Surveillance in the 21st Century
EN: As I progressed through this chapter, it became increasingly clear that this author has a specific agenda (in favor of surveillance), and the material presents an extremely biased viewpoint. The notes were preserved because some interesting issues are raised, but do not take the conclusions at face value or trust that the examination is objective.
INTRODUCTION
Recently, there has been an explosion in surveillance and monitoring, both in terms of the technology and its utilization on all fronts: commercial, governmental, and even individual. In most instances it is implemented for a purpose that is legitimate, benign, and unobjectionable (at least in the opinion of those who employ it).
The author provides numerous examples of "real world" monitoring (use of cameras and sensors) as well as noting that there is increased surveillance in the use of data systems. He also provides elaboration on the technology (sensors and cameras, systems to communicate and process the collected information, etc.). that has rapidly evolved in recent years.
A key paradox in the current age is that people expect free access to the information they want, but wish at the same time to control the information available to others (particularly, information they consider sensitive or personal or proprietary). The "right to know" is in conflict with "the right not to have known."
THE "NEED" FOR NEW LAWS
The author goes on a long tare, the theme of which is that "it should not be an automatic reflex ... to resort to legislation." Not everything is a legal issue. Also, we do not need new laws specific to each technology, but laws that can be applied regardless of incidentals. In many instances, we already have those.
One example of a problem that does not require additional legislation is spam. The author believes that existing laws address legal issues such as misleading advertisement, fraud, and the transmission of objectionable content. The "nuisance" of spam does not need a legal remedy because filtering (white list, black list, rules-based routing) can be effective in eliminating the problem, whereas responsible marketing practices can preserve the ability to use e-mail for legitimate and acceptable purposes.
SURVEILLANCE WITH THE HELP OF TECHNOLOGICAL MEANS
The author looks at a few examples as case-studies of surveillance
Camera Surveillance
The ability to capture and store photographs and video recordings has been greatly facilitated by the technology that makes the camera smaller and increases the ability to store captured images. Once rare, it is now widely used, even to the point that any person with a cell phone is carrying a tiny video camera.
The capabilities of camera technology have also improved: video can be captured in high resolution, images can be processed (facial recognition software), they can capture events outside the visible spectrum (infrared), footage can be composited with additional data ("tagging" a person in a video), and images from multiple cameras can be combined for long-term and broad surveillance.
The value of cameras to surveillance is the ability to review footage for examination in arrears, to present footage as evidence, and to monitor in real-time to facilitate timely action. Beyond the concern about what the person/organization capturing the footage will do with it, there's also concern over "leakage" of this footage to others with ulterior motives.
Laws already exist to prohibit observation in locations where a person has an expectation of privacy. As for the demand to be functionally invisible when acting in a public place, that is simply absurd.
Surveillance of Telecommunication
Wiretapping and fax interception have been around a while, and the author also includes internet communication in "telecommunication" - the latter is particularly subject to surveillance, as all data transactions can be captured and analyzed with ease.
Laws are already in place to prevent surveillance without due processes of law, even by service providers (an ISP has no more "right" to collect an analyze your Internet behavior than does a phone company to listen in on you calls) and also to provide authorities with the ability to decipher encrypted data.
Identification of Persons and Goods
A number of technologies have been developed to identify individuals or objects (usually commercial goods), such as biometrics and RFID. Much of this technology is geared toward facilitating existing practices, or in improving the accuracy of identification in defense against forgery.
Biometrics are an area of concern. While fingerprinting has been in use for over 500 years, modern techniques enable the identification of an individual without their knowing that they are being identified (facial recognition via camera, DNA analysis, etc.)
The greatest concern about such technologies is not in their use (again, the desire not to be known is absurd) but in over-reliance on unreliable technology that may cause a person to be misidentified. But the mere act of misidentification is a mistake, and has no legal ramifications until an action is taken as a result of misidentification.
LEGAL CONSIDERATIONS
Privacy vs. Safety?
Core to the topic of surveillance, regardless of technology, is the value of surveillance to public safety (dissuading, detecting, reacting to, and prosecuting criminals) versus the objection to a "big brother" government that spies upon innocent citizens.
The author sees this as a subjective assessment and a manner of personal comfort. In general, people realize they must sacrifice some privacy for the sake of safety, but it's a very gray area. Ti may also have to do with the level of comfort with technology. One example indicates that people are generally in favor of having a patrol car in a school zone to address speeding, but are generally opposed to having a speed camera in the same location.
He goes a bit father in the example of transportation, in that travelers accept having their baggage opened and inspected by customs agents, but view baggage scans with some trepidation. Ironically, they are acceptant of having their body scanned by a metal detector, but apprehensive about a physical search of their person.
This suggests that what is acceptable or uncomfortable is highly subjective, and that specific laws to address specific situations and specific technologies will be fickle and faddish.
Suspects v. Innocents
It is generally accepted that the right to privacy for a person who is merely suspected of criminal activity can be infringed upon by investigative authorities (both law enforcement and private) by due process of law. Specifically, if a judge is satisfied with the stated grounds for suspicion, a warrant can be issued to search a home, tap a phone, or even perform an invasive surgical procedure to gather evidence.
There is the potential when gathering this evidence to also record information about "innocent" parties - a phone tap records all conversations on that phone (not just the suspected person), a video captures images of all persons who wander past the lens, etc. However, this is not a new problem and the legal framework for ensuring the collected information is used only for its intended purpose and safeguarded against unauthorized access is already in place.
There are also instances in which all individuals are monitored with the full knowledge that most are innocent, in order to detect the few who are not. Speed cameras are an example of this - but per the earlier example, this is not a new "problem": the camera observes nothing more than would a live officer in the same location, so the need for legal regulation seems moot.
Technology and Social Control
The author discusses the concept of "social control," though the concept is vague. He speaks of a person asking a neighbor to keep an eye on his property while he's away (and now uses a camera), having a chaperone for a daughter on a date (rather than using GPS to track her movements), the self-appointed neighborhood watchman who keeps an eye on his neighbors.
Think that what he's trying to get at is that "keeping an eye out" is a method of social control - the mere act of surveillance is a method of enforcing social norms, as a person who is being watched is compelled to act in ways that are acceptable to those who are watching him.
EN: it seems the author thinks it's a good thing that people seek to use surveillance to intimidating others into compliance with their standards of acceptable behavior, whereas it strikes me as horrific.
Technology and Equality
In genera, surveillance technology is not used to do anything new. It is being used to do things that could previously be done, but with grater efficiency - such that surveillance is available to the average citizen (not just to those organizations and individuals with resources to hire staff to perform the same tasks).
The author asserts that surveillance technology is "not in itself a coercive measure" - though this runs contrary to the point of the previous section (being watched makes people act in ways that are acceptable to those who are watching them). In a practical sense, it is not the surveillance, but what is done with evidence gathered through surveillance, that is of primary concern, hence the technology or method of collecting the evidence is largely inconsequential.
Subsidiarity and Proportionality
EN: These are concepts in European law: Subsidiarity maintains that a central authority should have a function only when a task cannot be effectively performed at a more local level and proportionality maintains a government may act only to the extent necessary to achieve its objectives, and no further.
Taken in context, this means that surveillance should be performed at the lowest (least centralized) level at which it can be done effectively, and done only as necessary to achieve a specific purpose, in order to limit the potential negative impact to privacy. He provides a couple examples of government actions that were done at the right level, and to the right degree.
Conclusions
The author pulls a handful of rather slimy and transparent rhetorical maneuvers here:
- Objections to surveillance arise when people feel they may themselves be the subject of surveillance. (people who disagree with me are criminals)
- Reluctance to support surveillance arise from a few of change and technological advancement (people who disagree with me are oppose progress)
- The benefit of surveillance by government, business, and individuals are far more socially important than accommodating squeamishness (people who disagree with me are motivated by emotion rather than logic)
- Objections to surveillance on the grounds of possible abuse assume that government has a sinister motive (people who disagree with me are unpatriotic)
- There is no logical or practical basis for a right to privacy, and it has been accepted prima facie (people who disagree with me are not logical)
- The market for gossip publications indicates people are "quite happy" to pry into the private lives of others (ad populam)
- In order to enforce privacy laws, we would need to make it illegal for people to publish personal Web sites and Web logs (slippery slope)
It's at this point I added a note at the beginning of this chapter, warning against taking the information at face value. A person who would resort to these sorts of tactics cannot be trusted to provide an objective, or even accurate, representation of perspectives on this topic.
FROM TRIAS TO TETRAS POLITICA
Surveillance technology has the potential to change the way in which government operates. The present "trias politica" of judicial, legislative, and executive powers - specifically, in the emergence of a fourth political power: monitoring power, which gathers information and makes it available to the people, who in a democratic society have control over their own government.
When the government itself becomes the subject of surveillance, the surveillance itself carries weight to enforce (by exposing to the voting public) the system of checks and balances that are described in theory, but often violated in practice. This is not to suggest that the monitoring power would usurp the judicial power, which would still be the forum in which conflict between the letter of the law and actual incidence are resolved, but it would be a separate, objective source of evidence.
CONCLUSION: THE MONITORING POWER
An important point: openness and transparency are key principles in preventing the abuse of surveillance: a person who is subject to surveillance should have the opportunity to see what information is being collected about them, to know who is collecting it, and to be able to take action to ensure it is accurate. This is true whether the information is collected by state or private entities.
Changes in technology cause changes in social norms, which in themselves become the basis of law. That said, in a time of rapid change, care should be taken to avoid implementing law, especially restrictive laws, until norms have in fact normalized - and instead, the legal system should take a liberal stance and provide the widest possible latitude to developing technologies in the meantime, in order to avoid doing more harm than good.
EN: the "let it be" conclusion seems very level-headed and reasonable, albeit out of joint with an article of such shrill polemic.