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Waters, Nigel --- "Street surveillance and privacy" [1996] PrivLawPRpr 32; (1996) 3(3) Privacy Law & Policy Reporter 48

Street surveillance and privacy

Nigel Waters

There was of course no way of knowing whether you were being watched at any given moment...You had to live -- did live, from habit that became instinct -- in the assumption that every sound you made was overheard and, except in darkness, every movement scrutinised. George Orwell, Nineteen Eighty Four, Penguin Books, 1954, p 6

Hanging out on the street corner with a few friends is of course an age-old, and usually innocent custom. Nowadays it may mean sharing the experience with some uninvited guests. Public places in towns and cities around the world are increasingly subject to video surveillance, usually by police, local authorities and Chambers of Commerce (in some cases co-operatively). The expectation appears to be that surveillance will aid in reducing crime.

Street camera surveillance is only one part of an increasing trend toward video surveillance which is becoming a high profile issue. Video surveillance is also being introduced in the workplace (to detect fraud, use of illegal substances); to monitor compensation claimants; in privately managed public spaces such as malls, sports stadiums and casinos; in taxis; and outside banking outlets.

Privacy regulators routinely receive inquiries about camera surveillance. The public is expressing its concern about street surveillance at a time when they are undergoing a barrage of technological intrusions into their personal affairs. These include certain applications of smart cards, data matching and telephone calling number display. The possibilities for misuse of information collected by these means are worrying.

There is little that most privacy regulators can do to meet these concerns. Video generally does not fall under the jurisdiction of privacy laws either because the tapes fall outside the definition of personal information, or because the laws do not apply to likely users. Most inquiries can only be handled with advice and non-binding guidelines under the general ombudsman or watchdog function of regulators and of course, by encouraging debate in forums such as this.

Street surveillance is as much a civil liberties issue as it is a privacy issue. The civil liberties concerns are closely related to prized community values, including freedom of assembly and movement. Most people have an instinctive aversion to being watched. The chilling effect of surveillance is difficult to quantify, but is clearly recognised by the public.

Serious thought needs to be given to the real value of street surveillance. Its possible effectiveness for crime prevention should be more clearly articulated and weighed against the costs to individual privacy and freedom before debating the secondary issue of regulation and safeguards. In other words, the first questions to be answered are whether and why, not how.

Street surveillance in Australia

Video surveillance is now being undertaken in a number of outdoor commercial centres around Australia.

Cameras were installed in 1984 in the Queen Street mall area in Brisbane. The Gold Coast also has cameras with a TV screen in a shop front so that people can see what is being monitored by the street cameras.

In Sydney, the NSW police and the Local Government Association have identified areas where there is a high incidence of crime and/or businesses open 24 hours. These are typically areas with large volumes of pedestrians.

Cameras were installed in the George Street cinema complex area in May 1995, initially for a three month trial, but have remained in operation in the hope of gaining more comprehensive statistics. There are also cameras in a number of commercial centres such as Cabramatta, Campbelltown and Willoughby.

In Perth there are currently between 70-90 cameras. In Adelaide there are a number of cameras, mainly in the Rundle Street mall area. Victoria has recently completed a camera trial at the Albert Park Grand Prix venue and in the King Street nightclub district. Police experienced a number of difficulties with contracting out monitoring to a private security company, but they still intend to increase the number of cameras. In the ACT plans have been put forward for cameras in the Civic commercial area. There are proposals for cameras in Alice Springs but this is being held back because of financial considerations.

Despite the number of camera trials that are taking place in Australia, no figures have been released to the public as to the effectiveness of street surveillance. Anecdotal evidence would suggest that cameras have picked up a number of petty crimes such as public drunkenness and parking infringements but not much serious crime.

Australian regulatory framework

There are currently no laws in Australia regulating video surveillance of public places. To many people's surprise, strict State listening devices laws apply only to the sound track of video tapes, but not the pictures. The common law of trespass, nuisance and defamation provides negligible protection in only very limited circumstances, generally restricted to private property, and/or particular end uses of video material.

The NSW Privacy Committee is working with NSW police and local councils in developing non-statutory guidelines for street surveillance, drawing on the experience of camera trials. The content of these guidelines is not yet available as they are currently with the Police Minister for consideration. The head of the NSW Privacy Committee has spoken out strongly in the media questioning the value of street surveillance compared to the costs to privacy and civil liberties.

The ACT is currently investigating the issue of street surveillance through a Legislative Assembly Standing Committee on Legal Affairs. Submissions are being sought from all interest groups. The Committee has invited submissions and is examining the value of cameras in crime prevention and whether it is worthwhile installing the cameras before the secondary issue of developing guidelines.

Other states are still trialling the cameras and have not produced publicly available guidelines.

The Federal Privacy Act 1988 is the only information privacy law in Australia with legally binding rules. It regulates the handling of personal information by Commonwealth government agencies and all users of consumer credit information and Tax File Numbers. It does not cover video surveillance. The Australian Privacy Commissioner receives inquiries relating to surveillance but can only comment or advise in a watchdog or ombudsman capacity. He cannot enforce procedures or practices in this area of activity.

The Australian Commissioner has issued non-binding Guidelines on Covert Optical Surveillance in Commonwealth Administration (see the Federal Privacy Handbook). The difference between covert surveillance and most street surveillance is the issue of notice. It is assumed that to maximise the deterrent effect street surveillance schemes will normally include notices to the effect that the surveillance is being carried out, at what times, in what range and by whom. If there are no, or inadequate, notices, then such schemes are in effect covert. In the introduction to his Guidelines the Privacy Commissioner states that `Covert surveillance is an activity which intrudes into the privacy of individuals in an extreme way.' The guidelines take account of the privacy interests of those not involved in suspect activities who may incidentally be caught in the surveillance. This is a major privacy concern and it is one that is shared and magnified by street surveillance.

Street video surveillance in NZ and the UK

I understand that in NZ, closed-circuit television for crime prevention was installed in Auckland in January 1995, and in Christchurch in late 1995. These were police initiatives and the schemes are operated in conjunction with city councils and local businesses. National guidelines were developed in mid 1995 for the installation and operation of these cameras.

In Britain the use of closed-circuit television in public places has grown rapidly since 1993. There are now over 200,000 cameras in place. A survey conducted by the South Bank University showed that 82 per cent of towns had a CCTV system in a public place and these were monitored either by local authorities (61 per cent), police (24 per cent), or partnerships of the two (15 per cent) -- 61 per cent of these schemes operated under a code of practice with others in the process of developing a code.

Law enforcement justification for street cameras

It has been argued that street surveillance is required to combat crime, particularly in light of cuts to regular police patrols and services. There are three potential objectives for the use of cameras for law enforcement:

Proposals for camera surveillance for law enforcement should have one or more of these key objectives clearly identified.

If cameras are in place to deter crime then there need to be prominent signs or other publicity to the effect that they are in place. There has been no evidence published in Australia or the UK to show that awareness of surveillance cameras has had an overall deterrent effect. It has been argued that advertised video surveillance simply displaces crime, for example from commercial areas to nearby residential areas. Minor crime or vandalism may be reduced in the areas subject to surveillance but at the costs of increases in other areas. Regular patrols, improved lighting and physical design changes are measures that may better deal with the whole range of problems.

If the objective of street surveillance is to stop crime then the camera needs to be monitored constantly. The police officer or contractor monitoring the camera has to be able to report the crime and have someone on the scene to intervene within a very short space of time. Few, if any, existing schemes appear to be able to offer this level of response, which is likely to be prohibitively expensive. It is arguable that police resources may be better mobilised to stop crime through conventional means. One of the problems identified in the Melbourne trial was the ineffectiveness of communication between a contractor monitoring the camera and police.

Video recordings can be used retrospectively to identify suspects. In the UK, a shopping centre recording was used to identify two young boys who abducted and later murdered a toddler. It is doubtful if many older people intent on serious crime would knowingly incriminate themselves on tape. The camera trial in the cinema area of Sydney has apparently so far shown that evidence on video tape examined after the event is rarely definitive. People may obscure the scene; the crime may be quick and go unnoticed; and if no one is monitoring the camera when the crime occurs it may not be possible to subsequently zoom in to pick out number plates or faces.

Social effects of surveillance

Cameras are not discriminating in who and what they monitor. The video tape will record the movements of everyday life without regard to whether a crime is being or is likely to be committed. Everyone coming into view is monitored with no grounds for suspicion. The camera cannot be made to simply record particular incidents or serious crimes. Cameras record at random -- shoppers, alcoholics, lovers and children at play. Everyone suffers the infringement of their privacy and of the right to go about their daily lives free from surveillance.

There is also an important equity issue. Marginalised and socially disadvantaged groups who already receive disproportionate attention from the criminal justice system are more likely to come to notice, standing out through unusual or stereotyped appearance or behaviour. A recent investigative television report in Australia showed cameras being used in Brisbane to identify Aboriginal boys involved in skirmishes and vandalism.

The psychological effect of surveillance on individuals and communities, while unmeasurable, may be significant. A 1995 conference on surveillance at Wollongong University, Surveillance: experiences, analysis, responses, identified the following social risks:

Surveillance may create a `thin end of the wedge' feeling in the population, where people are subject to the chilling prospect of an Orwellian big brother style future.

The public may feel absolved of social responsibility by creating a `them versus us' mentality.

People may see crime as a police job, `they have cameras, so why should I act?'

People feel powerless in the face of technology and government policy.

Secondary uses of surveillance

The temptation exists, once cameras are in place, to use video recordings for new or extended purposes. There is the potential for much wider usage than that initially envisaged by police or the commissioning authorities. Those with a vested interest in surveillance may have their own agendas or those people handling recordings may mis-use the tape for their own commercial or prurient interest. Safeguards are necessary to prevent tapes being used for activities such as: marketing or market research purposes, such as advertising or to identify behavioural trends; commercial entertainment; voyeurism, by directing the camera on particular people or acts or training the cameras on the windows of homes; and blackmail.

As well as these clearly improper purposes, there is the arguably more sinister possibility of function creep -- that is, well intentioned extensions of the original purpose into a broader public order role, and the use of the camera as an instrument for social control. Surveillance could, potentially, be used to keep certain kinds of people, or displaying certain kinds of behaviour, out of certain areas. This problem is compounded by the contracting out of control to private security agencies and businesses who may not have the same agenda as police nor be subject to the same controls. Cameras have been used in the UK to target so called anti-social behaviour rather than crime.

Who defines the surveillance objectives is important. To be able to make an informed judgement, the public need to know where the impetus for surveillance is coming from. According to police sources, most of the surveillance proposals in Australia are being put to police and councils by a single security firm. Installation or operation of cameras by business organisations also raises the issue of the privatisation of public spaces.

Developments in technology impact on the potential uses and mis-uses of video recordings. The future poses a spectre of cameras which can `see' inside buildings, heat sensing cameras that can detect weapons and drugs and `intelligent' cameras that can pick out faces from a database. Once recognition facilities are available, camera surveillance becomes a mainstream information privacy issue (which may at least bring some applications within the scope of existing laws), and opens up the prospect of data matching or profiling. The database technology has already been used in the UK to identify particular football hooligans in crowds at sports stadiums. While these developments bring obvious benefits, the availability of this kind of technology lends urgency to the need for a public policy on surveillance with appropriate controls. Policy should also be subject to regular review in light of rapid technological developments.

A framework for regulation

Surveillance technology has clearly moved faster than policy and the law. Before the number of cameras in place increases further, thought should be given to developing appropriate regulations for the use of cameras in public places. Careful consideration needs to be given to whether and how far CCTV or video technology should be allowed to intrude into peoples lives; and how it affects social balances in the community.

In considering implementation of surveillance, there is a need for effective partnerships between police, business, government and the affected public to develop acceptable guidelines. Forums for public discussion of the issue will allow people to gain some sense of participation and even control although care will be needed to avoid any tyranny of the majority . Importantly key objectives can be identified and alternatives considered which may have lower social costs.

The UK and NZ guidelines provide models for schemes which take some account of privacy concerns.

The UK Local Government Information Unit began work on a model code of practice in 1993 as a response to the rapid development of street surveillance. A Watching Brief: a Code of Practice for CCTV was published in March 1996. This code gives particular consideration to privacy and civil liberties issues. The preface states that [a scheme] will operate in a manner `that is sensitive to the privacy of people living and working in the area'.

The Code of Practice has provisions for transparency and accountability of operations, staff training, recording and processing, access, purpose, storage, public information, disposal of tapes and security procedures. There are special provisions for police access and the use of tapes in evidence, as well as special equity provisions to exclude petty crimes and certain types of behaviour. This is part of a cooperative approach to surveillance between police and local government.

The Code of Practice provides suggested guidelines only, and is not legally enforceable. While the privacy principles in the code are guided by the Data Protection Act 1984 (the UK's information privacy law), the Act will not apply to video tapes which are not indexed by reference to named individuals. This lack of enforceability was clearly demonstrated by the production and sale of a video Caught in the Act, produced by a private entrepreneur who lawfully obtained tape extracts from CCTV system operators or monitors. The video shows people in intimate or embarrassing situations, often in public or semi-public places, who are unaware that they are being videotaped.

As noted earlier, NZ police have produced guidelines for the regulation of street video surveillance. These provide policy pointers for police and are not legally binding. The NZ police bulletin Ten One (no 92) outlines the guidelines in a section entitled, Crime Prevention Cameras (closed-circuit television cameras in public places). The guidelines cover the following issues: camera location; security and retention of tapes; public awareness of cameras; control and operation of cameras including hours of surveillance; auditing; access to information by individual concerned; and use of information collected.

The scheme is subject to internal audit by the police District Commander and external audit by Audit NZ. The NZ Privacy Commissioner may also conduct a review with regard to privacy procedures.

The NZ guidelines contain the assertion that cameras do not infringe upon the public's privacy or civil liberties and that they make the community feel safe and secure. While the detailed safeguards are welcome, I suggest that such bald and unsupported assertions need to be challenged before considering the details of any street surveillance scheme.

Other privacy issues not contained in these codes of practice which should be considered by policy makers are:

Finally, consideration should be given as to how the benefits and costs of street surveillance are to be assessed and reported on a continuing basis.

Conclusion

Video cameras in public places are inherently privacy intrusive, and a major step towards a surveillance society. It is to be hoped that all of the issues identified in this paper are taken into account when authorities are considering any further street video surveillance schemes and reviewing existing schemes. The justification for introducing new schemes needs to stand up to rigorous costs-benefits analysis rather than simply pre-judging the desirability of surveillance as a crime prevention measure. Video may just be a superficially attractive way of being seen to do something about crime and other behavioural issues which require more deep rooted analysis and action. Privacy and civil liberties concerns cannot be dismissed or seen to be satisfied merely by the introduction of guidelines or even legislation. Codes of practice and operating rules need to be a secondary step after the benefits issue is weighed up carefully. Otherwise the early enthusiasm for street video surveillance may develop into its rejection as an unacceptable imposition on valued freedoms.

Nigel Waters, Head, Privacy Branch, Human Rights and Equal Opportunity Commission, Australia.

This paper was presented at the Privacy Issues Forum, Christchurch, NZ, on 13 June 1996.


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