Lester and Koehler (1) describe the policy concerns and approaches regarding privacy by highlighting the different approaches adopted by Europeans and those of the U.S.A.. According to Lester and Koehler, the Europeans have adopted an omnibus approach to privacy that is deeply concerned with commercial transactions regarding privacy, the Americans, on the other hand, have more “incremental and piecemeal” law, especially when it concerns the private sector. Commercial trafficking of personal information is the newest area of privacy legislation and jurisprudence, this includes (at least) three contexts: aggregate information, personal but obfuscated information, and personal and identifiable information. The policy challenges facing privacy are particularly noteworthy, since the current frameworks tend to be unable to accurately capture what is most worrisome about privacy in commerce, especially in electronic media.

The legal framework for privacy arises predominately out of a liberal tradition, which prides itself on C.J. Brandeis’ “right to be let alone” principle (2). In Canada, the constitutional rights enshrined freedom from unreasonable search and seizure (in essence, protection of proprietary property), which has been extended to include personal autonomy, as Justice Sopinka notes in reference to S.7, “there is no question, then, that personal autonomy, at least with respect to make choices concerning one’s own body, control over one’s physical and psychological integrity, and basic human dignity are encompassed within security of the person…” (Rodriguez v. British Columbia (Attorney General) ¶136). The policy frameworks fare no better, since Burger’s (3) tripartite division of policy models into “rational actor model, the bureaucratic model, and the garbage can model” cannot capture what is essential to privacy, especially in electronic and commercial environments.

The specific challenges to the legal and policy frameworks are numerous, but some illustrative examples may suffice. Information in the aggregate is not a legal infringement of privacy because the courts (in the American and Canadian contexts) have dismissed any notion of privacy in the public sphere. “Expectation of privacy” is a hard and fast criterion, but aggregate information transfer is akin to walking down the street—no one person is being singled out for surveillance or exploitation. Because no privacy can be expected in the aggregate, few rational actors complain or notice privacy infringements. The bureaucratic model assumes that rules will govern privacy, and while the European privacy laws appear to adopt stringent rules to protect privacy, the common law traditions are much less encompassing. The garbage can model assumes that the “right climate” will arise for which privacy will be ensured, but the invisible nature of privacy infringements practically guarantees that this time will never arise. When information is personal but obfuscated the law states that infringement only occurs when personally revealing facts can be exposed through dissemination. In Aubry v. Éditions Vice‑Versa it was noted that

“This right arises when the subject is recognizable.  There is, thus, an infringement of the person’s right to his or her image, and therefore fault, as soon as the image is published without consent and enables the person to be identified.” (Aubry v. Éditions Vice‑Versa, [1998] 1 S.C.R. 591)

Personal and identifiable information is thought to be an easy case for extant privacy jurisprudence and legislation, since privacy is protected from surreptitious surveillance as an extension of the protection from unreasonable search and seizure (as mentioned above). The policy questions should likewise be dealt with easily, since the common trope regarding personal and identifiable information is “If you’re not doing anything wrong, you’ve got nothing to worry about” (4). This trope is problematic, however, because infringement of “public privacy” is often popularly described as “chilling” or “not right”. Individuals can rarely articulate why, e.g., public surveillance is unsettling, but the effect is felt nonetheless. Nissenbaum (5) has went the furthest in the philosophical treatment of public privacy, and while her analysis is cogent, the legal and policy decisions appear to dismiss any notion of public privacy as unrealistic or just downright paradoxical.

Endnotes

1 Lester, June, and Wallace C. Koehler. 2003. Fundamentals of information studies: Understanding information and its environment. New York: Neal-Schuman.

2 It should be noted that Brandeis’ famous slogan is neither the first American privacy case, nor is it the most dominant in jurisprudence. The earliest jurisprudence common to both American and Canadian case law comes from British common law protections based on the right to “enjoy property” and be free from trespass, this apparently, is “the great end, for which men entered society,… to preserve their property” (Lord Camden, p.1066 19 St. Tr. 1029).

3 Robert H. Burger, Information Policy: A Framework for Evaluation and Policy Research. Chapter 1: Information Policy in the Public Policy Arena, pp. 3-22 (1993)

4 John Kiro (executive director of Toronto Association of Business Improvement Areas) quoted by Timothy Appleby, “Pointing the lens at street cameras” Globe and Mail, January 30, 2007.

5 Nissenbaum, H. (1998). Protecting privacy in an information age: The problem of privacy in public. Law and Philosophy, 17, 559–596.