Is Surveillance a Necessary Feature of Democracy - Essay Example

RUNNING HEAD: IS SURVELLANCE NECESSARY FOR DEMOCRACY Is Surveillance a Necessary Feature of Democracy School Is Surveillance a Necessary Feature of Democracy Although the UK, per se, has not established through statutory means a law which directly addresses the right to privacy of its citizens the state falls under the EU Convention on Human Rights. Article 8 of the convention deals specifically with the right to respect for ones private life, and states as follows: 8(1). Everyone has the right to respect for his private and family life, his home and his correspondence. 8(2). There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. As seen in s8(2) there has been built into the statute several exceptions which leaves the law somewhat open to interpretation. Firstly, as held in Malone v UK (1984) 7 EHRR 14, the right to respect for private and family life, home and correspondence is not to be infringed upon unless there is statute to the contrary to which the citizens are aware. As stated in Taylor (2002) the EU court has been especially stringent with regard to personal communications (see Kopp v Switzerland (1999) 27 EHRR 91). In this case, the court held that state infringement upon private communications of the citizens displayed a serious breach against their right to a private life. The EU Convention of Human Rights has maintained that if there is to be a breach of citizen's right to private life it must be for a specific legal purpose, that is to say supported by legal statute. The last area to consider within the framework of the EU Convention of Human Rights is to ascertain the balance of individual citizens' rights against that of the greater good. In short, according to Taylor (2002) this balance requires a test of proportions, essentially measuring the pros and cons. In short, it is imperative that the state within the legal framework on a case by case basis weigh the facts and determine if the great good will outweigh the individual infringement upon an individual citizen. As stated previous the EU as found in the Human Rights Act and as discussed previous has upheld that any infringement must be legitimized by state statute. This was upheld with regard to the tapping of personal phones in the UK. In Malone v Metropolitan Police Commissioner No.2 [1979] 2 WLR 700 the court held that the police had used a wiretap to obtain information regarding the defendant's criminal activity. As the UK had no statute on the books legitimizing the wiretap and therefore infringement on the defendant's right to privacy with respect to personal communications the conviction was overturned upon appeal to the EU. Even though there had been prior precedent for wiretapping as established by the government without a binding legal framework, the EU found the legitimate exception rule had not been met. In an attempt to reactivity the lack of statute the UK passed the Interception of Communications Act 1985. However this act provide ineffective in providing the legal framework necessary to obtain little more than wiretaps for public telephones. In case and after case specific modes of communication were found to be exceptions to this law (i.e. cordless telephones, private networks etc). The statute was tested even further when the police used a listening device to obtain a confession and eventual conviction of a heroine smuggler. On appeal within the UK in (R v Khan [1996] 3 WLR 162, the court found that even if the confession were to be determined later to be in breach of s(8) the court could not justify overturning the verdict. The defendant did appeal to the EU and the court found that in fact s(8) of the Human Rights Convention has been breached. However, further reaching implications were found in this case. Also called into question was whether under s(6) of the Human Rights Convention the defendant had been denied a fair trail. Upon review of the trial proceedings the EU court found that the defendant had not been denied a fair trail; therefore, the taped confession, even though in breach of s(8) was admissible. In effect, the implications here are far reaching. In summation, the court found that even though in breach of s(8) as long as the court could find that the defendant was afforded a fair trail, the evidence obtained even if a citizens right to private life had been infringed upon the evidence obtained is still admissible. An interesting case that was brought up involving video surveillance involved the use of videotape by an employer to catch on type employees feigning illness from work. Johnson (2005) reported that in this case, Jones v University of Warwick in 2003, Jones was fired from her position after her employer had hired a private investigator to go to her home and feign that they were a marketing researcher. The investigator gained access to her home and covertly videotaped Jones during the 'interview'. The employer then used the videotape as evidence in her dismissal. Jones evoked that her right to private life had been violated. Interestingly, the court upheld her dismissal stating that although her rights had been violated under section 8 of the Human Rights provision section 6 (right to fair trial) had not been violated and therefore the videotape was admissible. This interpretation concerns the author. If a fair trial is to be the major determinant of admissibility of evidence the potential for ever increasing violations of personal rights freedoms are open to abuse so long as the defendant obtains a fair trial. This could have chilling consequences potentially. Rather, there should be guidelines and balance to ensure both. Although not justifying what the defendant did in the above case, the author questions whether we as a society should allow individual entities to have tacit approval to infringe on individual rights of privacy and then uphold them in law. This is just one step from linking the same potential to the government or public policing agencies and should be strictly controlled and limited as to authorisation and circumstance for such undertakings. Violating intrinsic rights to such fundamental issues as the right to privacy are not to be taken lightly and in the author's position should not be relegated to private enterprises The Police Act 1997 was signed into law partly based on the states recognition from previous court cases that the statutory framework to delineate the extent to which the police may legally impinge of individual rights. Part III of the act deals specifically with surveillance methodology with which the police may legally engage. Taylor (2002) argues that this legislation was at best a weak attempt to satisfy the requirements of s(8) of the EU Convention of Human Rights but failed miserably in affording the police a comprehensive vehicle to legally establish the full parameters of surveillance methods which could be employed. For example, the act did not address such important issues as remote surveillance and surveillance authorized and known to person on the premises. Two pieces of legislation were responsible for finally establishing the legal framework necessarily for police surveillance. Firstly, the Human Rights Act 1998 was established to align the state with the EU convention. As stated in Taylor (2002, p. 72) the act allowed for an avenue for application within the courts for redress if needed: A requirement of the HRA was that all legislation, past and present, wherever possible should be read and given effect in a way compatible with Convention rights (s.3) and where relevant to proceedings before them, the courts must take into account jurisprudence from the European Court (s.2). Furthermore, all public authorities are required to act in compliance with the Convention unless they are prevented from doing so by statute (s.6) The second piece of legislation was the Regulation of Investigation Powers Act 2000 (RIPA). The act replaced the former legislation on police surveillance and offered a more comprehensive framework for police although it still lacks in some respects to fully address the entire scope of needed legislation. In brief, the act is divided into three main areas. Part I covers the identification of communication methods in greater detail. Part II explains the three types of surveillance authorized. These include: "directed surveillance, intrusive surveillance and the use and conduct of covert human intelligence sources" (Taylor, 2002, p. 72). Part III gives the state the right to demand access to encrypted materials and allows for prosecution for failing to comply. Although this legislation has developed a legal framework to identify the scope of allowable covert surveillance permissible within the UK it has not broached the wider topic of the scope and limitations of overt surveillance which has become much more pervasive within the UK. The use of closed circuit television (CCTV) to monitor behaviour has become commonplace in public spaces. This leads one to question to what extent personal expectations to a private life extend or should extend into the public sphere of activity of everyday life. Feldman (1994 as quoted in Taylor, 2002) argues that the concept of privacy encompasses four areas: space, time, action and information. In a citizen's everyday life outside the environs of their home they cannot control the areas where CCTV will be utilised not the times that cameras will be turned on but it is reasonable to expect some level of privacy be maintained within the realm of action and information. The more compelling of the two relates to examining to whom and how the information compiled is disseminated and the method of and duration of maintaining these records. Feldman (1994 as quoted in Taylor, 2002, p. 75) argues: If the surveillance is overt, it carries with it a clearly implied threat that the fruits of the surveillance may be used for purposes adverse to the interests of the person being watched. This is calculated to undermine people's commitments to their own plans and values. It thus represents a failure of respect for people's dignity and autonomy. One of the major concerns of the use of CCTV in the UK is to whom and when images and information stored may be shared with others and when. The scope of this directly impacts the notion of privacy issues. Undoubtedly, the use of CCTV has demonstrated the effectiveness to some measure in reducing crime and ensuring the protection of the greater good in many instances, that is not central to the debate here. Thomas (2003) contends, however, that the use of CCTV whether overt or covert is based on the assumption of recording information based on future action not current unlawful acts and therefore is a breach of privacy. This author would contend however that CCTV if properly regulated can be a powerful tool in protecting the greater good. What is important is the control of the information obtained and retained on the public and setting up a framework that compels those whom collect this data to safeguard the privacy of those whom they have captured in their recordings. By balancing these to issues public safety is improved and personal privacy although recorded is maintained up to and until criminal behaviour is detected and then the information is still safeguarded and released to those with a legal, legitimate reasons to gain access (i.e. prosecutors, police etc). This position is maintained by James and Taylor (2005, p. 274) who when discussing the expectation of private life stated "The actual taking of video footage will always be justifiable under the derogations contained within Article 8(2) relating to the prevention of crime so long as the action taken is not disproportionate to the harm sought to be prevented." There has been much debate over the use of CCTV either covertly or overtly as a preemptive measure of crime control and ensuring public safety is maintained leading to the greater good of all. Lyon (2002) however contends that prior to determining whether in fact there are truly benefits derived from CCTV a definition of the elements of surveillance have to be ascertained. Lyon (2002, p. 242) states that "surveillance isan ambiguous process" that needs to be clarified and mandated within the context of the use of CCTV. If used primarily to ensure overall public safety and maintenance of order then the behaviour is, in general, observation of the public in general and not individual surveillance. The author feels this line of thought leads into dangerous areas for potential misuse and abuse of the system. In this thinking, it would appear that the leap could be made that as surveillance is not being conducted, regulation is not a necessary element. This, however, is not the case. However, liberally applied capturing images on film even if randomly and not directed at specific targets still falls within the scope of surveillance and must be monitored and regulated to maximize individual rights to the maximum extent possible. The Data Protection Act 1998 has to some extent attempted to do that in regulating the use of CCTV. The act provides for several requirements to be met. The gathering of data must, firstly, be collected for a relevant reason (i.e. crime reduction or public safety). Secondly, it regulates those who collect the data and details how data should be retained, stored and protected. Naturally, it should be used for the purpose intended and data collected that is inconsequential to the nature of the collection should be closely guarded by those collecting and storing the information to ensure the privacy of the individual. Neyland (2004) contends that all too often the positive aspects of CCTV are 'assumed' to be true and the public in general assumes that 'the images captured speak for themselves.' The author would contend, however, that although on first consideration this would seem to be a reasonable assumption, there could be cases where this may not necessarily be true - what we think or believe we see being portrayed may not, in actuality, be what is occurring. Without a clear understanding of the quality of the images being produced or the interpretative methods employed this could be open to debate. Webster (1999) argues that if people are not breaking the law or acting in an otherwise illegal fashion they have nothing to fear. Again, this argument is valid if you accept the premise outlined above that actions captured on CCTV are readily discernable and not open for interpretation of any kind. The major concern is the balancing of the public good against the individual rights of citizens. Although the rights of many collective should take precedent over the rights of the individual, this does not justify the total disregard of individual rights. A balance can and should be achieved where the rights of the individual are preserved to the maximum extent possible at all times without placing undue limitations on the protection of the public in general. In closing James and Taylor (2005, p. 276) summarised the entire discourse in the following: although an individual may, in theory, be able to contest the collection and retention of material against him under the human rights or data protection principles, it would seem that avenues of redress are, in practice, limited and, notwithstanding that the collection of video material relating to an individual might, prima facie, appear to be a breach of Article 8 privacy rights, this will almost always be justified under the Article 8(2) derogations in order to prevent or detect crime. In closing, the obligation of the state to protect the greater good of society should take precedent over the rights of the individual as long as the infringement can be justified by a substantial measure. The main concern is ensuring that the process and procedure used to make these determinations are done so consistently and fairly with the primary intent of first and foremost maintaining and assuring protection of all citizens' rights to the greatest extent possible and infringing on those rights when all other means to obtain the necessary documentation and/or evidentiary requirements have been exhausted. References Data Protection Act 1998 EU Convention on Human Rights FITSANAKIS, J., 2003. 'State sponsored communications interception.' Information, Communication & Society, 6 (3), 404-429. Human Rights Act 1998 Interception of Communications Act 1985 JAMES, A. and TAYLOR, C., 2005. 'Video games: some pitfalls of video evidence.' The Journal of Criminal Law, 69 (3), 264-276. JOHNSON, T., 9 May 2005. 'Work shy" The Lawyer, 21. Kopp v Switzerland (1999) 27 EHRR 91 LYON, D., 2002. 'Everyday surveillance: personal data and social classifications'. Information, Communication & Society, 5 (2), 242-257. Malone v UK (1984) 7 EHRR 14 NEYLAND, D., 2004. 'Closed circuits of interaction The mobilisation of images and accountability through high-street CCTV.' Information, Communication & Society, 7 (2), 252-271. Regulation of Investigation Powers Act 2000 TAYLOR, N., September 2002. [online] 'State surveillance and the right to privacy.' Surveillance & Society, 1 (1), 66-85. Available from http://www.surveillance-and-society.org/journalv1i1.htm [Accessed 2 April 2006] THOMAS, T., 2003. 'Child protection and covert video surveillance: a new regulatory framework.' Journal of Social Welfare and Family Law, 25 (1), 57-68. WEBSTER, C. W. R., 1999. 'Closed circuit television and information age policy processes' in Digital Democracy: Discourse and Decision making in the Information Age, ed. B. Hague & B. Loader, London: Routledge, 116-131. Read More