POL106 Week 3 - Right to Privacy

Moscrop, David. 2022. “Mass Surveillance Is Bad News for Privacy — and Democracy.” Jacobin, October 16. https://jacobin.com/2022/10/canada-mass-surveillance-facial-recognition-democr acy-privacy. Nyst, Carly, and Tomaso Falchetta. 2017. “The Right to Privacy in the Digital Age.” Journal of Human Rights Practice 9 (1): 104–18. https://doi.org/10.1093/jhuman/huw026. Brenda McPhail, Guest Lecturer

Mass Surveillance

In "Mass Surveillance Is Bad News for Privacy — and Democracy" (David Moscrop, Jacobin, Oct 2022), mass surveillance means large-scale monitoring of individuals using digital and biometric tools such as facial recognition and data aggregation. The Royal Canadian Mounted Police (RCMP) used Clearview AI's facial recognition system, which Canada's Privacy Commissioner declared "mass surveillance" and illegal. Moscrop argues this practice undermines democracy by eroding privacy, chilling dissent, and concentrating power in governments and corporations.

Facial Recognition Technology (FRT)

Moscrop (2022) defines facial recognition as an AI-based system that identifies or verifies individuals from images or live video feeds. The RCMP's paused contract with Clearview AI illustrates its unregulated adoption. Because it enables constant monitoring and removes anonymity in public spaces, FRT risks normalizing surveillance and weakening civil liberties.

Privacy as a Democratic Prerequisite

According to Moscrop (2022), privacy is not only a personal right but a foundation of democracy, allowing people to think and organize freely without observation. When citizens feel watched, they self-censor and avoid dissent, which harms open debate and civic engagement.

Imbalance of Power (Individual vs State or Industry)

Moscrop (2022) highlights the structural inequality between individuals and powerful institutions that collect and analyze massive amounts of data. Legal scholar Teresa Scassa, cited in the article, notes individuals cannot opt out of data collection embedded in everyday life. This imbalance makes oversight and regulation essential to protect citizens' autonomy.

Bill C-27 (Canada's Proposed Privacy Law)

Bill C-27, discussed by Moscrop (2022), would update Canadian privacy laws through the proposed Artificial Intelligence and Data Act. Critics argue it favors industry interests and lacks strict limits on surveillance and facial recognition. The law's outcome will set long-term precedents for privacy and regulation in Canada.

"No-Go Zones" for Facial Recognition

Moscrop (2022) reports that civil-liberties groups recommend banning facial recognition entirely in sensitive settings such as schools or protests. These "no-go zones" would stop gradual expansion of surveillance into public spaces and protect vulnerable communities from state monitoring.

Moratorium on Police Use

Moscrop (2022) describes a call for a moratorium—a temporary halt—on police use of facial recognition until strong legal frameworks and oversight are in place. The RCMP paused its Clearview AI program after it was ruled unlawful, showing the importance of moratoriums to prevent normalization of unregulated surveillance.

Oversight and Enforcement by Privacy Authority

Moscrop (2022) stresses that Canada's Privacy Commissioner needs greater power to enforce privacy laws and oversee both government and corporate surveillance. Weak enforcement leaves citizens unprotected and allows repeated violations.

Path Dependence / Irreversible Adoption

Moscrop (2022) warns that once surveillance technologies are introduced, they are difficult to roll back because they become embedded in policing and bureaucracy. This "path dependence" means that today's decisions will shape future norms, so caution and foresight are crucial before making surveillance permanent.

Right to Privacy in the Digital Age

In "The Right to Privacy in the Digital Age" (Carly Nyst & Tomaso Falchetta, J. Human Rights Practice, Feb 2017), the authors argue that the classical notion of privacy must be reinterpreted in light of digital technologies, mass surveillance, and cross-border data flows. The article tracks the elevation of privacy issues within UN and regional human rights bodies and outlines the conceptual, legal, and normative challenges ahead.

Surveillance & Interception Expansion

Nyst & Falchetta document how states and intelligence agencies have increased surveillance and interception capacities (e.g. communications metadata, bulk interception), often across borders, challenging legal and normative limits.

Neglected Prioritization of Privacy

The article notes that until the 2000s, privacy was a relatively marginalized human rights concern—but recent leaks and technological advances forced its inclusion on the agendas of the UN General Assembly and Human Rights Council.

Role of Civil Society

Nyst & Falchetta emphasize the crucial contribution of NGOs, academics, and privacy advocates in forcing transparency, legal challenges, and norm development at the national and international levels.

Norm Development & Gaps

The authors identify that while principles like legality, necessity, proportionality, and oversight are increasingly recognized in human rights discourse, there remain unresolved issues (e.g. extraterritorial surveillance, private actor obligations, metadata vs content).

Public Interest Litigation & Strategic Lawfare

The article highlights the use of public interest litigation as a tool to challenge surveillance laws domestically and to bring matters before international bodies.

Meeting Report & Multistakeholder Input

The authors draw on the Geneva expert seminar "The Right to Privacy in the Digital Age" (Feb 2014) to surface consensus views: that surveillance should be limited by law, that states must adopt safeguards for cross-border data flows, and that both state and private actors must be accountable.

Unresolved Questions

Nyst & Falchetta list remaining challenges such as: How to regulate private companies' data collection? What standards govern extraterritorial surveillance? How to ensure effective oversight and remedy?

Significance & Why It Matters

The article matters because it places privacy at the core of human rights in the digital era. It signals that established rights must adapt to technological changes, warns that unregulated surveillance threatens freedom, and pushes for institutional innovation to protect individuals globally.

Information and Privacy Commissioner of Ontario (IPC)

The IPC, led by Commissioner Patricia Kosseim (appointed 2020, renewed 2025), oversees Ontario's access-to-information and privacy laws. It conducts research, educates Ontarians, and issues policy guidance to balance public accountability with data protection. This matters because the IPC sets privacy standards that influence government and organizational practice across the province.

Defining Privacy

McPhail (2025) shows that "privacy" resists a single definition. It has evolved from a personal right to be left alone into a multidimensional social, legal, and technological concept. This matters because how privacy is defined shapes what rights and protections citizens can actually claim.

Privacy v.1 — "The Right to Be Let Alone" (Warren & Brandeis, 1890)

One of the earliest modern privacy definitions, framing privacy as freedom from intrusion. McPhail includes it to show the concept's historical roots in individual autonomy. This matters because it anchors contemporary privacy debates in long-standing liberal ideals.

Privacy v.2 — "Control Over Personal Information" (Alan Westin, 1967)

Westin defined privacy as the right to control, edit, manage, and delete personal information. McPhail (2025) uses it to illustrate the shift toward information privacy in the age of data collection. It matters because this model underlies most modern data-protection laws.

Privacy v.3 — "Negotiating Personal Boundaries" (Valerie Steeves, 2009)

Steeves views privacy as a dynamic process of negotiating boundaries in relationships. McPhail cites this to show privacy as social and contextual, not purely individual. It matters because digital interactions constantly reshape these boundaries on social media.

Privacy v.4 — "Privacy as a Social Good" (Debbie Kasper, 2007)

Kasper reframes privacy as vital for society's collective health, linking it to democracy and trust. McPhail includes this to emphasize that privacy supports civic participation and community functioning. It matters because privacy's erosion harms not only individuals but democratic systems.

International Legal Foundations

McPhail (2025) references global instruments such as the Universal Declaration of Human Rights, Article 12 and the Convention on the Rights of the Child, Article 16, both affirming privacy as a human right. These serve as evidence that privacy protection is a global legal norm. It matters because Canada's privacy principles derive legitimacy from these international frameworks.

Canadian Charter of Rights and Freedoms

Although the Charter lacks an explicit privacy clause, McPhail highlights Sections 7 and 8 as its basis. Court cases like Hunter v. Southam (1984) and R v. Ahmad (2020) confirm that privacy protects dignity, autonomy, and the right "to be let alone." This matters because it shows Canadian courts interpret privacy as fundamental to liberty and security of the person.

Canadian Privacy Laws

McPhail outlines multiple statutes: The Privacy Act, FIPPA, MFIPPA, PHIPA, and PIPEDA, plus similar provincial laws in Alberta, BC, and Quebec. These laws divide privacy governance between public and private sectors. It matters because understanding these frameworks helps citizens know where to seek protection or redress.

Privacy in the Social Media Era

McPhail explains that social media blurs public, semi-public, and private spheres. Metadata—information about data—can be as revealing as content. The permanence of digital traces contrasts with human memory, magnifying long-term risks. It matters because users often underestimate how persistent and visible their data becomes online.

Privacy Challenges: Canada vs. Elsewhere

McPhail notes that privacy rights remain unsettled worldwide. In Canada, citizens face difficulty understanding or exercising their rights amid expanding data collection for security or investigation. This matters because global surveillance and domestic policy both shape Canadians' privacy experiences.

Promoting and Protecting Privacy Today

McPhail (2025) proposes layered actions: individual protection (using Security Planner), personal advocacy ("see something, say something"), group engagement with policy, and education through reading and sharing. These examples show that safeguarding privacy is both a personal and collective responsibility.

Why Privacy Matters for Democracy

The overarching argument: privacy sustains democratic participation by ensuring freedom of thought and association. In an age of pervasive social-media visibility and data tracking, McPhail warns that losing privacy means losing the conditions for meaningful self-governance.