Law in the Information Society

The Supreme Court of Canada released a decision today in the case of R. v. S.A.B.. It dealt with the constitutionality of Criminal Code provisions allowing police to obtain a DNA sample where there was reasonable grounds to believe that a person has committed a serious offence. The Court upheld the constitutionality of the provisions, which were being challenged under section 8 of the Charter as a violation of the right to be free from unreasonable search and seizure. In carrying out its analysis, the Court noted that the gathering of DNA sample violates two aspects of privacy rights - the right to physical integrity, and the right to information privacy. This latter point is worth noting - when one gathers DNA, one is gathering personal information (presumably the same would be true in obtaining a breathylzer sample). Everything is information! However the court determined that the collection of the sample was reasonable given the requirement for a warrant, and that it could be collected for a limited, clearly articulated purpose. The court rejected the defendant's claim that there were insufficient safeguards in place - in particular it rejected his claim that a hearing in which the defendant has the opportunity to participate before the warrant is granted. As well, it rejected his claim that "reasonable grounds" was an insufficiently stringent test for determining whether a warrant should be granted. He had argued that such warrants only where there was "compelling" evidence that the individual had committed an offence.

When we think about informational privacy, which is the main theme of our review of privacy, it is worth noting just how expansive that concept can be. In an information society, there may be a tendency to think of more and more issues from the perspective of its "informational" nature. That has obvious consequences then for the forms and values of law in relation to that thing. What might be the significance of treating DNA as personal information in other contexts. Is treating as personal information the same as treating it as "property"?