Legal protection from modern surveillance technology

• Author: Vanessa Kodilinye
• Position: LL.B. (Hons), LL.M. (U.W.I.), Attorney-at-Law, Barbados
• Pages: 128-148

LEGAL PROTECTION FROM

MODERN SURVEILLANCE

TECHNOLOGY*

VANESSA

KODILINYE**

Introduction

The concept of surveillance connotes any monitoring, watching, spying or

eavesdropping for the purpose of collecting information about a person;

conduct which involves the invasion of a person's privacy or his personal

space. Surveillance is no longer used by law enforcement agencies solely for

the detection of crime; it is now employed for the monitoring of ordinary

persons on the street, at home or even at work, with the result that persons

may be virtually stripped of their identity.

Surveillance may take many different forms which may be categorised as

physical, psychological and data.1 Physical surveillance involves the watching

or spying on a person's actions; psychological surveillance, which is often

resorted to by employers, consists of forms of interrogation or personality

tests;

data surveillance, on the other hand, involves the collection and storage

of information acquired by such devices as questionnaires or by computer

data mining and matching.

Surveillance technologies2 which are now available, not only to government

law enforcement agencies but to private companies, include: CCTV, interac-

*This is an edited version of a paper submitted for the degree of LL.M. in Information

Technology Law at the University of Strathclyde, United Kingdom.

**LL.B. (Hons),LL.M. (U.W.I.), Attorney-at-Law, Barbados.

1 Westin, A: Information

Technology

in a

Democracy

Harvard University Press, 1977 cited in

Lloyd, IJ: Information

Technology

Law 3rd edn (London: Butterworths, 2000) at p 39.

2 See Buttarelli, G: 'Protection of Personal Data With Regard to Surveillance' http://

www.coe.fr/DataProtection/eReport%20Buttarelli.htm for an overview of the development

of surveillance technologies; Clarke, R: 'While You Were Sleeping... Surveillance

Technologies Arrived'Oct.2000 http://www.anu. edu.au/people/ Roger.Clarke/

tive media,3 remote metering, polygraph tests, finger prints4 and voice recognitionj facial mapping techniques such

as

Mandrake,5 DNA databases,6 smart

dust

(a

sensor communication system), thermal imaging, automated vehicle

identfication, infrared sensors, wiretapping

and

clipper chip techniques,8

credit

cards,

mobile phone locators, e-tags. The fact that surveillance technol-

ogy

is

becoming progressively less expensive adds greater urgency

to

the need

for the provision

of

remedies against invasion of the privacy

of

individuals.

Moreover, there

is an

ever-increasing

use of

new technological develop-

ments in computers by both the private sector and government. Unlike manual

records, computers

can

now collects store, digitise, process

and

disseminate

vast amounts

of

information, including

the

personal data

of

individuals,

on

and

from

their databases

and on

networks.10

The

computer

can

data match,

data mine

and

access information

on a

global scale, as well as source transac-

tional data about

a

personally identifiable individual without

the

knowledge

or

consent of that individual. This can be achieved through the use of cookies11

DV/AQ2000.html; (1972) Grand. 5012: 'Privacy'

at pp

154-156 For

a

list of visual

surveillance devices available

as at 1972.

3 See report prepared

by the

Commitee

of

Experts

on

Data Protection (CJ-PD) : 'New

Technologies:

A

Challenge to Privacy Protection?'

http://www.coe.fr/dataprotection/Etudes_Rapports/ent.htm

4 See Global Internet Liberty Campaign: 'Privacy and Human Rights:

An

International

Survey

of

Privacy Laws

and

Practice' http://www.gilc.org/privacy/survcy/intro.html

5 'Visionics Face

it

First Face Recognition Software to be Used

in a

CCTV Control Room

Application' http://www.faceit.com/Newsroom/PRs/98newsham.html; Lodge, A: 'Facial

Recognition Systems' http://www.gn.apc.org/tash/INDEX.htm; Lodge, A: 'Digital

Imaging Developments' where the author points out that tamper detection software

is

being developed.

6 The Iceland Government had considered

a

Bill

to

compile

a

database containing medical,

genetic

and

genealogical records

of

its citizens: Fromkin, M: 'The Death

of

Privacy'52

Stanford

Law

Review 1461

at

p. 1496 http:// personal./aw.miami.edu/-fromkin/

articles/privacy-deathof.pdf

7 MIS and MI6

are

asking

for

legislative backing to seize and log

all

telephone

and

internet

records

for a

period

of

7

years : Ahmed,

K;

'Secret Plan

to

Spy

on

All British Phone Calls'

http://www.observer,co.uk/news/story/6903,406/91,100.html;

Amann

v

Switzerland

(2000)

30

EHRR

843.

8

'Shocking New Assaults

on

Your Privacy' http://www.midtod.com/highliglit/

privacy.phtml

9 Evans,

D: 'On

Privacy and Dataveillance and the Victorian Data Protection

Act'

http;//www.arts .unimelb, edu.au/amu/cybersociety/board/messages/1343.htm/

10 See O'Neal)

M.

& Dempsey,

J:

'Critical Infrastructure Protection; Threats

to

Privacy

and

Other Civil Liberties

and

Concerns with Government Mandates

on

Industry',

12

DePauI

Business

Law Fournal (1999/2000)97 http://www.cdt.org/ publications

/lawreview/2000depaul.shtml.

1

]

Mayer-Schonberger, V:

'The

Internet

and

Privacy Legislation : Cookies

for a

Treat?'

http://www.wvjolt.wvu.edu/wvjolt/current/issue

1/articles/mayer/mayer/htm;

see also

a

wired news report that

the US

Government was able

to

track internet users who searched