A few days ago, I received a notification on my phone’s home screen informing me that over the previous three days, unbeknownst to me, an app had tracked my physical location on eighteen separate occasions. The kindly app quickly reassured me that my privacy had never been at risk. I don’t live under a rock so the monitoring didn’t come as a total surprise, but the reminder was nevertheless slightly jarring. “Creepy”, I thought to myself.
Privacy is not a recent interest of mine. In January of 1995, almost twenty-five years ago to the day, the University of Montreal law review published an article on surveillance and privacy rights that I had written as part of my LL.M. That article, eight years later, was referenced by law professor and leading human rights expert Gérald-A. Beaudoin in a compendium of articles commemorating the 20th anniversary of the Canadian Charter of Rights and Freedoms.*
One of the key underpinnings of my article was that privacy is, and has always been, a precondition of freedom. When I wrote it, back in 1995, the founding of Google was still three years away; Facebook would not see the light of day for another nine years, and the first iPhone was twelve years in the future. Data collection and cross-referencing on a truly large scale were beyond our capabilities, while facial recognition and other biometric means of surveillance were still firmly in the realm of science-fiction. Electronic forms of surveillance, I believed, were no more intrusive than other forms that had existed since time immemorial.
My interest, at the time, was limited to state surveillance because only state actors, back in those days, possessed the kind of capabilities that presented a credible threat to a free society. That is no longer the case and I have grown ever more concerned over the years with the erosion of privacy associated with what Shoshana Zuboff has described as “surveillance capitalism”.
Things are about to get even more concerning with the application of new types of machine learning to the mountains of personal data—my data and yours—that are constantly being accumulated and analyzed by mostly private organizations. The kind of social control that monitoring and surveillance make possible can take many forms and benign motivations will always be invoked (indeed, reasons given will always sound very compelling in the moment), but when it comes to the very foundations of individual and collective freedom, the bar should be set very high indeed.
It’s a complicated question and I don’t know where the line should be drawn but I no longer believe, as I did twenty-five years ago, that scrutiny should be limited to state actors. Neither do I believe that general and often uninformed consent, in the private sphere, offers sufficient safeguards in light of the broader societal issues that are at play. There is, quite simply, too much at stake.
* BEAUDOIN, G.-A., «L’équilibre délicat entre la sécurité publique et les droits individuels: le point de vue d’un législateur»,  R. du B. (numéro spécial) 73-105. Another one of my articles on electronic surveillance was quoted by the Court of Appeal of Quebec in 2017 in Blais c. R., 2017 QCCA 1774, .