Journalists in war zone get angsty about biometrics scan

OTTAWA — Journalists covering the war in Afghanistan are now required to submit to a biometrics scan before being accredited to travel with NATO units or visit military bases.

The data, including fingerprints and a retina scan, are used to verify identity and apparently checked against an archive of known terrorists.

The new policy, recently posted on the International Security Assistance Force website, has not been enforced on Canadian reporters, most of whom operate out of Kandahar Airfield.

A legal expert described the new security crackdown as “strange and offensive” and said the Conservative government needs to be asking tough questions of its allies before any Canadian citizen submits to such a procedure.

Michel Drapeau, a retired colonel and expert in access to information, said Ottawa should know where the data is being stored, who has access to it and how it will be used.

“We are in Afghanistan to defend our values and one of our quasi-constitutional values is the right to privacy,” Drapeau said Tuesday.

“I would question why they’re using that.”

Journalists are in Afghanistan to be the eyes and ears of their countries and should not be required to figuratively “strip down to your bare whatever unless there is a demonstrated need,” he said.

— Canadian Press.  “Journalists required to submit to biometric scan in Afghanistan“, May 5th, 2009.

If you have to strip down to your bare whatever to provide fingerprints and a retina scan, you must be keeping your fingers and eyeballs in interesting places.

I hate to break it to you, Colonel, but Canadians have a “quasi-constitutional” right to privacy in name alone, not form.  It is specifically omitted from the Charter of Rights, and only considered under other legislation (Privacy Act, 1983).  What the Charter does grant you is the reasonable expectation of privacy (s.8).

All that other business about what information the government can collect, how, and for what duration, resides in the Privacy Act.  Which is an ordinary statute and can be amended at any point by the government of the day passing a new bill.  Which is quite a bit easier than amending the constitution.  I know the lawyers among you will complain that the SCC in Lavigne v. Canada considered the Act to have quasi-constitutional roots.  Which means the court will interpret it as having the weight of a constitutional guarantee… up until a further act of Parliament ends up changing it.  Changing the constitution, after all, is difficult.  Changing a mere act is not.  There is no additional requirement or consultative process for changing an act the SCC has hung the “quasi-constitutional” label on.

Back to the matter at hand.  It should be obvious to anyone that the press never has unrestricted access to military facilities or personnel; they are limited by opsec requirements.  If the lawfully designated command authority (i.e. commander, Kandahar Air Base) requires foreign reporters in his AOR to have a biometric scan as a precursor to entering said base, or going out on patrol with soldiers, a biometric scan they shall have.

You can squawk, but realistically, as long as Canadian troops are co-located within a British-commanded facility, you are going to end up playing by their rules (or NATO’s rules, as the case may be).  Like it or not.  The alternative is to take your ball and go home.  Which we’ll be doing in two years anyway.

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2 Responses
  1. Alan says:

    I don’t think it is as bad as that. I think you can take that statement “The only effect of this Court’s use of the expression “quasi-constitutional” to describe these two Acts is to recognize their special purpose” for what it is worth as the scope of all the things that fall into the big word “privacy” has not been expanded in any real way that I can see under the Charter. I did my LLM thesis on biometrics and constitutionality back around 2000 and I ended up saying that Canadians outside Quebec are fairly pooched on claims to privacy.

  2. Chris Taylor says:

    I appreciate your insight, Alan, but forgive me for being dense… “I don’t think it is as bad as that” being
    … as bad as a right to privacy in name alone, not form?
    … as bad as any old regular Act that can be amended via a simple bill, as opposed to Constitutional modification?
    I think we’re in agreement that Canadians right to privacy is far less concrete that say our southern neighbours. But doesn’t that kinda make it worse? What am I missing, here.