Hi, I’m Professor Pete Fussey and have been asked by Tony Porter to lead a new strand of his National Surveillance Camera Strategy on human rights, data and technology. I’m a Director at the Centre for Research into Information, Surveillance and Privacy (CRISP) and Professor in Criminology at the University of Essex.
Recent years have seen rapid developments in surveillance technology. Innovations in digital technology make it possible to observe more than ever, advanced video analytics add potency to existing surveillance architecture, and fresh potential exists to mine information on citizens living in an increasingly data rich society. While such advancements have undoubted advantages for pursuing public safety, it is important their use remains proportionate, fair and accountable to the rule of law.
Within this space it possible to see a critical tension at play. Developments in surveillance equipment make effective regulation more important than ever before. Yet the complexity of this technology makes these forms of oversight increasingly challenging. At the same time, many existing legal, regulatory and oversight mechanisms are in a state of flux. On one hand, many forms of regulation were authored long before some current forms of digital surveillance were imagined. An absence of case law concerning many recent forms of surveillance adds further uncertainty. On the other hand, attempts to place advanced forms of surveillance on a legal footing, such as the Investigatory Powers Act 2016, have generated significant debate and seen their foundational ideas challenged in recent rulings of the Court of Justice of the European Union and European Court of Human Rights. The task for regulators to ensure responsible and fair uses of surveillance commensurate with the principles of democratic society, then, is a necessary yet difficult one.
The national strategy
With this in mind, it is gratifying to learn the Surveillance Camera Commissioner is committed to placing issues of human rights at the heart of his approach. Moreover, I am delighted to have been asked by to lead this strand of work for the National Strategy. On a personal note, like many academics, I consider it a privilege to have the opportunity to connect years of scholarship with operational and policy substance.
In taking this role, I am seeking to engage in constructive dialogue with a range of important stakeholders including other regulators, civil society groups, legal experts and, crucially, those who use surveillance cameras to promote public safety. In addition, I am keen to move the conversation away from some existing ways of approaching these issues that I, and many others, have considered unhelpful.
In many ways surveillance sits at the very sharp end of debates over liberty and security. Yet myself and many other academics have long rejected the ‘liberty Vs security’ dichotomy, more so when it is formulated in narrower terms of ‘privacy Vs security’. Such framings conceal the range of potential harms surveillance practices can have, assume that security is a natural consequence of surveillance and suggest there is a trade-off of one against the other. It is possible, and necessary, for citizens to enjoy both liberty and security, and it is possible to be deprived of both. Moreover, as signatory to the UN Declaration of Human Rights, the European Convention on Human Rights and other instruments, the state has a legal responsibility to provide its citizens with both liberty and security. It is also important to widen the conversation to acknowledge the full range of rights – rights that the state has a duty to uphold – that may be affected by surveillance practices. These include freedom of expression, freedom from discrimination and, reflected in work myself and colleagues are supporting the UN with, freedoms of assembly and association. Moreover, while there is much important focus on ethical uses of surveillance, accepted standards of human rights law and practice offer a vocabulary to address these challenges in a constructive, fair and transparent way. Ultimately, human rights approaches provide a means to ensure surveillance practices are accountable to the rule of law. This includes accepted standards of a legal basis, and application of tests for necessity, proportionality and collateral intrusion.
My experience of working with law enforcement and other security agencies in the UK and US suggests this can be achieved in a constructive way. To do so requires positive dialogue with, and listening to, those responsible for using surveillance technologies as well as those that oppose them. ‘New’ technologies such as automated facial recognition and advanced data analysis capabilities rarely fit squarely with existing forms of legislation, regulation and oversight. They therefore require careful consideration. Civil society organisations play an indispensable role in generating vital debate over such issues. Yet I have consistently encountered equivalent desires for clarity and certainty among those responsible for upholding public safety. This is not to suggest the role of adversarial discussion should be diminished – ‘points of friction’ are important in any regime of regulation and oversight – but to highlight the possibilities of achieving this constructively. It is therefore important to engage with a wide range of experiences and informed opinion to properly understand these issues.
Human rights, data and technology
I have defined four initial deliverables to help get the Human Rights, Data and Technology strand up and running and to shape its initial approach.
The first of these is to establish an advisory panel of experts in the theory and practice of surveillance. Many of the issues surrounding surveillance and human rights are hotly debated. As such, a useful starting point is to draw on the best available expertise I can, and to canvass a range of relevant views. Most of this work has been completed and I have been extremely fortunate to gain generous support from national civil society groups, a leading barrister specialising in surveillance law, other human rights focused scholars, representatives from other regulatory bodies and, crucially, senior practitioners responsible for using surveillance technologies in the pursuit of public safety. The latter is particularly important for the reasons outlined above, and to understand the ways new recommendations can acquire organisational buy in, and, ultimately, have the best chance of being brought into everyday practice. I am also fortunate to be the deputy director with overall research leadership of a five-year research project on emerging technology and human rights funded by the UK Economic and Social Research Council, housed at the Human Rights Centre at the University of Essex. This is one of the largest academic projects on technology and human rights in Europe and offers access to a large number of academic specialists whose advice could help support this role.
The second deliverable is focused on drawing insights from similar conversations happening elsewhere. Many regulators, oversight bodies, ethics panels, policy arenas and academics are wrestling with issues of human rights and new technologies. Rather than establishing yet another parallel conversation I intend to use this role to scope, and draw value from, relevant existing advice occurring in related areas. This will involve liaison with relevant regulators in addition to a range of ethics and surveillance oversight panels among others.
The third deliverable is focused on developing a strategy to capture and communicate core principles concerning human rights as they apply to surveillance cameras. The aim of this is twofold. First, principles usually are more enduring than policies and so the intention is to foreground clear and enduring themes for which the diverse array of emerging technologies can be situated against. Secondly, these principles will be fed into the Surveillance Camera Commissioner’s formal policy mechanisms, such as the advisory council.
Joining up across the strategy
Finally, I will seek to connect this strand with the 10 others that comprise the formal strategy. Human rights do not operate in isolation, they cut across all aspects of the strategy and, in recognition of this, a key part of my work will be to engage with the other Strand Leads. Particular synergies exist with work conducted under the Horizon Scanning, Regulation, Training, Police, Local Authorities and Civil Engagement Strands. This latter area of work is particularly important. While rights are universal, surveillance practices, and any associated harms do not fall on everyone equally. It is therefore necessary to move beyond simple measures of public acceptability and engage with all communities likely to be affected. Not only is this a substantive way of developing legitimacy, it also generates a deeper understanding of how surveillance may impact (positively and negatively) on the lives of everyone.
So, there is much to do and I’m looking forward to getting started delivering these deliverables. To keep track of what’s going on this strand and the others in the strategy make sure you sign up for email alerts for Tony’s blog and also follow him on Twitter to hear all the latest news about the strategy.