. Largely as a result of feminist activism, the idea of a man’s home as his impenetrable castle – a sacrosanct space that should be fiercely guarded from the hands of the law no matter what occurs within – has been challenged and discredited. It is not okay for the state to remain passive when a person is beaten-up or raped by her spouse. The legacy, however, of the historical role of privacy in protecting male domination of women in the marital home is significant and enduring. Martha Nussbaum, for example, warns: “anyone who takes up the weapon of privacy in the cause of women’s equality must be aware that it is a double edged weapon, long used to defend the killers of women.” [14]

Suspect of privacy, and at the risk of being perceived as taking it up as a “weapon”, I am becoming increasingly interested in arguments that call on the state to facilitate the privacy of historically marginalized groups - like women living and working on the streets. If the law has deemed it inappropriate for the state to ignore abuses suffered by women in their homes, it should not be permissible for the law –and for individuals more generally- to ignore the poverty of women working and living on Canada’s streets. It is their poverty that forces them into public space, and robs them of the privileges of privacy.

Elisabeth Paton-Simpson has pointed out that, “contrary to a widely held assumption in privacy law, reasonable people do not intend to waive all rights to privacy by appearing in public places.” [15] However, Paton-Simpson does not discuss the reality that many Canadians do not have the option to choose whether to appear in public or whether to leave the relative security of their homes – because they have no homes. [16] Unlike the people Paton-Simpson discusses, homeless and precariously housed Canadians have no option to “trust” that they will not be made objects of media excesses and advances in surveillance technology. [17] And yet, while they are infinitely accessible and have no adequate private space within which to develop – they are simultaneously scorned, ignored, and turned into ghosts counted only in studies and statistics. [18]

Final thoughts
Privacy comes in degrees. [19] A person or group of people can conceivably have too much privacy – or not enough. Indeed, without regular access to private property or the capacity to ensure that personal information is not made publicly available, a person’s existence can be completely lived in the presence of others.

It is understandable why legal and philosophical concern about privacy has been focused on protecting against loss of privacy. I think, however, that we need to refocus our attention on whether in some cases positive action is required to facilitate privacy and the goods associated with it (like dignity, security of the person, and liberty). We need to begin addressing the role of the state, the corporate world, and communities in facilitating conditions conducive to the “privacy” that continues to be erroneously assumed as the starting point for all.

Many of my friend Kelly’s daily rituals, no matter how intimate, were performed in “public” – they were accessible to all who passed by, and yet the three-dimensionality of her life and eventually her death remain invisible to most. We are repulsed, we simply don’t give a damn, or we actively disengage and explain-away our responsibility to pay attention, to do something, and to not let people who are in need of assistance alone. Perhaps until we learn better when it is okay to look away, we should take a positive obligation to facilitate privacy as our starting point – so that women do not go missing or die unnoticed.

[1] Single room occupancy (SRO) residential hotel units represent the most basic shelter provided for low-income individuals living in Vancouver’s Downtown Eastside (DTES). The people who live in SRO buildings are low-income singles at high risk of homelessness.
[2] This is not her real name.
[3] I am writing from a perspective that treats drug use as a health issue.
[4] This is intended as a reference to privacy as involving an entitlement to keep the antagonistic state out of the lives of individuals.
[5] Samuel Warren and Louis Brandeis, “The Right to Privacy” (1890) 4 Harv.L.Rev. 193. at p. 195.
[6] Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967) at p. 7.
[7] Judith Jarvis Thomson, “The Right to Privacy” (1975) 4 Philosophy and Public Affairs 295-314
[8] Ruth Gavison, “Privacy and the Limits of Law,” (1980) 89 Yale Law Journal at p. 428; Anita Allen, Uneasy Access (New Jersey: Rowman and Littlefield, 1988).
[9] Bloustein, E.J., “Privacy as an aspect of human dignity: An answer to Dean Prosser,” (1964) 39 N.Y.U. L. Rev. 963. It is worth noting that Bloustein is referencing “dignity” in what some might call the liberty sense, and not the equality sense. He writes of privacy as dignity offending by explaining: “an intrusion of our privacy threatens our liberty as individuals to do as we will, just as an assault, a battery or imprisonment of our person does.” at p. 1002.
[10] Jeffrey Reiman “Privacy, Intimacy, and Personhood” (1976) 6 Philosophy and Public Affairs at p. 26
[11] See for example: R. v. Dyment, [1988] 2 S.C.R. 417 at paras. 17, 21-22; R v. O’Conner [1995] 4 S.C.R. 411 at paras. 110-113, 115; R. v. Mills, [1999] S.C.J. No. 68 at 91.
[12] Section 8 of the Charter provides that “[e]veryone has the right to be secure against unreasonable search and seizure.” In R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140, Cory J, found: “[t]here is no place on earth where persons can have a greater expectation of privacy than within their 'dwelling-house'”. See also: R. v. Tessling, [2004] S.C.J. No. 63, in which the SCC indicated that expectations of privacy are less reasonable when one moves outside of the sphere of the home, at para 22.
[13] On privacy’s functional role in facilitating dignity, integrity and autonomy see: R. v. Mills, [1999] S.C.J. No. 68 at para 81.
[14] Martha Nussbaum, “What’s Privacy Got to Do With It: A Comparative Approach to the Feminist Critique” in Women and the United States Constitution: History, Interpretation, and Practice ed. Sibyl A. Schwarzenbach and Patricia Smith (New York: Columbia University Press, 2003) at 164.
[15] Elizabeth Paton-Simpson, “Privacy and the Reasonable Paranoid: The Protection of Privacy in Public Places,” (Summer, 2000) 50 Univ. of Toronto L.J. 305.
[16] Canada has no official data on homelessness – an omission which has attracted critique from the United Nations Committee on Economic, Social and Cultural Rights. For a somewhat dated discussion of this, see: Patricia Begin, Lyne Casavant, Nancy Miller Chenier, & Jean Dupuis, “Homelessness,” Political and Social Affairs Division, Parliamentary Research Branch, 1999. Online: http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/modules/prb99-1-homelessness/index-e.htm
[17] Elizabeth Paton-Simpson, supra note 15: “To the extent that they have any choice in the matter, [reasonable people] generally refuse to be governed by suspicion and paranoia, preferring to trust that their privacy will be respected. They leave the relative security of their homes in order to survive and participate in society, and their experience and expectation is that public places do afford varying degrees of privacy.”
[18] In using the term “ghosts,” I am mindful of Jeffrey Reiman’s theory that there would be no person, or moral agent, to whom moral rights could be ascribed if it weren’t for the boundary drawing, person creating, “social rituals” we call privacy. According to Reiman, privacy “protects the individual’s interest in becoming, being, and remaining a person”: Jeffrey Reiman, supra note 10 at p. 25, 43-44. Charles Fried has similarly made the point that privacy is integral “to regarding ourselves as the objects of love, trust and affection” to understanding ourselves “as persons among persons”: Charles Fried, “Privacy” (1967-68), 77 Yale L.J. 475, at p. 477-78.
[19] I am not speaking here about what courts sometime refer to as “degrees of privacy” in the Charter s. 8 context - as dependent on the type of search (the degree of rights, for example, yielded by a search of a person, as opposed to a search of a person’s home or vehicle). See, for example, Roback v. Chiang, [2003] B.C.J. No. 3127 at para 14.

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For Better, For Worse, or Until I Decide to Spy on You

posted by:Dina Mashayekhi // 11:59 PM // September 11, 2007 // ID TRAIL MIX


Being recently married, I still haven’t quite adjusted to the idea that you can’t change certain traits in your spouse. For example, my other half tends to view cell phones as a leash, and he regularly “forgets” to call me when he’s going to be late, or going out after class or work. As a result, I end up panicking, thinking he has been in a terrible accident and is unconscious somewhere, and I promptly begin my routine of repeatedly calling his cellphone (which is usually off or at the bottom of his bag on silent mode). By the time he finally gets to the phone and sees 18 missed-calls from me, I’m usually anxiety ridden and he calls me laughing, telling me I’m crazy, and that he’s on his way home. This conversation is usually followed by certain expletives and ends with my threat that I’m going to implant him with a GPS tracking device.

Of course, when I raised this idea, I was completely joking. For the sake of fantasy, my ideal device would be a microchip and to my knowledge, the Verichip doesn’t operate as a GPS device for commercial use (yet). Such a use would also run contrary to my convictions as a privacy advocate, but at times, I feel as though my sanity is at stake. I decided to inquire further into the practical aspects of my GPS threat (after all, there’s no point in a threat without any substance), and to examine the idea of spousal surveillance in general. [i]

The Newly Married or Soon-to-be-Married

I first looked to an online forum that is geared towards wedding planning and is frequented by brides-to-be and newer brides. I visited this forum quite a bit back in the wedding-planning days. I posted a simple 3-question poll. My questions weren’t intended to examine the moral implications of surveillance; rather, I was just trying to get a basic overview of what people would do.

My first question was “Have you ever used any type of surveillance on your spouse?” Out of 154 responses, 10 people (0.6%) answered Yes, with the remaining 144 (93%) answering No. The types of surveillance, whether electronic or not, were not specified. My second question was “Have you ever read your spouse’s email without him knowing?” Of 155 replies, 92 (59%) answered Yes and 63 (40%) answered No. A few people, however, chose to comment on this question stating that they have their spouse’s implicit consent to check their email. Finally, my third question was “If given the opportunity, would you use GPS tracking or an RFID chip to track your spouse?” Out of 155 replies, 21 (13%) answered yes, and 134 (86%) answered No. Some people who chose “Yes” commented that they only chose “Yes” because they would want the option in case of an emergency situation and not because of a lack of trust. Others confirmed that they would not want to so much “track” their spouse, but would want to be able to “find” them when necessary. And, of course, some users pointed out if you got to the point where you needed to resort to tracking your spouse, your relationship was in serious trouble. One user relayed a story of a past relationship where reading her boyfriend’s emails, and trying to find out what he was doing, confirmed that he was cheating on her.

From this small poll I learned that (a) I’m not the only one who has little fantasies about wanting to know where her spouse is and (b) More spouses than I’d expected have read their partner’s emails.

Marriage, Surveillance, and Privacy

This lead to my next finding -- a major target audience of surveillance software, surveillance devices and GPS products is married spouses. As I was searching for various products, it seems that they were geared towards tracking and catching that “wayward” spouse. More often that not, website visitors were invited to catch their “cheating wife” in the act. I actually did not find one product marketed towards safety for worriers (my initial purpose). I was impressed by the array of technologies available, saddened by the distrust existing in marriages, and concerned by the lawfulness of many of these technologies.

In her article “Spy vs. Spouse: Regulating Surveillance Software on Shared Marital Computers”, [ii] Camille Calman raises arguments in favour of the regulation of surveillance software on shared computers between spouses as a basis of bringing consistency to the law of communications privacy and reinforcing the social perception of marriage as a partnership of autonomous individuals characterized by mutual trust. Calman examines laws governing the protection of information and the concept of the reasonable expectation of privacy. She reasons that the use of surveillance technology for “spying on a spouse cannot be justified by the rationale that spouses have a lower expectation of privacy within marriage than they do with outsiders.” She traces the lack of recognized privacy rights between spouses to the lack of legal rights given to women upon marriage until the nineteenth century. Married women were, after all, considered to be subordinate to their husbands and the couple was seen as a single legal entity. She explains:

Changes in privacy law and in social constructs of marriage converge in the area of communications privacy. One of the most important aspects of personal autonomy is freedom to communicate with other persons. The law does not require married couples to tell each other everything; such a requirement could not be practically enforced. Entry into marriage does not entail signing away the right to communicate privately with persons outside the marital relationship. Some writers have described spheres or zones of privacy, with an innermost zone open to no one, and the next zone open only to spouses, close friends, and relatives. Even within those inner spheres, the law does—and should recognize a right of personal privacy.
Certainly individuals within a marriage have far more access to each other’s private information than strangers would. Spouses can behave in many ways that are intrusive but not legally actionable: They can read letters or e-mails or credit card bills that their spouses have already opened; they can eavesdrop on live conversations; they can rummage through filing cabinets; they can read diaries. But the use of electronic devices to spy at times and in places where live eavesdropping is impossible—to eavesdrop in a way that evades the likelihood of detection— seems to cross a line.
A person’s right to privacy is not absolute and must be weighed against countervailing rights and social interests. Clearly the expectation of privacy is lower within a marriage than in other less intimate relationships. Some reasonable expectation of privacy remains, however, and spousal spying by surveillance software violates that expectation. [iii]

While it is true that spouses have access to aspects of each other’s lives, which are essentially off-limits to others, it doesn’t seem that this grants one spouse an unencumbered right to spy on the other.

The Law and Spousal Surveillance

As far as I know, laws governing communications privacy do not make exemptions for spouses or family members. Section 184(1) of the Criminal Code [iv] makes it an offence to intercept a private communication except in limited enumerated circumstances.

184. (1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

It is clear then, that this law would prohibit one spouse from surreptitiously recording the telephone conversations of the others. A spouse would fall under “every one”. Additionally, the Canada Post Corportion Act [v]prohibits the opening of mail by anyone other than the addressee:

48. Every person commits an offence who, except where expressly authorized by or under this Act, the Customs Act or the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, knowingly opens, keeps, secretes, delays or detains, or permits to be opened, kept, secreted, delayed or detained, any mail bag or mail or any receptacle or device authorized by the Corporation for the posting of mail.

Again, “every person” would include a spouse. It is understood that this applies to postal mail only; however, it raises the questions as to why the same guarantees of privacy aren’t afforded to electronic mail. There are clear laws prohibiting wiretapping, opening postal mail addressed to somebody else, and regulating electronic surveillance in certain situations; however, the law appears to turn a blind eye to spousal spying and the technologies used therein.

In the United States, the laws governing communication privacy similarly refer to “whoever” opens the mail or “any” unauthorized person recording telephone calls. American jurisprudence is ripe with examples of spouses attempting to use electronic surveillance to the detriment of the other. Calman points to two cases in the 1970s where federal appellate courts carved out a marital exemption. In Simpson v. Simpson [vi], the Fifth Circuit held that although the “naked language” of the Wiretap Act seemed to prohibit all wiretapping, Congress could not have intended to intrude into the marital relationship. The court also did not wish to interfere with the interspousal tort immunity that then existed in a majority of states.

The Second Circuit reached a similar result in Anonymous v. Anonymous [vii], in which a husband recorded his wife’s telephone conversations with their eight-year-old daughter, hoping to use the tapes in a custody fight. While holding that Congress had not meant to create a blanket exemption for all spousal wiretapping, the court declined to apply the Wiretap Act. It held that this was a domestic conflict, which did not involve the privacy rights of anyone outside the family, and which would be better handled by state courts. Both decisions have been widely criticized and Simpson was overruled in 2003 in Glazner v. Glazner [viii], explicitly on grounds that the plain language of the statute precluded the spousal exemption.

One notable case comes from New Jersey. In M.G. v. J.C. [ix] a husband surreptitiously recorded his wife’s telephone conversations in the marital home. The conversations disclosed that the wife was having a non-heterosexual affair. The husband confronted the wife and threatened to use the tapes in a custody battle, as well as disclosing the tapes to friends and family. As a direct result, the wife suffered extreme emotional distress and required extensive psychological care. The husband went one step further and played the tapes for the wife’s sister and offered to play them for other family members and friends. The wife sued for damages and obtained $10,000.00 in compensatory damages and in consideration of the husband’s willful and wanton disregard of the wife’s right to privacy, he was assessed $50,000.00 in punitive damages. In Florida, an appellate court affirmed the trial court’s refusal to admit evidence obtain by a wife using the Spector surveillance software. The Court ruled that by installing the Spector spyware on her husband’s computer, and reading the logs, the wife had in fact broken the Florida wiretapping law, which says that anyone who intentionally intercepts any electronic communication without appropriate authority commits a criminal act. [x]

Canadian jurisprudence does not appear to have considered spousal surveillance to the same extent as American case law. A case from the early 1990s, Seddon v. Seddon [xi], considered surreptitious recordings, which were obtained by a voice activated device. The court was faced with an application to vary interim custody and the 20 hours of recordings were supposed to demonstrate the mother’s shortcomings when dealing with her children. The court refused to vary custody and deferred the issue of admitting the recordings to the trial judge. The trial judge did not admit the recordings but did not explain his reasons. [xii]

The dearth of Canadian case law and statutory protections for individuals in a marriage may become problematic as technologies become increasingly affordable. In some cases, these technologies are directly breaking the law [xiii], while in others, they occupy a grey area. Although divorce laws are applied on a “no fault” basis, the product of surreptitious surveillance and recordings could readily be used in custody cases when determining the best interests of the children. The surveillance and recordings could also be used by one spouse against the other in order to leverage a more favourable property settlement where the recordings could be damaging/embarassing. In the absolute worst cases, these technologies can be used by abusive spouses to further their ability to control and terrorize their partners. [xiv]


In the end, I decided that it would probably be healthier for my relationship to hold off on the GPS and to try to communicate the virtues of calling when you’re not coming home and keeping your cellphone turned on. Spouses are in a legally vulnerable position. The mutual trust and respect that forms the basis of these relationships can easily be exploited by one spouse in a climate where there are few repercussions.

Dina is a 2005 graduate of the University of Ottawa Common Law Program and a former student member of the idtrail project. She is currently pracitising labour and employment law in Ottawa and has a special interest in employee privacy issues.

[i] For those who don’t know me, I wouldn’t ever plant a GPS device on my husband. My postulation remains in jest.
[ii] (2005) 105 Colum. L. Rev. 2097.
[iii] Ibid. at 2113-14.
[iv] R.S., 1985, c. C-46, s. 184.
[v] R.S., 1985, c. C-10, s. 48.
[vi] 490 F.2d 803 (5th Cir. 1974).
[vii] 558 F.2d 677 (2d Cir. 1977).
[viii] 347 F.3d 1212 (11th Cir. 2003).
[ix] 254 N.J. Super 470 (Ch. Div. 1991).
[x] O’Brien v. O’Brien, 899 So. 2d 1133 (Fla. Dist. Ct. App. 2005).
[xi] 1993 CanLII 2597 (BC S.C.).
[xii] 1994 CanLII 3335 (BC S.C.).
[xiii] See http://www.usdoj.gov/criminal/cybercrime/perezIndict.htm “Creator and Four Users of Loverspy Spyware Program Indicted”.
[xiv] See http://redtape.msnbc.com/2007/08/leah-lived-for-.html “High-Tech Abuse Worse Than Ever”.

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Cash(less) on the Road

posted by:Byron Thom // 11:59 PM // September 04, 2007 // ID TRAIL MIX


Credit cards and databases/data-mining/data aggregation. How does the database nation get affected by a cashless society?

I recently had the opportunity to dwell upon the loss of anonymity as we continue the path to cashless-ness. It was on one of those west coast road trips that seem like the perfect way to cap off a summer.

Driving to South Bay

This August, a couple of friends and I drove down to the Bay Area of California from Vancouver to visit with friends working there. An interesting exercise we got caught up in was to see how difficult it would be to “stay off the radar”. Although we realized that giving out personal information itself is not dangerous, but rather simply provides a possibility for misuse, the recent discourse on domestic spying and the Patriot Act in the US got us to think deeper about sharing our spending habits with US businesses and the US government.

Like any good conspiracy theorist, travel begins by taking large wads of cash out from under the mattress - or a Canadian bank, if your mattress is rather thin. Minimizing our use of credit cards was the obvious step. This was also facilitated (others say caused) by the midsummer drop in the Canadian dollar and our desire not to be gouged by Visa’s exchange/conversion rate. [1]

So we used cash, and lots of it. All of our food, hotel rooms, and activities were anonymous transactions. When we stopped for gas, we prepaid the attendant in $20s. As Canadians, we had never seen so many green bills. Because realistically, although not quite to the level of a wheelbarrow or a duffel bag, carrying enough money for three guys on an 11 day trip is a significant task in itself and more than a little inane.

For the most part, our experiment was successful. Although frustrated by the inefficiency of their monotone bills, our system seemed to work as cash equalled anonymity in most situations encountered. But one time it didn’t was when we came up against the dreaded loyalty card.

Safeway and the Loyalty Card

Loyalty cards are a common occurrence in today's consumer driven world. It seems like everything from airline tickets to cups of coffee have a mode of tracking your purchases and collecting detailed information regarding your personal shopping habits. [2]

But loyalty systems also seem to “work”. The collection of points almost seems like a North American sport. Canadians seem to do anything for their points. [3] And sometimes using the loyalty system is almost forced upon you.

While at the local Safeway trying to buy some supplies in California, we encountered an insidious ploy to force shoppers to self-identify. It has always been part of the loyalty system to offer discounts to those who sign onto the system; discounts of 5% to 10% are not uncommon. But at this particular Safeway, oranges were over $1/lb cheaper for those showing a Safeway card. 1$/lb or more than 30%!

With this kind of price differential, how can you resist? How can you compare the intangible benefit of remaining anonymous with the prospect of saving money on fresh fruit? Although I knew about the privacy implications and why Safeway was operating in such a manner, my biggest concern wasn't about data mining but rather me not having an American Safeway account to be able to take advantage of this offer!

Luckily, or scary depending upon your point of view, the Safeway databases in the United States and Canada are linked and my Canadian account worked just fine. And on top of that, I didn't even need my physical card. Supplying my phone number was enough for the clerk to identify me by name and recite my home address. I'm sure in some way it is useful for Safeway to know that while on vacation in California I enjoy oranges, bananas and croissants for breakfast.

But data collection can go far beyond that. Demographic shopping information is big business in today's always-on marketing environment. Companies like Choicepoint and Acxiom aggregate and sell personal information to government and businesses on everything from health and insurance records to consumer purchasing information. [4] The US government even claims that these aggregators fill a necessary role in the “war on terror” by allowing the government to search for specific purchasing trends and monitor suspicious activity. [5] Vast databases are being filled and very few seem to mind that there are numerous instances of databases being hacked or leaked due to shoddy security practices and inadequate protections.

Adam Greenfield says in his book Everyware that

We may have to accept that privacy as we have understood it may become a thing of the past: that we will be presented the option of trading away access to the most intimate details of our lives in return for increased convenience, and that many of us will accept this possibility.

But, seriously? Identity or oranges. The red pill or the blue. They were good oranges.

Final Thoughts

The beauty of technology is its ability to make life easier. A GPS system and a cell phone were lifelines in trying to navigate the complicated mass of streets and highways of California's Bay Area. But, there are always trade-offs. Simson Garfinkel's Database Nation [7] draws a picture of a frightening dystopia where identifiers such as credit and debit cards, cell phones and surveillance records link to vast databases of personal information that can track you from dawn to dusk and from birth to grave. It is already a reality. There are billions to be made. [8]

But, it doesn’t have to be this way. Besides better laws to control the transfer of personal information, there are electronic alternatives to large wads of money. Electronic e-cash or smartcard systems are making the rounds. They can be programmed with privacy in mind.

An example of an effective privacy respecting system is the Octopus Card system implemented in Hong Kong. The Octopus Card, in one of its selectable iterations, allows its users to anonymously access the transit system in addition to purchasing items from a wide variety of stores. All this is done with a contactless RFID embedded in the card that boasts a 95% penetration rate. [9]

By not requiring any information to purchase, the Octopus Card has many of the same privacy benefits as cash. But not all implementations of this ubiquitous technology are so benign. [10] When done without sufficiently respecting privacy concerns, electronic cash is an effective form of surveillance allowing marketers to tie purchase and travel history to other demographic information.

Even more effective is comprehensive legislation protecting consumer privacy. But it's difficult for legislatures to keep up with advancing technology. Safeguards need to be put in place where the convenience and benefit of a cashless system benefits consumers and is not a tool for marketers and data aggregators. Without that framework, and the penalties to compel adherence, corporations will continue with policies that are in their best interests, in an environment where the majority of consumers are unaware and uninterested in personal data protection.

By the end of our trip, a little bit sunburned and a little bit poorer with cash supplies depleted, we broke down and resorted to credit. We were pretty good, though. Over an 11 day trip and 4000km, 10 days went by without using credit – although there were numerous instances where we had to self-identify. The fact of the matter is that credit is just too easy, and that's how they like it.

[1] Joe Paraskevas, “Credit Cards No Bargain Abroad” Winnipeg Free Press (August 22, 2007) http://www.winnipegfreepress.com/local/story/4025999p-4637816c.html
[2] CBC Marketplace, “Loyalty cards: Getting to know you” (October 24, 2004) http://www.cbc.ca/consumers/market/files/services/privacy/loyalty.html
[3] ACNielsen, “Loyalty Program Participation Rate on the Rise According to new ACNielsen Study” (September 16, 2005) http://www.acnielsen.ca/news/20050916.shtml
[4] EPIC, Choicepoint, online: http://www.epic.org/privacy/choicepoint/
[5] Richard Behar. “Never Heard of Acxiom?” (February 23, 2004) http://money.cnn.com/magazines/fortune/fortune_archive/2004/02/23/362182/index.htm
[6] Greenfield, Adam. Everyware: The Dawning Age of Ubiquitous Computing, (Berkeley: Peachpit Press, 2006).
[7] Garfinkel, Simson. Database Nation: The Death of Privacy in the 21st Century, (Cambridge: O’Reilly, 2000).
[8] Choicepoint alone reported revenue of $1.05 billion in 2006. See Google Finance, online: http://finance.google.com/finance?q=NYSE%3ACPS
[9] Opening Remarks by Mr. Alfred Ng, Assistant Government Chief Information Officer, at the NFC Conference 2007 of the ICT Expo (April 17, 2007) http://www.ogcio.gov.hk/eng/pubpress/esp070417.htm
[10] The Oyster Card in London is used to track customer transit movements. See Aaron Scullion. “Smart Cards Track Commuters” (September 25, 2003) http://news.bbc.co.uk/1/hi/technology/3121652.stm

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