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Thursday Thinkpiece: McGill and Kerr on Emanations and Privacy

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Reduction to Absurdity: Reasonable Expectations of Privacy and the Need for Digital Enlightenment
Jena McGill and Ian Kerr
Digital Enlightenment Yearbook 2012 199 J. Bus et al. (Eds.)
IOS Press, 2012

Excerpt: pp. 199-202

[Footnotes omitted. They are available in the full version via the link above.]

Introduction

For all but the tiniest sliver in the history of human thought, the notion of emanation has been understood mostly as a cosmological concept; an unobservable flow of being derived from god alone. According to Plotinus, chains of emergence, emanating from the godhead, provide a cosmological account of the relationship between a transcendent god and a finite, imperfect world. Interesting metaphysics notwithstanding, god’s monopoly did not last forever. Empirical science has since rendered visible much that was previously imperceptible, revealing that humans, too, generate a flow of being. In the transformation from a cosmological to a technological worldview, many of our emanations are now observable. As we gain mastery over the assemblage of bits and bytes that make up the empirical world, it has become abundantly clear that things regularly flow from our bodies, our artefacts, and objects in our proximity. We constantly emanate: heat, light, particles, waves, smells, sounds, etc. Through these, we also emanate much information.

Emanations containing valuable personal data include the potentially endless range of emissions that can be seen, heard, smelled or felt. Emanations radiate from our computers, our cell phones, our televisions and radios, our luggage, backpacks, clothing and homes. Our bodies also emanate information via electrical activity from brains and hearts, DNA from flaking skin cells and shedding hair, and data on health status from germs emitted when we cough, sneeze or spit. We are constantly giving away, knowingly or otherwise, emanations that contain information about our bodies, our homes and our lives. Like heat from our homes and scents from our luggage, these emissions are sometimes continuous and are often undetectable by naked human senses, meaning we cannot exert control over their dispersion or collection by third parties in the same ways that we might manage fixed data regarding our personal lives, property or bodies. We rarely notice when emanations from our bodies, homes or belongings go missing.

While emanations may seem innocuous in isolation, the ever-increasing number of technologies designed to: locate, track, store, process, mine, buy, use, break, fix, trash, change, melt, upgrade, charge, pawn, zoom, press, snap, work, erase, write, cut, paste, save, load, check, rewrite, plug, play, burn, rip, drag, drop, zip, unzip, lock, fill, curl, find, view, coat, jam, unlock, surf, scroll, pose, click, cross, crack, twitch, update, name, rate, tune, print, scan, send, fax, rename, touch, bring, obey, watch, turn, leave, stop and format information gleaned from emanations means that single bits of emanation information can be manipulated with such significant degrees of control that it is now possible to build a comprehensive profile of an individual’s biographical or biological life without that individual ever knowing that he or she is, was, or will be a subject of surveillance.

Without question, uncovering the information bundled into these emanations has been of tremendous utility to the investigative sciences and the practice of law enforcement. The techniques by which particular emanations become known and understood are extremely powerful. They can be used to target individuals or groups with great precision and accuracy; sometimes, with amazing simplicity and often at little expense.

In this article, we focus on the judicial treatment of a seemingly primitive example: the use of behavioural science techniques to train dogs to perceive the scent of illicit drugs. With an extremely high degree of accuracy, police pooches are able to quickly detect the presence of drugs in a backpack inside a gym locker and communicate this information to their handlers. No longer is there a need to hack the lock or call the principal; scents emanate with or without a search warrant.

Like tomorrow’s digital devices and ubiquitous surveillance techniques, snoop dogs can be used to obtain incriminating evidence without transgressing property lines or invading one’s personal space. And, so we ask: when police use snoop dogs to detect the emanation of odours in public spaces without a search warrant, are they conducting a search or otherwise interfering with privacy interests in a manner that should attract constitutional scrutiny? More particularly, are the external patterns of smell on the outer surfaces of a locker or a backpack the kind of information in which a person holds a reasonable expectation of privacy?

Though these questions may seem narrow and obscure, how the courts answer them will prefigure the legal treatment of a range of emerging digital technologies. For this reason, we examine in detail the twin decisions of the Supreme Court of Canada in a joint appeal of two snoop dog cases – Kang Brown v. R. from Alberta and R. v. 78 M.(A.) from Ontario. Like the Supreme Court’s earlier decision in R. v. Tessling, these cases raised broad and important questions about the nature of privacy and autonomy in a world of ubiquitous information emanation.

Indeed, having witnessed the snoop dog cases emanate both to and from the Supreme Court, there remains cause for concern about three jurisprudential trends that pose serious risks to privacy: (i) the growing number of wrongly decided information emanation decisions in Canadian courts, and their continuing reliance on an inappropriate use of judicial analogy stemming from a misreading of Tessling; (ii) the excessively reductionist approach to informational privacy adopted in many reasonable expectation of privacy cases—in Canada and elsewhere—which obscures the deep social significance of police investigative techniques like sniffer dogs; and (iii) the tendency in several provincial courts across Canada and throughout North America to adopt a non-normative approach to ‘reasonable expectations’, ushering in a shift in privacy discourse away from democracy, rights and duties towards an inquiry about digital technology and standards of police practice.

Because these judicial trends are of global import and are being resolved using similar legal approaches in various courts of law in Europe and North America, our aim in this article is to reflect broadly upon the worries that arise in these cases, specifically within their Canadian context but, also, as instances of a larger global privacy trend: a diminishing of informational privacy by way of said shrinking privacy expectations.

In Part 1, we commence with a discussion of the two snoop dog cases that made their way to the Supreme Court of Canada in 2007. This is followed by an investigation of the application of the Tessling decision by way of analogy in Part 2. In Part 3, we take a broader look at reasonable expectations of privacy, examining three possible danger zones inherent in the approach adopted in the majority of Canadian snoop dogs cases: (i) the narrow conception of informational privacy, (ii) the pickwickian relationship between searches and expectations of privacy, and (iii) the non-normative conception of reasonable expectations. With these concerns in mind, in Part 4 we look to the Supreme Court’s analysis of the snoop dog cases, assessing whether and how they avoid the danger zones we warn against. In Part 5, we identify an ongoing risk of analytical backslide to the reductionist approach to informational privacy—particularly in future cases involving emerging digital technologies.

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