State video-surveillance of public spaces

-- By MilanPree - 08 Oct 2020

Jeremy Bentham argues in part III of his Principle of Penal Code that the more people are watched, the better they behave: “The greater number of offences would not be committed, if the delinquents did not hope to remain unknown. Everything which increases the facility of recognizing and finding individuals, adds to the general security. The danger arises from those who (…) can easily conceal their movements from the eye of justice”[1]. Hence, the utilitarian philosopher tries to imagine the architecture of a society of generalized mutual control in which the surveillance of all by all, by influencing the calculations of maximization proper to every "economic man", directs the behavior of individuals towards the general interest.

The development of video-surveillance and behavioral analysis technologies has made it possible to achieve absolute transparency and real-time surveillance of public space, allowing the State to discourage deviant behavior of citizens. However, the authoritarian spectre of Orwell's 1984 appears whenever we evoke such generalized video surveillance systems. Yet strong security endeavors are not the preserve of authoritarian regimes. On the contrary, it is the duty of states to protect and ensure the safety of their population in the best possible way, “the safety of the public being the supreme law of the state”[2]. The purpose of this essay is therefore to question how democratic states could manage to reconcile the use of extensive video-surveillance technologies for security purpose and utmost protection of citizen’s rights and freedom.

I. The conflict between democratic values and greater use of video-surveillance technologies

Bentham’s assumption that more surveillance implies less wrongdoing seems logical: the awareness of being observed considerably increases the fear of being caught, and hence dissuades the act. The use of extensive video-surveillance technologies in the public space could achieve this purpose – if not, it would at least facilitate the work of the police in gathering evidence and identifying suspects. Therefore, I think there are significant opportunities, in terms of public security, to use such technologies on a large scale.

However, the use of such technologies inevitably raises serious societal issues, particularly infringements on the rights and freedoms of citizens. One of the major risks for the democratic exercise is that such an endeavor of transparency could transform the raison d’être of public space from a space of freedom – encouraging the exercise of political rights – to a space of control – leading to their restraint. Such technological surveillance could also distort the essence of polis as a pluralist space for confrontations with otherness, wandering and impromptu encounters, turning citizens into disciplined but inhibited beings. In short, the problem with generalized surveillance is that it inevitably implies a conscious or unconscious change in the behavior of citizens. The problem therefore lies in the very effect sought. Many also denounce the risks inherent to video-surveillance technologies themselves – discriminatory bias, errors in facial recognition, hacking of data, etc.

Section II. Solving this conflict: Why? How?

There is no doubt that the path to more video-surveillance is a highly slippery slope. All the more slippery since we are witnessing in most Western countries an intensification of liberticidal tendencies – freedom seems easily relativized when facing security problems – propelled in particular by the fear of terrorism. More surveillance dictated by fear can only lead to mistakes.

However, I am convinced that a thoughtful use of video-surveillance technologies, dictated, not by fear, but by the genuine desire to build a safer society, and in full knowledge and acknowledgment of the risks that such means entail, could allow democratic states to overcome these risks. Furthermore, because it is the duty of states to ensure the safety of their population in the best possible way, reflecting on the potential benefits and use of such technologies should be just as important. By "ensuring the safety", I am not preaching absolute safety, which would require too high a price from citizens – a price incompatible with individuals' fundamental rights and freedoms. But I am convinced that optimal safety can be achieved.

For optimal safety to be achieved, any decision must be assessed considering its potential cost on political freedoms and democratic values. This is an essential starting point. But this goodwill cannot be sufficient to avoid any drift. The use of new surveillance technologies could only allay fears and benefit modern democratic societies if rigorously framed both by the rule of law and by the design of the technology itself.

With respect to the rule of law framework for these initiatives, order to ensure that the public rights and liberties are not infringed, we could for instance design a system in which video-surveillance could only be used to identify and repress specifically listed crimes and offences. Therefore, only images relating to the listed crimes and offenses, once analyzed by competent agents, could be kept and exploited, and this for periods strictly limited by the rule of law. Such a restriction would prevent any collection of non-criminal or criminal data on individuals and would therefore limit both the invasion of citizens' privacy and their public rights and freedoms. Moreover, in order to prevent any drift, it is essential that any entity in charge of analyzing videos be themselves controlled by an independent powerful body.

In addition to this strict framing by the rule of law, the framing of technologies from their design could also allow states to guard against the dangers that these technologies entail. Indeed, from its conception, any video surveillance system could regulate the use made of it by public authorities: only suspicious sequences could be viewed and recorded, for a limited period of time, etc. “privacy by design" is identified by the European GDPR as an answer to the problems generated by Big Data. Therefore, when designing video-surveillance technologies, states and citizens could ensure a “liberty by design” or “privacy by design”.

[1] J. Bentham, Principle of Penal Law, Chapter XII: To Facilitate The Recognition and The Finding of Individuals, 1843, p. 496.

[2] Samuel West, On the Right to Rebel Against Governors, 1776, in American Political Writing During the Founding Era, vol 1, p. 416.