Privacy in the Past, Present, and Future

Our own actions – individual and collective – set the upper limit of our privacy rights. We will never have more privacy rights than we care to have, although we often have fewer. One stark illustration of this idea comes in Isaac Asimov’s short story “The Dead Past,” in which a group of scientists build and, despite the government’s best efforts, thoughtlessly disseminate the instructions for building a “chronoscope” – a machine for viewing any events in the (recent) past. Their original purpose was historical research, but the chronoscope is not very useful for that; what it is very good for is snooping and voyeurism. The story ends with the government official who tried and failed to stop the protagonists wishing “[h]appy goldfish bowl to you, to me, to everyone.”

The internet, especially Web 2.0, is (almost) as good as the chronoscope, argues Alex Kozinski, Chief Judge of the U.S. Court of Appeals for the 9th Circuit, in a short essay published in the Stanford Law Review Online. It also allows everyone to learn all about anyone, provided that the person – or indeed someone else – posted the information on the internet at some point. And the fact that people share their every thought and deed online shapes society’s expectations of privacy, which are the key to what constitutional protections we have in this area. Those parts of our lives which we do not expect to be private are not protected from observation at will by the government. And if we do not expect anything to be private, then nothing will be.

“Reasonable expectations of privacy” are also key to defining privacy rights under the Canadian Charter of Rights and Freedoms. The Supreme Court’s latest engagement with the question of just what expectations of privacy are reasonable, in R. v. Gomboc, 2010 SCC 55, [2010] 3 S.C.R. 211, produced something of a mess. The issue was whether the installation without a warrant of a device that measures the electricity consumption of a house breached the owner’s reasonable expectation of privacy. Four judges said no, because general information about electricity consumption does not reveal enough to make it private. Three said no because the law entitled to owner to ask the utility not to hand over such information to the police, and he had not exercised this right. Two said that the information was private. But what seems clear is that for Canadian law too, what we think about our privacy and what we do about it, individually and collectively, matters.

Are we then doomed, as Judge Kozinski suggests we might be? Perhaps not. With respect, his claims are a little too pessimistic. Judge Kozinski collects a great many frightening anecdotes about people’s willingness to wash their – and others’ – dirty laundry in public. But anecdotes seldom justify sweeping conclusions. And some studies at least seem to show that people do care about their privacy more than the pessimists assume,  if not always in ways or to an extent that would satisfy the pessimists. Old expectations of privacy might be fading, but new ones could emerge, along different lines. Judge Kozinski is right that the law cannot do much to protect people who do not care. But we must hope that he and his colleagues, as well as legislators on both sides of the 49th parallel, will be mindful of the possibility that changes in privacy expectations can go in both directions.

Gun Registry Litigation Update

There is news regarding Québec’s attempt to obtain “its” long-gun registry data before it is destroyed by the federal government, about which I wrote here and here. The merits hearing was supposed to take place today. However, Radio-Canada reports that  the judge was concerned that the matter is too complex and there is not enough time to deal with it now. The La Presse story seems to confirm that the merits hearing will now take place in June.

The question now is what happens to the safeguard order, which prevents the federal government from destroying the gun-registry data until tomorrow (when the merits hearing was originally scheduled to end). The federal government asks that it not be extended, and claims that it is not necessary because no data destruction will take place before August. The news reports do not make Québec’s position clear, but it is safe to assume that it is opposed. Indeed, if the federal government is right that it is not going to do anything before August, one may wonder why they oppose the extension of the safeguard order.

There is no news of the judge’s decision yet, but I will update or have a new post when it comes out.

UPDATE: The hearing will continue tomorrow.

Thoughts on Québec’s Bid for Gun-Registry Data

As promised, a few thoughts on Québec’s claim that the destruction of the long-gun registry data is unconstitutional,In no particular order:

  1. This case forces the courts to grapple with the constitutional issues presented by co-operative federalism, of which the working of the gun registration regime seems to have been an example. Québec’s claim is based on its participation in the administration of the federal regulatory scheme; it would not hold up, or at least would be very weak, if Québec had not been involved in its running. If the long-gun registry had been a purely federal venture, there would have been no reason why Parliament, which had started it up, could not also put an end to it. But it is at least not crazy to say, as Québec now does, that provincial involvement in the regime’s operation means that the venture was not an exclusively federal one, so that provincial interests have to be taken into account in considering and implementing its termination.I don’t think our federalism jurisprudence, as it now stands, can sustain this claim. Perhaps the most relevant Supreme Court decision is the now-20 year old Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525, which dealt with the unilateral modification by Parliament of an agreement to help pay the costs of provincial social programmes. The Supreme Court stressed parliamentary sovereignty, and concluded that Parliament could do what it pleased. If that precedent applies to this case, Québec’s odds do not look good (and I do not recall Québec addressing it at all in its argument). But there might be a distinction between pure-cost sharing and a programme where the federal and provincial administrations are both involved. And in the last few years the Court has been emphasizing the importance of co-operative federalism, which, arguably, cannot work particularly well if either side is able, on a whim and despite protests from its erstwhile partner, to end its involvement in a co-operative project. Perhaps the questions about the best workings of a system of co-operative federalism are purely political; that seems to be the result of the Canada Assistance Plan case. But maybe it is time for Courts to start working out a legal framework.
  2. The claim that the government holds its property – which in this case means data rather than physical assets – more or less as a trustee for the people sounds interesting and quite possibly right as a matter of political morality, but it is not so clear what it entails in practice. Even if we agree that the government has to use its property in the public interest, there is presumably no higher authority than Parliament in deciding what the public interest is. If Parliament decides that it is in the public interest to destroy the long-gun registry data, how can courts second-guess it?
  3. If Québec succeeds in getting s. 29 of the Ending the Long-gun Registry Act declared unconstitutional, no long-gun registry data can be destroyed. The federal government is stuck with this data, which it does not want. What happens then?

Québec Tries to Save the Long-Gun Registry

With the angrily named Ending the Long-gun Registry Act, formerly known as Bill C-19, now law, Québec is fighting a rearguard battle to try to save “its” part of the registry. It is asking the Superior Court to declare unconstitutional s. 29 of Act, which provides for the destruction “as soon as possible” of the registry data, and to order the federal authorities to transfer to it the data relative to the firearms owned by Québec residents.

Radio-Canada has posted a copy of Québec’s lengthy application for an injunction (en français, bien entendu); it also reports that Québec has succeeded  in obtaining a safeguard order which will prevent, at least until the argument on the merits next week, the destruction of the data Québec is trying to obtain.

Very briefly, the basis for Québec’s argument is that firearms legislation has both federal and provincial aspects, so that it is constitutionally competent to create its own registry. Instead of doing so, it participated in the administration of the federal one, so long as it existed; but now, if the federal government does not want to keep its registry, Québec wants to have one of its own. The destruction of the data, which it helped amass and transferred to the federal government, would thus frustrate its legitimate legislative objective; indeed, the real purpose of s. 29 is to prevent provinces from constituting their own registries, and thus to prevent the exercise of a legitimate provincial power. S. 29 goes beyond what is justified by Parliament’s criminal law power, because it is an attempt to “cover the field” of long-gun registration regulation. Furthermore, the long-gun registry data belongs to Québec as well as to the federal government, and the latter is not entitled to destroy it. If it has no use for it, it must transfer the data to Québec, because in keeping with its obligations as a fiduciary of the data (as of any other government property).

The claim as a whole and Québec’s arguments in its support raise some very interesting constitutional questions, some of which I hope to outline in a post tomorrow.