Keeping an Eye on the Panopticon

AT DINNER one evening in the 1990s, while I was living down the road from Kingston Penitentiary, the English Utilitarian philosopher Jeremy Bentham’s ‘panopticon’ came up.

Among my guests was David Lyon, the Director of the Surveillance Studies Centre at Queen’s University. Bentham’s panopticon, a circular structure with a central inspection post, enables an observer to watch prisoners without them being able to tell when they are being watched. Kingston penitentiary uses this design, whose Greek name means ‘fully seen.’

One might be tempted to say that the Government’s 110-page Bill-30, which Thursday received its first reading, applies this surveillance model to the digital landscape. The principal fact of a panopticon, however, is that the invigilated don’t know when they are being watched, by whom, and to what purpose. These are matters too often left unexamined in public debate of the bill. To what degree, and in what ways, are our personal data already being collected? And what additional powers do law enforcement agencies need, exactly, that they haven’t at their disposal already?

Folks like David Lyon and Michael Geist, a University of Ottawa law professor at the forefront of this issue, relentlessly bring forward these and other necessary questions. Geist notes in Monday’s Ottawa Citizen that even under the current and supposedly inadequate law, “telecom companies [provide] subscriber data without a warrant 95 per cent of the time” and that “there is a huge information disclosure issue with no reporting and no oversight.” C-30 does nothing to justify telecommunications service provider data gathering (“obligations concerning interceptions,” in the language of the bill) and warrantless access to these data by law enforcement professionals.

Host of the CBC show The House, Evan Solomon, had questions about the need for warrantless access too, but the answers of Public Safety Minister Vic Toews only underscored the apparent fact the bill’s sponsor doesn’t know why this provision is necessary. His assertion, “I’m not familiar with that framing of the concern,” suggests he wasn’t even aware of it.

At issue are fundamental legal principles: the protection of individuals against arbitrary state action, as enshrined in habeas corpus, and the supervisory role of the courts in criminal investigations which touch upon matters of privacy. The government’s stated position is that C-30 provides access only to so-called phonebook data — i.e. limited and already public information such as name and phone number — and only in an emergency. This metaphor however is a useless anachronism, suggesting a limited understanding of digital technology.

The fact is we are entering an era in which the panopticon is a realizable object. Our conversations, our contacts, our calendars, and our movements (both in the virtual and real world) are part and parcel of the data routinely moving through the digital domain. It’s foolish to believe these data would or even could ever be truly private. As the bill goes to committee, the burden nonetheless must be pressed upon the government either to find a reasonable compromise (Geist’s creative suggestion is a new warrant specific to subscriber information) or make the case for Criminal Code amendments that weaken the system’s traditional checks and balances. That’s a burden the government so far seems unwilling to carry.

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