Canada's privacy commish: Video surveillance a "threat" to privacy

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   * Date: Thu, 04 Oct 2001 18:07:44 -0400
   * To: politech@politechbot.com
   * Subject: FC: Canada's privacy commish: Video surveillance a "threat"
     to privacy
   * From: Declan McCullagh <declan@well.com>
   * Cc: ahayden@privcom.gc.ca

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Date: Thu, 4 Oct 2001 17:19:55 -0400
From: Robert Guerra <rguerra@yahoo.com>
Subject: Privacy Commissioner releases finding on video surveillance...

This decision just came out..thought you'd be interested..

regards,

Robert

Privacy Commissioner releases finding on video surveillance by RCMP in Kelowna

links:

http://www.privcom.gc.ca/index_e.asp
http://www.privcom.gc.ca/media/nr-c/02_05_b_011004_e.asp
http://www.privcom.gc.ca/media/nr-c/02_05_b_011004_e.pdf

Ottawa, October 4, 2001 - The Privacy Commissioner of Canada, George
Radwanski, today released the following letter of finding to David
Loukidelis, Information and Privacy Commissioner of British Columbia,
following an investigation of video surveillance activities by the Royal
Canadian Mounted Police (RCMP) in Kelowna, B.C.

This letter constitutes my findings with regard to your Privacy Act
complaint. In a letter dated June 25, 2001, you complained regarding the
actual and the proposed installation of Royal Canadian Mounted Police
surveillance cameras in the downtown core of the City of Kelowna.

You requested that I investigate the lawfulness of this surveillance under
the Privacy Act and its conformity with the privacy rights of Canadians.

The questions you have raised in your complaint are of national importance.
There appears to be a rapidly growing interest in recourse to video
surveillance cameras among municipal police forces across Canada. The
privacy issues involved are of the greatest seriousness and have already
sparked many inquiries to my Office from the public and the media.

The activities of municipal police forces do not normally fall within my
jurisdiction as federal Privacy Commissioner. It is only because the
federal RCMP happens to serve as the municipal police force in Kelowna that
I do indeed, in this particular instance, have jurisdiction. Nevertheless,
because the issue of video surveillance has vitally important implications
for the privacy rights of all Canadians, it is my hope that my findings in
this instance may also be more broadly helpful to municipal and law
enforcement authorities, and to public opinion.

We established during our investigation that on February 22, 2001,
following consultation with City of Kelowna officials and downtown business
representatives, the RCMP installed one camera in the area of the Bennett
Clock on Queensway Avenue in Kelowna. The monitored area is signed, "This
area of the City of Kelowna may be monitored by video surveillance for law
enforcement purposes. For further information contact Kelowna RCMP (250)
762-3300. Information collected in accordance with the Federal Privacy Act
". There are 11 signs posted in the area under surveillance.

We also established that at least five other locations have been selected
for installation of surveillance cameras as soon as funds become available,
as part of a plan to eventually provide total coverage of all downtown
streets and avenues in Kelowna.

While the camera already installed was purchased with funds provided by the
City and the Downtown Kelowna Association, it is operated and maintained
solely by the RCMP. At the time of the complaint, the camera recorded video
only on a continuous basis, 24 hours a day, seven days a week. The
videotapes were changed daily and retained for a six-month period unless
used for an administrative purpose, in which case any tape so used is to be
retained for at least two years. The City of Kelowna hired four watch
commander assistants to work for the RCMP Detachment and monitor the
cameras and perform other duties for the RCMP. These assistants recorded
the date and times the videotapes were changed as well as unusual
happenings, if observed. There is no review made of the tapes after they
are recorded unless there is a need to do so, for example after an incident
is subsequently reported to police.

Personal information is defined in the Privacy Act as any "information
about an identifiable individual that is recorded in any form". An
individual caught within the visual range of a video surveillance camera
can, in theory, be identified. The captured image reveals information about
the individual (such as the individual's whereabouts and behaviour). When
the picture is recorded, there is a collection of personal information
within the meaning of the Act.

Section 4 of the Privacy Act states that "no personal information shall be
collected by a government institution unless it relates directly to an
operating program or activity of the institution". It is a tenet of the Act
that an institution can collect only the minimum amount of personal
information necessary for the intended purpose. There must be a
demonstrable need for each piece of personal information collected in order
to carry out the program or activity.

There is no doubt that preventing or deterring crime can be regarded as an
operating program or activity of the RCMP in its capacity as Kelowna's
police force. But even setting aside for the moment the serious questions
that exist about the deterrent effectiveness of video surveillance in
public places, it does not follow that monitoring and recording the
activities of vast numbers of law-abiding citizens as they go about their
day-to-day lives is a legitimate part of any such operating program or
activity.

This type of wholesale monitoring or recording certainly runs afoul of the
requirement to collect only the minimum amount of personal information
required for the intended purpose. Moreover, the broad mandate to prevent
or deter crime clearly does not give police authorities unlimited power to
violate the rights of Canadians. They cannot, for instance, compile
detailed dossiers on citizens "just in case." They cannot force people at
random to identify themselves on the street. They cannot enter and search
homes at will, without proper authorization.

It is equally clear, in my view, that police forces cannot invoke crime
prevention or deterrence to justify monitoring and recording on film the
activities of large numbers of the general public.

In the normal course of law enforcement, cause (reasonable grounds) is a
basic pre-condition for the collection and retention of personal
information. In the case of video surveillance, information is recorded
regardless of the existence of specific cause. By recording continuously,
as opposed to recording only selective incidents related to law enforcement
activities, the RCMP was unnecessarily collecting information on thousands
of innocent citizens engaged in activities irrelevant to the mandate of the
RCMP.

I therefore find the video surveillance in Kelowna that was the subject of
this complaint to be in contravention of the Privacy Act. The complaint is
well founded.

I note in passing that in finding this sort of video surveillance to be
unacceptable from the point of view of privacy rights, my position is
consistent with that of the Québec Information and Privacy Commissioner who
had investigated a similar surveillance activity in the City of Sherbrooke
in 1992. The Québec Commissioner concluded that the City of Sherbrooke
contravened the Québec privacy legislation by "systematically collecting
nominative information on video tape when it was not necessary for the
carrying out of its duties or the implementation of a program under its
management".

I also note that I believe my reasoning to be consistent with that of the
Supreme Court of Canada in its decision in the 1990 case of R. v. Wong,
wherein the Court stated: "Što permit unrestricted video surveillance by
agents of the state would seriously diminish the degree of privacy we can
reasonably expect to enjoy in a free societyŠwe must always be alert to the
fact that modern methods of electronic surveillance have the potential, if
uncontrolled, to annihilate privacy."

In a letter dated September 10, 2001, Commissioner Zaccardelli of the RCMP
has informed me that continuous video recording of the surveillance camera
was terminated on August 28, although he explicitly alludes to the
possibility that the Kelowna RCMP Detachment may decide to resume
continuous random videotaping at some future date. He states that at
present the area under surveillance will only be videotaped if a violation
of the law is detected.

This puts the present use of the surveillance camera into compliance with
the letter of the Privacy Act, which applies only to information "that is
recorded in any form." Nevertheless, for reasons I will detail below, I am
not satisfied that a continuation of the video camera surveillance without
continuous recording is sufficiently respectful of the spirit of the
privacy law nor of the privacy rights of Canadians. In my view, only
outright removal of the camera would meet that standard.

I will explain my reasoning in the course of addressing the broader privacy
issues raised by the growing inclination to resort to video surveillance in
public places. Because of the enormous importance of these issues to the
fundamental privacy rights of all Canadians, I believe that it is not only
appropriate but necessary for me to take this occasion to do so.

Let me begin by saying that I am well aware that, in the wake of the tragic
events of September 11, there is probably some considerable public
perception that a proliferation of video surveillance cameras in our
streets and parks would somehow make us safer from terrorist attacks.

But even if New York City had been endowed with so many surveillance
cameras as to turn the whole city into a giant TV studio, this would have
done nothing to prevent the terrorists from crashing aircraft into the
World Trade Center. In fact, it is difficult in general to believe that
massive-scale video monitoring of streets and other general-use public
places could be an effective or practical defence against terrorism.

Indeed, the growing enthusiasm for video surveillance cameras to date has
focused not on anti-terrorism applications, but rather on their purported
effectiveness against more conventional crimes. It is in this context,
which gave rise to the complaint at hand, that I wish to examine the merits
of such surveillance.

I have often stated my belief that privacy will be the defining issue of
this new decade. Quite apart from the new pressures the current situation
is likely to create, this is because a host of emerging technological
challenges to privacy will force us to make choices that will determine
what kind of Canadian society we will have not only for ourselves, but for
our children and grandchildren. And if privacy at large will be the
defining issue, few privacy issues will do more to shape that definition
than the choices we make about video surveillance.

If we cannot walk or drive down a street without being systematically
monitored by the cameras of the state, our lives and our society will be
irretrievably altered. The psychological impact of having to live with a
sense of constantly being observed must surely be enormous, indeed
incalculable. We will have to adapt, and adapt we undoubtedly will. But
something profoundly precious-our right to feel anonymous and private as we
go about our day-to-day lives-will have been lost forever.

The Orwellian idea that "Big Brother is watching" will have become no
longer apocryphal, but a literal and permanent daily reality.

That is a choice, and a sacrifice, that we are being invited to make in the
name of rendering ourselves safer from crime. But there are several things
that I consider to be profoundly wrong with that invitation.

First, there is no persuasive evidence that video surveillance of public
places is, in fact, an effective deterrent to crime. It may be that it
reduces street crime in locations where cameras are present, but only by
displacing it to locations where they are not. Such a circumstance would
mean that effective deterrence could be achieved only by having police
surveillance cameras everywhere, even in the residential areas outside our
homes.

But even then, full deterrence seems unlikely. Setting aside the conceptual
improbability of achieving a truly crime-free society through the mere
dispersal of cameras, the empirical evidence does not support it. In
Britain, which now has more than one million surveillance cameras, violent
crime has actually increased.

This is not altogether surprising. In this era of public sector
cost-cutting, the use of video cameras tends to replace or reduce, rather
than supplement, the presence of police officers on the streets. While a
police officer who is physically present can intervene to stop a crime in
progress, rescue the victim and arrest the suspect, it is far less clear
what can be accomplished by an officer watching on a screen several miles
away. In the case of the most serious crimes, the filmed record might
assist in eventually apprehending and convicting the offender. But this
does little to prevent the crime or spare the intended victim, particularly
since most offenders don't carefully weigh the prospects of being caught.

The second shortcoming of the invitation to sacrifice our privacy to
surveillance cameras is that the need to make so grave a sacrifice has not
been demonstrated. Crime rates in Canada have been declining, not rising.

The third, and perhaps most important, objection is this: Even if video
surveillance were in fact an effective deterrent to crime, the means by
which we choose to combat crime need to be weighed against other important
social values and goals.

In police states, there may be little or no crime, but there is also little
or no freedom. Here in Canada, we temper law enforcement activities to
accord with the kind of society we choose to be. We do not permit egregious
violations of human rights, however effective they might be in deterring or
solving crimes.

We make these choices because, while wanting a safe society, we recognize
that there is more to safety and a high quality of life than merely the
absence of crime. This same perspective needs, in my view, to be brought to
the issue of surveillance cameras in our streets and public places. How
great a price, in terms of our fundamental right to privacy, are we really
prepared to pay?

I am aware of the argument that there is, in any event, no reasonable
expectation of privacy in a public place. Certainly, it would not be
reasonable to expect privacy where there are signs posted warning that we
are under video surveillance.

But while "reasonable expectation of privacy" is a specific legal term,
what is far more important is the right to privacy. That fundamental human
right cannot be extinguished simply by informing people that it is being
violated.

This is particularly true in the case of public space such as streets.
People may have the choice of refusing to enter a store if there are signs
warning that they are subject to video surveillance. But if there is a
proliferation of surveillance cameras in our public streets, short of
levitating above those cameras, people will have no way of withholding
consent and still getting from place to place.

In my view, there are gradations to the right to privacy. Clearly, we have
a greater right to privacy in our homes than in public places, where we are
inevitably likely to be noticed and observed by those with whom we share
the space. But in those public places, we retain the privacy right of being
"lost in the crowd," of going about our business without being
systematically observed or monitored, particularly by the state.

I share this view with the Supreme Court of Canada, which stated in its
Wong decision: "Šthere is an important difference between the risk that our
activities may be observed by other persons, and the risk that agents of
the state, in the absence of prior authorization, will permanently record
those activities on videotape, a distinction that may in certain
circumstances have constitutional implications. To fail to recognize this
distinction is to blind oneself to the fact that the threat to privacy
inherent in subjecting ourselves to the ordinary observations of others
pales by comparison with the threat to privacy posed by allowing the state
to make permanent electronic records of our words or activities."

Finally, I want to return to the issue of the distinction between video
surveillance and the recording on film of the results of that surveillance.
While the Supreme Court in Wong put great emphasis on the risks inherent in
the creation of a permanent electronic record, particularly in the light of
technological advances since 1990, I believe that video surveillance in
public places can present a serious threat to privacy rights even in the
absence of recording.

The Privacy Act, unlike the more recent Personal Information Protection and
Electronic Documents Act (PIPED) that deals with the private sector, limits
its provisions to personal information "recorded in any form." Therefore,
observing people on the streets through video cameras without routinely
making a recording would comply with the letter of the Privacy Act.
However, I am not satisfied that this would fully meet the spirit of the
law, nor that it would be sufficiently respectful of the privacy rights of
Canadians.

Indeed, I understand that it was precisely the prospect of this sort of
video surveillance that caused the reference to "recorded in any form" to
be omitted from the PIPED Act.

My first concern is that the very presence of video cameras, whether they
are recording at any given moment or not, is what creates the
privacy-destroying sense of being observed. Moreover, whatever assurances
may be given by the public authorities, people have no basis for being
certain at any time that such cameras are in fact not recording. The basic
nature and purpose of a camera is to record; short of having privacy
invigilators in place at all times, there is no way for the public to know
whether or when recording might be taking place.

My second concern is that if a proliferation of video surveillance cameras
in public places is allowed to take place, it is a virtual certainty that
function creep will lead inexorably to the linkage of those cameras with
biometric technology that permits identifying individuals by matching their
facial characteristics with photos that are on record.

Far from being some futuristic fantasy, this is already being attempted in
some U.S. cities, to considerable public consternation. Once sufficient
cameras were in place, there is every reason to believe that this approach
would initially be advanced by some Canadian police force as well, as an
effective way to protect the public from known criminals-as was done in the
U.S. at the stadium during the last Super Bowl Game. From there, it would
only be a short distance to using readily available photo sources for the
general population, such as driver's licence application records, to be
able to identify anyone in a monitored public place at any time, or to
monitor the whereabouts and activities of any given individual as he or she
moved from place to place.

I need hardly elaborate on the effect this would have on privacy rights, or
the kind of transformation it would work on Canadian society. Such
surveillance/identification would be as deeply wrong as it is unnecessary.
Just because something is technologically possible, that does not mean it
is socially justifiable or acceptable. But the only effective way to
prevent it is to prevent the proliferation of surveillance cameras in the
first place.

None of this is to say that there may not be some specific circumstances
where it is appropriate for police forces to use surveillance cameras in
public places to maintain safety and order.

For instance, video surveillance, without continuous recording, appears
justifiable at particularly sensitive locations that are so susceptible to
some form of terrorist or other attack as to require intensive security
measures.

Similarly, it is conceivable that in some particular place there might be
such an exceptional threat to public safety, combined with other
circumstances that made conventional policing unfeasible, that installing
video surveillance would be justifiable.

There can also be special circumstances where, to investigate a particular
crime, it might be appropriate for police to temporarily establish a video
camera in a given location and record images of everyone who frequents that
location. For example, if a series of sexual assaults occurred in a given
park, police might want to tape the people using that park and show the
tapes to the victims to see if they could identify the attackers. Likewise,
there are circumstances where police video surveillance of specific
individuals suspected of a given offence is an acceptable investigative
technique.

But all these circumstances differ fundamentally from accepting widespread
video surveillance of the general population. From the perspective of
privacy rights, video surveillance by the state can only be justified when
it is demonstrable that keeping the peace could not be accomplished by any
other less privacy-invasive means. Solid evidence is required in each case
to justify the use of generalized video surveillance rather than other
traditional means of law enforcement. Convenience, efficiency or cost
savings should never qualify as such evidence. Video surveillance of
Canadians by the state should be the very rare exception, not the norm.

I have gone to considerable lengths in addressing the broader issues raised
by this complaint, because of my profound belief that the choices we
Canadians make about video surveillance by agents of the state will go a
long way towards determining what kind of society we shape for ourselves.

Privacy is a fundamental human right, recognized as such by the United
Nations. The level and quality of privacy in our country risks being struck
a crippling, irreparable blow if we allow ourselves to become subjected to
constant, unrelenting surveillance and observation through the lens of
proliferating video cameras controlled by the police or any other agents of
the state.

Although most police forces are outside the purview of the federal Privacy
Act, and although the Privacy Act itself does not provide sufficient
protection against video surveillance without continuous recording, it is
very much my hope that these observations may be of some help in
contributing to an informed public opinion, which in the final analysis is
always our strongest defence against ill-considered violations of our rights.

This concludes my investigation of your complaint. The Royal Canadian
Mounted Police has been informed of the results. If you have any questions,
please do not hesitate to contact me at 1-800-282-1376.

Yours sincerely,

George Radwanski
Privacy Commissioner of Canada

- 30 -

For more information, contact:

Anne-Marie Hayden
Media Relations
Office of the Privacy Commissioner of Canada
Tel.: (613) 995-0103
ahayden@privcom.gc.ca
www.privcom.gc.ca

The Privacy Commissioner of Canada is an Officer of Parliament and an
advocate of the privacy rights of Canadians with a mandate to investigate
complaints and conduct audits under two federal laws; publish information
about personal information-handling practices in the public and private
sectors; take matters to the Federal Court of Canada; conduct research into
privacy issues; and promote awareness and understanding of privacy issues
by the Canadian public.

Last Updated: 10/4/2001 5:

--
Progress, far from consisting in change, depends on retentiveness.
Those who cannot remember the past are condemned to repeat it.
"The Life of Reason," 1906, George Santayana (1863-1952)
--
Robert Guerra <rguerra@yahoo.com>
PGP Keys <http://pgp.greatvideo.com/keys/rguerra/>

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