- Mark Summers (law student)
The Future of Privacy Rights: Warrior Genes, Sexual Orientation and Beyond
Canadians enjoy a fundamental right to privacy, which is refllected in the jurisprudence pertaining to section 8 of the Charter1. This right to privacy originates in the right against unreasonable search and seizure, but the case law has developed that an individual must first establish a “reasonable expectation of privacy” before a court will assess the reasonableness of the search.2 The burden is effectively on the individual to prove that a right to privacy existed in the circumstances, that it was violated unreasonably (if a warrant was proffered), and that including the evidence would tarnish the administration of justice.3
However, this question of whether or not there is a reasonable expectation, and whether or not that expectation is violated, is often contentious. It can be hard to find the line where privacy ends; the distinction as shown by the courts can seem arbitrary, and leaves open a lot of question as to the future of privacy rights. For instance, the police are known to use FLIR technology, which detects heat signatures coming from houses. FLIR is used in an attempt to find illicit drug manufacturing, as these processes generate a lot of heat. This is permitted, because the heat is something that has left your house, and is no longer under your control, and there is no longer an “expectation” that this information will remain private. The courts have said that this information is also vague enough as to not infringe privacy rights, given that the heat could be generated for any number of reasons, and so there is no biographical information garnered. And yet new radar technologies (Range-R) will seemingly allow police to see through walls.
This distinction seems an arbitrary one however, given that if a heat signature is generated, it is common practice for a warrant to be granted in order to conduct a search. So while courts seem to accept that FLIR does not reveal any personal information, it is in fact revealing information one may expect to remain private: your private conduct in your own home. The Range-R technology may engage other interests that have yet to be tested by Canada's courts - is 'e through the wall technology' still merely the gathering of mundane information, if a suspect cannot control the detection?
FLIR technology is contrasted however with other ways in which privacy has been protected by courts, such as by drug-sniffing dogs at a bus depot. The courts ruled here that there is an expectation of privacy in these circumstances. This seems to be quite at odds with the FLIR analysis, given that in order for the dogs to smell drugs, they are only detecting particles of drugs, in the form of odour, that have physically left your person as well. Is the distinction therefore simply that we have an expectation of privacy when it pertains to physical particles (as with drug scent), but not with the properties of physical particles, for example heat waves detected by FLIR technology?
This lack of clarity is a significant problem, because we as individuals can’t predict what the courts will decide is private when newer and more advanced technologies are invented. What kinds of information will be able to be admitted as evidence, or used to profile us.
One such example is the warrior gene. This gene has been studied, and has been shown to give individuals a predisposition to impulsiveness, and to be much quicker to anger. If someone is accused of a crime, will the police be able to request a DNA profile to see if an individual possesses this gene? Could having this gene be evidence to indicate that you are in fact, more likely to react violently when presented with adversity? There have already been attempts to use the warrior gene as a partial explanation for behavior, such as in a recent Santa Fe murder case. The police are able to demand a DNA sample from an accused if they attain a warrant, but this is often to compare to evidence at the scene. Will DNA testing for genetic markers become the norm for every accused, in order to facilitate convictions in some? What if technology could be invented to sense the likelihood of the presence of the gene during interactions with and interrogations of suspects?
Another future question that arises has to do with facial recognition software. In the last few decades, facial recognition software has developed, and can now detect differences and patterns in facial structure beyond the capabilities of the human eye. In one recent study, one in fact designed to highlight the privacy implications of this kind of technology, facial recognition software was able to determine an individual’s sexual orientation based on their facial structure with an 81% accuracy based off of only a single photograph.4
This sort of information could be gathered just from someone walking around in public. Surely, we don’t have an expectation of privacy about our facial appearance when we are outside in public? Do we have a reasonable expectation of privacy about our personal details, as determinable by technology that surpasses human ability? It seems that given the highly personal nature of sexual orientation, the courts would probably find a broad government or police analysis based on facial recognition software to be a bit too “brave new world”. But what if an accused’s sexual orientation is material or relevant, such as might arise in a case of sexual assault?
Can the police use this technology to gather this information, even if the information may not even be known by the accused themselves? This may be particularly relevant in countries where homosexual acts are still illegal, though that is not the case in Canada. Just a critically, what if other identifying social behaviours can be revealed by the technology? Is our inability to control these facial correlations akin to an abandonment of the data to the state?
There is strong doubt as to how this accuracy translates to real world applications, but technology like this is still developing rapidly. While sexual orientation may not often be relevant to criminal investigations, who is to say what future biographical information can be determined based on facial recognition technologies or other forms of surveillance. There exist similar technologies, such as gait analyses, that could also reveal highly personal biographical information such as illnesses and injuries that might not otherwise be detectable by others.
Though the courts have done their best to highlight what is or isn’t permitted when the state wishes to investigate, there are still many questions left unanswered. As technologies continue to advance, the issue of biological privacy is only going to become more relevant. Whether this information is easily detectable by the state, it is clear that a jurisprudential reassessment of the dignity interest inherent in the reasonable expectation of privacy analysis is indicated.
1 Canadian Charter of Rights and Freedoms, s 8, Part I of the Constitution Act, 1982,
2 Jochelson, Kramar, & Doerkson, The Disappearance of criminal law: Police powers and the Supreme Court (2014), page 23.
4 Deep Neural Networks Can Detect Sexual Orientation from Faces, Wang & Kosinky (2017). https://www.nytimes.com/2017/10/09/science/stanford-sexual-orientation-study.html