Ideas - Brave New Worlds: The Right to Privacy, Part Two

Episode Date: September 3, 2024

Article 12 of the Universal Declaration of Human Rights declares, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation." It's a right with profound implications for our lives in the 21st century, from digital surveillance to sexuality and autonomy. How can we protect ourselves?

Hey there, I'm Kathleen Goltar and I have a confession to make. I am a true crime fanatic. I devour books and films and most of all true crime podcasts. But sometimes I just want to know more. I want to go deeper. And that's where my podcast Crime Story comes in. Every week I go behind the scenes with the creators of the best in true crime. I chat with the host of Scamanda, Teacher's Pet, Bone Valley, the list goes on. For the insider scoop, find Crime Story in your podcast app. This is a CBC Podcast. Welcome to Ideas. I'm Nala Ayyad, and welcome to our series at CBC Ideas at the Stratford Festival. How do we create a better world?

How do we articulate the kind of future in which we want to live? A little more than 75 years after the adoption of the Universal Declaration of Human Rights at the United Nations, we're talking about that document and how well it stands up to the test of time. Born out of the devastation of the Second World War, the Universal Declaration was intended to set the world on a new course. Some of the questions we'll be asking here, what new world were these rights supposed to create? What's the relationship between rights and realities, between calling for a more just world and actually bringing it into being? Today's panel is the second in the series, and we're looking at Article 12, the right to privacy.

I'm joined by three very qualified guests to speak about this. Ron Deibert, to my right, is Professor of Political Science and the founder and director of the Citizen Lab at the Munk School of Global Affairs and Public Policy at the University of Toronto. Lex Gill is a lawyer practicing in the areas of human rights, state liability, and corporate accountability based in Montreal. She's a fellow at the Citizen Lab as well. Michael Link is Professor Emeritus of Law at Western University in London, Ontario, not far from here, where he taught labor law, constitutional law, and international and Canadian human rights law. Formerly, he was UN Special

Rapporteur for Human Rights in the Occupied Palestinian Territories. Please join me in welcoming our panel. So let's start just as a refresher with what the article says. Quote, no one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks. With that in mind, in thinking about the last 75 years, and I want to hear from each of you on this as an opening salvo, could you paint a picture of a moment in time or an inflection point in history

about when the idea behind that right to privacy came to life for you? We'll start with you, Ron. Sure. There's one event that really stuck out for me, and that was about 11 years ago. I was at Toronto's Pearson Airport, and I was waiting to board a plane,

and I opened up my laptop, received an email from a CBC reporter, and it explained to me he wanted to have a call. So I called him, and he said, Ron, I've got something really interesting here. He was privy to some of the unredacted Edward Snowden disclosures. And he started to describe to me a top secret program that apparently our security agency in Canada, the communications security establishment was running that was intercepting communications of travelers as they were passing through Toronto's Pearson Airport.

So I said, I think maybe we should pick up this conversation at another time time I hung up the phone and I distinctly recall sitting in my seat I was in the lounge at the time and there it was full like this room and I started to imagine all of the data points that were being invisibly transmitted from everyone's device in their pocket. I have just this sharp memory of imagining it and all of the device IDs, all of the IP addresses. Later, I was, of course, given the material from the reporter to look through. This hadn't been disclosed yet publicly. And it was fascinating to see the inner workings of some of these top secret programs. Of course, I went through a lot of the

Snowden disclosures. And what became apparent to me was that contrary to what a lot of people may have assumed about top secret signals, intelligence, eavesdropping agencies of the state, most of what was going on in the Snowden disclosures was actually these government programs exploiting what was already being collected by the private sector, usually by these big tech platforms. And it was at that time that it really sunk into me that, wow, we have created something. We are living in something. We have slept walked into something of our own making that has fundamentally transformed the nature of privacy.

Thank you for that. It's very illustrative. Lex. When I think about this question, something that comes to mind is an essay I was rereading recently by Alvaro Bedoya, who's now the head of the FTC and an extraordinary scholar called Privacy is Civil Right. And I'm really preoccupied by privacy because I care a lot about freedom. And I think the story he tells in that speech, in that essay, is really about that relationship through the lens of the civil rights movement in the United States. The reality is that we're not all equally subject to surveillance, right? That this is not this idea that there's just this blanket surveillance that we all sort of have to be equally preoccupied about. It's just not the case. You know, queer people, racialized people, migrants, and dissidents, people organizing for a better

world, for social change, for transformation. We often forget that the people we celebrate today as heroes of civil liberties and civil rights were very unpopular in their own times, were criminalized often in their own times. Because to me, that's the friction that democracy requires. And so in this essay, he talks about the way that the FBI surveilled Cesar Chavez, Martin Luther King Jr., Billie Holiday. The ways in which people who are trying to tell a different kind of story, trying to fight injustice around them, are subject to just this extraordinary forms of state surveillance. And that's equally true in our own times. We're indigenous organizers, land defenders, environmental activists, Palestinian human rights activists. And so I think that we, when I think about why it matters to have this kind of conversation,

it's about celebrating and protecting that negative space, that friction. Okay. Thank you that friction. Okay. Thank you, Lex. Michael. The very original idea of privacy, when we look back at how it was formed in 1948 through the Universal Declaration of Human Rights and even the ideas on privacy before, often went to the issues of the sanctity of the home, that my correspondence is sacred, that you can't enter my home. When I was a young law student in 1981, I went to the West Bank and to Gaza. I was taken there by a good friend of mine. And we went to the Jabalia camp in northern Gaza. And we came across

a family whose home had been destroyed two days before. And the reason why this remains a picture for me was I have a photo of three of the daughters looking at the camera. One, a very frightened seven-year-old, another very skeptical 10-year-old, and the 13 or 14-year-old had a more wry smile on her face, as you've seen this before. And there had been four homes in a row that had been destroyed by the Israeli army because, I guess, of intelligence issues. And I thought to myself, here they were, huddled in the home. The foundations had all been destroyed. They were still living there. They'd gathered up a few items from the kitchen.

They had a place where they kept their clothes and they hadn't left the house. And I was thinking, boy, if the right to privacy means anything with respect to the protection of something that's of a central core to you, it's the protection of your home. And what was interesting was these were laws used by the Israeli government under the emergency doctrines they had, they had borrowed those from the British. And the British had used those against Palestinian Jews during the 30s and 40s. So that all struck me as how privacy,

and this could have been repeated, I'm sure, in many parts of the world, with respect to the homes that we take for granted that many people can't. I want to add one more picture to paint, which is actually us sitting right here on this stage. All three of you made the conscious decision to bring your bags up with you.

Can you maybe, Ron, can you explain a little bit more? Yeah. In my case, given that I work with many high-risk dissidents, victims of surveillance, and I'm a professor at the University of Toronto, the Citizen Lab is a research lab, we're bound to follow very strict research ethics protocols, which oblige me to do everything I can to protect the data of those victims. And so that means that whenever I'm carrying around my laptop or my phone, I can't leave it out of my possession. And sometimes that means I am the one up on stage with a giant backpack behind me looking awkward. But I'm glad to be in company.

Lex, how much does this have to do with privacy? One of the things that I think about as a lawyer, as a litigator, I'm not just holding information about myself. I hold information about my clients, about our class members, about witnesses. And I have not just professional obligations, but I think really deep moral and ethical obligations to all of those people to do everything I possibly can to protect their information and their stories. Same reasons, you know, professional responsibility for my own well-being as well as their well-being. Before we get to the actual document, Lex, can you give us any sense of where the idea of protecting privacy actually begins in history? Yeah, I mean, you can

go all the way back to Aristotle and the Western tradition, this idea of the difference between your public life and your private life in the home. In Canada, we have two dominant legal traditions from the common law and the civil law. In the common law, our idea of privacy is really bound up with an idea of private property, this idea that a man's home is his castle. And the sort of result of that is a legal system that really struggles to deal with the immaterial, to deal with the personal, to deal with the intimate, the intangible, when it doesn't have a sort of a market value to put on it. It's one of the challenges we see in litigating these kinds of privacy issues.

In the civil law tradition, which is the basis for the private law in Quebec, kinds of privacy issues. In the civil law tradition, which is the basis for the private law in Quebec, privacy is something that's more rooted in personhood, in dignity, in honor, in reputation, in the body. And we see that evolution take place in the common law tradition gradually, but over the last 50, 75 years, we also see this new paradigm of privacy as a human right, privacy as a public good. And I think that that's, when we think about the UNDHR context, we're really thinking about privacy as something more than an individual right for which you can claim an individual private remedy,

but something that is a collective good, that is a foundational component of what it means to live in a democracy. Michael, can you pick up from that and just talk about that moment in 1948? What is it exactly that the drafters were after when they came up with this article? Well, let me just take you a step back first, because I think most scholars would say the starting point was in 1890, when Louis Brandeis, who later on had a very distinguished career in the United States Supreme Court, co-authored an article called The Right to Privacy. And this is the very first time that this ever gets articulated.

Now, what's often interesting is that sometimes great rights sometimes come from very prosaic and very ordinary circumstances. What they were upset about was the use of photography and the use of this newfangled thing called a phone and yellow journalism about intruding into middle class morality. And that's what basically they were arguing, we need to have this right to privacy. And the irony is this article was the most cited article, law journal article, over the next 50 years, right until the late 1940s. And yet no constitution anywhere in the world had adopted right to privacy

into their constitutions. So when we come to 1947 and 1948, when we have the drafting committee for the Universal Declaration of Human Rights chaired by Eleanor Roosevelt, and we also, let's not forget him, John Humphrey, a Canadian lawyer who was the intellectual brains in many ways. And ordinarily, when you have international documents being turned into conventions or treaties on human rights, what the drafters are looking at is all the ways in which national constitutions have wound up articulating this, and then it cumulates into an international treaty. This wasn't the case with respect to privacy. There had been no constitution to rely upon. And so basically it came out of thin air based on ideas like Brandeis. And when you look at the drafting history, privacy gets put in,

then privacy gets put back into one of the last items on a second draft, and then it disappears altogether, and then it comes back. And the whole concern is really over protection of the last items on a second draft, and then it disappears altogether, and then it comes back. And the whole concern is really over protection of the home. And privacy becomes that elastic right, that shapeshifter right, when they wind up putting it in. And when it finally was adopted in December 1948, it was a revolution and a revelation for the world. And I don't think we would have had nearly the advances in privacy rights today had that not been embedded there. And then we see in subsequent human rights declarations, including the International Covenant on Political and Civil Rights,

that's put into that in 1966 in virtually the same wording. Ron, you wanted to add something? Yeah, I just want to jump in and emphasize, in virtually the same wording. Ron, you wanted to add something? Yeah, I just want to jump in and emphasize, I think it's important to appreciate that privacy is one important pillar of the liberal democratic tradition. And it's not just about the right to privacy

when you think of it in that context. It's as much about preventing the abuse of power. So I often come across people who say, quite naturally, you know, I'm not really concerned about this type of surveillance you're describing because I'm a good person, I have nothing to hide, and so forth. And my response to that is usually, well, it's not so much about you doing something wrong.

It's an important constraint. It's a guardrail to prevent both the state and the private sector from abusing power. If we don't have those guardrails in place, it's something that could very well happen. Lex, can you pick up from that and talk about the relationship between the right to privacy and other rights, like the right to free expression and others that were incorporated into the document? Right. In some ways, privacy is like a preconditional right for the exercise of so many other rights. Very far back in the liberal tradition, we understand this idea that for freedom of expression

to be really actualized, for people to be really free to express their minds, to think novel thoughts, to make interesting art, to innovate politically. You need private spaces to experiment with ideas. You need spaces of dissent. You need spaces of critique. You need spaces that are dangerous. You need spaces free from scrutiny. We know that when we're watched, or even when we think we're being watched,

we behave differently. We self-censor. We constrain ourselves. We make ourselves smaller. We make ourselves safer. And the idea of having these kinds of private spaces is really about making sure that we have space to articulate free ideas.

But it's not just freedom of expression, right? Privacy is also the foundation for the exercise of all kinds of other rights. You know, until Roe v. Wade was overturned very recently, privacy was the conceptual foundation for your right to access basic reproductive care in the United States. This idea of your ability to have control over your body was rooted in the right to privacy. And to some extent, to the Canadian legal tradition, that remains true. So I think that we have to really think of privacy as this, yeah, as a precondition. It's really interesting, of course, to think

about the difference between the context in which this article or this document was adopted and the world we live in today, so different. And I wondered if each of you could, maybe Ron, starting with you, just address how our understanding of the value of privacy has changed, independent of the technology. Well, I think my feeling is most people intuitively appreciate that we're going through a profound transformation right now. It's obvious to anyone who has a phone in their pocket, and I assume virtually everybody in this room has a phone in their pocket. No, one person doesn't.

Well done. Two? Okay, proves my point. And we understand, we may not see it all, but I think we are beginning to appreciate collectively that there is something profoundly different that has gone on over the last couple of decades related to the technology. We are constantly emitting this digital exhaust that follows us around. It's not entirely visible all the time, but this data is being secreted and

it's going somewhere. It doesn't just evaporate into the stratosphere. It's going into the servers and computers of large tech platforms who are then manipulating and doing things with that data. That inherently challenges, first and foremost, this idea of the boundaries of the home, the four square walls. Well, those no longer mean anything when you have your device that's next to your bedside table. It's not turned off. Usually it's charging and it's constantly at work sending data back and forth to a variety of third parties. This is an entirely new feature. There's nothing like it in human history. And there are all sorts of other consequences that relate to it that I think most people are beginning to understand. It's that tension with this fundamental right that we supposedly have. And of course, we'll get into this in much more detail in a moment. But Michael, could you speak about other factors that are at play in determining how we look at the value of privacy? What other

factors are playing in the background? How we change how we think about privacy? Sure. When I look at recent polling that's been done by the privacy commissioners across the country, what impressed me, if you like, is while Canadians, A, have a high concern for their rights to privacy, but when you compare their responses with respect to, are you worried about government? Yes, many of them are. But are you worried about corporations? And over the last 10 to 15 years, their degree of confidence with respect to the corporate ability to respect their rights to privacy has changed substantially. Corporations are much more a matter of concern for Canadians than governments are,

which overturns what we have commonly thought of privacy during the last half of the 20th century, where we think of totalitarian governments, authoritarian governments, and even democratic governments using the various latest forms of technology to invade into our privacy. That probably still continues today on all three types of governments,

but it's the corporate reach that I think concerns us now. Lex, I want to pick up on something you said earlier, just a phrase, and you said the idea of being free from scrutiny. I mean, I know Ron has an answer for this, whether that actually is even possible in today's world, but could you speak to the gaps that you see, or a gap that you see, between the idea of privacy that we have on paper and what we actually live? I think that we have this model really based on individual consent. I'm almost in a contractual relationship with my cell phone provider, my social media company, or with the government. I'm picking and choosing what I share.

I'm engaging in some kind of meaningful transaction. I mean, we all know this is false. How many times have you clicked I agree without reading the terms of service, right? All the time. But what's much more subtle and much more troubling to me than that is that there are no watertight compartments between what the state can access and what these private companies can access or what they can access between each other. So it's not the case that the government has its own separate surveillance project through the police or intelligence services or border services or what have you, and the social media companies are doing their own little profiling because they want to sell you sneakers. The reality is that the data collected by these

private entities is precisely the data that the state wants access to. Government surveillance, policing, it piggybacks off of the market that's created by advertising companies, by data brokers, in order to sort of feed the national security apparatus, to feed policing technology, and to engage increasingly in predictive and algorithmic kinds of analysis that I think is really, really profoundly troubling. And the institutions that we've relied on traditionally, offices of privacy, commissioners, and so forth, just don't have the capacity to confront this new world that we're living in.

So if we really care about privacy, we need to think about how to revise those institutions and empower them in different ways, not just those institutions, but others as well, to deal with this massive onslaught of, you know, and empower them in different ways, not just those institutions, but others as well, to deal with this massive onslaught of basically being constantly subject to this digital vacuum cleaning operation, which is what is going on day to day.

On Ideas, you've been listening to Brave New Worlds and the second in a series of programs recorded at the Stratford Festival exploring the Universal Declaration of Human Rights, its meanings in our time and its significance for the future. You can hear Ideas wherever you get your podcasts and on CBC Radio 1 in Canada, across North America on US Public Radio and Sirius XM, in Australia on ABC Radio National, and around the world at cbc.ca slash ideas.

You can also hear us on the CBC Listen app. I'm Nala Ayed. My name is Graham Isidore. I have a progressive eye disease called keratoconus. And being I'm losing my vision has been hard, but explaining it to other people has been harder. Lately, I've been trying to talk about it. Short Sighted is an attempt to explain

what vision loss feels like by exploring how it sounds. By sharing my story, we get into all the things you don't see about hidden disabilities. Short Sighted, from CBC's Personally, available now. By sharing my story, we get into all the things you don't see about hidden disabilities. Short-sighted from CBC's Personally, available now. In today's panel discussion, we've been talking about Article 12, the right to privacy. founder of Citizen Lab at the University of Toronto, Ronald Deibert, lawyer and research fellow at the Citizen Lab, Lex Gill, and associate professor of law at Western University and former special rapporteur on the situation of human rights in the occupied Palestinian territories, Michael Link. Let's get into the details of what is the right to privacy status here in Canada.

Michael, can you talk about the outsized role of the courts in determining exactly what our right to privacy is in this country? Sure. And I'm going to talk about this in several different layers. You know, at the very highest, our Supreme Court has said on a number of occasions, there is a basic constitutional right to privacy. And in fact, privacy has been deemed by the court to be what we lawyers would call a quasi-constitutional right, which is higher than ordinary laws, not quite part of the Constitution, but something to be revered and applied. But having said that, then we look upon the privacy legislation landscape across the country, and we have 11 jurisdictions below the 60th parallel, 10 provincial governments and the federal government. Only four of them, the federal government, BC, Alberta, and Quebec, have privacy legislation at all. And the other seven have nothing with respect to privacy legislation.

They may have individual pieces of legislation that talk about medical information, but nothing bigger. And I think even those who pay attention to privacy will say, when you look at the privacy laws that are there from the federal government and these three largest provinces, there are lots of gaps. The law is falling farther and farther behind

with respect to our ability to regulate privacy in the public interest. Because one would think the right to privacy, your starting point has to be the individual and the Canadian with regards to this. Ron, you wanted to follow up? Yeah, I just want to lay on the table, I think, two very important confounding variables related to this discussion. One, which is about the consent process. And the other is about what is the difference between what's private and what's public these days. So the consent process, as you mentioned, is fundamentally broken. I think everyone understands this. For example, on most of your phones, you probably have 20, 30 separate

applications. Sometimes you download them on a daily basis. Just yesterday, I was prompted to download an application on my device to pay for the parking on the street. And each of these applications contains lengthy terms of service. If you were to actually sit down and read them all before you consent to them, you'd be doing nothing all day but reading those, right? You'd have no time to do anything else. And then there's the question of whether you even understand them. Only these two on the stage are qualified. Not even us two all the time.

Then there's the issue of what's in the public domain. So this is really complicated. It used to be, maybe it wasn't, but I'm imagining it used to be a bit simpler to understand when we're talking about things like your home, your private property, there's a clear visual boundary, your walls and so forth. But when are you in a private space today versus a public space? For example, when you're going about visiting a website and your browser you know connects to a computer and it retrieves the information and brings it back to you there is a lot of information connected to that act connected to the browser that you're connecting to that computer with that ends up in

the hands of third parties well it turns out that government security agencies right now as we speak law enforcement intelligence agencies customs and border patrol are going out and hoovering up purchasing large data sets of this type of information and when asked about that hey isn't that you know aren't you overstepping your boundaries they're saying well this is in the public domain you you you've essentially given your informal consent by engaging in the act of merely browsing the web from your bedroom, where it's perfectly fine for us to gather that information. And that's the government doing it.

That's the government doing that. So this really cuts across that idea of, well, the government's now not only inside my home, it's inside my brain. And that's where things get really complicated. Let's talk about another entity that's inside our brain that maybe shouldn't be. Philosopher Elizabeth Anderson argues our employers have become a kind of private government with sweeping powers over our lives.

What does that mean for the right to privacy? Well, consider this. Tolstoy once told us that relationships at work is the second most important relationship we'll have after our families. That's after all where we spend the vast bulk of our waking hours during many of our productive years. So the problem with employers winds up being their need or their accessibility to using monitors to be able to figure out where we are, how productive we're becoming, how fast we're driving, if I'm driving a transport truck on the highway, putting video

cams in a factory or in an office that wind up, that somebody at a control room can wind up examining us. All of this, I think, and what medical doctors who work in the area says, wind up increasing levels of stress, challenges to mental health, I suppose attacks on our self-confidence. And while employers will justify this with respect to the issue of productivity, I think and probably can be argued that the downsides with respect to our health and our sense of well-being, most importantly, I guess our sense of productivity, I think and probably can be argued that the downsides with respect to our health and our sense of well-being, most importantly, I guess our sense of dignity, wind up often taking away whatever gains employers think they can wind up having.

So we've seen an explosion of cases on privacy over the last 15 years with the rise particularly of surveillance in the workplace. Is there an example that you can point to that kind of illustrates the point? Sure. There was a case that came out just a month ago from the Supreme Court of Canada involving two Ontario teachers who had created a chat group where what they had said was located in the clouds. They were using school board-issued laptops, and they were basically describing, we live in a toxic workplace. We don't like this principle,

we don't like what's happening there. Somebody informed the principal of this was going on. He went into the teacher's room after hours, her laptop was open, he pushes it and up pops the screen and then he takes, I think, a number of pictures, screenshots. In the end, the teachers want to get in reprimands for this. Their union argues you're infringing a basic right to privacy.

There is a statement by the employer which says, if you're using our laptop or our cell phone, that's our information. But the argument was, well, there's a right to privacy, and that right to privacy trumps that kind of policy. And this goes all the way to the Supreme Court, just over reprimands. And the Supreme Court said, yes, look, whenever it comes to issues of privacy and intimacy in the workplace, there's always going to be a balancing here. And we have to ask, do the employees have a reasonable expectation of privacy in the workplace?

And in this case, they said they had, even though it was on employer laptops. So those of us who look at workplace rights, and particularly with respect to the right to privacy, say, this is good, this is an advance. But I think I would worry about the vast majority of employees not unionized who would never have access to be able to articulate

privacy rights they wouldn't have the resources they wouldn't have an organization that would stand behind them they wouldn't even have the knowledge with respect to that yeah so if employers are kind of taking on the role of of the state and and you know imposing you know looking at social media tracking people's activities looking at their computers and we also have government hoovering up data that's freely available out there. Lex, what does that mean for democracy? Oh, I think it's bad. I think it's bad for democracy. I think, honestly, this knowledge should be radicalizing for people. I think it should make us very worried. I think it should make us very committed to protecting this right through every legal channel possible, through every technological means possible.

because you understand that there is a collective good that comes, a democratic good, a social good that comes from being able to have spaces for journalists to be able to speak to their sources, for women to be able to access care from their doctors, for young trans people to explore their identities, for people to be able to organize against the government to sign union cards to dissent. What's important to understand is that it's terrifying, but it's not inevitable. It's not a foregone conclusion.

We don't have to live in a world like this. We don't have to have institutions that sort of accept this degree of intrusion without remedy, without redress, without accountability. And I think that if anything, this knowledge should just be motivating. You know, I think that we really have moral obligations to each other to think about the political consequences of these sorts of technological choices. And so I feel very inspired lately by technologists, by computer scientists, by hackers who are doing work to better protect people's security, to build

privacy-enhancing technology, to find ways to build spaces where we have that friction, and also to refuse to build the technologies of surveillance, to not build the Death Star. Ron, take us back to that story you told from Pearson and connect that to the question I just asked, which is how do you think about how democracy is playing out when we have scenarios where you're sitting in an airport and your information is being hoovered by the government? Well, picking up on what Lex says, I would just underscore how the existential risks for liberal democracy are so acute right now. We face a civilizational challenge. It's at the very same time that we're

facing real existential risks on a different scale, on a planetary scale. The world is descending into authoritarianism. What's the answer to all of this? I wrote a book for the Massey Lectures at the beginning of the pandemic where I was advocating for a reset for precisely what I would say that echoes exactly what Lex just so in an articulate way described, which is there are many ways that we could recover a sense of dignity and respect for the rights that we have. But it takes a lot of work. It's not inevitable. It's not something that we could take for granted. Is there any sign of a reset? Unfortunately, there's been no reset. It's been the fast forward button. And, you know, everything has been amplified. In talking about the issue of employers, I was thinking in my head

of my own experience as a university professor during the pandemic, when I witnessed this embrace of big tech platforms. And one of the horror stories was around exam proctoring. So everyone in this room probably can recall being nervous in a final exam, sitting in a big gymnasium and having a proctor walking up and down the aisles. Well, now it's mandated, or in a lot of circumstances, it's mandated that students must download software onto their laptops. This was done out of necessity during the pandemic because students were working from home. And large tech companies, staffed by employees often in places like Atlanta, Georgia or Manila,

are monitoring students, not just their behavior, not just what they're typing, but also their retinas, their sounds, ambient sounds in their rooms. This is dystopian, and yet this is quickly becoming normalized. So I think it's important we need to give people hope, but we also need to be acutely aware of where things are going and how serious it is. When you said radicalizing, it underscores how serious this issue is and how we need to think of this as something urgent. And it's for the program of liberal democracy. If we want to continue to live in this liberal democratic environment, we need to vote. We need to be active citizens. We need to be engaged and we need to support institutions

like public broadcasters, investigative journalists, public interest research, all of the things that are being eroded as we speak. And there's a big program that's being presented in the United States right now, which goes after those pillars of liberal democracy directly. Lex, there's another really important area where our worry about democracy intersects with the right to privacy, and that is how different classes access privacy. Could you speak to the difference, you know, what role class plays in the kind of privacy one can have in today's democracies? Yeah, sure. At McGill Law, I teach a class called Law and Poverty. And one of the things that we talk about in this class is that, first of all, we don't all

have equal access to legal institutions. But when we think about privacy in particular, I think there's maybe three dimensions that I want to pull out. One is this relationship between privacy and property. The reality is that if you live in a tiny apartment with thin walls, you'd have less privacy. That's the reality of living in small spaces, living in tight communities, having less access. There's also this issue of your relationship to the state changes when you're poor. You don't have the luxury of picking and choosing the situations that you interact with the government. You rely on the government for social assistance. You have to provide your information. If you're a migrant, you don't have a choice but to fill out the

paperwork and do the biometric sampling and fill out the forums and do the security interviews. You know, there's a study I read recently talking about how people of higher socioeconomic classes are less concerned about privacy. Well, that makes sense. They have more of it. I think the third piece is around the consequences of intrusions into your privacy. intrusions into your privacy. We know that not just poor, but poor and racialized, poor and marginalized, poor migrant people are disproportionately subject to state surveillance, to policing, to discrimination, to profiling, and suffer disproportionate consequences as a result. And those are all of the downstream effects of the privacy intrusions that people are forced

to live with. And so we have to kind of see all of that as a whole. So let's take it back to the UNDHR, the Universal Declaration of Human Rights, and talk about that article. Michael, I'll stay with you. If it were possible for you to rewrite that article, what's the one change that you would make? Oh, I would probably eliminate the references with respect to homes and surveillance and correspondence and private life. And I would think, try to put in definitions of privacy that match the challenges that we're having today. The good thing is that privacy, as I said at the very beginning,

really is a living tree kind of right. You can, at each age, we can put into and insert new rights, or new aspects of that, as they wind up emerging. And that's why privacy, as Lex has mentioned, wound up being the foundation in 1973 for Roe versus Wade in the United States, even though there was no mention of abortion in the American Constitution. The same thing with other cases on contraceptives being used by married couples. All of this means that privacy continues to expand and shift in responses to the new challenges of each age. Lex, how would you change that article? I don't know. Far be it for me to rewrite international human rights

instruments. I mean, when I think about the things that are poorly handled right now by our current legal approach to privacy, there's a couple of things that worry me that are on the horizon. One is this relationship between the private sector and the state that I think that our courts have really not quite figured out. The other is this piece that Ron talks about, about what it means to have privacy in public spaces. We have very, very poor legal frameworks to understand what it means. For example, the search engines available now that do reverse lookup for facial recognition. Some of you may know this, but for example, you take a picture of any person in this room, run it through a free search engine on the internet and find every picture of your face on every other website on the internet. I mean, our law is not equipped

to handle that, to articulate what it means to have a privacy interest in a photo that was taken of you in public, but it ought to. And then maybe the third piece is better understanding or having a better approach to the consequences of these new algorithmic technologies, the kinds of inferences we can make from lots of disparate data points about a person that maybe each one seems innocuous on their own, but together paint a really detailed portrait of a person. Ron, is part of the answer kind of redefining what privacy means in the 21st century? Well, I'd actually be less concerned with exactly how something is phrased or how the right is articulated than thinking more about how it's properly enforced and what oversight looks

like. And let me give you an example I think about often. It would be unacceptable in today's society if there were food processing plants, facilities that didn't have health inspectors. We wouldn't allow it. We would say, well, this can't, it's unacceptable. I won't eat from that place. And for public safety reasons, we need to have food inspectors. But for some reason, when it comes to the large tech platforms that have the most intimate invasive technology that follows us around, that understands everything about ourselves, right down to our sleep patterns, our heartbeats, and so forth. And yet there's really no equivalent to a public inspection agency for those tech platforms regarding things like algorithmic accountability.

I really think we need to rethink the architecture of oversight and enforcement of these rights if they're going to have meaning today. Okay. Michael, just one more round before we get to audience questions. If you look ahead to the century in front of us, are there threats on the horizon that you think pose a particular risk beyond what we're seeing today, which is hard to imagine, to the right to privacy? which is hard to imagine, to the right to privacy? My sense is probably the surrender to issues of surveillance, that if we don't talk enough about privacy, then it seems normal.

It's integrated into our lives, in the workplace, in our political spheres, and in our personal spheres, that we accept this exchange or surrender of our digital rights in particular to corporations and also to governments. My sense is that I mentioned to you earlier about how more Canadians see corporations as a bigger threat to privacy than governments. I think in other countries that are more authoritarian, that don't respect democracy. I think it's reverse. Those two are going to continue to be, I think, our main threats to our own well-being and our own sense of dignity when it comes to the protection of the right to privacy.

And unless we continue to educate ourselves as to how important and how vital this is, I think we're going to continue to suffer a privacy recession. Lex, a last one for you from me is, what do you think we can learn from the struggle over the right to privacy about what it means to achieve justice in our society? Bad question to ask a lawyer. Justice is a project. Justice is something that we work on every day,

something that we make commitments to over and over again. We don't live in a perfectly just society. No one ever has. And so I think when I think about the need to protect the right to privacy, it's about protecting that fight, that project, spaces for people to resist, to imagine what a more fair and more just and more honest world could look like. I think that couldn't be more important than it is now. And I think every one of us has an interest in fighting

to protect that. Ronna, I'd like to ask you the same question. Gosh, that's a really hard, you ask tough questions now. This is ideas. There it is. Touché. Well, look, I will just end. The most acute risk I see out there, taking up from the question you asked Michael

and avoiding the justice question, which was hard, is around the high-end mercenary surveillance firms that I track regularly as part of my job that are selling access to all that we've been talking about packaged up to some of the world's worst dictators and despots who use that information and that data not only to repress their citizens domestically, but to reach across borders. This scares the life out of me. I think it helps explain the degradation of liberal

democracy around the world. We're empowering authoritarians right now because of this invasive by design, insecure, and very poorly regulated digital ecosystem that we've created. Thank you for taking my questions and we'll switch to audience questions. So this one's addressed to you Lex. What access to the right to privacy do you have if you're homeless? Oh that's a great question. So it's not something that the courts have treated a great deal. question. So it's not something that the courts have treated a great deal. There's one decision, the citation escapes me now, establishing that in some cases a person can have a right to privacy under Section 8 of the Charter, even in a tent, so in a homeless encampment, for example, which to some degree creates a degree of protection from state intrusion. Now the reality is the police

show up to raid your camp. Are you in a position to meaningfully assert that constitutional right in your current position? Like certainly not, right? And the sort of ordinary indignities and violence, police violence that people experiencing homelessness in this country deal with on a regular basis mean that articulating a right to privacy alongside really urgent unmet material needs is maybe a bit of a pipe dream so but i i do think our jurisprudence establishes and should support the idea that that your your rights to privacy are not are not bound up with what you have, what you own, but instead about who you are as a person. How would you describe how privacy issues are playing out in 2SLGBTQ communities and their struggle to establish social or political legitimacy?

Oh, okay. This is a big question. There's one case that sort of comes to mind. It's ongoing in Quebec, where there's a constitutional challenge to make it really simple to a rule requiring teachers to respect the privacy rights of trans youth and their chosen names and pronouns in the school context. So students 14 years or older, teachers are not allowed to divulge that information about somebody's change in their gender identity or their name

to a parent without that young person's consent. And there's a challenge to that, structured in part around ideas about parental rights and freedom of expression of the teachers and all the rest. I find it really interesting because that entire debate sidesteps the fact that those young people are people. They are people with human rights of their own, including the right to privacy. And for young queer people, privacy is not some sort of abstract hypothetical right.

It is the thing that in many cases keeps them safe, physically safe, psychologically safe from their parents, from bullies, from violence, immediate real kinds of violence, from housing insecurity and all the rest. And it's such an extraordinary moment in a person's life to figure out who you really are. Could there be anything more worthy of protection? Michael, maybe you can tackle this. Are there cultures that have a model for rights to privacy? A better model maybe? Sure. We see that emerging in the European Union.

In fact, they've passed some of the most forward-looking and progressive legislation anywhere in the world, and it's primarily in response to what they see is the overreach of large tech companies. There have been enormous fines that they have enacted against these tech companies, and they are much sharper in putting together what are the boundaries of what information can be harvested

from European citizens with respect to that. Even though Canadians will say in polling, privacy is important to them, I don't see that transmitting upward into platforms and articulations coming from our political parties. If you read what our privacy commissioners are saying, they are sounding alarms with respect to this. They're doing, I think, what they should be doing

with respect to polling Canadians, pointing out how the distance between a right to privacy on paper and where it doesn't exist in the workplace, where it doesn't exist in the ether sphere, but nobody above appears to be listening. Ron, I remember us having a conversation a few years ago where you, I was surprised at this answer, but then it made sense. And you said, you know, you yourself are on social media and that you avail yourself of these apps despite knowing of their risks. Can you explain why, despite knowing what the risks are? Well, I think overall, the joke of throwing the phone in the lake aside, I'm very much an optimist about the technology. I think that we live in an increasingly finite political space on this planet. The reality is if we're going to solve our problems,

we need to be able to communicate with each other and exchange information. And that means we have to have something like social media, something like this device in my pocket. It can be constructed and architected in a way that's privacy preserving. It's just that the underlying engine that drives the business model underneath it all, what people often refer to as surveillance capitalism, is completely orthogonal to the rights that we've been talking about on this stage. Of course, that makes it much more difficult to solve then, because you're talking about a tectonic force, this underlying

economic engine that drives the business model that we experience on a day-to-day basis. How do we educate kids today about the right to privacy when they have been born into the social media age and basically feel that a meaningful life is only possible through technology? into the social media age and basically feel that a meaningful life is only possible through technology? Because I'm the youngest? I mean, I think part of the answer to that question is maybe, you know, I have a really young kid at home. Part of that is a parenting question. Part of it is a cultural question. But I think one of the reflexes I have is that we have to trust young people to have private lives.

I think that our desire to keep people we love safe, the kids that we love safe, is so profound. But we lose something, and they lose something in having spaces without surveillance where they know they're being controlled where they're where they're being monitored and so before having the big conversations around the government and the corporations and everything else I think that we have to learn as adults to trust young people to have spaces outside of our control outside of our

oversight to be you know to experiment with who they are and what they believe. So I think that that's part of my reaction to that question. But isn't part of the question here, or the answer to that, is children are among the most vulnerable sectors of our own society. They can't make choices. We can help them as parents to want to make choices with respect to this.

But I've seen in my own kids how early on they adapted to phones and how much today, as 20-somethings, that they're on their phones with respect to this. So then the answer comes to don't we need a culture which goes back to legislation and takes the right to privacy seriously and certainly, if not eliminating, reducing the ability to wind up harvesting this kind of information, not treating children as consumers, but treating them as young citizens. Yeah. I think we can end it there.

On Ideas, you've been listening to The Right to Privacy. It's the second part of our series, Brave New Worlds, recorded at the Stratford Festival in Ontario. Ideas at Stratford is produced by Philip Coulter and Pauline Holdsworth. Special thanks to Julie Miles, Gregory McLaughlin, Renata Hansen, Harper Charlton, James Hyatt, Mira Henderson, Kendalyn Bishop, Madeline Grogan, and the entire Stratford Festival team. For Ideas, our technical producer is Danielle Duval. Our web producer is Lisa Ayuso. Senior producer, Nikola Lukšić, Greg Kelly is the Executive Producer of Ideas, and I'm Nala Ayed. Thank you again.

applause For more CBC Podcasts, go to cbc.ca slash podcasts.