Peter Timusk, B.Math, B.A. and Matthew McLennan Ph.D., Ottawa, Ontario Canada.
The most well known privacy law case in North American occurred because of the invention of photojournalism. Big Data suggests invasion of privacy. Social networks on the Internet are an invention. If online social networks produce Big Data and both Big Data and online social networks suggest invasion of privacy to the popular mind, how do the courts see this? The framework of privacy in law involves the concept of the individual and their right to control personal information. Can there be a new framework for online social groupings or networks, Big Data or very powerful surveillance such as occurs from the NSA?
The poster aims to explain the law around individuals and privacy and explore the concepts of the individual in law and philosophy. Looking at an individual Internet user and cases in the law that involve individuals, privacy and the Internet the poster hopes to sketch out a basic legal framework by building on jurisprudence as it is occurring in cases in English common law jurisdictions and connecting this with the exploration of the place of the individual in law and philosophy.
This is a theoretical poster although one source is case law. Searches of case law were performed for keywords in our theories such as “Internet, privacy and Individual”. The websites of courts and the Canadian version of Lexis-Nexis called Quick Law were all used to find these cases. These cases were then searched or read for judges’ views on privacy on the Internet. Both authors also used theories of the individual from philosophy and law to develop the exploration. As is the method in legal studies, legislation concerning privacy and the Internet also guided the writing.
One case will be presented that was decided as the poster was being written. The Supreme Court of Canada decided a case that concerns tracking down an Internet user sharing child pornography with Lime Wire file sharing software. Police obtained the name and address from the user’s Internet service provider by using the user’s IP address without a warrant and the court made a statement that Internet users have an expectation of privacy which may also affect research data gathering. This was the case R. v. Spencer 2014 SCC 43 2014-06-13.
Rationalist philosophy (e.g. Cartesian), religion and arguably common sense presume a view of the individual as essentially indivisible. I am what I am, throughout time. I am a man who was once a boy; I have changed, but it is I who has changed, so I persist in time. The integral personality is usually based philosophically on some account of the soul, or on pure reason.
According to empiricist views on the other hand, e.g. the Lockean view of individuality, I am a bundle of distinct cognitive states and dispositions. What holds the bundle together? Psychologically speaking it is only memory which guarantees the integrity of my personality from time T to time Ti. But this is a much more fragile view of the self. What if, for example, my memories are not constant throughout life? If as an elder I forget episodes from childhood, am I therefore an individual distinct from that child?
Beginning in the 19th Century scepticism about the integral personality of rationalism generally increases; Freud especially advances a view of the individual as internally divided.
Philosophical disputes and psychological research concerning personal identity seep into law. The law reflects aspects of both views (integral, and fragile). It increasingly has to accommodate the philosophical as well as psychological tendency to recognize the fungible and provisional nature of selfhood. (Insanity defenses, diminished competency, multiple personality disorder, etc.) Moreover, it has to explore the idea that there can be non-human “individuals” i.e. persons, based on animal psychology.
What then are the implications of this picture for privacy?
Law of privacy develops in the modern world with the invention of the camera and photojournalism and in "The Right to Privacy" (4 Harvard L.R. 193 (Dec. 15, 1890)) Louis Brandeis and Samuel Warren develop “the more general right of the individual to be let alone.” .” The individual should control publication of details about themselves. Privacy is the ability to control our personal information. In Canadian law details about an individual, such as their name, and address are not considered private information, whereas their birthday or sexual orientation would be considered private information. The individual is not just about the multiple but about the visible and invisible, the open and the secret. Anonymity features in Internet use as it allows privacy and keeps identity secret. The Supreme Court of Canada in a case decided in June 2014 clearly states that an individual using the Internet can expect to do so in private and what one browses on the web should not be subject to monitoring by state officials or police and that this privacy is protected by the Charter of Rights and Freedoms.
Quoting from R v Spencer:
In this case, the primary concern is with informational privacy. Informational privacy is often equated with secrecy or confidentiality, and also includes the related but wider notion of control over, access to and use of information. However, particularly important in the context of Internet usage is the understanding of privacy as anonymity. The identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information.
Supreme Court of Canada. 2014. R. v. Spencer - 2014 SCC 43 - 2014-06-13.
In this decision they quote Justice Caldwell from the Saskatchewan Court of appeal.
As noted, a reasonable and informed person concerned about the protection of privacy would expect one’s activities on one’s own computer used in one’s own home would be private.
Caldwell J A.. R v Spencer. 2011 SKCA 144 (CanLII).
The courts concluded that Spencer had a privacy right and expectation of privacy.
Further in this case, a Charter Section 24(2) Grant test is made to examine, if this violation of privacy was justified and the evidence collected about Spencer’s possession of child pornography should be admitted into the case. The courts conclude that the search that occurred would not bring justice into disrepute and that the seriousness of the child pornography crime, all outweigh in a Grant test the violation of the Charter right.
This author feels that invasion of privacy on the scale that apparently the NSA practices would obviously be bringing the law into disrepute.
The courts are able to establish that governments and perhaps researchers should not be able to gather Internet information about Internet users without proper authority. Only in serious criminal cases that society has a strong interest in prosecuting and that generally follow reputable law enforcement practices can this privacy be violated. Therefore, a reasonable individual Internet user has an expectation of privacy.
Caldwell J. A.. 2011. R v Spencer. 2011 SKCA 144 (CanLII). Retrieved from http://www.canlii.org/en/sk/skca/doc/2011/2011skca144/2011skca144.html
Supreme Court of Canada. 2014. R. v. Spencer. 2014 SCC 43. 2014-06-13 Retrieved from http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14233/index.do
Rene Descartes. 2000. Philosophical Essays and Correspondence. Hackett.
John Locke. 1996. An Essay Concerning Human Understanding. Hackett.