Mar 06, 2003

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War against terrorism turns Orwellian

National security is eclipsing personal liberty, as the nation's policymakers contend with the threat of terrorism.

By Michael Markwick
Canada's Privacy Commissioner has issued a “solemn and urgent warning” to Canadians, concerned that an array of new legislation and technology will result in “a permanent redefinition of Canadian society.”

National security is eclipsing personal liberty, as the nation's policymakers contend with the threat of terrorism. This is not a struggle against a discrete and identifiable foe. The war against terrorism, George Radwanski argues, may well be the contest Orwell prophesied: a war against a phenomenon, an ever present but ineffable danger, that extends indefinitely through space and time, and justifies ineluctable big brothering by the state.

There's the federal government's support of RCMP video surveillance of public streets. The next time you're at 12th and Cambie, look way up to the corners of the City Hall tower. We have become inured to the presence of cameras in the urban landscape, and it seems a matter of time before Vancouver is as blanketed with covert lenses as Manhattan.

Radwanski also cites the Canada Customs and Revenue agency's new database for air travellers. Canadians pay attention to their tax bills, but few question why the tax man is gathering information on when and where they fly, how they paid, whether they chose chicken or beef, and who their seatmates are.

This, in addition to citizenship and immigration's proposed national ID card. At a cost of about $25 per Canadian, the card would be imprinted with “biometric identifiers” like retinal scans and fingerprints to allow greater certainty for the police and other authorities, both foreign and domestic. This card, as Czechs, Poles, Hungarians, and survivors of the Holocaust will attest, has a hideous precedent. It also makes technology the opiate of the sovereign, masking the very real threat of identity-stealing cells of terrorists with a false sense of security in the state's ever more invasive and spuriously infallible systems.

But there is another link in the chain that is arguably more alarming than all these measures combined. Under the rubric of “lawful access,” a phrase rich with Orwellian possibility, the federal government would require secret, 24/7 surveillance capabilities to be built into all publicly accessible communications systems. Corporate systems, the government advises me, would be exempt. As we move into Minority Report technologies of personal tracking and adaptive advertising, the government wants to offload the hefty bill of building surveillance systems to catch up with the arc of innovation. Better to have surveillance built into the original architecture, and at the consumer's expense. It means deeper surveillance of the web pages we view, the content we download, our emails, cell calls, and every keystroke or personal digital assistant entry. All of this in an environment of relaxed judicial scrutiny.

The government, in its defence of the lawful access agenda, has not provided evidence to show that the police and security establishment are having a hard time getting their work done with legislation that is already broad, and seemingly Charter proof. They have been freshly pumped with a host of new superpowers, like anticipatory arrest, after brief debate in the House of Commons. It is by no means clear that placing Canadians effectively under the potential of constant surveillance will make our democracy demonstrably more secure.

The onus of proof is on the government, since the type of society it envisions is a radical departure from the Canada we have built heretofore. As the Supreme Court of Canada has ruled, the free and democratic society must be built on a robust protection of the citizen against the watchful glance of the state. In R. v. Dyment [1998], the court states: “Grounded in man's physical and moral autonomy, privacy is essential for the well being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”

Two years later, the court entrenched this theme in R. v. Duarte [1990]. “The reason for this protection [regulating the power of the state to record communications],” the Court ruled, is the realization that if the state were free, at its sole discretion, to make permanent electronic recordings of our private communications, there would be no meaningful residuum to our right to live our lives free from surveillance.

The very efficacy of electronic surveillance is such that it has the potential, if left unregulated, to annihilate any expectation that our communication will remain private. A society which exposed us, at the whim of the state, to the risk of having a permanent electronic recording made of our words every time we opened our mouths might be superbly equipped to fight crime, but would be one in which privacy no longer had any meaning.”

Lawful access, by itself and in combination with the broader public policy shift post 9/11, cuts against the grain of this Canadian idea of Canada. It undermines a democratic state built on the privacy of the citizen's conscience.

This is Cartier's Canada, where citizens from diverse races “compete and emulate for the common good.”

It is also Aristotle's: a state in which law was not used to cow people into submission - a despotic tool for repression, surveillance and domination - but a means to instill and awaken the virtues of citizenship.
Our sharing in self-government, which is the defining feature of a freedom-loving people, requires the security to debate and form our deepest convictions about what it means to be human, and to bring these convictions to bear in lawful civic engagement. Lawful access is a radical break with this project, replacing faith in the conscience of the citizen with technologies of control and observation. Having said this, it is sweetly compliant with the anti-terror policies of the United States.

The current Bush administration has drafted legislation which, in the assessment of Georgetown University law professor David Cole, “would radically expand law enforcement and intelligence gathering authorities, reduce or eliminate judicial oversight over surveillance, authorize secret arrests, create a DNA database based on unchecked executive suspicion, create new death penalties, and even seek to take American citizenship away from persons who belong to or support disfavoured political groups.” Watchdogs anticipate this will become law when the Marines start rolling into Iraq.

Terrorism has made our landscape bleed, obliterated lives and left a gaping wound in thousands of families. Its project is to work poison into the body politic, to kill our genius for democracy, and build a culture of fear. Judging by the signs of our times, that project is unfolding according to plan.

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