How do we fix privacy? Other than a messy patchwork of conflicting and often irreconcilable federal and state statutes, solutions are not obvious. One answer, for those of us who still retain a measure of constitutional faith, is to fix the Fourth Amendment. Yet, this raises more questions. What is the best strategy? Is a shift in interpretative method enough? Would not a full constitutional amendment be the ideal? The upshot, being, a New Privacy Right entrenched forever; something with eyes not for threats to the places where the King's men did not belong, but identities and data, the warp and woof of informational privacy today. This may not catch all future concerns but it would nevertheless leave the Constitution far better equipped. Or at least that is the theory. The Canadian experience with constitutional privacy might show otherwise.

Section 8 of the Charter

When Canadian officials were drafting the Canadian Charter of Rights and Freedoms in the early 1980’s they had two hundred years of American constitutional experience to draw on. This included Section 8, the Charter's main privacy provision. Studying the Fourth Amendment and its interpretation in U.S. courts carefully, the drafters concluded that while they liked its protection against “unreasonable search”, they disliked its focus on places. The drafters thus included a right for citizens to be “secure against unreasonable search or seizure” but intentionally omitted any reference in Section 8 to place, location or specific things. This was the twentieth century after all; there were new threats to privacy beyond the Fourth Amendment’s concern with “persons, houses, papers, and effects”. Section 8's text would not be wedded to a list of places or things; Canadians needed broader privacy protections and the provision's language would reflect that intent.

The Fourth Amendment Goes to Canada

Or so the drafters thought. A year later the Supreme Court of Canada delivered its judgment in Hunter v. Southam, which remains the leading case on the interpretation of Section of 8’s privacy protection. In Hunter, the Court would, despite the Fourth Amendment’s different text, history, structure and intent, adopt the U.S. Supreme Court’s Fourth Amendment test in Katz as the standard for privacy protection under the Charter. Though, said the Court, the differences between the Fourth Amendment and Section 8 meant American decisions should be transplanted to Canada only with great caution, it still adopted the Katz “reasonable expectation of privacy” test wholesale.

This blending of constitutional cultures has proven deeply troubling for Canadian privacy. The 1990s decision in R. v. Plant offers one example. Citing Fourth Amendment decisions Katz and United States v. Miller, the Court held there was no Section 8 privacy interests in computerized records that did not contain "confidential" personal information. That electricity records revealed details about private lifestyles in the “castle” of the home made no difference.

The danger in Plant and Hunter's reliance on Fourth Amendment principles culminated in the 2004 decision of R. v. Tessling, one of Canada's first decisions on surveillance and informational privacy. There, the Court applied Plant to find that heat imaging of a house taken by police with a FLIR (Forward Looking Infrared) camera but without warrant, was not an unconstitutional search. Again, since the thermal imaging did not contain “core” confidential personal information, section 8 was not infringed. Now compare Kyllo. In Kyllo, the U.S. Supreme Court found images taken with a similar FLIR camera constituted an unconstitutional warrantless search largely because the imaging was of the home— one of the sacred places specifically enumerated in the Fourth Amendment’s text.

The irony is breathtaking. Despite Section 8’s text, history, and intent to provide Canadians with broader privacy protections than the Fourth Amendment, this ill-considered constitutional borrowing has led to narrower protections. In other words, Canada has the flimsy “reasonable expectation of privacy” test weakened even further by the fact there are no places – like the home – which have constitutional priority. “Place” in the Fourth-Amendment-meets-Section-8 analysis is simply one factor among many.

Canadian Lessons for American Privacy Strategies

There are a few lessons here. First, amendment may not be either the magic elixir, nor even the most effective means, to cure American constitutional privacy. Many believe-- and it is intuitive-- that the best way to fix the Fourth Amendment is to change it, replacing its textual focus on places with broader language to secure greater privacy. But the Canadian experience shows that if courts retain flawed interpretive methods then newly minted text, history, structure, and purpose may change nothing. Judicial error or resistance to constitutional text and history can be a factor in the U.S. as much as Canada. Second, and also counter-intuitively, specific rather than broad and vague textual language may be preferable. Otherwise, resistant courts might fill the void with nonsense. Third, privacy may be too delicate and important to use foreign jurisprudence as guidance. Legal scholars love citing and debating foreign precedent. While similar legal systems makes comparative law inevitable, a single act of misinformed borrowing can wreak constitutional havoc on privacy norms-- like eclipsing any remaining traces of Fourth Amendment protections (think of Tessling informing future U.S. privacy law decisions). There is a thin line between learning from others' mistakes and learning their mistakes.

Are we thus at an impasse? Not necessarily. All this means is that any privacy solution requires promoting a culture of privacy both inside and outside courts. Frederick Schauer has written about America's "First Amendment Culture" which is the country's deep cultural commitment to free speech apparent in broad judicial interpretations of the First Amendment's speech protections. If a culture of privacy existed in Canada - touching judicial culture - a trilogy like Hunter, Plant and Tessling may not be possible; in truth, however, neither Canada, nor the United States, have such a privacy culture. Privacy needs its own constitutional moment. It's high time to get it started.

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Excellent article, Jon. I just have one thought. Not knowing much about the judgments or Canadian law, I'm just wondering - is it really the use of American 4th amendment case law that decided the Canadian Supreme Court's understanding of the Canadian provision? In other words, had there never been any American case law on the matter, wouldn't it still be possible to adopt an extremely narrow reading of the clause? Perhaps even narrower than the one actually adopted?

I would guess it has a lot to do with the legal culture more generally, and how the Supreme Court of Canada approaches constitutional interpretation (and, perhaps also very important here, if it is ready to adopt "changed readings" - to use Lessig's term - in case of new technology). So I withhold comment. All I can say is that I shudder to think of what some Croatian courts would do when faced with actually applying such an open-ended clause.

-- MislavMataija - 03 May 2009

Mislav, thanks for the kind note. You are certainly right-- the Canadian Supreme Court may have offered a narrow reading of section 8 without any Fourth Amendment case law. In fact, my reference to a weak Canadian culture of privacy (that touches the judiciary) recognizes, by implication, that distinct possibility-- that courts, if they really don't think privacy is a big deal on normative level, they will resist-- intentionally or unintentionally-- broad interpretations of privacy norms. Still, given the evolution of section 8 jurisprudence, I don't think the Court intended section 8 to go the way it did; it likely adopted the Fourth Amendment test because it was a useful analytical framework to resolve complex privacy issues. But over time, this constitutional borrowing has borne out ill-considered doctrine. Privacy culture, no doubt, plays a part in that. But my j'accuse refuses the Fourth Amendment absolution.

Postscript: You should, by the way, post some links to Croatian privacy cases!

-- JonPenney - 08 May 2009

This is really interesting - I always viewed the use of international/foreign law in interpreting domestic law as a "liberalizing" force. But your paper provides a great example of how the use of non-domestic laws can cut both ways.

-- ElizabethDoisy - 10 May 2009

While I can see how broader language can actually leave courts with even less guidance on privacy, I think any attempt at drafting the exact scope of privacy protection (either in statute or constitutional form) runs the risk of becoming quickly irrelevant in an age of rapid technological change. Creating a culture of privacy among politicians and the judiciary--along with flexible standards--may well be the best one can hope for. Even if it does mean we end up with a messy patchwork of conflicting and often irreconcilable statutes and decisions.

I'm not sure that giving privacy a constitutional monument really solves anything in the end, either. As Eben pointed out on several occasions, it's tough to have meaningful privacy protection without butting up against the first amendment. Putting privacy on the same level as free speech wouldn't make resolving that tension any easier--it's hard for a constitution or a country to simultaneously commit itself to multiple values equally when those values conflict. Perhaps some synthesis can be reached, but I'm not yet convinced.

-- AndreiVoinigescu - 11 May 2009

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