Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies

Abstract

In pursuit of security, governments around the world are adopting powerful technologies to collect and share detailed personal information, potentially leading to an erosion of privacy. This article discusses how legal analysis should respond to situations where technology developments challenge privacy interests in the context of state investigations. In particular, judges, lawyers and policy-makers need to take into more explicit account both the individual rights aspect of privacy as well as the social value of privacy, that is, society's interest in preserving privacy apart from a particular individual's interest. Both of these aspects of privacy are critical to the functioning of our democratic state. This approach demonstrates that legal analysis sometimes overstates the tension between privacy and security as both can be portrayed as social interests. To establish that a state search is constitutionally permissible under s. 8 of the Charter of Rights and Freedoms, the need to protect the social value of privacy compels the Crown to prove that a state agency has developed and initiated reasonable policies to govern the collection, use and disclosure of personal information through new surveillance technologies.

Keywords: criminal law, surveillance, new technologies, state searches, cyberlaw

JEL Classification: K14, O30