Sarah Leamon: Privacy rights and the pandemic—what are reasonable incursions?
Since the imposition of emergency measures in response to COVID-19, some of the biggest questions that we have had as Canadians revolve around privacy and individual rights.
Once simple tasks, like going to a restaurant or a coffee shop, have become complicated land mines, speckled with uncertainty.
So, what are our privacy rights? And how has COVID-19 changed things?
It may surprise you to learn that privacy is not a constitutionally protected right under our Canadian Charter of Rights and Freedoms.
However, there are other sections of the charter that have been used to invoke privacy rights under the law. For example, the right to life, liberty, and security of person, as guaranteed under section 7, or the right to be secure against unreasonable search or seizure, under section 8.
Both of these protected rights—along with a myriad of other statutes and laws—have been used to develop and entrench privacy rights in Canada.
While privacy is considered a fundamental right, it is not absolute.
There are certain limits on our right to privacy, and those increase when we move from the private sphere into the public sphere. For example, it is a long-established legal principle that people are afforded fewer privacy rights when driving in their vehicles than when sitting in their homes.
And generally speaking, the further we venture out, the less privacy we can expect. Consider that we are routinely subject to baggage scanners and other personal-security measures, including pat-downs and retinal scanning, at points of travel.
When crossing international boundaries, travellers are subject to questioning by border officials whose powers are vast. Until recently, we would have never contemplated such intrusions on more benign trips, like to the corner store.
But the point is, when it comes to privacy, context is key.
This means that your right to privacy will be largely dependent on the situation that you are in—both time and place. And during a time of national emergency and global pandemic, you can expect that your personal rights in the public sphere will be somewhat reduced.
This is becoming increasingly evident as businesses start to reopen.
Many restaurants, for instance, are asking patrons to leave personal contact information prior to dining in. The rationale is to aid with contact tracing, should a positive case of COVID-19 be confirmed.
By notifying people who may have been exposed to the virus, the risk of further transmission is lowered. So far, this has proven to be an effective tool against the spread of novel coronavirus.
While some diners may be uncomfortable with this idea, it is important to remember that dining out is a privilege—not a right. Where a privilege is involved, privacy rights may not be so strictly applied.
Moreover, leaving simple contact information—such as a name and a telephone number—is no more invasive than leaving such information for the purposes of a securing a reservation or being added to a wait list. So long as the establishment maintains close control over the information, and destroys it within a reasonable time frame, the risk of misuse is mitigated.
Things become more convoluted, though, where more substantive invasions of privacy are concerned. Consider, for example, having your temperature taken in order to enter a coffee shop or completing a personal health questionnaire prior to having your nails done.
While these intrusions may make us uncomfortable, they could become a normal part of our daily routines. The question about how legally problematic such measures are will be largely dependent on how the information is collected, stored and used.
And, of course, the ongoing issue of consent.
After all, taking informed steps to enter a public space—like a restaurant or a hair salon—is quite different than being monitored without your consent or knowledge.
Recent revelations about how health officials have been using things like credit cards and loyalty programs to monitor for potential COVID-19 exposure pose more significant quandaries about where individual privacy ends and public safety begins.
Many were shocked to hear Dr. Bonnie Henry admit to accessing this type of personal information without consent from common points of purchase, such as grocery stores, in order to administer public health protocols.
While public safety is a significant concern, we should still be mindful about what liberties we are willing to trade without question. Over time, seemingly reasonable, small sacrifices can give way to major violations.
When it comes to privacy, we should never stop asking: how far is too far?