Public Video Surveillance

Public Video Surveillance refers to video surveillance performed by public bodies in public spaces (streets, parks, etc). This is to be distinguished from video surveillance on private property (for example, shopping malls) and video surveillance by public authorities in quasi-private spaces (for example, government buildings).

As of January 2007, public video surveillance in Canada is fairly limited. The City of London currently has sixteen cameras operating in the downtown area. The City of Montreal also has been conducting pilot studies with systems in their downtown. Individual public surveillance cameras have been set up in Kelowna and Baie-Comeau, and temporary video surveillance is used in Edmonton for the monitoring of special events such as Canada Day. The Toronto Police have also recently started a pilot project with fifteen redeployable cameras.

Public video surveillance has several stated purposes. First, the mere presence of cameras is meant to deter crime by reminding would-be criminals that they are under surveillance. Visible cameras are also meant to cultivate peace-of-mind on the part of the public. Second, camera footage is used in apprehending and prosecuting criminals, and real time camera operators can deploy police if they spot a suspicious incident.

Empirical studies conducted in the UK (see Resources, below) have found that video surveillance can have an impact on crime rates, but generally only where it targets a specific problem in a narrowly defined area - for example, preventing car break-ins in public parking lots. General street surveillance has not been found to have a significant crime-reduction effect, although footage has been useful, both as a means of catching criminals and as evidence in subsequent proceedings.

The supposed peace-of-mind benefit has also failed to materialize as expected. Studies have found that, although the initial reaction of the public is an increase in feelings of safety, public perception tends to return to normal after a short interval. Feelings of safety on the part of the public seem to be correlated with the amount of publicity that a video surveillance system has received.

As of January 2007, no court has ruled on the legality of public video surveillance in Canada. In 2003, federal Privacy Commissioner George Radwanski attempted to contest the legality of public video surveillance in court, but the case was dismissed on procedural grounds. In preparation for this challenge, former Supreme Court Justice Gérard Laforest provided an opinion that general public video surveillance for law enforcement purposes likely infringes one's reasonable expectation of privacy, and hence violates Section 8 of the Canadian Charter of Rights and Freedoms. A challenge on this basis could potentially render public video surveillance illegal in Canada.

To the extent that information about identifiable individuals is recorded, it qualifies as "personal information" under federal and provincial privacy legislation governing public sector bodies. These acts regulate the collection, use and disclosure of personal information held by government bodies, and affirm a right of access by individuals to information about themselves.

Under Section 4 of the federal Privacy Act, personal information may only be collected where it "relates directly to an operating program or activity of the institution". This has been interpreted by a past privacy commissioner to mean that agencies must collect only the minimum information necessary for the intended purpose of the activity. Although the purpose of a video surveillance program as a whole clearly relates to the activity of law enforcement, this is less clear when it comes to specific pieces of footage. It is not so easy to establish that the collection of footage of a law-abiding citizen walking down the street "relates to law enforcement". In this way, "wholesale" collection of video footage could be said to contravene Section 4 of the Act. This was the view espoused by former privacy commissioner George Radwanski, and echoed by provincial privacy commissioners with respect to provincial privacy legislation. Note, though, that it might be easier to make the argument that such indiscriminate collection is "necessary" in a location where there is a specific threat - a site with recurring crimes, a place susceptible to terrorist attack, etc.

Once personal information has been collected, it is governed by rules regarding use and disclosure. Under Section 7 of the Privacy Act, it may only be used for the purpose collected, or for a "consistent purpose". For example, if the stated purpose of the camera system is to catch vandals, it could not be used to spot people using a community drug user clinic. Treasury Board guidelines suggest that, for a purpose to be "consistent", it should have a "reasonable and direct connection" to the original purpose. They also suggest that such a purpose should be one for which a reasonable person would expect the information to be used.

Under Section 8 of the Privacy Act, the federal government may disclose personal information without the individual's consent in certain circumstances including (but not limited to) for consistent purposes, where authorized under an Act of Parliament, where required by court order, for research or statistical purposes, and to specified agencies for law enforcement purposes. Disclosure is also permitted where "in the opinion of the head of the [government] institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure". Consistent with this approach, police-camera footage of identifiable individuals could not normally be sent to, say, the National Film Board for the purposes of making a documentary, without the individuals' consent.

Under Section 12 of the Privacy Act, individuals also have a right of access and correction with respect to information concerning them. Individuals are therefore entitled to copies of footage that features them, on condition that they provide enough information to locate the footage (for instance, date, time, and location), and that such a release can be made without infringing on the privacy rights of others. This last requirement imposes practical limits on the release of video footage. The right of correction, although it exists, would likely not be relevant in a video-surveillance context (except, one might imagine, in situations where there is reason to believe that video footage of an individual has been altered, or stamped with the wrong time-code).

As mentioned above, the use of video surveillance systems (both with and without recording) to monitor individuals can also be scrutinized under Section 8 of the Canadian Charter of Rights and Freedoms as a "search and seizure" matter. In R v Wong, the Supreme Court ruled that video surveillance does count as a "search", and is unconstitutional if performed without a warrant in a context where individuals have a "reasonable expectation of privacy". Although one wouldn't expect the same level of privacy on a public street as, say, in one's home, most people would at least reasonably expect not to be under surveillance. The key is that the level of surveillance must be commensurate with the level of privacy that a reasonable person would expect in a given situation. For a discussion of this principle, see, R v Wise. In that case, the installation of a tracking device on a car without a warrant was found to invade an individual's reasonable expectation of privacy with respect to his movements in public.

Further, the use of video footage as evidence is governed by the usual statutory and common-law evidence rules with respect to materiality, relevance, authentication, probity and prejudice.

As with government surveillance, private sector collection, use and disclosure of personal information about identifiable individuals is governed by generic privacy legislation. This means, in BC and Alberta, their respective Personal Information and Privacy Acts (PIPA); in Quebec, the Loi sur la protection des renseignements personnels dans le secteur privé; and, in the rest of Canada, the Federal Personal Information Protection and Electronic Documents Act (PIPEDA). PIPEDA also applies to federally-regulated private sector bodies, such as banks and airlines. These statutes feature, broadly-speaking, similar principles to the public-sector legislation, but tend to have a narrower set of exceptions to the rule of consent. It is worth noting that they do not feature the requirement that information must be "recorded" in order to qualify as "personal information". Logically, then, PIPEDA and the related provincial statutes could also apply to video surveillance systems which do not feature recording.

One of the key principles of PIPEDA is that personal information must only be collected with the knowledge and consent of the individual, except where specifically permitted. Consent, though, need not be explicit. One might plausibly argue, for instance, that an individual implicitly consents to video surveillance by walking past a high-security building, or by attending a privately-organized concert in a public park. In both of these cases, the knowledge requirement can be satisfied through the use of appropriate signage.

Exceptions to the consent rule (e.g., under Section 7 of PIPEDA) are also worth discussing, given that most instances of public video surveillance will be ones in which there is no plausible consent. Notably, information can be collected without consent where it is being collected solely for journalistic, artistic or literary purposes, or where such collection is clearly in the individual's best interest and consent cannot be obtained in a timely manner. Collection without consent is also permitted in the context of investigating the breach of an agreement or a law, where consent would compromise the accuracy or availability of the information - as in, for instance, the use of video surveillance by an insurance company to confirm a person's disability.

Even given these exceptions, PIPEDA requires that collection of personal information be limited to that which is necessary to fulfill the purposes identified. Moreover, the purposes must be reasonable. So, for example, the hypothetical insurance company above could not record all passers-by on a busy street for a week in the hope of catching its specific target.

Use and disclosure of personal information is also limited to the original purposes for which the information was collected, or other purposes to which the individual has consented. As well, once the information is no longer needed for the agreed purposes, it must be destroyed or rendered anonymous.

Also worth noting is that, if public video surveillance is performed by a private entity for a public body, the relevant public-sector legislation applies. This would apply in the case of a contractor being hired to operate a public surveillance system.

Under guidelines published by federal and provincial privacy commissioners in Canada, access to video surveillance footage should be restricted to authorized persons involved in administering the system. It may also be made available to law enforcement agencies on request.

In addition, under public-sector privacy legislation, individuals have a right of access to footage of themselves, provided that this can be done without infringing on the privacy rights of others featured in the footage (this can be accomplished, for example, by blurring out the faces of other individuals using computer software).

Where footage has not been used for any particular purpose (for instance, dispatching police, or as evidence of an incident), both federal and provincial guidelines recommend that tapes be destroyed after a "limited time". This has been interpreted by privacy commissioners as anywhere from 24 hours to 30 days.

Where tapes have been used to make a decision about an individual (for example, if video operators catch an incident on tape), they must be retained for a minimum period of time, depending on the applicable laws. For instance, the applicable Alberta, BC, and Ontario acts prescribe a minimum retention period of one year, while the federal Privacy Act prescribes a minimum retention period of two years.

Public video surveillance has been used in the UK since the 1980s, and has become ubiquitous there. In response to the September 11th attacks, systems have also been installed in various cities in the United States, including New York and Washington. Public video surveillance is also increasingly popular in Australia, and is used in several European countries.

Focus groups have found that the Canadian public is generally accepting of video surveillance. However, organizations representing youth and other marginalized groups have expressed concern about the potential for video surveillance being used to "socially cleanse" areas. Canadian businesses, on the other hand, have been highly supportive of such systems.

In the UK, similarly, public opinion of public video surveillance is broadly positive, although surveys have found that the public's perception that it is effective is often based on inaccurate knowledge of the capabilities of CCTV. As well, the British public have expressed a concern that such surveillance should not be over-done.

One concern voiced by groups in Canada is the potential for video surveillance to lead to racial profiling. Studies in Britain have shown that control room operators do tend to disproportionately target minorities. (See Resources, below).

Another concern is that footage will be used or disclosed for other purposes. In Britain, camera operators have been caught selling tapes for entertainment and journalistic purposes. In one instance, footage of a man attempting suicide was shown on the news. In another, control room operators released footage of couples in intimate situations, that was subsequently compiled and sold to the public. In Glasgow, the police have threatened to release CCTV footage of cars in a red light district as leverage to get individuals to assist with an investigation. See this article for more examples.

More likely, perhaps, is the phenomenon of "function creep" and "net widening". In Britain, CCTV footage that was originally intended to help catch violent criminals has been used to pursue offences such as littering, underage smoking, dog-fouling and skipping school. As an illustration of how this might head in a more ominous direction, footage from "traffic cameras" in Tiananmen Square was reportedly aired on television in China with a reward offered for identification of the protestors.

The potential for combination of camera systems with biometric technologies is also of concern. Once cameras are in place, they can easily be upgraded with facial-recognition software that can be linked to terrorist watch-lists and databases of demographic data. Unless such software is foolproof, such a scheme risks targeting innocent people. (That said, even with improved, more accurate facial recognition software, innocent people may still find themselves on lists of suspicious persons.)

Video camera footage can also produce suspicion-by-association. Walking through a red-light district might label one a suspected john or prostitute. Offering directions to a stranger might be hazardous, lest cameras catch you "associating" with a suspected terrorist or mobster. Even if this kind of evidence will not likely send one to jail, it could potentially be enough to get the police knocking at your door, or to be denied a government security clearance.

Perhaps most worrisome are concerns about the broader psychological and sociological effects of widespread video surveillance, so effectively expressed by George Orwell in his seminal novel 1984. Although designed to address fears about crime, state surveillance of the public creates a barrier of fear and mistrust between citizens and the state. Knowledge of being watched affects one's sense of individual autonomy and dignity, inhibits creativity, and is inimical to fundamental values such as freedom of expression and liberty. Video surveillance can discourage people from engaging in perfectly harmless and healthy activities to the extent, for example, that they are slightly embarrassing or could be considered suspicious. One might think twice about being seen in a bad neighbourhood, or standing on a street corner for too long. It could become advisable not to wear a balaclava, should you be mistaken for a robber, or to roll one's own cigarettes, lest they be mistaken for joints. Broadly speaking, where one is under surveillance, it becomes a good idea not to do anything to stick out from the crowd.

As sociologist Gary Marx has said, "we all have things to hide, or at least shield from broad public presentations, that do not involve wrong doing. These vary from strategic concerns, to bodily functions, to the frequent gap between behavior and inner feelings and attitudes. The advantages of varying forms and degrees [of] anonymity are well known. Social creativity would be greatly weakened if a documentary record was made of everything." (ID Trail Mix, Oct.2005)

Should you have concerns about a public video surveillance project in your community, the first step should be to determine who is responsible for the project, and to make your views known to them. If this does not yield a satisfactory result, you can make a complaint to the provincial or federal privacy commissioner.