SEARCHING FOR THE RIGHT BALANCE

We can reasonably be suspicious of sliding standards for subjecting
Canadian citizens to searches by sniffer dogs -- or the next detection
technology

Last Friday, the Supreme Court of Canada released two important
privacy-related decisions, both addressing an increasing trend in
which Canadian law enforcement agencies use police dogs to conduct
random searches of public spaces.

The first case took place at the Calgary bus terminal, where law
enforcement officers had initiated a dog patrol. After getting off a
15-hour, all-nighter Greyhound trip from Vancouver, Gurmakh Kang-Brown
was said to have aroused suspicion because of an "elongated stare"
that he gave to an undercover officer who had been following him
around the station. After the perceived staring incident and some
to-ing and fro-ing within the bus station, a brief discussion ensued
and ultimately a pooch named "Chevy" was brought over for a quick
snoop. Chevy hadn't come to the bus terminal in anticipation of Mr.
Kang-Brown's arrival; he wasn't a known suspect, nor was anyone else
in the terminal. Chevy was there as part of a formal program to
snoop-out anyone whom her handlers thought looked a certain way.

The second case involved an unknown teenager who wasn't even on the
scene when the police opened his knapsack in the gym at St. Pat's High
in Sarnia. His knapsack was left there, unattended, because the entire
school had been locked-down to facilitate the police and a trusty K9
named "Chief." After sweeping the hallways and lockers, Chief and his
handlers headed to the gym where he snooped the kid's bag, immediately
indicating the presence of an odour of narcotics.

The officers had not been tailing the teen, known as A.M., as a
"person of interest." They simply took up a standing invitation from
the school's principal one year prior to search the school any time
they wished, without warning or cause, in support of the school's
zero-tolerance policy against drugs.

"In the sniffer dog business," opined Supreme Court Justice Ian
Binnie, "there are many variables."

Justice Binnie's statement rings true in several respects. In the
context of his remarks, he was referring to the fact that a dog sniff
"does not disclose the presence of drugs. It discloses the presence of
an odour that indicates either the drugs are present or may have been
present but are no longer present, or that the dog is simply wrong."

Of course, those are not the only variables at play. A decision about
the constitutionality of using police dogs to conduct random searches
of public spaces raises broader issues about an array of social values
including: privacy, civil liberties, public safety, national security,
mobility rights and the right to an education, to name a few.

My own research focus is on the legal and ethical implications of new
and emerging technologies. I have been following these two cases
because I recognize that -- from both a privacy and security
perspective -- "odour" is only one of many kinds of information that
can emanate from a private place into a public space.

Other interesting and valuable information emanates 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, information about a body's temperature
profile from radiating heat and sweat, 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 histories.

Properly reconstructed, these bits and bytes can sometimes reveal our
innermost secrets and re-tell the stories of our lives. Of course,
those secrets and stories and can also be mis-told.

So, as I watched the snoop dog cases wind through the courts, I began
to think about their application to a broader range of information
technologies, and their offspring - the concept of "informational
privacy." I began to wonder whether the court's recent preoccupation
with seeing things through an "informational" lens might initiate a
shift in the relationship between individual and state, and the
constitutional standards meant to safeguard individuals from state
intrusion.

My larger hypothesis was this: the concept of "informational privacy"
might ultimately be used in ways that diminish the privacy of
Canadians, not because we no longer value privacy but because our
reasonable expectations of it will be reconfigured by new technologies
so that we will come to expect less privacy, for better or worse. Our
privacy expectations will be further diminished by society's competing
interest in expedience and efficiency across all technologically
enabled systems, including the criminal justice system.

Such expediency might be promulgated by reducing information to
smaller and smaller bits ("data-mining") until the point that it is no
longer easy to see any privacy value in those tiny bits and bytes of
information. This approach was of such great concern that I have
attached a label to it: "information reductionism." (I don't claim the
be the first to use that name.)

In various legal publications, I, along with co-author, Jena McGill,
have expressed unease about the potential adoption of this
reductionist approach in the snoop dog cases, spelling out the
pitfalls that might ensue. An increasing number of provincial courts
across Canada both at the trial and appellate levels had begun to
adopt information reductionism in their decisions.

To take one example, here is how the majority of the Alberta Court of
Appeal put it in its Kang-Brown decision: "the dog only yielded a
crude piece of information ... no intimate details of private lives
could possibly be revealed, the odours came out passively, and they
were detected by something similar to ... an ordinary human nose.
There was no reasonable expectation of privacy for that limited
information in that public place."

The problem with this reductionist approach is that it strips police
activity entirely of its social context. By looking at odour
emanations as crude bits of information, we are misdirected away from
patrol dogs perambulating corridors -- such activities not even
qualifying as a search - toward an extremely impersonal, non-social
and merely informational scientific account of odours emanating from
luggage.

This approach would be devastating in light of a range of new and
emerging technologies designed to do just that.

In at least one respect, Friday turned out to be a very good day. The
Supreme of Canada clearly rejected the reductionist approach, with
most members of the court agreeing that dog-sniffing can indeed amount
to an unreasonable police search: "much police work does consist of
assembling different 'scraps' of information, some apparently
meaningless, into a significant picture." As Justice Binnie went on to
say in his concurring opinion, "(s)tripped of the relevant context,
musing on the differences between a dog's nose and an infrared camera,
or generalizing about 'emanations,' does not greatly advance the
resolutions of the issues before us." He therefore declared that, "dog
'sniffing' cannot be treated as an isolated phenomenon and detached
from the broader police conduct."

This express rejection of the reductionist approach to information is
very good news for privacy -- especially in light of the rapid pace of
technological change in fields such as ubiquitous computing and
advanced robotics. In a technological age, courts will need to remind
themselves over and over about the threat of information reductionism
and its opaque tendency to obliterate existing social norms. As the
late technology guru Mark Weiser once warned, "(t)he most profound
technologies are those that disappear. They weave themselves into the
fabric of everyday life until they are indistinguishable from it."

Taking the long view, however, I am less certain that there is reason
to celebrate the rest of Friday's highly fractious and deeply
polarized decisions.

The Court was split 5-4 on the issue of whether dog searches should be
allowed absent a special regulatory scheme enacted by Parliament (as
is the case with wiretapping). A slim majority held that the dog
searches do not require government regulation.

The court was also split on the appropriate legal standards required
to justify dog searches. The usual legal standard required for a
police search is "reasonable grounds to believe" that an offence has
been or will be committed. According to some members of the 5-4
majority on this point, if the usual legal standard were to apply,
"the use of sniffer dogs as a law enforcement tool would be
neutralized." After all, the entire point of the dog sniff is to
gather additional evidence when you don't already have enough to
satisfy the usual standard. Consequently, a slim majority held that
dog searches are permissible so long as the police have a "reasonable
suspicion" that an offence has been or will be committed.

To the non-lawyer, this may sound like semantic nonsense but it is
not.

The difference between a police officer actually having reasonable
grounds to believe something as opposed to merely having suspicions
about it is significant; even more so in the context of a globally
shifting approach to law enforcement.

In a post-911 world, there is less emphasis on responding to a crime
that has occurred and more emphasis on preventing future ones. There
is less emphasis on corrective or restorative justice and more
emphasis on "actuarial" justice (relying on probabilities to establish
profiles and classification schemes that are then used to streamline
law enforcement investigations).

One of the problems with this shifting agenda is that there is no
transparency in many of the important decisions made about individuals
by the state and the private sector (think: no-fly list). A shift too
far in the direction of probabilistic, suspicion-driven
decision-making could threaten our democratic institutions, especially
in a global climate of suspicion that is causing society to become
re-ordered around the concept of risk.

Some members of the Supreme Court recognized this possibility in their
decision to lower the acceptable standard of police dog searching,
stating that: "if 'reasonable suspicion' is construed as nothing more
than a subjective standard, it may lead, as critics fear, to abuse in
terms of arbitrary police action and racial profiling."

And, although the court did not discuss it, this is exactly what is
going on in the United States. since it adopted a "reasonable
suspicion" standard for what U.S. law calls a "Terry stop."

Ironically, I had occasion to witness one when I was recently invited
to D.C. to speak about Canada's approach to snoop dogs. As I was
riding in from the airport, I saw two police cars, driving in tandem,
pulling over another vehicle. While the officer in the first car
interrogated the driver, the officer in the second car waited
patiently, with his trusty K9 in the back, until called over to
sniff-search the car.

I wasn't on the scene and will therefore never know for sure whether
the officers had a "reasonable suspicion" for the search. But I am
suspicious that they did not - if you catch my drift. Suspicion is so
easily constructed. In a system so often subject to bias and
discrimination, it is not clear that "reasonable suspicion" is a high
enough standard.

Finally, one might ask, why lower the legal standard if the potential
risk of its misuse is substantial?

While one answer offered by some members of the Supreme Court is that
there are sufficient safeguards to prevent it, another answer given by
other members of the court leads back to my hypothesis that our
privacy expectations will be further diminished by society's competing
interest in expedience and efficiency across all technologically
enabled systems. As some members of the court acknowledged, dog sniffs
provide technologically enhanced searches that are only useful in
situations where the police do not have reasonable grounds to believe
a crime has been or will be committed. Without lowering the standard,
there is no point to dog snoops. Put differently, if we were to
maintain the higher legal standard, we would have to abandon an
extremely expedient and efficacious investigatory tool. Therefore, we
must change the standard.

Diminishing constitutional scrutiny in order to accommodate an
existing technology - now that is what I call the tail wagging the
dog.

In the coming years, dog searches are sure to be supplemented by
electronic noses, sensor networks, artificial intelligence and other
highly automated systems that can operate much more conspicuously and
effectively than snoop dogs. If they are subject to the same legal
standards set out by the majority of the Supreme Court last Friday, it
will be the state and not its subjects who will be engaging in "an
elongated stare."

Here, I am reminded of the wisdom of Nietzsche, who famously said:
"Whoever fights monsters should see to it that in the process he does
not become a monster. And when you look into an abyss, the abyss also
looks into you."

Ian Kerr holds the Canada Research Chair in Ethics, Law and Technology
at the University of Ottawa.