Surveillance: Citizens and the State - Constitution Committee Contents



Memorandum by the Surveillance Studies Network (Dr Kirstie Ball, Senior Lecturer in Organisation Studies at the Open University Business School, UK, Professor Stephen Graham, Professor of Human Geography, University of Durham, UK, Professor David Lyon, Professor of Sociology and Director of the Surveillance Project, Queens University, Canada, Dr David Murakami Wood, Lecturer in Town Planning, Newcastle University, UK, and Professor Clive Norris, Professor of Sociology and Deputy Director of the Centre for Criminological Research, University of Sheffield, UK)

  The Surveillance Studies Network is a charitable company, registered with the UK Charities Commission, dedicated to public education on the subject of surveillance.

EXECUTIVE SUMMARY

The Surveillance Studies Network welcomes this inquiry by the House of Lords and the opportunity for further high level debate on the surveillance society that it offers. We make observations in five broad areas that we feel the committee should consider:

    (i) Current Surveillance Practices, especially those which are of most concern;

    (ii) Reasons for the increasing spread and intensification of surveillance;

    (iii) Relationships between citizen and state; and,

    (iv) Five models for society, including our favoured option of "The Reciprocal Society", which rebuilds trust and introduces assessment of the impact of surveillance technologies and processes.

  We argue that the limitations of Data Protection and Freedom of Information law do not provide adequate protection for citizens in a world of pervasive (real-time, at-a-distance, computerised and automated) surveillance. Further that the nature of citizenship in such a society must be reconsidered and the constitution and law of Britain adjusted to reflect this.

INTRODUCTION

  The Directors of the Surveillance Studies Network welcome the decision of the Committee to hold this inquiry. The details of our arguments may be found in our full revised Report on the Surveillance Society, which we append. We are making a submission separate from the Information Commissioner as there are significant differences of emphasis.

  We outline four broad areas for consideration: current surveillance practices; reasons for the spread and intensification of surveillance; relationships between state and citizens; and, five models for society.

1.  CURRENT SURVEILLANCE PRACTICES

  1.1  Contemporary surveillance, often called the "new surveillance," or "digital surveillance", is characterised by:

    —  pervasiveness—surveillance tends to spread everywhere;

    —  greater intensity—surveillance is able to "dig deeper";

    —  greater speed—surveillance can happen quicker, even in "real time";

    —  action at a distance—surveillance can take place a long way from the person being surveilled;

    —  interconnection—different surveillance systems can be more easily linked, and information shared;

    —  social sorting—surveillance is aimed at categorising, sorting and profiling people based on "risk" or profitability;

    —  automation—surveillance is increasingly driven by computer systems and algorithms analyse collected data;

    —  simulation and Pre-emption—surveillance is tending towards anticipation of possible actions, risks and profits, and in many cases to simulate possibilities and pre-empt events;

    —  data doubles, the emergence of the virtual citizens composed of the information about us within databases, that stand for our real selves in all sort of transactions with the state.

  1.2  The technological forms that characterise "new surveillance" are:

    —  Computer databases, which have added a distinctive dimension in that they are both searchable and remotely accessible. These databases are also increasing in scope, size and functionality.

    —  Digital imaging and sensory technologies, for example digital CCTV and scanning technologies, which allow storage of data, and algorithmic operations to be performed on that data.

    —  Biometrics, technologies that "recognise" individual or characteristic human bodily traits or movements, including facial recognition, iris scanning, movement recognition and so on.

    —  Geolocation, technologies that combine mapping and surveillance to track and control either individuals or patterns of behaviour, for example, satellite monitoring of offenders.

    —  Micro- and Nano- technologies, the decreasing size of sensors to the very small, including microcameras and "smart dust" or "motes".

    —  Mobile technologies, the increasing development of either temporarily-installed, remote-controlled or independently mobile systems, for example miniature Unmanned Aerial Vehicles (UAVs).

  1.3  The characteristics and systems lead to increases both in targeted and mass surveillance.

    —  By targeted surveillance we refer to the surveillance of distinct individuals or groups, for a particular purpose.

    —  By mass surveillance, we refer to the undifferentiated and general surveillance of the population as a whole.

    —  Both of these take place, but the re-emergence of mass surveillance (which had been a key part of the authoritarian regimes of the mid-Twentieth Century) and the much greater use of intensive targeted and pre-emptive surveillance poses particular problems for constitutional rights in democracies like the UK.

2.  REASONS FOR THE SPREAD AND INTENSIFICATION OF SURVEILLANCE

  2.1  Risk. We live in a society obsessed by risk. Risk management techniques dealing with external threats have come a key part of organisational activities. Internal risk assessment procedures are also more common. The "war on terror" has made the "state of emergency" almost normal. We have seen the emergence of a "safety state" obsessed with security and stability, and increasingly favouring the precautionary surveillance of groups, categories and individuals by the state. This can confer personal and social benefits, but at the same time the conception of safety and security has important implications for liberty, privacy and other social values, as well as for innovation and change, which are inherently risky.

  2.2  Militarisation. The obsession with risk is facilitating an increasing interchange between the military and civil realms. Technologies and assessment procedures that were pioneered in armed conflict are now seen on our streets, from "emergency powers" to stop and search, through Automatic Numberplate Recognition (ANPR) and the Geographic Positioning System (GPS) to Unmanned Aerial Vehicles (UAVs).

  2.3  Economics. The security industry is one of the most profitable and fastest growing sectors of the global economy. R&D and promotion of new systems by the industry runs far ahead of the ability of bureaucrats and politicians to understand the systems, how they function separately and together, and particularly their longer-term implications for society and state-citizen relations. Sales pitches follow swiftly after key events like 9/11 or the Soham killings, and "silver bullets" are eagerly promulgated and too readily purchased.

  2.4  Information Society. New generations are growing up information-literate and with new presumptions about their own visibility, privacy and exposure to surveillance. Those with greater access to knowledge resources are realising that it pays to try look after their "data double". This has become critical for life-chances, especially as credit scoring and other forms of database-driven rankings of the worthiness of individuals becomes the basis for the provision of a whole range of services.

3.  RELATIONSHIPS BETWEEN STATE AND CITIZENS

  3.1  There are multiple components to state-citizen relations, including:

    —  trust;

    —  justice;

    —  accountability;

    —  democracy;

    —  security;

    —  privacy;

    —  autonomy; and

    —  liberty.

  3.2  The qualities of these relationships depend on the roles, power and performance of both state and citizens, and all are subject to both abuse and the development of dependencies.

  3.3  Trust. There is clearly a decline of public trust in the state for many reasons. This is not aided by the use of exceptional/extreme arguments for every new security policy. The lesson of history suggests that states can and do fall prey to malign regimes, should we not be wary of creating an infrastructure that would greatly enhance their capacity to inflict harm.

  3.4  What is the right balance? In the context of the deeper understanding of surveillance, talk of balance between "security" and "liberty" is highly misleading. We argue that liberty is an integral component of what makes security for citizens. Without liberty there is no citizenship, and there is only insecurity. Security is not a trump card.

  3.5  Where is the line crossed? There is no one line to cross. Many lines have already been crossed: for example, we are watched by multiple CCTV systems in public places, and the police now have the right to take and retain intimate bodily samples even from those not charged with crimes. However a line crossed does not indicate irreversibility. There is no inevitable technological pathway predetermining how society and citizen-state relations should evolve. Genies can be put back in bottles.

  3.6  Is data simply information? In the information society, citizens are made up of both physical and virtual characteristics. In terms of our relations with the state (and other institutions) we exist as much in databases as on the streets. Data therefore has a more intimate relationship with the physical person. In many ways we are data, and our "data doubles" are us. However the state sees the non-consensual acquisition of our data as its right, and citizens subject to punishment for withholding (eg: National Identity Register; proposed "stop and question" laws). This is archaic, and requires a rethinking of "data" in the constitution and in law.

  3.7  Can the state "opt out" of human rights? There have been threats that the state might "opt out" of international human rights obligations, and roll back long-standing British legal rights. These rights are in most countries constitutional and irrevocable, the foundation of the relationship between state and citizen. Some might be new to Britain, but respect for these rights is what gives the state legitimacy. It is not for the state to decide to revoke them.

  3.8  Crucially, the state should also be concerned about non-citizens. In a world of global flows, and porous borders, the position and treatment of non-citizens is crucial. Intensive and intrusive surveillance of non-citizens is not a sign of a mature society.

4.  FIVE MODELS FOR FUTURE SOCIETY

  4.1  The Status Quo:

    —  We continue to rely on existing institutions and law, with the Data Protection Act (1998) and Freedom of Information Act (2001) and the Regulation of Investigatory Powers Act (2001), amongst others, as the bases.

    —  Codes of Practice and volunteerism predominate. The Information Commissioner is an effective but shackled regulator.

    —  The state is able to produce contingent arguments for exceptions and exemptions from human rights and existing constitutional protections and laws.

    —  Technological advances continue to run ahead of regulatory policy rather than designed with proper accountability and regulation built-in from the outset.

    —  The problem of trust is not addressed.

  4.2  Laissez-Faire:

    —  The state encourages increasing privatisation and the development of a "Personal Information Economy", wherein personal data is a commodity.

    —  State and private sector pays market value of data it wants, but in turn citizen has to pay for access to information.

    —  Levels of "privacy" are set by these market relations and technological capacity. Citizens defend their privacy through Privacy-Enhancing Technologies (PETS), and you get the privacy you can afford within existing unequal market relations.

  4.3  The Security State:

    —  The State of Emergency argument becomes the norm and security trumps all other considerations.

    —  Rights are permanently contingent on national security considerations. "Nothing to Hide, Nothing to Fear" is the motto.

    —  Citizen can obtain what information state feels is relevant and necessary, and the state can share data as it wishes and can change the purposes to which data is used as it wants.

  4.4  The Transparent Society:

    —  The state prioritises information flow, and assumes that everything citizens do is public knowledge or liable to be known by the state and other citizens, but also that everything the state or private companies do is equally available.

    —  Minimal protections are created based on contracts between citizens and citizens and states, allowable in clearly-defined circumstances.

  4.5  The Reciprocal Society:

    —  Create a new basis for information relationships between state and citizen with a comprehensive "Information Act".

    —  Liberty and privacy are considered to be an integral part of national security, not opposed to it, and surveillance and Freedom of Information are considered as reciprocal.

    —  Mandatory Surveillance Impact Assessment (SIA) for new technologies and systems, covering the social effects of the technologies and systems themselves and their interaction with other existing technologies and systems.

    —  Technologies are fitted to policies not vice-versa. Data-sharing is clearly about joined-up government, not "because we can."

    —  Citizens' data is treated as theirs—a kind of digital habeus corpus. States and companies are "custodians" of data not owners. Citizens have the rights to correct data, but custodians are responsible for errors and omissions.

    —  The ICO becomes a serious guardian of information rights and responsibilities, and of all surveillance relationships between state and citizen, and other institutions, with greater resources and strengthened oversight and audit capacities.

  The only model we regard as both acceptable and workable is that of "The Reciprocal Society". If trust between state and citizen is to be rebuilt in a society built increasingly on information and surveillance, then a new constitutional settlement between state and citizens, and mature assessment of technologies and processes in the context of social purpose and effects are essential.

8 June 2007


 
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