Okay, okay… It’s still a few months away from the Holiday season and the New Year. Regardless, they’ve given me the pen for this spot and I’m making a list. I figure if I get my wish list in early this year, maybe I’ll get a few of the things I want!

So, here’s my wish list for a few things we need in the privacy world:

1. Laws that break through or work around the limitations imposed by our constitution (I mean, provincially regulated employees have no privacy protection in legislation unless their information is used as part of a commercial activity or unless they live in Alberta, B.C. or Quebec).

3. Less restriction on the publication of the federal Commissioner’s Reports

4. A version of PIPEDA where the French and English versions translate properly (some sections even have different paragraph numbering)

5. An Act that contemplates that if you go to court on a matter that involved a violation of an individual’s privacy, the Court would be given explicit power to put controls in place that would allow the protection of privacy during the Court process.

6. A recognized ability to get real compensation when your privacy is invaded. Getting a “well-founded and resolved” report is only going to motivate people for so long to stand up for their rights.

7. A recognition that we are in a surveillance state. Question is, are we going to let it get worse, tolerate it the way it is, or fight back?

8. A Privacy Act that is written based on our understanding of computing and database technology in 2007. Not 1977.

9. A recognition that the Privacy Commissioner cannot oversee ALL of government and that it’s high time the government itself takes some responsibility for privacy (yes, they should have Chief Privacy Officers in many departments).

10. Privacy Impact Assessments… oh wait, we do have those, sometimes! (But not nearly enough – and even when they’re done, nobody knows about them.)

11. One more very good conference and then an acknowledgement that we need to actually get the work done and not just talk about it.

Things we probably don’t need:

1. Another privacy lawyer… ooops, well don’t check out www.krisklein.com then.

I’ve always wanted to write my own autobiography. Maybe it’s narcissistic, but I thought it would be a good chance for me to think back, reflect, introspect, and remember both the good and bad things that happened to me throughout my life. I could then maybe figure out what went right, and in some cases, what went horribly wrong. But I told myself that I would save this personal task until I was older and also until I had enough stories and experiences to share and write about. Otherwise, if I wrote my autobiography today, it would be a story about a girl named Cynthia, who went to school, who then decided to go to more school.

I then came across McAdams’ “Life Story Theory” of identity [1] and realized that I didn’t have to wait until I was old and experienced to write my autobiography. I was already in the midst of writing one and in fact, I had been writing and contributing to this autobiography my whole life. According to McAdams, the individual is the primary author of his or her autobiographical narratives and the individual’s memories link together the past, the present, and the future in order to provide a sense of identity and also to provide a sense of purpose for one’s thoughts and behaviours.

But what would happen if I experienced something so horrifically terrible that I didn’t want it to form part of my life story. Would I have the option of ensuring that I no longer remember this event and that the memory of the event no longer forms part of my autobiography? If so, and I can start actively meddling with my autobiography, would this change who I am?

Memory and Drugs

Because of the importance of memory and its role in defining one’s identity, scientists in the realm of psychology, neurology, and neuroscience have been investigating methods of enhancing or preserving different types of memory. [2]

More recently, scientists have started to focus on developing pharmacological agents that inhibit or dampen the strength of memory formation and recall. These memory dampening agents are currently being investigated for the treatment of post traumatic stress disorder (PTSD).

PTSD and Autobiographical Memories

PTSD is a psychiatric anxiety disorder that can develop in response to traumatic experiences. [3] One hallmark characteristic of this disorder is the alternation between re-experiencing and avoiding trauma-related memories. In some cases, the disorder can be so debilitating that the individual can no longer function in society due to the involuntary and continuous recall of the horrific event.

Currently, researchers are investigating the interaction between autobiographical memories and PTSD. According to Bernsten (2001), traumatic memories are important in that they become reference points to other experiences in one’s autobiographical memory database. More specifically, traumatic memories become significant landmarks, which represent a major threat that is perceived by individuals with PTSD. [4]

By inhibiting the formation of certain autobiographical memories with the use of these memory dampening agents, the potential formation of these important landmarks may be circumvented.

Pharmaceutical Forgetting

Research has shown in both animal and human studies that emotionally arousing experiences are better remembered than those that are emotionally neutral. [5] Arousal is dictated by the level of adrenaline in the body; a higher level of adrenaline results in increased arousal, and therefore, stronger memory formation. Propranolol, which is already being prescribed for the treatment of hypertension, is used to block the effects of adrenaline. Scientists hypothesize that propranolol could help to dampen the recall of traumatic experiences by dampening arousal. Propranolol is currently being tested in multi-centre clinical trials for the treatment of PTSD.

More interestingly, researchers have recently shown that propranolol can also blunt previously formed memories in humans. [6] In a double blind, randomized study, persons with chronic PTSD were asked to recall their traumatic experiences. The mere recall of these previously experienced traumatic events caused adrenaline to be released and resulted in increased arousal. Upon experiencing arousal, half of the participants were administered propranolol; the other half were administered a placebo. Results showed that propranolol retroactively blunted the recall of previously formed traumatic memories.

Once approved for the treatment of PTSD, what would be the legal implications of using these agents in society?

Legal Issues

Propranolol is known as a “beta-blocker” and was developed in the 1950s and has been prescribed for the treatment of hypertension since the 1970s. In both volunteer studies [7] and clinical trials [8] the use of beta blockers was found to impair memory recall. Interestingly, a similar dose (120 mg-160mg/day) is being prescribed for both the treatment of hypertension and for the treatment of memory dampening. [9] Results from these experiments suggest that individuals who are prescribed propranolol for the treatment of hypertension may be subject to memory impairment; perhaps without their knowledge or consent. Of concern to the legal system is that the reliability and accuracy of the testimonies given by these individuals taking propranolol will be called into question. When deliberating future cases, it will be important for Canadian courts to be mindful of the potential effects that propranolol and similar drugs could have on a witness’s testimony.

Another legal issue arising from the use of these agents is the extent of informed consent that would be required when prescribing these memory dampening drugs. After experiencing a traumatic event, individuals will likely be rushed to the emergency room in order to be treated for both mental and physical distress. Upon reaching the emergency room, a tending physician may recommend the treatment of propranolol in order to help minimize the chances of developing PTSD in the future. Despite being informed of the potential risks and uncertainties associated with these agents, it is questionable whether individuals taking these drugs would be in a legitimate position to give their informed consent because 1) their decision making skills would be significantly compromised as they are in times of distress [10], and 2) they would not know the potential role these dampened memories would have played in their future lives and identities.

Some Final Thoughts

Currently, memory dampening agents are not available to the general public. The quickly advancing field of neuroscience, however, may be able to provide new, more specific, and safer agents to help dampen the painful memories associated with traumatic events. In the near future, some of these newer technologies could be potent enough to allow for memory deletion to occur. Recently, the drug, U0126 (not yet available in humans), was able to selectively delete a particular fear-induced memory in rats. [11] Perhaps these memory deleting agents will become available for use in humans.

In conclusion, it will be necessary for the courts and the government to be informed of all of these new pharmacological developments so that they will be in a legitimate position to weigh both the legal and social implications of using these interventions in the future.

Some Final Final Thoughts

By the time I get around to writing an autobiography, I could have gone through some experiences that may have tempted me to take one of these memory dampening agents and artificially blunt some of my memories.
Maybe it’s just me, but if I do decide to write an autobiography, I want to be able to look back and remember both the good and bad times; the times I’ve laughed and sobbed. I want to be confident that the memories I’m recalling and writing about are genuine and that my memories aren’t pharmaceutically modified in any way, shape, or form.

[1] D.P. McAdams, “The Psychology of Life Stories” (2001) 5:2 Review of General Psychology 100-122
[2] Farah, M. J., Illes, J., Cook-Deegan, R., Gardner, H., Kandel, E., King, P., Parens, E., Sahakian, B., & Wolpe, P. R. (2004). Neurocognitive enhancement: what can we do and what should we do? Nat Rev Neurosci, 5(5), 421-425
[3] Vasterling, J. J., Brewin, C. R. (2005). Neuropsychology of PTSD. New York: Guilford Press.
[4] Bernsten, D., Willert, M., Rubin, D.C. (2005). Splintered memories or vivid landmarks? Qualities and organization of traumatic memories with and without PTSD. Applied Cognitive Psychology, 17, 675-693.
[5] McGaugh, J. L. (2006). Make mild moments memorable: add a little arousal. Trends Cogn Sci, 10(8),
345-347.
[6] Brunet, A., Orr, S. P., Tremblay, J., Robertson, K., Nader, K., & Pitman, R. K. (2007). Effect of post-retrieval
propranolol on psychophysiologic responding during subsequent script-driven traumatic imagery in post-traumatic
stress disorder. J Psychiatr Res. (in press).
[7] Frcka, G., & Lader, M. (1988). Psychotropic effects of repeated doses of enalapril, propranolol and
atenolol in normal subjects. Br J Clin Pharmacol, 25(1), 67-73.
[8] Blumenthal, J. A., Madden, D. J., Krantz, D. S., Light, K. C., McKee, D. C., Ekelund, L. G., & Simon, J.
(1988). Short-term behavioral effects of beta-adrenergic medications in men with mild hypertension. Clin
Pharmacol Ther, 43(4), 429-435.
[9] Pitman, R. K., Sanders, K. M., Zusman, R. M., Healy, A. R., Cheema, F., Lasko, N. B., Cahill, L., & Orr, S. P.
(2002). Pilot study of secondary prevention of posttraumatic stress disorder with propranolol. Biol Psychiatry, 51(2), 189-192.
[10] Hammond, K. R. (2000). Judgments under stress. New York: Oxford University Press.
[11] Doyere, V., Debiec, J., Monfils, M. H., Schafe, G. E., & LeDoux, J. E. (2007). Synapse-specific reconsolidation
of distinct fear memories in the lateral amygdala. Nat Neurosci, 10(4), 414-416.

I recently, for the first time in my life, set up my own wireless router in order to connect my laptop, as well as my roommate’s, to the Internet. This was not a user-friendly experience, and my stress level was heightened by my need to safeguard my wireless signal from outside intruders. I was creating a code of identity for my actions through my computer network: I had to name my signal and trust that it will safeguard my IP address which is now, through my actions online, an extension of my self and identity.

By giving a name to my Internet network, I was sending a secure signal of my own personal identity out into cyberspace. This is a name that anyone in my physical world close enough to pick up on my Internet signal will be able to see. The Internet, as a social system, is a lot less anonymous than many people seem to still think; whether consciously or unconsciously, we are constantly sending out signals of our identity online. From postings on a blog to a wireless network name, our physical life-based identities seep out to the cyber world.

With such a plugged in world, people live and communicate endlessly via online routes. However, like an unguarded Internet signal, many people leave themselves open to cyberintrusions that endanger both their cyberidentites and their physical life identities. Two women have recently been in the news for such open intrusions into their private lives through seemingly safe online channels. Neither Jessica Coen, nor Allyson Stokke intended to victimize themselves through innocent online actions, yet both had their identities and privacy victimized and destroyed through the very avenues they left open to the cyberworld.

Jessica Coen is an online blogger who is now deputy online editor for Vanity Fair magazine. In a previous job, however, she was a popular blogger on the snarky Manhattan-based gossip website, gawker.com [I]. Coen wrote aggressive observations about people’s looks, loves and lives in New York City through the online medium. Coen wrote to receive a reaction, which she received in hordes. Emails, phone calls, letters in the mail, false email accounts set-up under her identity were just some of the reactions she caused from her caustic writing. All were, of course, anonymous. All were invasions of her privacy. None of which would have been so easily acted upon in the physical world. What was a wake-up call to Coen and her lifestyle should be a wakeup call to us all. Just because the anonymity of online actions makes it easier for many people to do or act in ways they are not comfortable in the physical world, does not mean the actions do not have an affect in the physical world. Voyeuristic tendencies have increased in popularity of negative online actions. The Internet has increased many people’s freedom of expression, both positive and negative. In this “me” generation, where the staged reality show, “The Hills,” is a hit, men and women not only feel that it is alright to comment and act as they desire in the online world, but seemingly get approval of their actions through physical world reactions such as media social relations. In today’s world, it is just as common to end a relationship through online or cellular means as it is in a physical world situation.

It is interesting to note that Coen is still active online. She is currently working online and still maintains a blog. A quick search on Facebook brings up a profile that appears to be hers as well. While Coen has been awakened to the threats that are online regarding her own privacy, as well as the malleableness of her identity in the online arena, she has continued to safely traverse the online realm as well as educate other women about both her experiences and her suggestions.

Allison Stokke is young woman with a similar story [II]. However, Stokke’s online privacy invasion began innocently with a sports blogger posting a picture of the young track and field athlete on his website. Rapidly, Stokke received an overwhelming amount of friend requests on her Facebook profile, and YouTube montages made in her honour. More online and even real-life harassment followed in the wake of that one posted picture. Today it is very easy to still find pictures of Stokke online, but not her physical cyber self. Stokke, as an individual, has all but disappeared online due to her experiences.

Online voyeurism has, I dare say, become more dangerous today than in the early days of the Internet when adults were arrested for meeting minors they had met online. You see, online voyeurism has gone beyond something that both appals and frightens us as it was in the past: online voyeurism has gone mainstream. While neither Coen nor Stokke were physically harmed by their attacks, not all individuals have been so lucky. Indeed, the separation between people’s physical world actions and their cyberworld actions is becoming more apparent by the more vicious people become online. Indeed, many people feel comfortable acting out online in ways they would never do in the physical world. As the cyberworld becomes more “real” in our daily lives, our ethics and responsibilities online must be reassessed. The separation of self and ethics must cease to exist. Verbally tearing into someone online may be exhilarating, but has “real life” affects on people’s lives. We need to keep in mind the humanist aspects of the online world. To continue to be wired we must keep it real.

In short, we must redefine the real to fit our new dimensions of our world. What is the real experience? How do we feel the real in cyberworld? How do we let the cyberworld fully compliment the physical world? Finally, how far do we let the two worlds go?

[I]I See Jessica Coen, Online Bullies Back Off. Glamour Magazine. Oct. 2007: 227-228.
[II] See Rebecca Webber, Give This Girl Her Life Back! Glamour Magazine. Sept. 2007: 80.

Kayleigh Platz is a Master’s student in Public Issues Anthropology at the University of Waterloo, Ontario, Canada. Kayleigh’s interests range from on-line communication and social networks, the cyberworld culture, on-line voyeurism, tactical media, and Harry Potter. Kayleigh’s main research focuses on online social networks and user identities. Kayleigh will be speaking at the Student "I" conference at the University of Ottawa on October 25th.

As the duly elected Liberal government currently serving the Province of Ontario stands poised to infuse one of the largest revenue collection and fine levying agencies in the Western hemisphere—the Ontario Provincial Police—with $2 million (Can) to fund the operation of a state-of-the-art spy plane ostensibly required to identify “racers” or “stunt” drivers using the King’s Highways (Cockburn & Greenberg 2007), all while police in Britain continue to append audio-video recording equipment, or “Bobbie-Cams,” to the helmets of their patrol officers in the vein of Paul Verhoeven’s dystopic 1987 film Robocop (Satter 2007), one is prompted to take a look back at the corpus of police surveillance devices suborned by modernity, that have in aggregate given way for what might be called the golden age of voyeurism.

The mechanical metamorphosis from Althusser’s (1971) Ideological State Apparatus, into the more palpable “technical apparatus” (Ellul 1964: 101) of the police as we know them today, has been achieved in large part through a process of technological determinism, or the means by which human culture and history are simultaneously rendered and reified by our machines. In other words, the ubiquity of those police surveillance and reporting tools that have pervaded urban life for well over a century, has in turn propagated a mimetic response in occidental consumer culture whereby the general public is increasingly enamored by the “democratization of surveillance” (Staples 2000: 155) made possible by portable, affordable, and elegant devices that, through their egalitarian accessibility, make “coercion embedded, cooperative, and subtle, and therefore not experienced as coercion at all” (Ericson & Haggerty 1997: 7). As public and private interests ultimately converge through a phenomenon I call wikisurveillance, the denizens of this self-supervising panoptic state cooperatively pen the requiem for once valued tenets of privacy through the normalization, even fetishization, of corporate and private data mining, cell phone videography, security camera ubiquity, home “monitoring” systems, the proliferation of spy stores, and systemic Facebook cultism.

From the discreet distribution of “Constable keys” in the early 20th century to select citizens who could then access locked police signal-boxes and secretly report on the activities of their neighbors, illegal or otherwise, through to the efforts of the Ontario Green Ribbon Task Force in the early 1990s to have affluent commuters armed with what were then nascent and comparatively costly cell-phones report on the movements and identifiers of any vehicle similar to that believed to have been driven by serial killer Paul Bernardo, to modern AMBER-Alerts that function under this same basic pretense, and ultimately to the use of virtual communities like You Tube to solve crimes as serious as murder in some instances (Quintino 2006), there is indeed a long standing confederacy between hegemony and communications technology—even a co-constitutive evolution—which is being increasingly co-opted by private citizens and private enterprise as the state’s observational authority is deregulated.

As Western law enforcement continues to increasingly assert itself through largely privately owned and definitively for-profit entities whose loyalty remains to its capital interests in earnest, the “technical apparatus” of the police is diffused amongst an untrained, unaccountable, and largely anonymous civilian populace who mimic the police methodology by not only buying the compatible hardware, but also buying-in to the associated mindset that all human activities have an inherent intelligence-gathering value.

Whether it be the regular use of clandestine listening devices in Dunkin’ Donuts stores throughout the US (Staples 2000), or the Argus Digital Doorman maintaining and potentially selling off a facial recognition database containing the images of all visitors traveling to and fro any subscribing condominium or apartment building, we see that wikisurveillance allows the Western narrative on both privacy and paranoia to be scribed by a cabal of agents provocateurs who, in working for purely commercial interests, transform the thin blue line into a proverbial Maginot Line of strategic technical installations that expedite the erosion of human agency in not only the management, but also the manufacturing, of law and order.

Wikisurveillance has shown us that the rise of the dreaded police state in the West will not come with the terrifying, sweeping reforms of some new radical and totalitarian government that somehow seizes power, nor from under the boot of some fascist despot, but rather, with the efforts taken in the here and now largely to protect actuarial assets. While police agencies are generally subject to public oversight and accountability, and to archival audits and the eventual de-classification or disclosure of some information, where, when, and how the fragments of unregulated and individually mined data presently floating around will ultimately be used becomes the nagging query written into the code of wikisurvillance. As all human activities become increasingly part of a permanent and quantifiable record that is in large part privately owned and maintained, the Monday morning quarterbacking of historical surveillance data will consequently ensure that “[a] crime can always be found” (Solove 2007: 5) amongst the assorted images, as the floating definition of deviance ensures that crime becomes the last truly renewable Western resource.

Michael Arntfield is a PhD candidate at the Faculty of Information & Media Studies, University of Western Ontario.

BIBLIOGRPAHY

Adlam, Robert C.A. (1981) “The Police Personality.” In: Pope, David W. & Weiner, Norman L. (eds) Modern Policing. pp. 152-162. London: Croom Helm Ltd.

Chu, Jim (2001) Law Enforcement Information Technology: A Managerial, Operational and Practitioner Guide. USA: CRC Press

Cockburn, Neco & Greenberg, Lee (2007) “Ont. to Impose $10,000 Fines for Street Racing.” National Post on-line, Aug 15, 2007. Electronic document: http://www.canada.com/nationalpost/news/story.html?id=6b7d070b-7d48-466c-96db-586d2a5f6def&k=10512. Retrieved Aug 16, 2007

Dandeker, Christopher (1990) Surveillance, Power and Modernity: Bureaucracy and Discipline from 1700 to the Present Day. Cambridge: Polity Press

Ellul, Jacques (1964) The Technological Society. New York: Knopf

Ericson, Richard V. & Haggerty, Kevin, D (1997) Policing the Risk Society. Toronto: University of Toronto Press

Lind, Laura (2007, August 18) “Hysteria Lane” The National Post, Toronto Weekend Magazine, p.14

Mann, Steve (1998) “’Reflectionism' and 'Diffusionism': New Tactics for Deconstructing the Video Surveillance Superhighway,” Leonardo, 31(2): 93-102.

Manning, Peter K. (1992) “Information Technologies and the Police” In Tonry, Michael & Morris, Norval (eds) Modern Policing. pp. 349-398. Chicago: University of Chicago Press

Marx, Leo (1964) The Machine in the Garden: The Pastoral Idea in America. New York: Oxford University Press

Maxcer, Chris (2007, March 6) “Cops Nab Crooks Using YouTube” Tech News World.com. Electronic document: http://www.technewsworld.com/story/56108.html
Retrieved July 10/07

Morgan, Rod & Newburn, Tim (1997) The Future of Policing. Oxford: Oxford University Press

North, Dick (1978) The Lost Patrol. Anchorage: Alaska Northwest Publishing Co.

ODMP (2006) Officer Down Memorial Page. Fallen officer directory. Electronic document: http://www.odmp.org/agency.php?agencyid=2758. Retrieved June 14/06

Packer, Jeremy (2002) “Mobile Communications and Governing the Mobile: CBs and Truckers,” Communication Review, 5(1) pp. 39-58

Phillips, Alberta (2005, March 17) “After Club Fire Police Comments Still Smolder” Statesman.com. Electronic document: http://www.statesman.com/opinion/content/editorial/stories/03/17phillips_edit.html. Retrieved May 2/06

Quintino, Anne-Marie (2006, December 15) “Police Discovering Power of YouTube” Globe and Mail.com. Electronic document: http://www.theglobeandmail.com/servlet/story/RTGAM.20061215.gtcopsyoutube1215/BNStory/Technology/home. Retrieved July 17/07

Richardson, Mark (2005) On the Beat: 150 Years of Policing in London Ontario. Canada: Aylmer Express Ltd.

Rubinstein, Jonathan (1973) City Police. USA: Hill & Wang

Satter, Raphael G. (2007, July 13) “Britain’s surveillance to new levels with video cameras strapped to police helmets.” CBC Newsworld. Electronic document: http://www.cbc.ca/cp/world/070713/w071347A.html. Retrieved July 14/07

Seltzer, Mark (1992) Bodies & Machines. New York: Routledge

Smith, Merritt Roe (1994) “Technological Determinism in American Culture.” In Smith, Merritt Roe & Marx, Leo (eds) Does Technology Drive History? The Dilemma of Technological Determinism. pp. 1-36. Cambridge, Mass: MIT Press

Solove, Daniel J. (2007) “I’ve Got Nothing to Hide and Other Misunderstandings of Privacy,” The San Diego Law Review (44), pp. 1-23

Staples, William G. (2000) Everyday Surveillance: Vigilance and Visibility in Postmodern Life. Lanham, MD: Rowman & Littlefield

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Vanderburg, Willem H. (2000) The Labyrinth of Technology. Toronto: University of Toronto Press

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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.

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.

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.

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.

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]

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]

Conclusion

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”.

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]

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

Privacy law is increasingly important in litigation in Canada. Contemporary litigants routinely file requests for access to their personal information under PIPEDA and its provincial counterparts. Such requests can give a party a partial head-start on litigation discovery, or aid a party in rooting out information held by an opponent or potential opponent.

That said, with some possible room for improvement (at least in the case of PIPEDA), [1] data protection law in Canada takes a relatively hands-off approach when it comes to legal proceedings. Parties in legal proceedings are generally required to disclose information in accordance with long-standing litigation rules and are largely exempted from restrictions that might otherwise be applicable under data protection laws in other contexts. Yet, this does not mean that privacy considerations are not relevant or applicable to discovery in legal proceedings. This short article identifies some existing and emerging privacy-based limits in litigation discovery at the intersection between privacy interests and the need for full disclosure in litigation.

As a starting point, it is important to note that privacy protections are built into discovery at a fundamental level. Information obtained through discovery is generally subject to an implied undertaking of confidentiality. This prohibits parties from using or disclosing information obtained during discovery for purposes outside of the litigation. The implied undertaking rule is based on a recognition by Canadian courts of the general right of privacy that a person has with respect to his or her own documents. [2] Many Canadian decisions cite the English text Discovery by Matthews & Malek for the principle behind the rule:

The primary rationale for the imposition of the implied undertaking is the protection of privacy. Discovery is an invasion of the right of the individual to keep his own documents to himself. It is a matter of public interest to safeguard that right. The purpose of the undertaking is to protect, so far as is consistent with the proper conduct of the action, the confidentiality of a party’s documents. [3]

A party may apply for relief from the implied undertaking rule where a party's interest in using information outweighs the privacy interest protected or where the document is otherwise available. However, the courts do not take the principle of privacy behind the rule lightly, as such applications for relief are frequently denied, for example, on the basis that it would be “an unwarranted intrusion on [the party’s] privacy rights”. [5]

Privacy has similarly been invoked as a limitation in defining what is and is not reasonable in discovery. For example, in Fraser v. Houston, the court declined to order production of the plaintiff’s financial documents on the basis of privacy concerns, despite concluding that the documents had “at least marginal probative value” to an allegation of economic duress:

I am satisfied that this line of questioning, […] could result in a detailed exploration of a man’s state of wealth or state of non-wealth as the case may be, and that that is a major invasion into a man's privacy which is generally only allowed in matters of execution on judgments that are not paid and perhaps, in some other circumstances. However, in the present case I am of the view that to allow an exploration of the nature that is requested by the defendants has a potential prejudicial effect upon Mr. Fraser's privacy which well outweighs any apparent probative value that there may be. [6]

Information potentially subject to disclosure in legal proceedings could be held directly by a party to the litigation or by a third party, such as an Internet service provider (ISP). In each of these categories, discussed in turn below, courts have balanced privacy considerations against the interests of full disclosure in litigation.

II. Information Held by a Party

A. Motions for Production

In Park v. Mullin, [7] a party applied for discovery of its opponent’s computer. Relying on earlier Supreme Court of Canada jurisprudence, Dorgan J. expressly drew on privacy considerations in refusing to order disclosure:

That the issue of privacy is a robust and real issue should be taken into account on an application such as this. In [A.M. v. Ryan, 1997 CanLII 403 (S.C.C.)], McLachlin J. commented on a party’s privacy interests in the context of an application for third party clinical records under Rule 26(11). […]:

... I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.

In my view, similar privacy concerns should be considered in a determination under Rule 26(10) where the order sought is so broad it has the potential to unnecessarily “delve into private aspects” of the opposing party’s life. [8]

Privacy also played an integral role in the leading case Desgagne v. Yuen [9], where the Court balanced the relevance of the information sought against other considerations, including privacy. The plaintiff had been injured in an accident, and the defendant sought production of her hard drive, Palm Pilot, video game unit, and photographs (both electronic and hard copies) taken since the accident. The plaintiff argued that the information was relevant since it would shed light on the defendant’s post-accident cognitive abilities and quality of life. Myers J. refused to order production of the plaintiff’s photographs because of privacy considerations:

In my opinion, the vacation photographs (and other photographs relating to the plaintiff’s family, friends and hobbies) sought have limited - if any - probative value on this matter. Production of these photographs, however, is invasive of the plaintiff’s personal life, because the photographs are largely of moments spent with her family and friends. The limited probative value considered against the invasiveness of production leads me to conclude that production of the photographs should not be ordered. [10]

Access to the plaintiff’s video game unit, Palm Pilot, and Internet Browsing history were also denied on the basis of their probative value being outweighed by the plaintiff’s privacy interest and the invasiveness of ordering their production. Similar reasoning was applied in Goldman, Sachs & Co. v. Sessions, [11] Ireland v Low [12], and Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen. [13]

B. Motions for Preservation

In the context of preserving evidence for discovery, ex parte orders for the seizure of evidence (such as Anton Piller orders) allow litigation opponents access to documents that may contain personal or confidential information. Although such orders relate to the preservation of evidence, they form part of the overall process of document discovery. Given the invasiveness of such orders, privacy considerations can play an important role in Anton Piller cases. Courts urged taking a cautionary approach to Anton Piller orders as early as 1981. In the words of Browne-Wilkinson J. (as he then was) in Thermax Ltd v. Schott Industrial Glass Ltd: [14]

As time goes on and the granting of Anton Pillar [sic] orders becomes more and more frequent, there is a tendency to forget how serious an intervention they are in the privacy and rights of defendants. One is also inclined to forget the stringency of the requirements as laid down by the Court of Appeal. [15]

In Harris Scientific Products Ltd. v. Araujo, [16] the Court found that an Anton Piller order had been improperly obtained and improperly executed. The plaintiff had misrepresented a material fact in its application for the order, and the court found numerous and serious breaches of the order’s execution by the plaintiff. Two of the more serious breaches included the seizure of material subject to solicitor-client privilege and the seizure of an audio cassette that clearly had no relation to the proceedings (“a state-assisted major invasion of Mr. Araujo’s privacy on an unrelated matter”) [17]. When considering the quantum of damages to be awarded, the court reiterated how seriously such breaches of privacy are taken:

Damages for trespass resulting from a defective Anton Piller order should not be so low as to condone the wrongdoing; the use of state powers to breach an individual’s privacy must be jealously guarded. Even where the target of the order has suffered no, or little, in the way of pecuniary damage, the level of damages awarded can be more than nominal and can reflect mental distress. [18]

Finally, in CIBC World Markets v. Genuity Capital Markets, [19] an order in the nature of an Anton Piller order was made for full preservation of “computers, Blackberries and other types of similar electronic devices of every nature and kind” including all devices “owned or used by others including spouses, children or other relatives”. [20] An order for a seizure of this magnitude obviously has a broad privacy impact. However, the order provided that a technical consultant would perform the imaging and indexing of information and that the imaged drives and information would not initially be shared with the plaintiffs. [21] The court addressed the matters of relevance and confidentiality in a subsequent order, holding that if there were confidential or irrelevant documents contained in the devices imaged, then the defendants could apply to have the full index of documents sealed and one made public that only contained relevant material. [22]

IV. Information Held by a Non-Party

Privacy also plays an important role in contouring limits to discovery from non-parties in litigation. A great deal of personal information is held by non-parties such as ISPs and banks; it is increasingly sought out by parties in litigation.

In BMG v. Doe, [23] the Federal Court of Appeal considered an appeal by music providers who were seeking disclosure of the identities of customers alleged to have infringed copyrights by sharing music on peer-to-peer networks. Sexton JA, for the court, held that plaintiffs must conduct their initial investigations in a way that minimized privacy invasion; failure to do so could justify a court refusing to order ISPs to identify potential defendant customers as requested by the plaintiffs:

If private information irrelevant to the copyright issues is extracted, and disclosure of the user’s identity is made, the recipient of the information may then be in possession of highly confidential information about the user. If this information is unrelated to copyright infringement, this would be an unjustified intrusion into the rights of the user and might well amount to a breach of PIPEDA by the ISPs, leaving them open to prosecution. Thus in situations where the plaintiffs have failed in their investigation to limit the acquisition of information to the copyright infringement issues, a court might well be justified in declining to grant an order for disclosure of the user's identity. [24]

In other similar cases of discovery from non-parties, courts have relied on privacy as one of the key considerations factoring into whether production should be granted. For example, in Irwin Toy Ltd. v. Doe, [25] Wilkins J. provided the following view of privacy considerations: “some degree of privacy or confidentiality with respect to the identity of the internet protocol address of the originator of a message has significant safety value and is in keeping with what should be perceived as being good public policy.” [26] Although the court ordered the ISP to disclose the identity of the targeted ISP customer, it required the plaintiffs to meet a privacy-informed threshold test before disclosure would be granted.

Finally, discovery limits based on privacy considerations may also be developed after the fact, in the form of sanctions for wrongful behaviour. Where ex parte orders for evidence seizure (such as Anton Piller orders) are obtained or executed improperly in a way that has an impact on privacy, the courts may step in. This may result in the removal of the offending party’s counsel, or possibly even a stay of proceedings. For example, Grenzservice Speditions Ges.m.b.H. v. Jans [27] concerned an order in the nature of an Anton Piller order. The Court found that the plaintiff’s solicitor allowed flagrant abuses of privacy in the execution of that order, including questioning of the occupants of the home and videotaping of the proceedings surrounding the search. Because of the egregious nature of the infringement on the individual’s right to privacy, Huddart J. (as she then was) disqualified the plaintiff's counsel from further involvement in the case, in order to “assure the defendants and members of the public, all of whom are potential subjects of search and seizure orders, that their rights will be protected.” [28]

Conclusions

This article has briefly reviewed some of the rules and jurisprudence at the intersection between privacy and litigation discovery. Although data protection legislation has an impact on discovery, it generally leaves established litigation rules untouched. However, as seen in the cases reviewed here, there are a number of existing and emerging privacy-based limits on discovery in litigation. Conflicts between the need for full disclosure in litigation and privacy interests will certainly arise more frequently in light of the increasing prominence of electronic discovery and the increasing role that electronic devices play in the creation, processing and storage of personal information.

[1] Statutory Review of the Personal Information protection and Electronic Documents Act (PIPEDA), Fourth Report of the Standing Committee on Access to Information, Privacy and Ethics, Tom Wappel, MP, Chairman, May 2007, 39th Parliament, 1st Session, online: Standing Committee on Access to Information, Privacy and Ethics
(Recommendation 9: “The Committee recommends that PIPEDA be amended to create an exception to the consent requirement for information legally available to a party to a legal proceeding, in a manner similar to the provisions of the Alberta and British Columbia Personal Information Protection Acts.”)
[2] See Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., 2001 SCC 51 (CanLII) at para. 61.
[3] Paul Matthews and Hodge M. Malek, Discovery (London: Sweet & Maxwell, 1992) at 253, cited in Goodman v. Rossi, [1995] O.J. No. 1906 (C.A.) (QL) at para. 29. See also Tanner v. Clark, 2003 CanLII 41640 (ON C.A.); Royal Bank of Canada v. Bacon (1999), 218 N.B.R. (2d) 98 (Q.B.); Vitapharm Canada Ltd. v. F. Hoffmann-La Roche Ltd., [2002] O.J. No. 1400 (S.C.) (QL).
[4] Letourneau v. Clearbrook Iron Works Ltd., 2003 FC 949 (CanLII) at para. 5.
[5] Kunz v. Kunz Estate, 2004 SKQB 410 (CanLII) at para. 17. See also Letourneau v. Clearbrook Iron Works Ltd., ibid.; L. H. v. Caughell, [1996] O.J. No. 3331 (Ont. Gen. Div.); Sezerman v. Youle, 1996 CanLII 5610 (NS C.A.).
[6] Fraser v. Houston, 1997 CanLII 3227 (BC S.C.) at para. 21.
[7] Park v. Mullin, 2005 BCSC 1813 (CanLII).
[8] Ibid. at para 21.
[9] Desgagne v. Yuen, 2006 BCSC 955 (CanLII).
[10] Ibid. at para. 49.
[11] Goldman, Sachs & Co. v. Sessions, 2000 BCSC 67 (CanLII).
[12] Ireland v Low, 2006 BCSC 393 (CanLII).
[13] Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen, 2006 BCSC 554 (CanLII).
[14] Thermax Ltd v. Schott Industrial Glass Ltd, [1981] F.S.R. 289 (Ch. D.).
[15] Ibid. at 294.
[16] Harris Scientific Products Ltd. v. Araujo, 2005 ABQB 603 (CanLII).
[17] Ibid. at para. 103.
[18] Ibid. at para. 105.
[19] CIBC World Markets Inc. v. Genuity Capital Markets, 2005 CanLII 3944 (ON S.C.).
[20] Ibid. at para. 3.
[21] Persons connected to the defendants were entitled to review the information in order to assess whether to advance claims of privilege.
[22] CIBC World Markets v. Genuity Capital Markets, 2006 CanLII 11908 at para. 5.
[23] BMG Canada Inc. v. Doe, 2005 FCA 193 (CanLII).
[24] Ibid. at para. 44.
[25] Irwin Toy Ltd. v. Doe, [2000] O.J. No. 3318 (S.C.) (QL).
[26] Ibid. at para. 11.
[27] Grenzservice Speditions Ges.m.b.H. v. Jans 1995 CanLII 2507 (BC S.C.).
[28] Ibid. at para. 116.

“Those who worry about the perils women face behind closed doors in the real world will also find analogous perils facing women in cyberspace. Rape, sexual harassment, prying, eavesdropping, emotional injury, and accidents happen in cyberspace and as a consequence of interaction that commences in cyberspace.”

- Anita Allen, “Gender and Privacy” (2000) 52 Stan. L Rev. at 1184.

In 2006, the University of Maryland’s Clark School of Engineering released a study assessing the threat of attacks associated with the chat medium IRC (Internet Relay Chat). The authors observed that users with female identifiers were “far more likely” to receive malicious private messages and slightly more likely to receive files and links. [1] Users with ambiguous names were less likely to receive malicious private messages than female users, but more likely to receive them than male users. [2] The results of the study indicated that the attacks came from human chat-users who selected their targets, rather than automated scripts programmed to send attacks to everyone on the channel.

The findings of this study highlight the realities that many women face when they are online. From the early days of cyberspace, women who identify as female are frequently subject to hostility and harassment in gendered and sexually threatening terms. [3] These actions typically stem from anonymous users.

The effects of repeated online harassment has profound consequences for women’s equality online and in the real world. Online threats and attacks can have had a chilling effect on women’s expression. [8] Some women may either stop participating in open online forums, unless under the cloak of anonymity or pseudonymity, or self-censor their speech, rather than risk being the subject of violent threats or DoS attacks. These choices reduce a woman’s online identity to being the invisible woman, or a quieter, edited version of herself. Fortunately, women actively continue to blog and participate in cyber-life in the face of threats and harassment, with the support of both women and men in online communities.

Women’s retreat from the Internet can also have an economic impact on those seeking entry into technology-based labour markets. One prominent technology blogger observed: “If women aren’t willing to show up for networking events [because of harassment], either offline or online, then they’re never going to be included in the industry.” [9] Women’s absence from the creative process also has implications for equality in terms of influencing what kinds of technology are made, and what societal interests those innovations ultimately serve. [10]

To date, the law has provided a limited response to harms directed against women online. Traditional torts such as defamation are available, but are difficult to pursue against multiple, anonymous individuals who could be anywhere in the world. In light of the uncertainly in Canadian case law, [11] a claim for invasion of privacy would be very challenging to make in the absence of an appellate level decision recognizing the right to privacy. An action for intentional or negligent infliction of emotional distress may also be possible, although plaintiffs must meet stringent standards to succeed. [12] Complainants may have difficulty overcoming the view that in the absence of physical contact, no real harm can be inflicted in the virtual world, particularly within the context of fantasy/gaming environments.

Without a more complete and critical examination of actions that target women in cyberspace, there is the danger of reinforcing substantive inequality by dismissing the individual and social harm experienced as an “natural” part of online life. Although tort actions represent some avenues for redress, they are individual, private law remedies that do not speak to the public nature of harms against women. While criminal sanctions for assault, obscenity, hate speech and uttering threats are possible, they would only apply if actions could be proved to fall within Criminal Code [13] definitions and precedents. It should not be forgotten that women continue to face difficulties with the law in seeking protection from, and compensation for violence, harassment, discrimination and exploitation experienced in the real world. [14]

Given the market drive for more intense and realistic sensory experiences in the virtual world, it is not far-fetched to foresee online acts that more closely reflect conventional legal and social notions of physical and sexual violence in the future. [15] As “[t]he courts will increasingly be confronted with issues that are ‘lying in wait’ as virtual worlds expand,” [16] so too will feminists, lawyers, and policy makers be faced with opportunities to think about how to expand the law in favour of greater equality.

[1] Robert Meyer and Michel Cukier, “Assessing the Attack Threat due to IRC Channels,” (2006) University of Maryland School of Engineering, at 5-6 http://www.enre.umd.edu/content/rmeyer-assessing.pdf
[2] Ibid.
[3] See Rebecca K. Lee, “Romantic and Electronic Stalking in a College Context,” (1998) 4 WM. & Mary J. Women & L. 373 at 404, 405-6 which discusses sexual harassment from e-mail messages, in chat rooms, and Usenet newsgroups. A well-known account of sexualized threats towards female and androgynous virtual personas and the emotional harm experienced by the real-life participants is in Julian Dibbell’s, “A Rape in Cyberspace,” My Tiny Life (1998), ch. 1 http://www.juliandibbell.com/texts/bungle.html.
[4] Jessica Valenti, “How the web became a sexists’ paradise” The UK Guardian (April 6, 2007) http://www.guardian.co.uk/g2/story/0,,2051394,00.html; Anna Greer, “Misogyny bares its teeth on Internet,” Sydney Morning Herald (August 21, 2007) http://www.smh.com.au/news/opinion/misogyny-bares-its-teeth-on-internet/2007/08/20/1187462171087.html;
Ellen Nakashima, “Sexual Threats Stifle Some Female Bloggers,” Washington Post (April 30, 2007)
http://www.washingtonpost.com/wp-dyn/content/article/2007/04/29/AR2007042901555_pf.html
[5] See Posts on “Greatest Hits: The Public Woman” and “What do we do about Online Harassment?” on Feministe http://feministe.powweb.com/blog/archives/2007/08/09/what-do-we-do-about-online-harassment/?s=online+harassment&submit=Search
[6] Ellen Nakashima, Washington Post, supra note 4.
[7] BBC News, “Blog Death Threat Sparks Debate” (27 March 2007) http://news.bbc.co.uk/1/hi/technology/6499095.stm
[8] Deborah Fallows, “How Women and Men Use the Internet,” Pew Internet & American Life Project (December 28, 2005), at 14 <http://www.pewinternet.org/pdfs/PIP_Women_and_Men_online.pdf>. The report states.” “The proportion of internet users who have participated in online chats and discussion groups dropped from 28% in 2000 to as low as 17% in 2005, entirely because of women’s fall off in participation. The drop off occurred during the last few years coincided with increased awareness of and sensitivity to worrisome behavior in chat rooms.”
[9] Nakashima, Washington Post, supra note 4.
[10] For an study on women, technology and power see Judy Wacjman, Technofeminism (Polity Press: Cambridge, UK, 2004).
[11] Recently, lower courts in Ontario have found that complaints are free make a case for invasion of privacy: Somwar v. McDonald’s Restaurant of Canada Ltd., [2006] O.J. No. 64 (Ont. S.C.J.) and Re: Shred-Tech Corp. v. Viveen [2006] O.J. No. 4893. However, the Ontario Court of Appeal has explicitly found that there is no right to privacy in Euteneier v. Lee, [2000] O.J. No. 4533 (SCJ); rev’d [2003] O.J. No. 4239 (SCJ, Div Ct); rev’d (2005) 77 O.R. (2d) 621 (CA) at para 22.
[12] Jennifer McPhee, “New and Novel Torts for Problems in Cyberspace,” Law Times (30 July-August 6 2007) at 13.
[13] Criminal Code ( R.S., 1985, c. C-46 )
[14] Just two examples are: Jane Doe, The Story of Jane Doe: A Book About Rape (Random House: Toronto, 2003) and Patricia Monture-Angus, Thunder in my Soul: A Mohawk Woman Speaks. (Halifax: Fernwood Publishing, 1995). For an analysis of the limitations of the Supreme Court’s privacy analysis in obscenity, hate propaganda and child pornography cases, see Jane Bailey, Privacy as a Social Value - ID Trail Mix: http://www.anonequity.org/weblog/archives/2007/04/privacy_as_a_social_value_by_j.php
[15] Lydia Dotto, “Real lawsuits set to materialize from virtual worlds; Harm, theft in online gaming may land players in the courts: Precedents few, but Vancouver lawyer thinks cases coming” Toronto Star (2 May 2005) at D 04 (ProQuest).
[16] Ibid.

In this Google Era of unlimited information creation and availability, it is becoming an increasingly quixotic task to advocate for limits on collecting, use, disclosure and retention of personally-identifiable information ("PII"), or for meaningful direct roles for individuals to play regarding the disposition of their PII "out there" in the Netw0rked Cloud. Information has become the currency of the Modern Era, and there is no going back to practical obscurity. Regarding personal privacy, the basic choices seem to be engagement or abstinence, so overwhelming are the imperatives of the Information Age, so unstoppable the technologies that promise new services, conveniences and efficiencies. Privacy, as we knew it, is dying.

Privacy advocates are starting to play the role of reactive luddites: suspicious of motives, they criticize, they raise alarm bells; they oppose big IT projects like data-mining and profiling, electronic health records and national ID cards; and they incite others to join in their concerns and opposition. Privacy advocates tend to react to information privacy excesses by seeking stronger oversight and enforcement controls, and calling for better education and awareness. Some are more proactive, however, and seek to encourage the development and adoption of
privacy-enhancing technologies (PETs). If information and communication technologies (ICTs) are partly the cause of the information privacy problem, the thinking goes, then perhaps ICTs should also be part of the privacy solution.

PETs as a Personal Tool/Application

Are PETs the answer to information privacy concerns? A closer look at the European and UK communiqués suggests otherwise - for all their timeliness and prominence, they reflect thinking about PETs that is becoming outdated. The reports cite, as examples of PETs, technologies such personal encryption tools for files and communications, cookie cutters, anonymous proxies and P3P (a privacy negotiation protocol). Not a single new privacy-enhancing technology category here in seven years. Other web pages dedicated to promoting PETs list more technologies, such as password managers, file scrubbers, and firewalls, but otherwise don’t appear to have significantly new categories of tools.(3,4).

The general intent off the PETs endorsements seem clear and laudable enough: publicize and promote technologies that place more controls into the hands of individuals over the disclosure and use of their personal information and online activities. PETs should directly enable information self-determination. Empowered by PETs, online users can mitigate the privacy risks arising from the observability, identifiability, linkability of their online personal data and behaviours by others.

Unfortunately, few of the privacy-enhancing tools cited by advocates have enjoyed widespread public adoption or viability (unless installed and activated by default on users’ computers, e.g. SSL and Windows firewalls). The reasons are several and varied: PETs are too complicated, too unreliable, untrusted, expensive or simply not feasible to use. The threat model they respond to, and benefits they offer, are not always clear or measurable to users. PETs may interfere with normal operation of computer applications and communications, for example, they can render web pages non-functional. In the case of P3P, a privacy negotiation protocol, viable user-agents were simply never developed (except for a. modest but largely incomprehensible cookie implementation in IE6 and IE7). PETs simply haven't taken off in the marketplace, and the bottom-line reason seems to be that there are few incentives for organizations to develop them and make them available. (Where there has been a congruence of interests between users and organizations, some PETs have thrived, for example, SSL for encrypted secure web traffic and e-commerce. Perhaps the same is happening for anti-spam and anti-phishing tools, since deployment of these technologies helps to promote confidence and trust in online transactions.)

Perhaps the underlying difficulty may be a conceptualization of PETs as a technology, tool or application exclusively for use by individuals, complete in itself, expressed perhaps in its purest form by David Chaum’s digital cash Stefan Brands' private credentials. As brilliant as those ideas are, they have had limited deployment and viability to date. It seems that, to be viable, PETs must be also meet specific, recognizable needs of organizations. Secure Socket Layer (SSL) is a good example, responding as it did to well-understood problems of interception, surveillance and consumer trust online. SSL succeeded because organizations had a mutual interest in seeing that it was baked into the cake of all browsers and its use largely transparent to user.

Meanwhile, technology marches on. Many PETs weren't very practical to use. Sure you can surf anonymously, if don't mind a little latency and the need to tweak or disable browser functionality. But as soon as you want to carry out an online transaction, sign on to a site, make a purchase, or otherwise become engaged online in a sustained way, you had to identify yourself, provide a credit card, login credential, registration form, mailing address, etc. Privacy suffered from the 100th window syndrome: your house, just like your privacy, could be Fort Knox secure but all it took was to leave one window open and the security (privacy) was compromised. Privacy required too much knowledge and effort and responsibility on the part of the individuals to sustain in an ongoing way. Online privacy was just too much work.

And, anyway, the benefits of online privacy tended to pale in the face of immediate gratification needs, and greater conveniences, personalization, efficiency, and essential connectedness afforded by consent and trust. The privacy emphasis slides inexorably towards holding others accountable for the personal information they must inevitably collect about us, not PETs. The only effective privacy option for most people in the online world is disengagement and abstinence.

PETs as a Security Technology

Certain consumer PETs have thrived, such as SSL, firewalls, anti-virus/anti-spyware tools, secure authentication tools. Perhaps anti-phishing tools and whole disk encryption will follow –if incorporated and activated by default into users’ hardware/software. But note: these are all largely information security tools. PETs have tended to become equated with information security. Safeguards are certainly an important components of privacy. We may not be able to stifle the global information explosion, but with appropriate deployment of PETs we can help ensure that our data stays where it belongs, is not accessed inappropriately, tampered with, or otherwise subject to breaches of confidentiality, integrity and availability.

Personal security tools like firewalls, virus/spyware detection, encryption are available to individuals. To the extent that PETs have been adopted by organizations public and private, rather than users, they have been security technologies. Legal and regulatory compliance for managing sensitive information in accountable ways, and for notifying individuals of data breaches, as well as the desire to build brand and promote consumer trust, have helped drive innovation and growth in the data security technology products market. Organizations, both public and private, today are deploying information security technologies throughout their operations, from web SSL to encrypted backup tapes to data ingress and egress filtering, to strong authentication and access controls, to privacy policy enforcement tools such as intrusion detection/prevention systems, transaction logging and audit trails, and so forth. When it comes to organizational PET deployments in practice, security is the name of the game.

But are these technologies really PETs? They may be technologies that are deployed with the end-user in mind - it is their data after all, but they don't really involve the user in a meaningful way in the life-cycle management of the information. The security measures listed above are put in place mainly to pro