One of the key themes in the literature on law and policy in network or information societies is the idea that governments and private institutions are increasingly preoccupied with preventing unwanted behaviour. In addition to the traditional mix of after-the-fact prosecution through sanctions and deterrence of future transgression through the threat of sanction, the contemporary regime of governance, what Jack Balkin calls the “national security state,” adds technologies of prediction and prevention. As anticipated in many science fiction narratives, such as Minority Report, the target of regulation is gradually shifting from past behaviour to future behaviour, from behaviour that has already occurred to behaviour that may occur. While this trend isn’t new, it is becoming more pronounced in many areas of law and policy as digital and genetic techniques and the discourses surrounding them prop up the dream of perfect prediction and prevention.
This week, Public Safety Minister Steven Blaney is asking Canadians to believe him that has looked into (or “scrubbed,” to use the Minority Report term) the future and it is marked by the rise of “radical jihadists.” Bill C-51 is packed full of preventative features, criminalizing the “promotion of terrorism” for example, which has alarmed the Privacy Commissioner and many academics looking into the proposed legislation. The idea here is that there is causal relationship between speaking about hurting or killing people and actual violence. As Blaney puts it, “The Holocaust did not begin in the gas chamber; it began with words.” A crude analogy, even by the often low rhetorical standards of Blaney and company, but Blaney at least makes his point clear: by preventing speech that could be interpreted as promoting harm to Canadians, C-51 will prevent actual harm to Canadians. This is Minority Report-style governance at its finest.
The problem that Blaney faces now is persuading Canadians that the future really is full of radical jihadists – that this threat is so great that it is worth granting tremendous new powers to the security and law enforcement organizations with reduced public oversight of those organizations. Three people died in “terror”-related attacks in Canada in 2014; while this is of course a tragic loss of life, the mobilization of new security measures in anticipation of a rising tide of jihadist terrorism in Canada likely seems ill-advised to many Canadians who know that there are far greater threats right now that aren’t being properly managed the current government. Asbestos, for example. The federal government continues to support the asbestos industry and its products despite 368 asbestos-related deaths in Canada in 2013. Terror-related deaths would need to rise by well over 300 percent in the future to even begin to compete with asbestos as a cause of death in Canada.