Lawrence Solomon
The Next City
June 21, 1998

WITH VAST COMPUTER NETWORK DATA BASES storing detailed information about our private lives, many of us are becoming uneasy about invasions of privacy. Already, computers track our daily activities, time-stamping every credit and debit card transaction, monitoring who we call on the telephone or visit over the World Wide Web. Many businesses snoop on their employees, many municipalities film activities on city streets to cut down on red-light runners and other violators. Soon, every highway will be tolled, recording our comings and goings; and so will every neighborhood road — satellite technology today tracks the movement of London cabbies, the better to dispatch them; tomorrow these satellites will economically track private automobiles, the better to bill their owners.

Some privacy concerns revolve around bothersome junk mail and unwanted telemarketing calls: Air mile and other cards let marketers analyze your personal shopping habits, opening you up to an avalanche of targeted offers. Other concerns — particularly access to your genetic code, which contains intimate details about you and your likely future life — are anything but frivolous. A recent study by the Federal Bureau of Investigation and the Computer Security Institute found that “most organizations are woefully unprepared . . . [making] it easier for perpetrators to steal, spy, or sabotage without being noticed and with little culpability if they are.” After sampling 400 sites, the study found 42 per cent had experienced an intrusion or unauthorized use over the past year. Even sophisticated agencies are vulnerable. Pentagon computers suffered 250,000 attacks by intruders in 1995, 65 per cent of whom gained entry to a computer network. That same year, the London Sunday Times reported that the contents of anyone’s electronic health record could be purchased on the street for £150.

Because the dangers — ranging from financial exploitation to, in the worst case, a police state — can be profound, legislation of various types is being proposed. Some argue that all personal information should be our own private property, to prevent marketers from storing and exchanging information about us without our consent; others would severely restrict or even prohibit the collection of sensitive personal data. These approaches miss the mark. The collection of data — the accumulation of knowledge — is almost always desirable. The relevant question is, when does the information belong in the public sphere and when in the private?

The claim that we somehow have property rights to our personal information does not stand up to scrutiny. We all exchange information about others — “Did you see Andrea’s new car?”; “I hear Jim got a promotion” — in our daily routines without requiring their consent, and a democratic society that respects free speech could not do otherwise. Even if we did enact laws to restrict or ban data banks from collecting information about us, it would generally backfire. Junk mail is unwanted precisely because it is indiscriminate and useless. If marketing succeeds in sending us useful, targeted information, many of us would have our goal of restricting unwanted mail. In one survey, 71 per cent of 18- to 24-year-olds wanted mail on products that interested them; in another, 52 per cent of consumers wanted to be profiled if that would lead to special offers. Those who don’t want the mail or the offers will only need to make their views heard: Few companies would defy their customers by selling their names.

Valid restrictions governing free speech — such as slandering others or violating their copyright on personal works — are properly limited. But we should add one other restriction — control over the use of our genetic code, where privacy should take precedence over free speech.

THE FIELD OF GENETIC INFORMATION PROMISES TO BE the greatest boon to science and medicine in human history. We suffer from at least 4,000 genetic diseases and conditions — everything from Huntington’s disease to depression — that may one day be treated or cured as science unravels the mysteries of the human genome. Even today, reading our genes can guide us in making decisions about our future, revealing whether we have predispositions for cancers or alcoholism, medical conditions that preventative measures could ameliorate. The information in your genetic code amounts to a probabilistic future diary that describes an important part of a unique and personal character — not just about your physical and mental health but also about your family, especially your parents, siblings, and children.

Yet this field also promises to lead to invasions of privacy unprecedented in their nature and scale. Unlike your personal diary, in which you might reveal your innermost secrets, the information in your genetic code may become known to strangers but not to you. From our own experiences, we know that there are no shortages of people with motives to acquire such information. Insurers and employers would value this information for business purposes. Political operatives might want to discredit opponents, as might combatants in divorces or other domestic disputes. Even where stakes aren’t high, people may have malicious curiosities about their friends, neighbors, co-workers, or romantic rivals.

Until the turn of the century, our privacy was recognized as a property right and consequently given great legal weight. Our diaries and our secrets, particularly our medical secrets, were our own, in the United Kingdom as in North America. The genetic code, the epitome of that which is personal, is both a present document and a future diary. Giving each of us clear rights to our genetic code and requiring those who would use it to first obtain our consent would provide a necessary and indispensable ingredient to protecting our privacy.

MOST DAY-TO-DAY CONCERNS THAT PEOPLE HAVE about privacy will evaporate. Those who don’t want consumer data collected on them can avoid air miles-type marketing. Those seeking anonymity in making a phone call or a toll road trip can purchase prepaid cards; other technologies will foil telemarketers and e-mail snoops. Those who value record keeping — primarily businesspeople who bill their time or track it for other purposes — will see this data collection as an added-value service. Most of us won’t care much one way or the other.

In private spaces — banks, convenience stores, office buildings — we have accepted cameras, taking little notice of them and worrying about their misuse even less. We understand the proprietor’s motives — to protect his property and the security of those who use it — and accept them as valid. Though we want similar protection in our public spaces, we are less trusting here, not because we value public property and security less but because we know the proprietor — the state — may have mixed motives. Too often government officials have used privileged information — whether medical data or income tax files — for self-serving ends. We do need safeguards governing surveillance in public spaces to allay legitimate public fears over the advent of the police state. Less privacy, ironically, would be one such safeguard.

MANY CRIMINAL LAWYERS BELIEVE THE POLICE STATE ARRIVED some time ago, that law enforcement authorities effectively frame individuals whom they believe to be guilty. Guy Paul Morin is a case in point: Convinced of his guilt, police fudged the facts. When conflicting evidence frustrated their efforts — Morin left work too late to have travelled the 30 miles home in time to have murdered 9-year-old Christine Jessop — police ingenuity overcame this shortcoming.

Morin has plenty of company — Donald Marshall, David Milgaard, and countless others have been convicted of murder and lesser offences because they could not establish where they were at some fateful time. Put another way, they were victims of their privacy. The vacuum of reliable information about their whereabouts created the opening for overzealous or overlazy police officers and prosecutors. Overzealous and overlazy authorities will always be with us, but vacuums of reliable information are increasingly becoming scarce. Had Jessop been murdered today, and had Morin travelled along an electronically tolled road such as Ontario’s Highway 407, a record of when he got on and where he got off the highway would have established his whereabouts. The injustices perpetrated by the criminal justice system on this young man would never have occurred. Highway 407 was built too late to help Morin, but not for future travellers, whose record of their comings and goings — unbeknownst to them — adds a touch of security to their lives. So do new advances in DNA analysis, which eventually proved Morin innocent, as they are now doing for others around the world who were also falsely imprisoned.

A world in which we can verify our daily movements — the very world that has been unfolding for decades — diminishes the number of miscarriages of justice that can occur. To fill a void with false information has always been easy; to rewrite data showing that someone drove 30 miles at a particular time along a particular electronic toll road involves reconstructing an alternate route and time, which involves alternate billing, which involves replacing the old invoice with a new one, and on and on. The effort required to spin a web of false information and then overlay it upon an existing factual network without getting tangled up would be so daunting as to virtually never occur. The very data base networks that some fear will usher in the police state, in the end, are really the best protection against it.

Lawrence Solomon
Editor