Note: this posting essentially represents snippets of my current research in progress.

Anyone familiar with J.K. Rowling’s world of Harry Potter cannot help but be struck by its devices of wizardry. These devices provide some idea of what it might mean to embody awareness in the physical world, precisely the shift we will experience as computational power moves beyond the desktop into everyday objects. Much of the charm from this popular series comes from the quirky magic objects that surround Harry and his friends. Rather than being solid and static, these objects embody initiative and activity - read surveillance capability. Take for example, the Pensieve which stores thoughts and memories for later retrieval: think cameras, chips and tags that capture ever-bigger parts of our experience, especially as they are integrated with devices that know our agenda, the places we visit and the people we are meeting with; or the Weasley’s clock - completely useless if you wanted to know the time, but able to pinpoint where each family member might be, work, school, home or even travelling, lost or in the hospital, and the Marauder’s Map having icons that represent people as they move around Hogwarts Castle: think geo-spatial technologies that bring the same feature to open spaces. Next generation magic or next generation technology? By whatever label, they prompt us to start thinking more about space, the space of our everyday lives, how it is being transformed and increasingly vulnerable to a new wave of technologies that make us more visible and more exposed. This, in turn, raises questions about spatial privacy, its nature and scope, and its viability for legal protection.

Emerging location, or geo-spatial technologies, such as Global Positioning Systems (GPS), Radio-Frequency-Identification (RFID) and advanced wireless devices are being introduced into all facets of everyday real life. This new wave of powerful technologies are finding their way into our homes, cars, cellular phones, identification documents and even into our clothing and bodies. Within the context of growing technological convergence, they have the unique ability to locate and track people and things anywhere, anytime and in real time. There is nothing new, nor necessarily sinister about wanting to locate people and objects and track their movement from one place to another. Clearly, there are some compelling advantages to such enhanced capability. For example, emergency services are better able to find accident victims, commercial organizations are able to improve the way they do business by fleet, product and employee tracking; parents may want to be sure their children are safe; and retailers, stadiums and other service-oriented facilities can adjust staffing levels and product inventory to best accommodate consumer patterns. For government intelligence and law enforcement, serving the public interest includes managing risk, which translates into increased security applications for monitoring people and things, especially given the shift towards a safety and security state. Overcoming many of the limitations inherent in the passive mainstream technologies, this generation of location-based technologies makes all of these things possible, automatically, remotely, accurately, continuously and in real time.

The obvious privacy and surveillance implications, however, are staggering and these concerns are rendered more pressing and more complex as the technologies are combined, integrated, connected, invisibly and remotely to networks, forming part of a wider movement towards a society characterized by ubiquitous computing (UBICOMP). In the ubiquitous networked society, computing devices are embedded in everyday objects and places with the potential for comprehensive monitoring and surveillance that is not contained by space or time, thus crossing both physical and social boundaries. This, in my view, is deeply problematic because the core privacy interests individuals have in sustaining personal, physical or even psychological space are potentially diminished, particularly over the long term as networked location technologies destabilize personal spheres and challenge our fundamental ideas about personal space and boundaries and the privacy expectations that go with them.

Canadian law, principally s.8 of the Charter, recognizes a reasonable expectation of spatial privacy, and purportedly its protection, at least in theory, extends to people. However, the parameters have been confined to ownership or at least, the physicality of the place. In other words, the territorial spectrum of protection has been narrowly constructed by the Supreme Court of Canada. On the current spatial assessment of privacy interests, you can point to barriers that are sustaining its protection. In most cases it is a tangible barrier that clearly delineates the boundary crossed triggering section 8. However, even where there has been no actual physical boundary crossed (trespassed), the intrusion has been assessed as an expectation of privacy in the place under surveillance. In other words, the context engaging section 8 protection is not what capacity the person is acting, but where physically the person is and a tangible boundary that can be identified as being crossed. As more of our lives in private places, personal spaces and movement across all spaces are potentially caught within a web of constant accessibility, the current spatial privacy construct does not take into account the nature of changing technologies, rendering irrelevant protections afforded by the traditional analysis because there is no tangible boundary crossed and the surveillance is capable of moving with people as they leave their homes and move from place to place. The current spatial privacy protection does not get at the core of what is ultimately objectionable: our desire to limit intrusions into our space, affairs, bodily sphere, attention paid to us, freedom from observation and of movement without the threat of being watched – visible and exposed. Thus, there is a need for a new conceptual apparatus for spatial privacy capable of sustaining legal protection for the entire array of privacy interests articulated by the Supreme Court of Canada.

Should we be concerned? Yes. Rhetoric and over-reaction? Perhaps. However, identifying the need for a renewed consideration of spatial privacy interests in response to location-based technologies is compounded by an on-going concern, namely, that the discourse on privacy and privacy protection has centered on assessing interests principally in informational terms. I would go so far as to suggest that the predominant theoretical, analytical and practical emphasis in policy, legal and scholarly discourse has been on the data protection model of informational privacy.