Law in the Internet Society

SECOND DRAFT

State video-surveillance of public spaces

Introduction

Reflecting on surveillance capitalism made me think about states’ video-surveillance of public spaces, and its potential benefits to increase safety and respect for common rules. However, the authoritarian spectrum of Orwell's 1984 appears whenever we evoke generalized state video-surveillance ambitions. But one could argue that a democratic state, concerned with ensuring citizens’ rights and freedoms, and dictated by the desire to build a better society, could legitimately promote absolute transparency of the public space in order to achieve, thanks to the deterrent effect of video-surveillance technologies, greater safety and respect for common rules. In other words, that a thoughtful yet powerful surveillance conducted by a thoughtful state is legitimate. The objective of this essay is to understand why surveillance cannot be an option for democracies.

The rationale for transparency of the public space

The assumption that greater surveillance of the public space, through greater use of video-surveillance technologies, could discourage wrongdoings, seems at first convincing: the awareness of being observed increases the fear of being caught and might dissuade the act. In this quest for greater transparency, video-surveillance technologies could be useful in two ways: detecting and attributing wrongdoings through real-time surveillance; identifying suspects and collecting evidences in a posteriori analysis.

Nevertheless, studies on the effectiveness of video-surveillance technologies are contradictory, some demonstrating their usefulness; some demonstrating their irrelevance, errors and biases. But does it matter? Not really. The question of efficiency is much less relevant than that of the desirability of a perfectly video-surveilled society, that could be achieved by high-performance technologies that might be available one day, and a sufficiently accurate database to correctly identify wrongdoers that might be elaborated over time.

Should we hope for a society in which no one steals, no one throw garbage in the street, no one endanger others by driving too fast? Maybe. But the question that must be asked is: what becomes of a society subject to constant observation of the public space? It ceases to be democratic and shifts towards totalitarianism.

What becomes of a democratic society subject to constant observation of the public space?

The essence of democratic public space is the exercise of rights and freedoms. Any democracy wishing to achieve absolute transparency of the public space, for whatever legitimate end sought (e.g., safety and respect for common rules), annihilates the raison d’Ítre of polis, shifting from a space of freedom, encouraging the exercise of rights and citizens’ participation in political life, to a space of control, leading to their inevitable restraint. Democracy dies when the essence of public space shifts from liberty to control.

Democracy then shifts to autocracy when citizens’ free will and autonomy are undermined. And yet, by seeking to deter deviant behaviors through video-surveillance, the transparency endeavor transforms the public space in a behavioral checkpoint aimed at successfully influencing behaviors. Therefore, transparency shapes the society into a body of disciplined New Men, in a space in which living takes on another meaning.

Living takes on another meaning, and individuals are no more regarded as free autonomous subjects, entitled to rights whose existence cannot be weighed against the need for more security and discipline, but objects to deter and direct in order to achieve a specific goal. All the more so since, through the eye of technology, public space becomes by definition a space for analyzing suspicious moving objects.

Why can’t a better society be achieved through surveillance?

First of all, a surveillance society is a society of pessimism and defeat in the ability of human beings to behave according to the common good and to assimilated moral standards. A surveillance society is a society that loses faith in human nature. Moreover, surveillance will never make a society better in itself, and will never make better men. Reason and education are the only practicable instruments towards building a better society.

In addition, any generalized video-surveillance design would be costly and time-consuming for a state and might be conducted at the detriment of other public policies. But the quest for greater safety and discipline cannot be democracies' main concern. Rather than spending time and money setting up and managing video-surveillance systems, states should focus on individual’s fulfilment, civic dynamism and emulation, the pursuit of social welfare and scientific progress, which are far greater goals for forward-looking societies.

Furthermore, generalized surveillance to ensure compliance with certain rules at a given period freezes society in an implacable framework, and conflicts with the possibility of society to evolve towards greater futures. What would today's world be like if perfect surveillance of public space had been available 100 years ago? Thoughtful societies must leave room for deviations because we can’t be sure that today’s standards will endure.

Lastly, I couldn’t remove from my thoughts while writing this essay the fear of terrorism, and the weight of fear in the desire for more surveillance. Especially in light of the new attacks in France. I don't know to what extent an attack can be thwarted by total surveillance of the public space. But what I am sure of is that terrorists will have won when they have succeeded in reshaping our freedom-oriented democratic societies.

Conclusion

The use of greater video-surveillance to achieve greater safety and respect for rules would not only annihilate individuals’ autonomy, rights and freedom, but would also destroy the balance, prosperity, and meaning of democratic societies. For these reasons, a thoughtful surveillance society is not conceivable.

Blinded by a desire for more security and discipline that led me to relativize rights and freedoms, I may have thought otherwise, and considered that an enlightened state could pursue an enlightened and thus positive surveillance, but without realizing the implications that such a design would have on what a society is, and what it means to live.

Yet the path towards more video-surveillance is seducing an increasing number of Western democracies, rights and freedoms as well as democratic values being easily relativized when facing security issues and fears.

FIRST DRAFT

State video-surveillance of public spaces

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’Ítre 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”.

What is a "thoughtful" State? Is that a State run by chin-stroking graduates of the Big Schools? A state without rule of law but full of Xi Jinping Thought? A state with Thomas Jefferson on the money? The self-worship of the State is not ana analytical reality, and it's odd to see it smuggled in this way.

Why do you assume that public spaces belong to the State? I thought they belonged to the public, that is, to the People. See Hague v. CIO, 307 U.S. 496 (1939).

I don't think the problem with this draft, any more than the last one, is which side of the question it winds up on. I think the problem is still with the question, which is why the nature of the answer doesn't really matter. The route to improvement is to consider carefully the implicit assumptions behind the question posed.


[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.

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r5 - 06 Jan 2021 - 13:34:46 - EbenMoglen
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