ABSTRACT
This chapter examines surveillance systems, especially since 9/11, in terms of their protection or infringement of civil liberties, fundamental rights and ethical values. Contributors review the literature dealing with the impact of surveillance on privacy, autonomy, dignity, freedom of speech, freedom of association, freedom of movement, non-discrimination, social integration, due process and the presumption of innocence. They consider the effects on particular rights or values of particular people. In addition, and conversely, they also examine the effects of fundamental rights and values on surveillance systems, i.e. how the former affect the design, deployment and oversight of surveillance systems themselves. Finally, they identify instances of ‘best practice’, where surveillance systems are shaped to have the least negative effect on fundamental rights while still being (seen as) relatively effective. The propensity of surveillance systems to infringe fundamental rights and values is the first
order of business, involving distinctions among different forms of surveillance and drawing on the literature dealing with the effect of surveillance on a variety of specific but inter-related rights, freedoms and values that are considered to be at risk through the use of surveillance technologies and systems. These parts of the chapter provide extensive commentary on the effects of surveillance on privacy, dignity, autonomy and various rights and freedoms as well as values. Next, the discussion goes beyond privacy to examine the effects of surveillance on different
categories of people and on society more broadly. This is a neglected focus in many sources on privacy, which deal with ‘data subjects’ as legal abstractions who have rights, but which rarely investigate the differentiated, and often systematically biased, effects of surveillance on various social categories. Scholars in the emerging field of surveillance studies as well as others, however, regard the social patterning of surveillance and the unevenly distributed ability of individuals and groups to have their privacy protected as an essential focus of analysis and policy. The
rule of law and the presumption of innocence are also important values that may be adversely affected by certain surveillance practices, and contributors investigate these effects by looking at European human rights law and cases adjudicated by the European Court of Human Rights. Inequality can also be exacerbated by surveillance, as a further contribution shows. Following this, contributors turn the question around by considering the impacts of funda-
mental rights and values on surveillance systems in terms of how they might affect the design, deployment and oversight of surveillance systems. This reflects the current emphasis given by those who are involved in regulation and governance to ways of mitigating surveillance through technological and systemic measures. Some instances of good practice are highlighted where the negative impact of surveillance systems on fundamental rights are mitigated while still being considered relatively effective in achieving their purposes. The chapter concludes with a brief look at how oversight and regulatory mechanisms, including privacy impact assessment and the work of regulatory bodies, attempt to bring rights and values to bear upon information systems and surveillance practices. A final introductory remark is that this chapter endorses a growing trend in contemporary
discussions of privacy and surveillance: emphasizing the importance of context in any proper understanding of the way privacy works in myriad situations in which norms operate to shape relationships, interactions and outlooks. Grasping the idea that one should understand privacy by reference to the violation of informational norms that are relevant to the particular social context in which relationships and activities occur is one way of side-stepping endless definitional controversies because it accommodates contrasting conceptions. There is a strong tradition in sociology – but which has resonance in other academic fields – that looks in a microscopic fashion at social interaction in various settings, and between different kinds of people, in which privacy and personal identity are at stake. Situational norms shape, and are shaped, by such encounters in social contexts which may range from the highly structured to those that may be fleeting but nonetheless take place within normative parameters, including expectations of privacy. An appreciation of context also serves to avoid deterministic and non-empirical suppositions
about the implications of technology for society, individuals, rights and values. Studies of surveillance sometimes fall prey to technophobic or technophilic assumptions about these matters, creating either alarm or complacency. This chapter demonstrates awareness of this danger, and aims to avoid it. However, this chapter can only note, but not fully explore, the importance of context in the relationship between surveillance, privacy and other values, and in the mitigating strategies and techniques for placing those relationships on a footing of legality and propriety.
