Regulating Surveillance: Suggestions for a Possible Way Forward

AuthorMoira Paterson
PositionProfessor of Law, Monash University, Melbourne
Pages193-229
Regulating Surveillance:
Suggestions for a Possible Way
Forward
Moira Paterson*
e need for privacy protection against surveillance has assumed new signicance due
to the onslaught of technological developments that increasingly undermine the capacity
of individuals to maintain anonymity in relation to public activities and their physical
movements across public places. Modern surveillance practices arguably require a
rethinking of some of the tests and assumptions that underlie existing privacy laws,
including tests based on “reasonable expectations of privacy”, distinctions between content
and between transactional data and content. ey also call for active consideration of
the full range of regulatory tools available and ways in which those tools can be adapted
to reduce their existing limitations. is paper draws on a range of privacy resources,
and on regulatory theory more generally, to suggest possible ways forward.
* Professor of Law, Monash University. Early drafts of this article were
presented at the Privacy Law Scholars Conference at the George
Washington School of Law on 6 June 2014 and at the Law & Technology
Workshop at Tel Aviv University on 5 December 2016. I wish to record
my thanks for the valuable feedback received at each of these events.
194
Paterson, Regulating Surveillance
I. I
II. T P  P  P P
III. W L  A R A
IV. E R F   S
A. Telecommunications Interception Laws
B. Surveillance Device Laws: Listening Devices and Beyond
C. Common Law and Statutory Rights of Action for Breaches of
Privacy
D. Data Protection Laws and Other Laws Based on Fair Information
Practices (“FIPs”)
V. T S  C/H R F
VI. I  R T
VII. A S W F
I. Introduction
The need for privacy protection against surveillance has assumed new
signif‌icance due to the onslaught of technological developments
that increasingly undermine the capacity of individuals to maintain
anonymity in relation to public activities and their physical movements
across public places. Two examples are illustrative of this trend.
e f‌irst is the FaceSDK application, which is advertised as enabling
developers using a variety of computing languages to build platforms
based on face recognition. is is described as being “used in hundreds
of applications for identifying and authenticating users with webcams,
looking up matching faces in photo databases, automatically detecting
facial features in graphic editors, and detecting faces on still images and
video streams in real-time”.1
e second is a recently developed “IMSI catcher” device, which
is described as “a low-cost way to discover the precise location of
1. See Luxand Inc, “Detect and Recognize Faces with Luxand FaceSDK”
Luxand, online: Luxand .
195
(2018) 4 CJCCL
smartphones using the latest LTE standard2 for mobile networks3 and
as being able to “track users for days with little indication anything is
amiss”.4
What is signif‌icant about technologies of this type is that they make
it increasingly easy to extract or infer identity from non-identifying signs
and information. is amounts to an unprecedented assault on anonymity,
making it increasingly dif‌f‌icult for individuals, other than hermits, to
go about their lives beyond the reach of others. More specif‌ically, these
technologies make it dif‌f‌icult for individuals to keep at bay the uncalled
for reactions and consequences that result from being known to and
accessible by random and unknown individuals and entities who use the
aforementioned devices and applications.
e implications of technology-assisted surveillance activities have,
to date, been considered most closely in the context of surveillance by
law enforcement and national security bodies. ey have also received
some scrutiny in the online context. However, it is arguable that there is
also a need to regulate surveillance more generally, especially as it relates
to public places.
Across the board surveillance is important because surveillance and
the possible privacy harm to which it may give rise are no longer solely
the main provinces of law enforcement and national security bodies;
surveillance now underlies many of the decision-making processes
of businesses in relation to current and prospective customers and
employees, and it is increasingly within the reach of private individuals
as discussed below. e regulation of surveillance more generally is also
important because of the erosion of the boundaries between public
2. e Long Term Evaluation Standard is a 4G mobile communications
standard for high-speed wireless communication for mobile phones
and data terminal: See “LTE (telecommunication)” Wikipedia (11
November 2017), online: Wikipedia
LTE_(telecommunication)>.
3. Dan Goodin, “Low-cost IMSI catcher for 4G/LTE networks tracks
phones’ precise locations” Ars Technica (28 October 2015), online: Ars
Technica
4glte-networks-track-phones-precise-locations/>.
4. Ibid.
196
Paterson, Regulating Surveillance
and private surveillance. As made clear most recently by the revelations
of Edward Snowden, private sector organisations are in many ways
complicit in surveillance activities by national security organisations. is
means that personal data collected within the private sector provides an
additional pool of information for law enforcement and national security
organisations to utilise.5
Modern surveillance practices arguably require a rethinking of some
of the tests and assumptions that underlie existing privacy laws, including
tests based on “reasonable expectations of privacy”, distinctions between
content, and between transactional data and content. ey also call for
active consideration of the full range of regulatory tools available and
ways in which they can be adapted to reduce their existing limitations.
is paper draws on a range of privacy resources, and on regulatory
theory more generally, to suggest possible ways forward.
II. e Problem of Privacy in Public Places
Public place privacy has become a major issue due to technological
developments that facilitate “round the clock” surveillance, evolving
social practices that increase the amount of information disclosed by
individuals about themselves and changes in the decision-making
practices of businesses and government agencies involving information
obtained via directed, ongoing surveillance as a basis for making decisions
about individuals. ese are increasingly combining to create what has
been described as “seamless, real-time surveillance”.6
e link between technology and issues of privacy is by no means
5. See e.g. Ewen MacAskill & Dominic Rushe “Snowden document reveals
key role of companies in NSA data collection” e Guardian (1 November
2013), online: e Guardian
nov/01/nsa-data-collection-tech-f‌irms>. is threat is arguably amplif‌ied
to the extent that countries impose compulsory data retention regimes.
For useful discussion of the Australian context see Dan Svantesson,
“Systematic Government Access to Private-Sector Data in Australia
(2012) 2:4 International Data Privacy Law 268.
6. Edem Williams & Bassey Eyo, “Ubiquitous Computing: e Technology
for Boundless Surveillance” (2012) 3:9 International Journal of Scientif‌ic
& Engineering Research 1 at 2.
197
(2018) 4 CJCCL
new. Early concerns about ef‌fects on privacy were highlighted by Warren
and Brandeis back in 1890.7 ey related to “instantaneous photographs”
and numerous mechanical devices that threatened to make good the
prediction that “what is whispered in the closet shall be proclaimed from
the house-tops”.8
e impact of technology accelerated in the latter part of the 20th
century with the advent of digitisation and the convergence that it
facilitated, as well as developments such as the increased use of loyalty
cards and closed circuit television (“CCTV”) cameras.9 It has accelerated
even further in the new millennium due, in particular, to three trends:
(1) the proliferation of Radio Frequency Identif‌ication (“RFID”) that
facilitates comprehensive but unobtrusive ‘round the clock’ surveillance
via its use, for example, on freeway transponders and public transport
swipe cards; (2) the increased use of Global Positioning Systems (“GPS”)
to collect data about individuals’ geographical locations across time,
thereby creating detailed prof‌iles not only of an individual’s movements
but also of their interrelationships with others; and (3) advances in
imaging algorithms (for example, those used for face recognition and
automatic number plate recognition), which facilitate the automated
operation of CCTV networks and other visual surveillance activities.10
ese technologies are converging and being combined to create
powerful, networked surveillance systems that come close to realising
Weiser’s vision of a new era of ubiquitous computing (“ubicomp”).
is ubicomp era is one in which computer technology would become
embedded in all aspects of daily life and computing would increasingly
“move to the background, weave itself into the fabric of everyday living
7. Samuel D Warren & Louis D Brandeis, “e Right to Privacy” (1890) 4:5
Harvard Law Review 193.
8. Ibid at 195.
9. For a useful overview of these and other early technology-related issues
see Australian Law Reform Commission, Review of Australian Privacy Law
(Discussion Paper No 72) (ALRC 2007) ch 6 (September 2007), online:
ALRC .au/sites/default/f‌iles/pdfs/publications/
DP72_full.pdf>.
10. See e.g. Christopher Kuner et al, “Face-to-data — Another Developing
Privacy reat?” (2013) 3:1 International Data Privacy Law 1.
198
Paterson, Regulating Surveillance
spaces and disappear from the foreground, projecting the human user
into it”.11 e coupling of RFID technology with internet developments
heralds the development of a new “Internet of ings” in which networked
controls, sensors and devices for collecting data will increasingly be
built into common gadgets, including household appliances, cars and
the power grid, permitting “connectivity for anything”.12 e Internet
of ings allows further prof‌iling of individuals via the inanimate
things with which they are associated by “subjecting more and more
previously unobservable activity to electronic measurement, observation,
and control”.13 Examples of this development include technologies for
monitoring home wearable computing devices,14 tools used by individuals
to track their health and f‌itness and smart power devices.15 Moreover,
“innovation in this space is already occurring at an extremely rapid pace,
thanks to the same underlying drivers of the Internet economy, namely
11. Maja Pantic et al, Human Computing and Machine Understanding of
Human Behavior: A Survey: Proceedings of the 8th International Conference
on Multimodal Interfaces, Banf‌f, 2006 (New York: ACM Publications,
2006) 239.
12. Marianna Taf‌ich, “e Internet of ings: Application Domains” in
Eckehard Steinbach et el, eds, Advances in Media Technology: Internet of
ings (Technische Universität München, 2013) at 37 (15 January 2013),
online: Advances in Media Technology
download?doi=10.1.1.395.23&rep=rep1&type=pdf>.
13. Neil M Richards, “e Dangers of Surveillance” (2013) 126:7 Harvard
Law Review 1934 at 1940.
14. See Melanie Swan, “Sensor Mania! e Internet of ings, Wearable
Computing, Objective Metrics, and the Quantif‌ied Self 2.0” (2012) 1:3
Journal of Sensor and Actuator Networks 217.
15. See Joseph Savirimuthu, “Smart Meters and the Information Panopticon:
Beyond the Rhetoric of Compliance” (2013) 27:1–2 International Review
of Law, Computers & Technology 161.
199
(2018) 4 CJCCL
Moore’s Law16 and Metcalfe’s Law”.17
Developments that facilitate surveillance have a close interrelationship
with decision-making practices. Surveillance technology opens up new
possibilities for making use of data, while the increasingly voracious
appetite for personal data is fuelling further technological innovation. As
noted by Lyon, vast quantities of data are collected, stored and assessed
to create prof‌iles and risk categories with an aim toward planning,
predicting and preventing by classifying and assessing those prof‌iles and
risks”.18 is allows for more streamlined and better-targeted decision-
making, but it also facilitates a level of “social sorting” that is both non-
transparent and potentially discriminatory.
While these practices are by no means new, they have been taken a
step further via the use of algorithms to mine the vast pools of data that
are now available for analysis. As explained by Zarsky, these algorithms
are used “to reveal association rules and clusters within the data that
might not have been apparent to the analyst initially sifting through the
information”, producing results that are unpredictable for the analyst
and the data subjects and facilitating the revelation of more patterns and
16. As described by Ian Brown, “Computer processing power is expected to
continue following Moore’s Law, doubling every 18–24 months — at least
thirty-fold in the next decade, although by that point the fundamental
limits of silicon engineering will be approaching”: UK, Government
Of‌f‌ice for Science, Future Identities: Changing Identities in the UK: e
Next 10 Years – full report, by Ian Brown, DR 5 (London: Foresight Future
Identities, 2013), 1.2.
17. Adam ierer, “Privacy and Security Implications of the Internet
of ings” Social Science Research Network (1 June 2013), online:
SSRN , at 3, n 20, citing Michael
Chui, Markus Löf‌f‌ler & Roger Roberts, “e Internet of ings”
McKinsey Quarterly (March 2010), online: McKinsey & Company
mckinsey.com/industries/high-tech/our-insights/the-internet-of-things>.
18. See David Lyon, “Surveillance as Social Sorting: Computer Codes and
Mobile Bodies” in David Lyon, ed, Surveillance as Social Sorting: Privacy,
Risk and Digital Discrimination (London: Routledge, 2003) at 13.
200
Paterson, Regulating Surveillance
correlations.19 ese techniques are used to mine “Big Data”; that is,
“datasets whose size is beyond the ability of typical database software to
capture, store, manage, and analyse”.20
III. Why Loss of Anonymity Requires Attention
Technology-facilitated surveillance is arguably a problem because it
undermines the ability of individuals to remain anonymous beyond the
narrow conf‌ines of private places. is, in turn, makes them potentially
vulnerable to a range of harms, ranging from behavioural manipulation
through to exploitation, discrimination, identity theft and stalking.
Lack of public place privacy is problematic for reasons similar to those
which were identif‌ied by privacy advocates when considering the impact
of the convergence of computer and telecommunications technologies.21
ese analyses focused on issues of human autonomy and dignity, the use
of personal information as a basis for the exercise of power and the lack
of dignity inherent in treating individuals as composites of their collated
data;22 they emphasised the important social dimension of anonymity
and its role in protecting processes of self-def‌inition and individuation.23
Modern observational and information collection activities
undermine anonymity by making it dif‌f‌icult, if not impossible, to
engage in any publicly observable activities free from identif‌ication
and surveillance. In doing so they create “a new kind of knowledge …
19. Tal Z Zarsky, “Desperately Seeking Solutions: Using Implementation-Based
Solutions for the Troubles of Information Privacy in the Age of Data
Mining and the Internet Society” (2004) 56:1 Maine Law Review 13 at
27.
20. James Manyika et al, Big Data: e Next Frontier for Innovation,
Competition, and Productivity (McKinsey Global Institute, 2011) at 1.
21. See e.g. Moira Paterson, “Privacy Protection in Australia: e Need for an
Ef‌fective Private Sector Regime” (1988) 26:2 Federal Law Review 371.
22. Austl, Commonwealth, Victorian Law Reform Commission, Def‌ining
Privacy (Occasional Paper) by Kate Foord (Melbourne: Victorian Law
Reform Commission, 2002) at 3.
23. See Jo Ann Oravec, “e Transformation of Privacy and Anonymity:
Beyond the Right to be Let Alone” (2003) 39:1 Sociological Imagination
3.
201
(2018) 4 CJCCL
which is re-ordered, codif‌ied and made legible to rational, algorithmic
understanding”24 that in turn creates “an ability not only to def‌ine
‘normal’ behavior, but to spot ‘abnormal’ behaviour through prof‌iling
techniques”.25
Haggerty and Ericson’s concept of the “surveillant assemblage”26
provides a useful device for understanding the nature of the surveillance
practices that have arisen in response to the surveillance potential of new
technologies. is complex system arises due to the converging interests
of multiple public and private bodies in establishing credentials (for
example, identity and other personal attributes) and surveillance systems
to provide for ways to dif‌ferentiate amongst unknown strangers. is
system is designed to improve the ef‌f‌iciency of decision-making, but it
is problematic to the extent that “[l]ack of public anonymity promotes
conformity and an oppressive society”,27 and it encourages blandness and
conformity, leading to “a blunting and blurring of rough edges and sharp
lines”.28
An alternative metaphor, suggested by Solove, is Kafka’s e Trial,
which highlights the issue of lack of control over information in a context
where bureaucratic decisions are increasingly based on dehumanised
information processing.29 is metaphor is useful in emphasising
that surveillance can be dangerous and oppressive, even where the
intentions that underlie it are inherently benign. e danger lies in the
use of surveillance as a basis for automated decision-making and the
24. David J Phillips, “Beyond Privacy: Confronting Locational Surveillance in
Wireless Communication” (2003) 8:1 Communications Law & Policy 1
at 18.
25. Ibid.
26. Kevin D Haggerty & Richard V Ericson, “e Surveillance Assemblage”
(2000) 51:4 British Journal of Sociology 605.
27. Christopher Slobogin, “Public Privacy: Camera Surveillance of Public
Places and the Right to Anonymity” (2002) 72:1 Mississippi Law Journal
213 at 240.
28. Julie Cohen, “Examined Lives: Informational Privacy and the Subject as
Object” (2000) 52:5 Stanford Law Review 1373 at 1426.
29. Daniel J Solove, e Digital Person: Technology and Privacy in the
Information Age (New York: New York University Press, 2004) at 36–39.
202
Paterson, Regulating Surveillance
oppressiveness that this can create in contexts where the individual is
unaware of what is being collected and of the potential consequences
that might follow.
e end result is what Cohen describes as a process of modulation:
“a set of processes in which the quality and content of surveillant
attention is continually modif‌ied according to the subject’s own behavior,
sometimes in response to inputs from the subject but according to logics
that ultimately are outside the subject’s control”.30 As she explains, the
very ordinariness of this process makes it extremely powerful, producing
citizens who are very dif‌ferent from those which form the basis for the
traditional liberal democratic tradition; lack of privacy deprives them of
the breathing space to engage in socially situated processes of boundary
management, thereby ensuring that “the development of subjectivity and
the development of communal values do not proceed in lockstep”.31 is
process is not only harmful to individual autonomy but also at odds with
broader public policy goals relating to liberal democratic citizenship and
innovation.
IV. Existing Regulatory Frameworks and eir
Shortcomings
e key regulatory frameworks that are currently used to regulate
aspects of surveillance fall into four broad groups; (1) laws that regulate
interception of communications; (2) laws that regulate the uses of specif‌ic
surveillance devices, including listening devices; (3) data protection
and other laws that require compliance with fair information handling
principles; and (4) common law and statutory rights to sue in the courts.
ese frameworks all suf‌fer from a similar shortcoming to that
observed by Solove in relation to the United States laws that regulate
electronic surveillance: “[t]he degree of protection against certain forms
30. Julie Cohen, “What Privacy is For” (2013) 126:7 Harvard Law Review
1904 at 1915 [Cohen, “What Privacy is For”].
31. Ibid at 1911, citing Julie Cohen, Conf‌iguring the Networked Self: Law,
Code, and the Play of Everyday Practice (New Haven: Yale University Press,
2012) at 150.
203
(2018) 4 CJCCL
of surveillance often does not turn on how problematic or invasive it
is, but on the technicalities of how the surveillance f‌its into the law’s
structure”.32
A. Telecommunications Interception Laws
Surveillance involving the interception of telecommunications (including
the accessing of communications stored within telecommunications
systems) is generally regulated by telecommunications interception laws.
ese typically permit law enforcement and national security bodies to
intercept telecommunications in specif‌ic circumstances, while making
interception otherwise illegal.
In Australia, the Telecommunications (Interception and Access) Act
prohibits: intercepting a “real-time” communication passing over the
telecommunications system;33 accessing an electronic communication
such as an email, Small Message Service or voicemail message while it is
stored on a telecommunications carrier’s (including an Internet Service
Provider’s) equipment;34 and communicating or otherwise dealing with
illegally intercepted information.35 ese of‌fences carry substantial
criminal sanctions. e term “interception” is def‌ined as listening to or
recording a conversation by any means without the knowledge of the
person making the communication.36
32. Daniel J Solove, “Reconstructing Electronic Surveillance Law” (2003)
72:6 e George Washington Law Review 1264 at 1298.
33. Telecommunications (Interception and Access) Act 1979 (Cth) (Austl), ss
7(1), 105.
34. is prohibition applies in circumstances where that message cannot
be accessed on that equipment by a person who is not a party to the
communication, without the assistance of an employee of the carrier: Ibid,
ss 5(1) (“stored communication”), 108.
35. Ibid, ss 63, 108(1).
36. Ibid, s 6(1) (“interception”).
204
Paterson, Regulating Surveillance
e equivalent federal legislation in the United States37 makes it a
federal crime for any person to intentionally intercept (or endeavour
to intercept) wire, oral or electronic communications by using an
electronic, mechanical or other device,38 or to intentionally access
without authorisation (or to exceed an authorisation to access) a facility
through which an electronic communication service is provided and
thereby obtain, alter, or prevent authorised access to a wire or electronic
communication while it is in electronic storage in such a facility.39 e
term “interception” is def‌ined as the “aural or other acquisition” of the
contents of various kinds of communications by means of “electronic,
mechanical or other devices”,40 and the prohibition applies both to
“electronic communications”, which encompass most radio and data
transmissions and any communication from a tracking device,41 and
“oral communications”, which include any face-to-face conversations for
which the speakers have a justif‌iable expectation of privacy.42
In the case of Canada, the Criminal Code makes it an of‌fence for
37. ese are supplemented by state wiretap laws that are mostly directed
at telephone conversations. For example, it is illegal in California to
record or eavesdrop on any conf‌idential communication, including a
private conversation or telephone call, without the consent of all parties
to the conversation: California Penal Code, PEN § 632 (2017) (US); e
Citizen Media Law Project provides some selected summaries of state
recording laws: e Citizen Media Law Project, “State Law: Recording”
Digital Media Law Project (2 March 2008), online: Berkman Center
for Internet & Society .org/legal-guide/state-law-
recording>; there is also a full list of state wiretap laws on the website of
the National Conference for State Legislatures at: “Electronic Surveillance
Laws” National Conference of State Legislatures (23 March 2012), online:
NCSL www.ncsl.org/programs/lis/ CIP/surveillance.htm> [Electronic
Surveillance Laws].
38. Electronic Communications Privacy Act, 18 USC § 2511(1) (2006).
39. Stored Communications Act 1986, 18 USC § 2701(a) (2006).
40. Ibid, § 2510(4).
41. “Tracking Device” is def‌ined in ibid, § 3117(b) as “an electronic or
mechanical device which permits the tracking of the movement of a
person or object’”.
42. Ibid, § 2510(2). The meaning of “oral communications” is discussed in
United States v Larios, 593 F Supp (3d) 82 at 92 (1st Cir 2010) (US).
205
(2018) 4 CJCCL
anyone to “by means of any electro-magnetic, acoustic, mechanical
or other device wilfully [intercept] a private communication”.43 e
term “private communication” is def‌ined broadly to include any oral
communication or telecommunication, including “any radio-based
telephone communication that is treated electronically or otherwise
for the purpose of preventing intelligible reception by any person other
than the person intended by the originator to receive it”.44 Interception
includes listening to, recording or acquiring a communication, or
acquiring its substance, meaning or purport.45
Interception laws provide valuable protection for communications
that take place over telecommunications systems, but they commonly
suf‌fer from two key defects. e f‌irst is that, in countries such as
Australia and the United States, they protect only communications that
involve the use of telecommunications systems, as opposed to, say, oral
communications or communications via Bluetooth technology. ey
also typically of‌fer dif‌ferential protection based on artif‌icial distinctions
between transactional and content data, with the former receiving a
much lower level of, or no, protection based on the increasingly incorrect
assumption that transactional data is inherently less privacy invasive than
communicative content.46
However, the nature and extent of metadata that can now be collected
means that it can be as, or even more, revealing than content data. As
noted by a former Ontario Information and Privacy Commissioner:
Access to [metadata] will reveal the details of our personal, political, social,
f‌inancial, and working lives. It provides the raw material for the creation of
detailed, comprehensive, time-stamped map-lines of who is communicating
with whom, when, how often, and for how long; where the senders and
recipients are located; who else is connected to whom, and so forth.47
Research conducted at Stanford illustrates the potentially revealing nature
43. Criminal Code, RSC 1985, c C-46, s 184(1).
44. Ibid, s 183.
45. Ibid.
46. Ibid.
47. Of‌f‌ice of the Ontario Privacy Commissioner, “A Primer on Metadata:
Separating Fact from Fiction”, by Ann Cavoukian, PhD, Information and
Privacy Commissioner (Ontario: IPC, July 2013) at 12.
206
Paterson, Regulating Surveillance
of metadata. e study involved 546 participants who ran an application
on their cell phones that submitted device logs and social network
information for analysis.48 In analysing their results, the researchers
commented that the degree of sensitivity relating to persons and
organisations contacted by the participants had taken them aback. e
persons contacted included “Alcoholics Anonymous, gun stores, NARAL
Pro-Choice, labor unions, divorce lawyers, sexually transmitted disease
clinics, a Canadian import pharmacy, strip clubs, and much more”.49
e researchers also discussed potential inferences that could be made
from patterns of calls and referred to a number of examples, including
a participant who had communicated with “multiple local neurology
groups, a specialty pharmacy, a rare condition management service and
a hotline for a pharmaceutical used solely to treat relapsing multiple
sclerosis”50 and another who in the space of three weeks “contacted a
home improvement store, locksmiths, a hydroponics dealer, and a head
shop”.51
B. Surveillance De vice Laws: Listening Devices and
Beyond
Surveillance devices laws of‌fer protection against specif‌ic uses of
surveillance devices. ey generally regulate uses of listening devices but
may also extend more broadly to other categories of devices, including
those used to track the location of individuals and items with which they
are associated (such as cars) and optical surveillance devices, including
CCTV cameras.
48. “What’s in Your Metadata?” e Center for Internet and Society
(2013), online: Stanford Law School
blog/2013/11/what%27s-in-your-metadata>.
49. Jonathan Mayer & Patrick Mutchler, “MetaPhone: e Sensitivity of
Telephone Metadata” Web Policy (blog) (12 March 2014), online: Web
Policy .org/2014/03/12/metaphone-the-sensitivity-of-
telephone-metadata/>.
50. Ibid.
51. Ibid. “Head shop” is a colloquial expression used to describe an enterprise
that retails items used for the consumption of cannabis or related to the
cannabis culture.
207
(2018) 4 CJCCL
In the case of the United States, surveillance device regulation is not
the norm, and listening is regulated primarily via interception laws, as
discussed above, although a small number of states impose restrictions
on visual surveillance.52 For example, the Georgia Penal Code makes it
an of‌fence to “to observe, photograph, or record the activities of another
which occur in any private place and out of public view”.53
In contrast, surveillance device laws are commonplace at the state
and territory levels in Australia.54 For example, the Victorian Surveillance
Devices Act contains general prohibitions against the use of listening
devices, optical surveillance devices and tracking devices.55 As in the case
of telecommunications interception, these are subject to exceptions in
respect of authorised activities of law enforcement and national security
bodies. ese are also subject to a number of restrictions that limit their
operation in public places. For example, the listening device prohibition
is limited by reference to a test based on reasonable expectation of
being overheard,56 the optical surveillance prohibition is limited in its
application to surveillance of indoor activities and by reference to a test
based on reasonable expectation of being seen57 and the def‌inition of
52. e website of the National Conference for State Legislatures at Electronic
Surveillance Laws, supra note 37, contains details of state laws which
impose restrictions on visual surveillance.
53. 11 Ga Code Ann tit 16 § 16-11-62 (2010) (US). is prohibition is
subject to a number of exceptions set out in paras (A)–(C).
54. Listening Devices Act 1992 (ACT) (Austl); Surveillance Devices Act 2007
(NSW) (Austl); Surveillance Devices Act (NT) (Austl); Invasion of Privacy
Act 1971 (Qld) (Austl); Listening and Surveillance Devices Act 2016 (SA)
(Austl); Listening Devices Act 1991 (Tas) (Austl); Surveillance Devices Act
1999 (Vic) (Austl); and Surveillance Devices Act 1998 (WA) (Austl).
55. Surveillance Devices Act 1999 (Vic) (Austl), ss 6–8. Section 9 also contains
a prohibition against the use of “data surveillance devices” (see def‌inition
in s 3(1)) but this is limited in its application to law enforcement of‌f‌icers.
e prohibitions in these sections related to the installation, use and
maintenance of surveillance devices and are supplemented by further
prohibitions in ss 11 and 12 against the communication and publication
of data wrongfully obtained via use of surveillance devices.
56. Ibid, ss 3(1) (def‌inition of “private conversation”), 6(1).
57. Ibid, ss 3(1) (def‌inition of “private activity”), 7(1).
208
Paterson, Regulating Surveillance
tracking device is limited to devices designed solely for tracking58 (so does
not therefore apply, for example, to cell phones).
ese tests are based on assumptions that are arguably no longer
appropriate due to technological developments. For example, the fact
that one might reasonably expect to be seen by a random passer-by does
not mean that one should expect to be photographed by a distant camera
equipped with face recognition technology. As observed by Boa in
relation to common law tests based on reasonable expectations of privacy,
[t]echnological capabilities and the resulting information practices are
constantly changing. As a result, social norms of what is reasonable have
not been, and arguably cannot be, established”.59
In the case of Canada, specif‌ic regulation of surveillance devices
is likewise not the norm and listening is regulated primarily via the
prohibition against interception discussed above. In addition, various
uses of surveillance devices, including optical surveillance devices60 and
the use of GPS tracking devices,61 have been held to qualify as searches,
although their reasonableness will depend on the specif‌ic context.
Surveillance device laws have the advantage of being tied specif‌ically
to the devices used for surveillance but, even to the extent that they
are comprehensive in terms of the types of devices covered, these laws
generally of‌fer minimal protection against surveillance in public places
due to the inherent problems in f‌inding tests that capture what matters
without encroaching unduly on other competing interests. ey may
also be of limited assistance to the extent that they fail to encompass the
full spectrum of devices that may potentially be used for the purposes of
surveillance.
is issue arises most acutely in relation to optical surveillance
devices due to the need to ensure that they do not impact adversely
58. Ibid, ss 3(1) (def‌inition of “tracking device”), 8(1).
59. Kristin Boa, “Privacy Outside the Castle: Surveillance Technologies and
Reasonable Expectations of Privacy in Canadian Judicial Reasoning” in
David Matheson, ed, Contours of Privacy (Newcastle: Cambridge Scholars,
2009) 241 at 244.
60. R v Wong, [1990] 3 SCR 36 at para 61.
61. R v Wise, [1992] 1 SCR 527.
209
(2018) 4 CJCCL
on legitimate uses of cameras. Abandonment of tests based on indoor/
outdoor distinctions and reasonable expectations of being seen, raises
the issue of how to distinguish between activities that are legitimate (for
example, taking a photograph for personal or artistic purposes) and those
that should be prohibited (for example, surreptitious f‌ilming of activities
that are clearly private in nature such as long lens f‌ilming of a couple
making love in a location that is secluded but outdoors).
C. Common Law and Statutory Rights of Action for
Breaches of Privacy
Common law and statutory rights of action fall into two main groups.
e f‌irst comprises common law rights of action based on some or all of
the four United States privacy torts set out in the Restatement (Second)
of Torts;62 these also form the basis for most statutory rights of action in
Canada.63 e second is the extended action for breach of conf‌idence,
which has been developed by courts in the United Kingdom64 and is
62. Restatement (Second) of Torts (Washington DC: American Law Institute,
1977) at §§ 657B-E [American Law Institute]; intrusion upon seclusion,
appropriation of name or likeness, publicity given to private life and
publicity placing person in false light.
63. For example, the Canadian provinces of British Columbia, Saskatchewan,
Manitoba, and Newfoundland and Labrador all have statutory privacy
torts: see Privacy Act, RSBC 1996, c 373; e Privacy Act, RSS 1978,
c P-24; e Privacy Act, RSM 1987, c P-125; An Act Respecting the
Protection of Personal Privacy, RSNL 1990, c P-22; together referred to as
[“Canadian Provincial Statutory Privacy Torts”].
64. For example, this is seen in the leading cases of Campbell v MGN Ltd,
[2004] UKHL 22 [Campbell], and Mosley v News Group Newspapers Ltd,
210
Paterson, Regulating Surveillance
currently under active consideration in Australia.65
In the case of the former, the intrusion tort is more obviously
directed to the regulation of surveillance, as it focuses on the invasion
of the private sphere (rather than on the publication of personal data)66
and has been interpreted as being capable of extending to surveillance
conducted in public places.67 However, while it creates less obvious First
Amendment issues than the public disclosure tort, it has nevertheless
been construed, at least in some cases, as being subject to newsworthiness
privilege.68 e intrusion tort has been recognised recently in Canada69
and New Zealand,70 although it remains unclear to what extent it will
be recognised as applying to public place surveillance. ere are also a
number of jurisdictions that have statutory intrusion torts.71
e other privacy tort that may be indirectly relevant is the public
disclosure tort, which regulates the public disclosure of private facts,
including those acquired via surveillance. However, this is generally of
65. In Australian Broadcasting Corporation v Lenah Game Meats, [2001]
HCA 63, Gleeson CJ supported an extension of the action of breach
of conf‌idence to protect private information. While that court has yet
awarded relief on this basis, the decision of the Victorian Court of Appeal
in Giller v Procopets, [2008] VSCA 236 (Austl), has arguably further paved
the way for such a development by following English case law in deciding
that damages for breach of conf‌idence can be awarded for mental distress
falling short of psychiatric injury.
66. See Adam J Tutaj, “Intrusion Upon Seclusion: Bringing an ‘Otherwise’
Valid Cause of Action into the 21st Century” (1999) 82:3 Marquette Law
Review 665.
67. See e.g. Wolfson v Lewis, 924 F Supp 1413 at 1433–35 (Dist Ct Pa 1996)
(US). See further, Carmin L Crisci, “All the World is Not a Stage: Finding
a Right to Privacy in Existing and Proposed Legislation” (2002) 6:1 New
York University Journal of Legislation & Public Policy 207 at 228–30.
68. See Dempsey v National Enquirer, 702 F Supp 927 at 930–31 (Dist Ct Me
1988) (US). For further examples see Lyrissa B Lidsky, “Prying, Spying,
and Lying: Intrusive Newsgathering and What the Law Should Do About
It” (1999) 73:1 Tulane Law Review 173 at 209, n 187.
69. Jones v Tsige, 2012 ONCA 32.
70. C v Holland, [2012] NZHC 2155.
71. See e.g. Canadian Provincial Statutory Privacy Torts, supra note 63;
American Law Institute, supra note 62.
211
(2018) 4 CJCCL
limited assistance in relation to public place surveillance as it runs directly
into conf‌lict with freedom of expression/speech. is is a major problem
in the United States due to the strength of First Amendment protection
but is also an issue in New Zealand, which recognises a similar tort.72
It is also problematic to the extent that it contains an of‌fensiveness test
that relates to the information disseminated, as opposed to the method
by which it was obtained, and ignores the dignitary harm resulting from
the surveillance activities that underpin the disclosure. is issue has
attracted discussion in New Zealand in the aftermath of the decision
in Andrews v Television New Zealand73 in which the court declined to
award relief in respect of the broadcast of footage of the plaintif‌fs being
extracted from the wreckage of their car, even though the court found
that they had a reasonable expectation of privacy in relation to their
conversations with each other.74
e extended action for breach of conf‌idence demonstrably provides
better protection for privacy in public places.75 However, as currently
formulated, it requires the disclosure of personal information and is
therefore not inherently suited to the regulation of surveillance per se.
Moreover, it does not regulate surveillance, however intrusive on privacy,
if the information acquired is not disclosed to other persons.
More generally, it is arguable that privacy-based rights of action have
the advantage of focussing squarely on the interest that is in issue, but they
create dif‌f‌iculty because of the nebulous nature of privacy as a concept
and the fact that it generally rubs up against other competing rights. e
72. See Moira Paterson, “Criminal Records, Spent Convictions and Privacy: A
Trans-Tasman Comparison” (2011) 69:1 New Zealand Law Review 69 at
74–76.
73. Andrews v Television New Zealand, [2009] 1 NZLR 220 (HC).
74. For a useful critique on the New Zealand tort see Nicole A Moreham,
“Why is Privacy Important? Privacy, Dignity and Development of
New Zealand Breach of Privacy Tort” in Jeremy Finn & Stephen Todd,
eds, Law, Liberty, Legislation: Essays in Honour of John Burrows, QC
(Wellington: LexisNexis, 2008), online: Victoria University of Wellington
.
75. is is evident from the outcomes in Campbell, supra note 64, and Murray
v Big Pictures (UK) Ltd, [2008] EWCA Civ 446.
212
Paterson, Regulating Surveillance
problem, therefore, lies in devising a test that is suf‌f‌iciently certain and at
the same time strikes an appropriate balance between privacy and other
competing rights, such as freedom of expression/speech.
D. Data Protection Laws and Other Laws Based on Fair
Information Practices (“FIPs”)
Data protection laws protect privacy by requiring compliance with
FIP-based rules that regulate the handling of personal information.
ey are relevant to surveillance insofar as they impose limitations on
the collection (and subsequent use of) personal information. Instead of
being based on the type of device or communication system being used
to collect data, they focus on the nature of the data in question and
whether or not it relates to an individual who is identif‌ied or potentially
identif‌iable. Schwartz & Solove refer to this concept as “personally
identif‌iable information”.76
e concept of regulation via fair information principles has its
origins in the United States in a report by the Advisory Committee
on Automated Personal Data Systems in the Department of Health,
Education and Welfare.77 ese principles formed the basis for the public
sector regime in the Privacy Act in the United States78 and also for the
76. Paul M Schwartz & Daniel J Solove, “e PII Problem: Privacy and a
New Concept of Personally Identif‌iable Data” (2011) 86:6 New York
University Law Review 1814.
77. US, Department of Health, Education and Welfare, Report of the
Secretary’s Advisory Committee on Automated Personal Data Systems, Records,
Computes and the Rights of Citizens (No (OS) 73-94) (Washington DC:
DHEW Publication, 1973).
78. 5 USC § 552a (1974) [US Privacy Act].
213
(2018) 4 CJCCL
Safe Harbor principles79 administered by the Federal Trade Commission,
as well as for the many data protection regimes that exist throughout the
world.80
e United States is unusual in terms of its lack of any FIP-based
regime of general application to the private sector, although the FIPs
form the basis for many federal and state laws81 and are summarised in
set of principles developed by the FTC to provide guidance concerning
privacy-friendly, consumer-oriented data collection practices.82
e federal public sector Privacy Act83 regulates information handling
by federal agencies via a Code of Fair Information Practice.84 It requires
inter alia that agencies must “collect information to the greatest extent
practicable directly from the subject individual when the information
79. Full details about this regime can be accessed online: US, Federal Trade
Commission, “U.S.-E.U Safe Harbor Framework” (FTC, 25 July 2016),
online: FTC
and-security/u.s.-eu-safe-harbor-framework>. It should be noted that the
Safe Harbor Framework is no longer legally recognised as adequate under
EU law for transferring personal data to the US and that the US and EU
have now negotiated a new Privacy Shield Network, see “Privacy Shield
Framework” International Trade Administration, online: ITA
www.privacyshield.gov/welcome>. e latter contains further additional
protections.
80. For a useful overview of the evolution of laws based on FIPs see Fred
Cate, “e Failure of Fair Information Practice Principles” in Jane K
Winn, ed, Consumer Protection in the Age of the ‘Information Economy
(Abingdon: Taylor and Francis, 2006) 341 [Cate, “Fair Information
Practice Principles”].
81. See e.g. e Fair Credit Reporting Act, 15 USC § 1681 (1970); Right to
Financial Privacy Act, 12 USC § 3401 (1978); Electronic Communications
Privacy Act of 18 USC §§ 2510-252 (1986). For a useful overview of a
number of FIP-based laws in the US, see Schwartz & Solove, supra note
76.
82. US, Federal Trade Commission, Privacy Online: A Report to Congress (June
1998) at 7–14.
83. US Privacy Act, supra note 78.
84. US, Department of Health, Education and Welfare, Secretary’s Advisory
Committee on Automated Data Systems, Records, Computers, and the
Rights of Citizens, Code of Fair Information Practice (HEW, July 1973).
214
Paterson, Regulating Surveillance
may result in adverse determinations about an individual’s rights,
benef‌its, and privileges under any Federal program”.85 It also prohibits
the maintenance of any record “describing how any individual exercises
rights guaranteed by the First Amendment unless expressly authorized
by statute or by the individual about whom the record is maintained or
unless pertinent to and within the scope of an authorized law enforcement
activity”.86
e Privacy Act generally applies only to systems of records — i.e.
“a group of any records under the control of any agency from which
information is retrieved by the name of the individual or by some
identifying number, symbol, or other identifying particular assigned to
the individual”.87 e term “record” is def‌ined as:
[A]ny item, collection, or grouping of information about an individual that is
maintained by an agency, including, but not limited to, his education, f‌inancial
transactions, medical history, and criminal or employment history and that
contains his name, or the identifying number, symbol, or other identifying
particular assigned to the individual, such as a f‌inger or voice print or a
photograph.88
In Albright v United States89 the court held that a videotape of a meeting
qualif‌ied as record as it contained a means of identifying an individual by
picture or voice and that it contravened the Act by showing an individual
exercising their First Amendment rights (by making complaints about
their employment).90 e court also held that it did not matter in that
case that the videotape was not maintained in a system of records, as this
specif‌ic prohibition applied to agencies more generally.
In Australia, the Privacy Act91 was once similarly conf‌ined to the
85. US Privacy Act, supra note 78, § 552a(e)(2).
86. Ibid, § 552a(e)(7).
87. Ibid, § 552a(a)(5).
88. Ibid, § 552a(a)(4).
89. 631 F (2d) 915 at 920 (DC Cir 1980) (US).
90. is case is discussed in Robert Gellman, “A General Survey of Video
Surveillance Law in the United States” in Sjaak Nout, Berend de Vries
& Corien Prins, eds, Reasonable Expectation of Privacy?: Eleven Country
Reports on Camera Surveillance and Workplace Privacy (e Hague: TMC
Asser Press, 2005) 7.
91. Privacy Act 1988 (Cth) (Austl) [Austl Privacy Act].
215
(2018) 4 CJCCL
public sector, but it now applies also to the private sector and has recently
been amended to include a single set of Australian Privacy Principles
(“APPs”) that apply to information handling by both sectors.92 e
application of the APPs to the private sector is, however, subject to a
large number of exceptions, including exceptions for the journalistic
practices of media organisations93 and for acts of individuals acting in a
non-business capacity.94
e APPs govern the handling of “personal information”, which is
def‌ined as information or an opinion about an identif‌ied individual, or
an individual who is reasonably identif‌iable.95 is is a new def‌inition96
that has been designed to require “a consideration of the cost, dif‌f‌iculty,
practicality and likelihood that the information will be linked in such a
way as to identify [the individual]”.97 is has the ef‌fect that the records
of surveillance are not covered by the Act unless they contain images
or other data that allow for recognition of the individuals to which
92. e Privacy Act is supplemented by laws that operate in a similar way in
relation to most government agencies in most states and the Northern
Territory: Privacy and Personal Information Protection Act 1998 (NSW)
(Austl); Information Act 2000 (NT) (Austl); Information Privacy Act 2009
(Qld) (Austl); Personal Information Protection Act 2004 (Tas) (Austl);
Privacy and Data Protection Act 2014 (Vic) (Austl). ere is a detailed
overview of the Privacy Act in Moira Paterson, “Privacy” in Matthew
Groves, ed, Modern Administrative Law in Australia: Concepts and Context
(Port Melbourne: Cambridge University Press, 2014).
93. Austl Privacy Act, supra note 91, s 7B(4).
94. Ibid, s 7B(1).
95. Ibid, s 6(1).
96. It was amended by the Privacy Amendment (Enhancing Privacy Reform) Act
2012 (Cth) (Austl).
97. Austl, Commonwealth, Australian Law Reform Commission, For Your
Information: Australian Privacy Law and Practice (Report No 108)
(ALRC, 2008) at 6.57. is approach is consistent with that taken by the
Victorian Civil and Administrative Tribunal in interpreting a similar (but
not identical) provision in the Information Privacy Act 2000 (Vic) (Austl):
See WL v La Trobe University, [2005] VCAT 2592 (Austl). For a further
discussion of the Australian provisions, see Mark Burdon & Paul Telford,
“e Conceptual Basis of Personal Information in Australian Privacy Law
(2010) 17:1 Murdoch University, Electronic Journal of Law 1.
216
Paterson, Regulating Surveillance
they relate, or unless they have been collected in a context in which the
collecting organisation can readily link them to other data that identif‌ies
an individual.
is issue has arisen for consideration in recent litigation concerning
an application made under the Privacy Act for access to the applicant’s
mobile network data. In Telstra Corporation Ltd v Privacy Commissioner,
the Commonwealth Administrative Appeals Tribunal found against
the applicant on the ground that this data did not constitute “personal
information”.98 In the tribunal’s view, the metadata in question was “all
about the way in which Telstra delivers the call or the message. at is
not about Mr Grubb”.99 is decision was upheld by the Full Court of
the Federal Court of Australia, which expressed the view that the words
“about an individual” in the def‌inition of personal information raised
a threshold question that needed to be addressed before it could be
determined whether that individual is identif‌ied or identif‌iable.100 In the
court’s view, it was necessary in every case to consider whether each item
of personal information requested, individually or in combination with
other items, was “about an individual”. is would “require an evaluative
conclusion, depending upon the facts of any individual case, just as a
determination of whether the identity [could] reasonably be ascertained
will require an evaluative conclusion”.101
e APPs include a collection limitation principle, which requires
that personal information be collected fairly and legally102 and precludes
the collection of personal information unless it is reasonably necessary for
one or more of the functions or activities of the organisation collecting
it.103 ey also include further principles relating to open and transparent
98. [2015] AATA 991.
99. Ibid at para 112.
100. Privacy Commissioner v Telstra Corporation Ltd, [2017] FCA 4 at para 89.
101. Ibid at para 63; See also Normann Witzleb, “‘Person Information’ under
the Privacy Act 1988 (Cth) – Privacy Commissioner v Telstra Corporation
Ltd [2017] FCAFC 4” (2017) 45:2 Australian Business Law Review 188.
102. Australian Privacy Principles, APP 3.5, being Schedule 1 of the Privacy Act
1988 (Cth) (Austl).
103. Ibid, APP 3.2.
217
(2018) 4 CJCCL
management,104 notif‌ication of the collection of personal information,105
limitations on use and disclosure,106 requirements to maintain security107
and integrity108 and obligations to provide access to information
subjects.109
Oversight of the Privacy Act is provided by the Of‌f‌ice of the Australian
Information Commission. e Commissioner’s functions are grouped
within the Act according to whether they foster compliance (via the
provision of guidance),110 monitor compliance111 or support compliance
(via the provision of advice).112 e Act is enforced primarily via a
complaints-based system, although the Information Commissioner also
has power to conduct audits to assess entities’ maintenance of personal
information,113 to require provision of privacy impact assessments114 and
to conduct “own motion” investigations.115
Canada dif‌fers in that it has separate federal privacy regimes. e
Privacy Act116 and the Personal Information Protection and Electronic
Documents Act117 govern the information handling practices of the
federal government and private organisations, respectively. ese both
require compliance with sets of FIPs that apply in respect of “personal
information”. e latter is def‌ined as “information about an identif‌iable
104. Ibid, APP 1.
105. Ibid, APP 5.
106. Ibid, APP 6.
107. Ibid, APP 10.
108. Ibid, APP 11.
109. Ibid, APP 12.
110. Ibid, s 28.
111. Ibid, s 28A.
112. Ibid, s 28B.
113. Ibid, s 33C.
114. Ibid, s 33D(1); A “privacy impact assessment” means a written assessment
that identif‌ies the impact an activity or function might have on the
privacy of individuals and sets out recommendations for managing,
minimising or eliminating that impact: Also see ibid, s 33D(3).
115. Ibid, s 40.
116. Privacy Act, RSC 1985, c P-21 [Canada Privacy Act].
117. Personal Information Protection and Electronic Documents Act, SC 2000, c 5
[PIPEDA].
218
Paterson, Regulating Surveillance
individual”.118 Both Acts are subject to oversight by the Of‌f‌ice of the
Privacy Commissioner of Canada.
A problem with laws based on FIPs is that they depend on the criterion
of personally identif‌iable information (“PII”) to establish their boundaries.
As explained by Schwartz and Solove, without these boundaries “privacy
rights would expand to protect a nearly inf‌inite array of information,
including practically every piece of statistical or demographic data”.119
However, the criterion of identif‌iability is inherently f‌luid and whether
or not information is reasonably identif‌iable depends on how much
ef‌fort is put into the process, to what extent linkage with other available
information is relevant and the extent to which it is appropriate to
consider new and emerging identif‌ication technologies. Furthermore,
determining where precisely to set the boundaries for identif‌iability raises
dif‌f‌icult policy issues given that information that qualif‌ies as personal
information is generally subject to the full spectrum of requirements set
out in the legislation.
Take, for example, a CCTV image of someone who is not immediately
identif‌iable but who may be identif‌ied if face recognition technology is
applied to the footage. From a privacy perspective, collection per se is of
minimal privacy invasiveness if the footage is simply kept for a period
to determine if it is required, say, to assist in the detection of pilfering,
and then disposed of without that individual ever having been identif‌ied.
However, if that image qualif‌ies as personal information based on the fact
that the individual could be identif‌ied, the collector would be required
to provide access to it on request — a requirement which might be quite
onerous depending on the ease of location of the image required and the
need to protect the identities of any other persons who feature in the same
footage (assuming that their images also qualify as personal information).
On the other hand, if it does not qualify as personal information, the
collector will not be under any obligation to keep the footage secure and
would not be precluded from disclosing it to another individual who may
have some means of recognising the individual.
118. Canada Privacy Act, supra note 116, s 3; PIPEDA, ibid, s 2(1).
119. Schwartz & Solove, supra note 76 at 1866.
219
(2018) 4 CJCCL
A test based on identif‌iability also creates problems for the reasons
suggested by Ohm — i.e. that the science of reidentif‌iability increasingly
undermines processes of anonymization by deleting from information
personal identif‌iers such as names and context specif‌ic identif‌iers such
as identity numbers, account numbers, etc.120 Millard and Hon have
likewise commented that “scientif‌ic and technological advances are
making it increasingly simple to de-anonymise data to ‘re-identify’
individuals, notwithstanding the use of methods such as aggregation or
barnardisation”121 and that this may mean that “almost all data could
qualify as ‘personal data’, thereby rendering PII meaningless as a trigger
for data protection obligations”.122
Another issue identif‌ied by Cate is that the ef‌fectiveness of current FIP-
based laws depends on a control-based system that relies on procedures
designed to maximise individual control, for example, via requirements
for notice and consent.123 However, consent has become an increasingly
artif‌icial construct given the complexity of the “surveillant assemblage”
and the fact that individuals have little prospect of understanding the
signif‌icance of individual data disclosures. Furthermore, “[n]otices are
frequently meaningless because individuals do not see them or choose to
ignore them, they are written in either vague or overly technical language,
or they present no meaningful opportunity for individual choice”.124
120. Paul Ohm, “Broken Promises of Privacy: Responding to the Surprising
Failure of Anonymization” (2010) 57:6 UCLA Law Review 1701.
121. Barnardisation is “[a] method of disclosure control for tables of counts
that involves randomly adding or subtracting 1 from some cells in
the table”: See online: “Glossary of Statistical Terms” Organisation for
Economic Co-operation and Development (9 November 2005), online:
OECD .
122. Christopher Millard & W Kuan Hon, “Def‌ining ‘Personal Data’ in
E-Social Science” (2011) 15:1 Information, Communication & Society
66 at 77.
123. Cate, “Fair Information Practice Principles”, supra note 80 at 341.
124. Ibid at 3.
220
Paterson, Regulating Surveillance
V. e Sig nicance of Constitutional/Human
Rights Frameworks
A dif‌f‌iculty in providing ef‌fective regulation of public place surveillance
is that laws that provide strong privacy protections may be viewed as
undermining the freedom of the press/freedom of speech to the extent
that they restrict the surveillance that facilitates the dissemination of
personal information about individuals.
Constitutional frameworks play an important role in determining the
nature and extent of the privacy regulation that is possible. is is most
evident in the United States, where the strength of the First Amendment
protection of free speech and the lack of equivalent protection of
informational privacy beyond the specif‌ic context of search and seizure
creates major dif‌f‌iculties. It is also the case in other countries, such as
Canada125 and New Zealand,126 which have human rights laws that
lack express privacy guarantees. e European Human Rights regime,
which provides specif‌ic protection for privacy, as well as for freedom of
expression, provides greater f‌lexibility.127
However, it is arguable that the interests served by ef‌fective regulation
of surveillance are in many cases identical to those which underlie the
important right to free speech. As identif‌ied many years ago by Regan,
privacy has suf‌fered due to its conception as an individual right, which
125. e Canadian Charter of Rights and Freedoms, Part 1 of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1892, c 11,
contains a right to “freedom of thought, belief, opinion and expression,
including freedom of the press and other media of communication” (s
2(b)) and a right “to be secure against unreasonable search or seizure (s 8),
but no general right to privacy”.
126. e New Zealand Bill of Rights Act 1990 (NZ), 1990/109 contains a right
to “freedom of expression, including the freedom to seek, receive, and
impart information and opinions of any kind in any form” (s 14) and a
right to be “secure against unreasonable search or seizure, whether of the
person, property, or correspondence or otherwise” (s 21), but not any
right to privacy more generally.
127. Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, 213 UNTS 221 at 223 arts 8–10 (entered into force 3
September 1953).
221
(2018) 4 CJCCL
means that it fares badly when it conf‌licts with competing rights that are
traditionally conceived of as serving broader public purposes.128
e individualistic view of privacy is frequently articulated in the
language of a negative freedom (i.e. as a freedom from interference by
other people)129 and one that is in essence “anti-social” and pertaining to
the “right of an individual to live a life of seclusion and anonymity, free
from the prying curiosity which accompanies both fame and notoriety”.130
However, privacy may equally be conceived of as a positive claim to
a status of personal dignity, premised on the ability to exercise some
element of control over one’s own personal information. In that sense it
is not “simply an absence of information about us in the minds of others.
Rather, it is the control we have over information about ourselves”.131
Moreover, while there can be no doubt that a right to privacy is
an integral feature of liberal democratic systems that value individual
autonomy and dignity (in particular, the right to be treated as a human
being and not some abstract object), privacy also serves broader societal
goals. As explained by Raab, in the context of surveillance, lack of privacy
disrupts communication, resulting in an isolation that is inconsistent
with democracy;132 “participatory freedoms require a degree of privacy
(as illustrated by the nexus between free elections and secret ballots).133
It follows, therefore, that it is erroneous to conceive of anti-surveillance
laws as necessarily contravening free speech protection or overstepping a
permissible balance between privacy and freedom of expression. at is
128. Priscilla Regan, Legislating Privacy: Technology, Social Values, and Public
Policy (North Carolina: University of North Carolina Press, 1995).
129. See Isaiah Berlin, “Two Concepts of Liberty” in Isaiah Berlin, ed, Four
Essays on Liberty (Oxford: Oxford University Press, 1969) 15, online:
University of Hamburg .unihamburg.de/f‌ileadmin/wiso_vwl/
johannes/Ankuendigungen/Berlin_twoconceptsof‌liberty.pdf>.
130. Louis Nizer, “e Right of Privacy: A Half Century’s Developments”
(1941) 39:4 Michigan Law Review 526 at 528.
131. Charles Fried, “Privacy” (1968) 77:3 Yale Law Journal 475 at 482.
132. Charles Raab, “Privacy, Democracy, Information” in Brian Loader, ed,
e Governance of Cyberspace: Politics, Technology and Global Restructuring
(London: Routledge, 1997) 153 at 157.
133. Ibid at 160.
222
Paterson, Regulating Surveillance
not to suggest that there is not potential conf‌lict between the two, rather
that it is important to bear in mind that failure to prevent the process of
modulation described by Cohen in many respects renders meaningless
the protection of the right to speech.
VI. Insights From Regulatory eory
e theory of responsive regulation developed by Ayers and Braithwaite
contends that:
the achievement of regulatory objectives is more likely when agencies display
both a hierarchy of sanctions and a hierarchy of regulatory strategies of
varying degrees of interventionism. ... Regulators will do best by indicating a
willingness to escalate intervention up those pyramids or to deregulate down
the pyramids in response to the industry’s performance in securing regulatory
objectives.134
is is further explained on the basis that “[t]he pyramidal presumption
of persuasion gives the cheaper, more respectful option a chance to work
f‌irst. More costly punitive attempts at control are thus held in reserve
for the minority of cases where persuasion fails”.135 e regulatory
pyramid136 therefore has softer measures such as warnings, persuasion
and collaboration at its base, followed by civil sanctions and then criminal
sanctions at its apex.
Telecommunications interception and surveillance device laws
generally rely on the impositions of criminal sanctions. ese have
a strong deterrent ef‌fect but require a high standard of proof for
convictions and rely on police for their enforcement. is is not
necessarily conducive to good outcomes, as illustrated by the Murdoch
media scandal in the United Kingdom. e regulatory pyramid suggests
that criminal sanctions should be used only as a last resort in respect of
more egregious conduct and that they are inherently unsuitable as a sole
or primary device for achieving across-the-board regulatory outcomes in
134. Ian Ayers & John Braithwaite, Responsive Regulation: Transcending the
Deregulation Debate (Oxford: Oxford University Press, 1992) at 5–6.
135. John Braithwaite, “Responsive Regulation and Developing Economies”
(2006) 34:5 World Development 884 at 887.
136. Ayers & Braithwaite, supra note 134 at 39.
223
(2018) 4 CJCCL
the surveillance context.
Common law and statutory torts focus instead on providing
appropriate remedies for individuals who are adversely af‌fected by non-
compliance. However, they produce a deterrent ef‌fect only to the extent
that individuals are able to identify those responsible for privacy breaches
that have caused (or are likely to cause) them harm and are then willing
to litigate, bearing in mind that litigation may of itself be harmful to their
privacy. Also they are likely to have a deterrent ef‌fect only if the damages
available are suf‌f‌iciently large to outweigh the potential prof‌its to be
gained from non-compliance. Furthermore, the fact these torts are
available only to provide redress in respect of the types of harm that
are capable of attracting legal compensation means that they are not well
suited to addressing the harms inherent in the processes of modulation. It
is arguable, therefore, that this purely private focus limits their usefulness
as a sole or primary device for regulating surveillance.
On the other hand, data protection regimes provide for a more
f‌lexible range of regulatory options, including ones at the softer end of
the spectrum (for example, education and persuasion) and scope for
remedial action that is not based on individual action. Depending on
how they are structured, they may include regulators with broad powers,
including powers to conduct own motion investigations and to provide
compensation, as well as civil and criminal penalties for more egregious
or harmful conduct. ey therefore of‌fer broad scope for a regulatory
solution that incorporates a pyramid of enforcement measures; one
which can be tailored to address both the private and the broader public
harms created by untrammelled public place surveillance.
VII. A Suggested Way Forward
e f‌lexibility inherent in data protection regimes suggests that they of‌fer
the best starting point for regulation of surveillance, provided that they
include independent regulators who have a range of softer and harder
enforcement powers at their disposal and who are both able, and prepared
to make use of, their more coercive powers in those instances where the
softer measures have failed to elicit compliance. As noted by Ayers and
Braithwaite:
224
Paterson, Regulating Surveillance
[T]he greater the heights of tough enforcement to which the agency can
escalate (at the apex of its enforcement pyramid), the more ef‌fective the agency
will be at securing compliance and the less likely that it will have to resort to
tough enforcement. Regulatory agencies will be able to speak more softly when
they are perceived as carrying big sticks.137
It is also important to f‌ind means of addressing the weaknesses identif‌ied
above, and especially the issue of PII. As noted above, whether or not
information qualif‌ies as PII provides the touchstone for the application
of an entire set of FIPs, including limitations on collection, use and
disclosure, security requirements and obligations to provide rights of
access and amendment. eir wording and interpretation therefore
remain a matter of continuing controversy.
A prime example is the decision of the United Kingdom Court
of Appeal in Durant v Financial Services Authority,138 in which the
expression “personal data” in the Data Protection Act139 was interpreted as
requiring an assessment of relevance or proximity to an individual. is,
in turn, required assessment of whether the information is “biographical
in a signif‌icant sense, that is, going beyond the recording of the putative
data subject’s involvement in a matter or an event that has no personal
connotations”;140 and whether it has “the putative data subject as its focus
rather than some other person with whom he may have been involved or
some transaction or event in which he may have f‌igured or have had an
interest”.141
is test has been legitimately criticised on the basis that it eliminates
the key obligations imposed under the Data Protection Act, including
“fair processing, data security and no unreasonable data retention” as well
as the rights of persons whose images are collected to control how they
137. Ibid at 6.
138. [2003] EWCA Civ 1746 [Durant].
139. Data Protection Act 1988 (UK), c 29.
140. Durant, supra note 138 at para 28.
141. Ibid. See further Lilian Edwards, “Taking the ‘Personal’ Out of Personal
Data: Durant v FSA and its Impact on the Legal Regulation of CCTV”
(2004) 1:2 Script-ed 346.
225
(2018) 4 CJCCL
are processed.142 However, it is arguable that the test made sense in the
context of the specif‌ic situation in which the applicant was requesting
access to all documents in which he was featured and that the preferable
way forward is to incorporate dif‌ferent tests based on the specif‌ic practices
that are in issue and their potential privacy implications for information
subjects.
Schwartz and Solove take a similar approach in arguing for
reconceptualization of PII tests to resolve the reidentif‌ication issues
identif‌ied by Ohm. ey propose the development of a new model termed
“PII 2.0”, which provides dif‌ferent regulatory regimes for information
about identif‌ied and identif‌iable individuals.143 ey suggest that, while
all of the FIPs should apply to information about identif‌ied individuals,
only some should apply to identif‌iable data.144 ey further suggest
that “[f]ull notice, access, and correction rights should not be granted
to an af‌fected individual simply because identif‌iable data about her are
processed” and also that “limits on information use, data minimalization,
and restrictions on information disclosure should not be applied across
the board to identif‌iable information”.145
is suggests a useful way forward, although the distinction between
identif‌ied and identif‌iable is a blunt one and fails to answer the question:
identif‌ied by whom and in what circumstances? What is important at the
end of the day is whether or not data collected is handled in ways that
pose an actual or potential threat to the data subject.
Take, for example, the hypothetical scenario of a marine researcher
who incidentally captures images of Angelina Jolie on a boat when
collecting images of wave movements from a f‌ixed camera. It is arguable
that the researcher should not be subject to collection limitation, access and
amendment principles, although they should be required either to redact
the images or to hold them securely. On the other hand, the researcher
142. Lilian Edwards, “Switching Of‌f the Surveillance Society? Legal Regulation
of CCTV in the United Kingdom” in Nout, de Vries & Prins, supra note
90 at 101.
143. Schwartz & Solove, supra note 76.
144. Ibid.
145. Ibid at 1880.
226
Paterson, Regulating Surveillance
should be subject to a broader range of principles if he or she wishes to use
the images or disclose them to others. e key objective of this approach
is to ensure that data that can potentially identify an individual receives
protection only where necessary to protect the individual’s privacy and
also to provide an incentive to organisations to deidentify or destroy such
data where it is not collected for the purpose of collecting information
about the individual. It is important to remember that the appropriate
disposal of personal data once it is no longer required for the purposes
for which it was collected is fundamental for the protection of privacy,
although it strikes at the underlying rationale of the Big Data movement.
Departure from the current “one size f‌its all” approach may also
provide a useful way forward in dealing with the problem that the use of
privacy invasive technology is no longer the sole domain of governments
and business organisations. FIP-based regimes are currently ill-suited to
the regulation of the non-business activities of individuals. However,
there may be scope for the development of a more simplif‌ied set of
principles that focus on privacy invasive uses and disclosures of personal
information.
A second major issue identif‌ied by Cate is that most FIP-based
regimes rely heavily on notice and content requirements, resulting in
“an avalanche of notice and consent requirements” that are generally
ignored.146 He has therefore proposed an alternative set of rules based
on principles of harm prevention, benef‌it maximisation and consistent
protection.147 Building on this approach, Cate, Cullen and Schonberg
have proposed a revised set of OECD Guidelines, which have been
informed by a working group organised by the Oxford Internet Institute
on behalf of Microsoft.148
Cate’s approach is to try and shift the emphasis away from control
by data subjects and onto accountability on the part of the organisation
146. Cate, “Fair Information Practice Principles”, supra note 80 at 361.
147. Ibid at 370–74.
148. Fred H Cate, Peter Cullen & Victor Mayer-Schönberger, “Data
Protection Principles for the 21st Century: Revising the 1980 OECD
Guidelines” Oxford Internet Institute (March 2014), online: OII .oii.
ox.ac.uk/news/?id=1013>.
227
(2018) 4 CJCCL
involved in handling personal data. It also, however, reduces existing
limitations on the secondary uses of data and imposes regulation only to
the extent that information handling is clearly harmful to information
subjects. In that sense, it shifts the balance in favour of Big Data while
retaining a safety net to catch activities that are clearly harmful and
disproportionate in their privacy invasiveness.
is development has been criticised by Cavoukian, Dix and El
Eman149 on the basis that diluting consent requirements weakens privacy
protection. ey acknowledge the modern reality that individuals are not
only confused by lengthy privacy notices but often also unaware of the
data collection taking place or that they may be completely absent from
the transaction which requires the processing of their data. However,
they point out that depriving individuals of control over the purposes
for which their personal data is collected and used is not benef‌icial to
them; “it makes them vulnerable to the judgement exercised by others —
corporate and bureaucratic systems that already af‌fect our lives, and over
which we have little or no control”.150 ey also highlight that “greater
reliance on law and regulation alone to police “after-the-fact” abuses of
personal data is a misguided strategy; and … that there is little consensus
on def‌ining “harms” or ways in which to measure or mitigate privacy
harms”.151
Cavoukian and her co-authors suggest instead “a more robust user-
centric “Transparency and Control” model”152 based on seven principles
of “Privacy by Design. eir concept of “Privacy by Design” is based on
the view that “[p]rivacy and data protection should be incorporated into
networked data systems and technologies by default, and become integral
to organizational priorities, project objectives, design processes, and
149. Canada, Information and Privacy Commissioner, e Unintended
Consequences of Privacy Paternalism, by Ann Cavoukian, Alexander Dix &
Khaled El Emam (Toronto: 5 March 2014), online: University of Toronto
.
150. Ibid at 4.
151. Ibid at 2.
152. Ibid at 13.
228
Paterson, Regulating Surveillance
planning operations”.153 “Privacy by Design” has the advantage that it
imposes responsibility on those involved in the collection and processing
of data to build in measures to protect the privacy of individuals and is
embodied as a requirement in the General Data Protection Regulation,
which will commence operation in the European Union in May of
2018.154 However, there is still a lack of clarity as what precisely this
concept requires, and there are dif‌f‌iculties in implementing it in a context
where it is inherently dif‌f‌icult to reconcile privacy interests with the
interests of the Big Data movement.
A dif‌ferent approach based on the so-called “Right to be Forgotten
involves conferring on individuals specif‌ic rights to require the erasure
of their personal information.155 is has some potential to restore some
measure of control to the individual and is embodied as a requirement
in the General Data Protection Regulation.156 However, a key shortcoming
is that it relies on the individual for enforcement. is is problematic in
a context where individuals are unaware of what information has been
collected about them and how it is being used.
It is suggested that a dif‌ferent approach which may hold promise, is to
improve the transparency not just of the dif‌ferent aspects of information
handling but also of the outcomes of that process. e process of
modulation described by Cohen157 is harmful, at least in part, because
153. Ibid at 15.
154. EC, Data Protection Regulation (EC) 2016/679 of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data
and on the free movement of such data, and repealing Directive 95/46/EC
(General Data Protection Regulation), [2016] OJ, L 119/1 [General Data
Protection Regulation]. It is required under art 25 in respect of potentially
high-risk processing activities”.
155. For a useful discussion of the advantages of such a right, see Viktor
Mayer-Schönberger, Delete: e Virtue of Forgetting in the Digital Age
(Princeton: Princeton University Press, 2009).
156. General Data Protection Regulation, supra note 154. Article 17 confers a
right of erasure in specif‌ic circumstances, including where the data is no
longer necessary in relation to the purposes for which it was collected or
otherwise processed.
157. Cohen, “What Privacy is For”, supra note 30.
229
(2018) 4 CJCCL
of its normalisation and the fact that individuals are unaware of the
extent to which they are being manipulated. e provision of additional
information at that stage (for example, informing individuals who are the
subject of targeted advertising of why it is that they are receiving specif‌ic
advertisements) might go some way towards alleviating these issues.
Providing increased transparency creates practical dif‌f‌iculties that are
magnif‌ied in the context of activities based on Big Data Analytics, due
to the complexities associated with making transparent the algorithms
that are used to inform those activities. However, the fact that this task
is dif‌f‌icult does not mean that it should not be attempted given the
seriousness of the potential harm involved. Improving the transparency
of the end products of surveillance arguably has the potential to produce
more informed decision-making on the part of individuals than notices
given at the point of information collection.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT