The Modern-Day Panopticon: Privacy Under Surveillance - Laura Ayres

Introduction

Have you ever seen memes making jest of FBI agents reacting to someone’s online behaviour? Funny, right? But if you think a little deeper about the meaning behind these memes, it can get a little scary. Many people today have come to the point where the idea of their privacy being infringed by state actors has become peak humour rather than a feature of a dystopian novel. The idea of privacy being invaded in the name of security has been accepted as a given; there’s no longer a need to concern ourselves with it because it’s already happening and that’s fine. The reality is that it really should not be accepted as normal and fine for citizens’ privacy to be infringed constantly by state actors because the less citizens put stock in their right to privacy established under section 8 of the Charter of Rights and Freedoms [Charter], the less the state will strive to protect privacy rights (and at this point, the state and the Court do not need any more help whittling away at privacy rights).

The term “surveillance state” is thrown around in many university lecture halls, but, in the following Blawg, I intend to delve deeper into the meaning of a surveillance state and how it has a detrimental impact on individual privacy rights through an analysis of the interaction of new surveillance technology and how it may affect privacy rights when it interacts with undercover police operations, warrantless searches, and information-gathering in investigations.

After separating the issues of undercover police operations and warrantless searches, the two will be brought together to illuminate the reality of a surveillance state beginning to be established in Canada and how this state has continuously eroded privacy rights. Finally, a parallel will be drawn between Bentham’s Panopticon prison model and the surveillance state, and how this may eventually whittle down privacy rights until they are little more than words with no real meaning.

Undercover policing and privacy

Before delving into the issue of the modern-day state of surveillance, it is important to keep in mind that fundamental breaches of privacy are not only contemporary issues. In countries like Canada, there have long been breaches of privacy through covert or undercover policing via “assumed identities, plain clothes informers, and ‘civilian surveillance.’” Perhaps the most well-known practice of undercover policing has occurred in what has come to be known as “Mr. Big Operations” [“MBO”]. While the major arguments for Charter infringements with MBOs are centered around Section 7 rights and admissible confessions, it has been acknowledged by Justice Karakatsanis in R v Hart [Hart] that MBOs are also an infringement on privacy rights. While there is a direct violation of privacy rights of the suspect, the larger concern is the potential unwarranted infringement of privacy rights of those associated with the accused, especially as covert policing practices have been “augmented by the emergence of technologies that enable unobtrusive surveillance.” As humans are social creatures who live in and rely on social groups, individuals connected to suspects through these social ties are unknowingly, and without warrant, being subjected to surveillance due to their connection with the suspect.

MBOs and other undercover policing strategies are major breaches of the private affairs of the accused; however, these breaches have generally been deemed acceptable by the Court and the public in the pursuit of security and the desire to be protected from crime. While this is problematic, what is of greater concern is the general overlooking of the risk to the privacy rights “of individuals and organizations who are not the subject of the investigation but who are linked to the accused through relationships, such as family members or employers.” The immunity granted by police powers seeming to overlook the breach of this right to privacy is troubling, to say the least. As people become more connected in the new era of communications technology, the scope of those whose privacy rights are being violated in undercover policing operations increases exponentially. For those in favour of placing greater emphasis on privacy rights, it is disconcerting that section 8 jurisprudence, which is heavily relied upon in the regulation of law enforcement, “has become more conservative since 9/11, favouring law enforcement” over the individual’s right to privacy.

The right to privacy, which has been justifiably infringed and hollowed out in the past to achieve security and reduce crime through covert policing methods before the new technological age, is being rapidly eroded with the augmentation of new surveillance technologies. The lack of concern for these violations, especially the violations of the privacy of those who are relationally linked to the suspect, is a concerning prospect when engaging in discourse surrounding privacy rights. As Professors Richard Jochelson and David Ireland argued in Privacy and Peril, “a minimal expectation of privacy yields minimal protections.” Following this line of thinking, if expectations of privacy are linked to protections of privacy, the limited concern of privacy violations of individuals as collateral of investigations could lead to lesser protections of these “collateral damages” in future investigations and surveillance activities.

Warrantless search and seizures, police ancillary powers, and privacy

Hunter v Southam (1984) [“Hunter”]marked the beginning of the Court’s dive into the modern approach to search and seizure and created the “foundational search and seizure principles in Canada.” Hunter established the need for the “reasonable and probable grounds” requirement for granting a warrant which would justify the infringement on an individual’s privacy rights. Through continued adjudication on following search-and-seizure cases, the Court began to drift towards a “gap-filling logic . . . used as a proxy for creation of Charter-proof police powers” which increased police ancillary powers while further eroding individual privacy rights to the extent that the standard for a justifiable warrantless search is predicated on the standard of reasonable suspicion. The past rulings have established a precedent in the case law which “constitutionalizes the common law [police powers], effectively allowing future courts to deploy the power.” The increase in police powers due to jurisprudence, coupled with the increased desire for and focus on security in a post 9/11 world, has created the foundation for increased surveillance by both state and non-state actors.

The “deployment of ancillary powers on an ad hoc basis . . . requires ex post facto forgiveness rather than prior permission,” opens the doors to practices that “relax the standard rules of search and seizure”, and paves the way for a more heavily surveilled society. With the advent of new technology and a jurisprudential trend towards warrantless investigation, the protection of individual privacy rights have decreased accordingly. The same Court which claims to be the guardian of the Charter has laid the ground for Canada’s police ancillary powers. The rights of Canadian citizens, privacy rights in this case specifically, has been used by the Court to “mobilize security-based governance of [the] population.” By asking forgiveness for an intrusion of privacy instead of seeking permission, the state and the Court have created a space in which the Canadian population is monitored through various surveillance technologies without consent or permission.

A surveillance state and its effect on privacy

The topics of undercover policing and increasing police ancillary powers, like warrantless search and seizures, lay the foundation for a surveillance state focused on security over the privacy rights of individuals. The infringement of the rights of innocent individuals relationally connected with the suspect during an investigation is accepted by the state as collateral damage. This supposition of acceptable infringement on privacy is only further enhanced by the trend toward the increasing ancillary powers on an ask-for-forgiveness basis predicated on a reasonable suspicion. These are two ways in which privacy rights of the individual have been eroded. While this trend towards the hollowing-out of privacy rights is concerning, it is downright frightening to consider the implication of these two concepts and how they interact with the ever-developing technology of surveillance available to both state and non-state actors.

In investigations, especially investigations of a covert nature or predicated on a warrantless search, the gathering of information to preserve security and order has been used to excuse major violations of privacy rights. In the current age of surveillance, “rights are . . . contextually-dependent variables in the competition of rival interests”. The interest of the state and the individual compete; however, with the embrace of “the politics of necessity” to maintain security via precrime activities such as surveillance and information-gathering, the right to privacy is “effectively hollowed out”. Surveillance systems are intensified “both in legal outcomes and in providing security to the public from crime” in this system which uses any source to gather information, ultimately dismissing the negative impact surveillance measures like those used to gather information about individuals with little connection to a potential crime beyond a shared last name, blood, or employer. The excuse of security is used to justify a mass surveillance of those who have no true connection to a crime being investigated.

With the increase in surveillance technology available, “citizens are more visible and more information is available publicly and privately than at other points in human history”. With an increase in police ancillary powers and new technologies which allow us to digitize our lives, the opportunity to surveil individuals increases. The increasing creation of common-law police powers, coupled with increasing opportunities to surveil, “could signify that there are more police surveillant operations which are being undertaken in considerably more gray zones” than ever before in the history of policing. While warrantless searches on the basis of reasonable suspicion are being recognized as a justifiable infringement of privacy, this has opened the jurisprudential gates to an increase in policing powers which allows more police surveillant operations to take place.

With the move to a digital society, people have become complacent to infringements into their private lives. There are many people who simply accept that their activity may be tracked and do not question the privacy they are accepting that they have lost. The other side of the coin is that people may constantly feel they are monitored and thus must act as if they are constantly being watched. I believe this is worth looking into further in the context of Bentham’s concept of a panopticon and how it may relate to a surveillance society.

A panopticon society and reckless disregard for privacy

With the current trajectory towards the hollowing out of privacy rights in a society where surveillance by actors is becoming commonly accepted as a means to security, the idea of expectations of privacy sinking to Orwellian standards seems to be a possibility in the not-so-distant future. There is already a sense insome members of the population that their privacy is so limited because so much of their life takes place in a digitized format which, as discussed in previous sections, has the potential of being monitored and used as a means of surveillance by state actors. This feeling of constant surveillance brings to mind Bentham’s Panopticon: a prison in which a single guard tower is place in the middle of a circular prison, with windows all the way around the tower and no place with which to hide under the potential watchful gaze of the guards, leaving the prisoners with the impression that they are (or could be) under constant surveillance. While Bentham’s Panopticon is generally referred to when speaking of shaping behaviour, I do believe that it has relevance in the discussion surrounding privacy rights as well.

Through the use of surveillance technologies in investigations and alongside police ancillary powers, a surveillance society can be said to have “perfected Bentham’s model.” A society rife with surveillance technology which could, at any moment and without notice, be used in an investigation by state actors, Bentham’s prison metaphor has become a reality which “turns everybody into virtual delinquents and society as a whole in to a site of potentially penal disciplining in the wake of inescapable surveillance.” Surveillance is no longer an issue of individual privacy rights but rather a potential mass violation of the population’s right to privacy as “surveillance is imposed on everyone.” With this concept of a state-wide Panopticon, it is not difficult to see that the “distinct drift toward a utilitarian emphasis on the collective right of security and freedom from crime in triumph over particular rights of individuals” that we are seeing in the jurisprudence surrounding police ancillary powers has extremely negative impacts on Canadians’ rights to privacy under section 8 of the Charter.

In the post-9/11 world where there is a strong desire by both individuals and states for security and the prevention of crime, surveillance activities are deemed a necessity while privacy rights are continuously eroded. Decisions by the Court which have exponentially increased police ancillary powers “are rooted not just in the submissions of the parties in the case, but in the context of the security-based needs of the times as courts understand them;” thus legitimizing the erosion of privacy. Should the trend of privacy rights continue in the downward trajectory it has been travelling, it won’t be long until Canadians are like prisoners in Bentham’s prison, unable to escape the eye of the guards, privacy rights diminished to nothing more than ink on the page.

Conclusion

Whether the idea of Canadian citizens held prisoners, unable to escape surveillance of the state, seems preposterous or far-fetched, drawing a parallel between the fiction created in Bentham’s mind and the current state of surveillance and privacy in Canada is important to understand the gravity of the debate surrounding rights under section 8 of the Charter. It is reasonable to expect technology to continue developing at a rapid pace, creating new ways in which an individual can be put under surveillance by both state and non-state actors. I don’t believe this is up for debate.

However, should the current trend of the Court expanding police and state powers in favour of security continue, the prospect of privacy rights seems dismal at best. Privacy is a constitutional right, and, while these rights are not guaranteed, it is up to the Court, the self-proclaimed guardian of the Charter, to attempt to maintain some semblance of individual privacy. Living in a surveillance state is no longer some far-fetched what-if, we are driving towards it at full speed, if not living it presently. While it may be inevitable that the technology which would allow for constant surveillance will be part of our daily lives (or already is), it does not diminish the need for privacy, especially from state actors like police and other state security forces.

While there are days when I want to throw my phone out the window, the reality is that we rely on this technology in our daily lives and have become accustomed to the convenience it affords. If such technology has become an indispensable part of life, it is time for the Court to realize this and attempt to curb the trend of police and state powers which may be able to use this technology as a means of keeping an eye on citizens. If a message were to pop up on my phone from the RCMP or CSIS asking why I’m having such a difficult time spelling the word spaghetti while trying to Google a recipe, I wouldn’t be overjoyed, I’d be wildly uncomfortable and feel violated.