Canadian Labour and Employment Law Journal Revue canadienne de droit du travail et de l’emploi VOLUME 18 EDITOR IN CHIEF / RÉDACTEUR EN CHEF Bernard Adell Faculty of Law, Queen’s University 2015 CanLIIDocs 535 ARTICLES EDITORS / RESPONSABLES DES ARTICLES Kevin Banks Faculty of Law, Queen’s University David Doorey School of Human Resource Management, York University ASSOCIATE EDITORS / RÉDACTEURS CONSULTATIFS Jeffrey Sack of the Ontario Bar Brian Burkett of the Ontario Bar QUEBEC EDITOR / RÉDACTRICE POUR LE QUÉBEC Renée-Claude Drouin Faculté de droit, Université de Montréal BOOK REVIEW EDITOR / RÉDACTEUR DES COMPTES RENDUS Peter Neumann of the Ontario Bar MANAGING EDITOR / DIRECTEUR ADMINISTRATIF Boris Bohuslawsky of the Ontario Bar 00_Frontmatter_v18n2.indd 1 15-03-23 5:37 PM SENIOR STUDENT EDITORS / RÉDACTEURS ÉTUDIANTS Cody Kolsteren Yorke Giovanna Di Sauro Chanelle Wong STUDENT EDITORS / RÉDACTEURS ASSOCIÉS Swarna Perinparajah Angela Wiggins Julian Yang STUDENT EDITORIAL ASSISTANTS / 2015 CanLIIDocs 535 ASSISTANTS À LA RÉDACTION Hailey Abramski Katie Bala Chris Dickinson Jordan Moss Shalom Cumbo-Steinmetz Adam James Jessica Toldo Levi Vandersteen Melissa Feriozzo Andrew Haroun Daniel Clarke Nika Farahani Jason Paquette Katrina van Kessel Tova Cranford Nicolas Guadagnolo Brittany Scott Michael Scott Faculty of Law, Queen’s University 00_Frontmatter_v18n2.indd 2 15-03-23 5:37 PM EDITORIAL ADVISORY BOARD / COMITÉ CONSULTATIF DE RÉDACTION CHAIR Hon. Warren Winkler Chief Justice of Ontario Professor Roy Adams Professor Ronald McCalIum McMaster University University of Sydney Hon. Marie-France Bich Professor Alan Neal Court of Appeal of Quebec University of Warwick 2015 CanLIIDocs 535 Professor Keith Ewing Professor Jean Sexton King’s College, London Laval University Professor Matthew Finkin Mr. Kenneth Swan University of Illinois Mediator and Arbitrator Hon. Sheila Greckol Hon. Katherine Swinton Alberta Court of Queen’s Bench Ontario Superior Court of Justice Dr. Patricia Hughes Professor Paul Weiler Law Foundation of Ontario Harvard University Professor Thomas Kuttner Professor Manfred Weiss University of Windsor J.W. Goethe University, Frankfurt PRACTICE ADVISORY PANEL / COMITÉ CONSULTATIF PROFESSIONNEL David Blair Gordon Petrie Vancouver, B.C. Fredericton, New Brunswick David Corry Ronald Pink Calgary, Alberta Halifax, Nova Scotia Donald McDougall Thomas Roper Halifax, Nova Scotia Vancouver, B.C. Gaston Nadeau Suzanne Thibaudeau Montreal, Quebec Montreal, Quebec 00_Frontmatter_v18n2.indd 3 15-03-23 5:37 PM INTERNATIONAL ASSOCIATION OF LABOUR LAW JOURNALS www.labourlawjournals.com Análisis Laboral (Peru) Arbeit und Recht (Germany) Australian Journal of Labour Law (Australia) Bulletin de Droit Comparé du Travail et de la Securité Sociale (France) Bulletin of Comparative Labour Relations (Belgium) Canadian Labour & Employment Law Journal (Canada) Comparative Labor Law & Policy Journal (US) 2015 CanLIIDocs 535 Industrial Law Journal (South Africa) Industrial Law Journal (UK) International Journal of Comparative Labour Law & Industrial Relations (Italy) International Labour Review (ILO) Japan Labor Review (Japan) Labour, Society and Law (Israel) Lavoro e Diritto (Italy) Relaciones Laborales (Spain) Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (Germany) The International Association of Labour Law Journals was established for the following purposes: 1. Advancing research and scholarship in the fields of labour and employ- ment law; 2. Encouraging the exchange of information regarding all aspects of the publishing process; 3. Promoting closer relations among editors of national and international labour and employment law journals. 00_Frontmatter_v18n2.indd 4 15-03-23 5:37 PM “Privacy: Its Constitution and Vicissitudes” – A Half-Century On Matthew W. Finkin* Half a century ago, on the verge of the Information Age, the sociologist Edward Shils took the measure of how matters stood with privacy. He argued that privacy was being systematically engulfed by societal elites — government, journalists, business, and social scientists — even as they sought privacy for themselves. He saw a passive populace, indifferent to the intrusion, and a near- total absence of protective law. This essay reflects on what Shils saw from the perspective of a half-century’s experience. It argues that the populace is no 2015 CanLIIDocs 535 longer passive, that the public’s concern for privacy as consumers has had a rip- ple effect in a concern for privacy in employment. Nor is the law totally absent; but the legislative approach has been piecemeal, attending only to those per- ceived abuses that most strike the public ire. In terms of the common law, in its address to the large lacunae left by legislation, the legal establishment — repre- sented by the American Law Institute — continues to serve as a handmaiden to those business interests that had and would continue to engulf employee privacy. 1. INTRODUCTION A half-century ago, the distinguished sociologist, Edward Shils, addressed “Privacy: Its Constitution and Vicissitudes.”1 He adverted to the trajectory of social practice, not law, from pre-industrial times in Western Europe and America to the last quarter of the nineteenth century, which he termed the “golden age of privacy,”2 and on to “the institutional organization of privacy intrusion in the middle of the twentieth century.”3 His primary address was to informational privacy — the collection and use of personal information by govern- ment, the press, employers and social scientists. But he also adverted * Professor of Law, University of Illinois. 1 Edward Shils, “Privacy: Its Constitution and Vicissitudes” (1966) 31:2 L & Contemp Probs 281. Shils had earlier addressed the threat worked by the loyal- ty-security measures taken by the U.S. government in the 1950s. Edward Shils, The Torment of Secrecy: The Background and Consequences of American Security Policies (Glencoe, Ill: Free Press, 1956). 2 Ibid at 292. 3 Ibid at 300. 01_Finkin.indd 349 15-03-24 10:54 AM 350 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [18 CLELJ] to individual liberty as a correlative of informational privacy, the invasion of which bore identical implications: “[T]he growth of indi- viduality has contributed to the demand for privacy. The awareness of self, of the uniqueness of the self, makes for a greater sensitivity to impingement on self, to intrusion into the zone around that self.”4 Shils argued, however, that privacy was of concern almost exclusively to elites — to government officials, employers, journal- ists and social scientists5 not, in passing, to the working class.6 And therein lay an anomaly, for it was those very elites whose expansion of power and ambition engulfs privacy.7 Shils did not pursue this observation, but the fair implication was that, for purposes of privacy protection, the policy elite was part of the problem. 2015 CanLIIDocs 535 Without doubting that some loss of privacy is necessary for pub- lic order and security to be protected, for industry to be efficient, for the citizenry to be informed, for systematic empirical study of human society to be cultivated, Shils concluded that much that is done in the name of these ends is at once privacy invasive and “useless and unnecessary from any serious standpoint” — that it is, in fact, “an immoral affront to human dignity.”8 Shils closed on a note of alarm: the individual’s thoughts and conversations, the disposition of what belongs to a person, her body, its image — and, one should add, its very deployment — is inherent in the person’s existence “as an individual soul.”9 “A society that claims to be both humane and civil is committed to their respect. When its practice departs from that respect, it also departs from that degree from humanity and civility.”10 It is fitting a half-century on to reflect on Shils’ analysis of where we were, where we are, and where we are going; that is, how Shils’ perceptions stand up today insofar as the world of employment is involved. A recasting for analytical purposes would be this: (1) that 4 Ibid note 12 at 304. 5 Ibid at 301. 6 Ibid (noting that mostly only union officials have objected to video monitoring of the workplace, note 11 at 303). 7 Ibid at 305. 8 Ibid. 9 Ibid. 10 Ibid at 306. 01_Finkin.indd 350 15-03-24 10:54 AM “PRIVACY: ITS CONSTITUTION AND VICISSITUDES” 351 one of the consequences of capitalism and industrialization was to stimulate a desire for privacy and to create the circumstances for its enjoyment; (2) that as respect for the individual, whose auton- omy in the market was a fundamental precept of capitalism, became accepted as a societal imperative, so too did respect for privacy; (3) that as capitalism paradoxically invades privacy by virtue of its very market-driven logic, a necessary though unaddressed implication is (4) that the exercise of private power should not intrude beyond what is necessary and proportionate; and consequently, (5) that the law should impose commensurate constraints, for no other means of social ordering seem ready to hand; but (6) that as the general public was largely disengaged from the issue and as it was not in the interest 2015 CanLIIDocs 535 of the elite to insulate what they wished to invade, the condition of privacy going forward was that of inexorable, unchecked loss. Let us take each in turn. 2. THE DEMAND FOR AND THE ENJOYMENT OF PRIVACY (a) The Pre-Industrial World Privacy was not a social condition in the pre-industrial world. Even in the early modern period in Western Europe and