Christine Van Geyn: Privacy isn’t a crime, but Bill C-22 acts like it is

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Parliament’s public safety committee is currently studying a mass surveillance bill developed by the Carney government. Bill C-22, the Lawful Access Act, is being pilloried by civil liberties experts and the tech industry alike for the potential risk it poses to our privacy online. But legislation like this is only possible because of the profound lack of understanding so many of our elected leaders have about why privacy matters.

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“For those who have privacy concerns, my message would be: don’t commit a crime.”

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That was Brampton Mayor Patrick Brown’s response to C-22 when he recently testified at the public safety committee. The statement could come straight out of an Orwell novel. It echoes the mantra of surveillance tyrants so chilling that it is used in New York City subway advertising for Mullvad VPN: “if you have nothing to hide, you have nothing to fear.” All of this captures an ignorance of why privacy has constitutional protection. Privacy is not about hiding wrongdoing; it is about preserving human dignity, autonomy, and the freedom to live without constant observation.

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There’s a name for the psychological phenomenon that people will change their behaviour if they know they are being watched: the Hawthorne Effect.

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Between 1920 and 1932, researchers set out to test factors affecting workplace productivity at the Western Electric Hawthorne Works factory in Illinois. The researchers were surprised to see that productivity increased whenever changes were made, even if those changes made working conditions worse. They realized that the workers were not responding to the changes; they were responding to the fact that they knew they were being watched. Observation changes how we act.

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Forty years later, French philosopher and social theorist Michel Foucault reached a related and even more incisive conclusion in Discipline and Punish: that once surveillance becomes pervasive, the mere possibility of observation will alter behaviour. People begin to act as though they are always being watched. Foucault’s insight was that surveillance changes behaviour even when nobody is actively watching. Once people believe they may be observed, they begin to police themselves. They avoid risks, suppress unpopular opinions, and conform to expectations. This research was based on an eighteenth-century prison design known as the Panopticon, developed by utilitarian philosopher Jeremy Bentham. Foucault theorized that with the internalized fear of constant surveillance, each of us, and society as a whole, becomes a panopticon.

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Bill C-22 would take us closer to that nightmare. The bill makes vague promises of increased safety at the cost of our dignity and autonomy. The law would require companies that provide electronic services to build systems that allow law enforcement and CSIS easy access to private data. It could force telecoms to log who you talk to and where your devices were located for up to one year, and could permit the Minister of Public Safety to order companies to break encryption, creating “back doors” into secure communications.