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Date: Thu, 4 Oct 2001 17:19:55 -0400
From: Robert Guerra <[EMAIL PROTECTED]>
Subject: Privacy Commissioner releases finding on video surveillance...

This decision just came out..thought you'd be interested..

regards,

Robert





Privacy Commissioner releases finding on video surveillance by RCMP in Kelowna

links:

http://www.privcom.gc.ca/index_e.asp
http://www.privcom.gc.ca/media/nr-c/02_05_b_011004_e.asp
http://www.privcom.gc.ca/media/nr-c/02_05_b_011004_e.pdf



Ottawa, October 4, 2001 - The Privacy Commissioner of Canada, George 
Radwanski, today released the following letter of finding to David 
Loukidelis, Information and Privacy Commissioner of British Columbia, 
following an investigation of video surveillance activities by the Royal 
Canadian Mounted Police (RCMP) in Kelowna, B.C.

This letter constitutes my findings with regard to your Privacy Act 
complaint. In a letter dated June 25, 2001, you complained regarding the 
actual and the proposed installation of Royal Canadian Mounted Police 
surveillance cameras in the downtown core of the City of Kelowna.

You requested that I investigate the lawfulness of this surveillance under 
the Privacy Act and its conformity with the privacy rights of Canadians.

The questions you have raised in your complaint are of national importance. 
There appears to be a rapidly growing interest in recourse to video 
surveillance cameras among municipal police forces across Canada. The 
privacy issues involved are of the greatest seriousness and have already 
sparked many inquiries to my Office from the public and the media.

The activities of municipal police forces do not normally fall within my 
jurisdiction as federal Privacy Commissioner. It is only because the 
federal RCMP happens to serve as the municipal police force in Kelowna that 
I do indeed, in this particular instance, have jurisdiction. Nevertheless, 
because the issue of video surveillance has vitally important implications 
for the privacy rights of all Canadians, it is my hope that my findings in 
this instance may also be more broadly helpful to municipal and law 
enforcement authorities, and to public opinion.

We established during our investigation that on February 22, 2001, 
following consultation with City of Kelowna officials and downtown business 
representatives, the RCMP installed one camera in the area of the Bennett 
Clock on Queensway Avenue in Kelowna. The monitored area is signed, "This 
area of the City of Kelowna may be monitored by video surveillance for law 
enforcement purposes. For further information contact Kelowna RCMP (250) 
762-3300. Information collected in accordance with the Federal Privacy Act 
". There are 11 signs posted in the area under surveillance.

We also established that at least five other locations have been selected 
for installation of surveillance cameras as soon as funds become available, 
as part of a plan to eventually provide total coverage of all downtown 
streets and avenues in Kelowna.

While the camera already installed was purchased with funds provided by the 
City and the Downtown Kelowna Association, it is operated and maintained 
solely by the RCMP. At the time of the complaint, the camera recorded video 
only on a continuous basis, 24 hours a day, seven days a week. The 
videotapes were changed daily and retained for a six-month period unless 
used for an administrative purpose, in which case any tape so used is to be 
retained for at least two years. The City of Kelowna hired four watch 
commander assistants to work for the RCMP Detachment and monitor the 
cameras and perform other duties for the RCMP. These assistants recorded 
the date and times the videotapes were changed as well as unusual 
happenings, if observed. There is no review made of the tapes after they 
are recorded unless there is a need to do so, for example after an incident 
is subsequently reported to police.

Personal information is defined in the Privacy Act as any "information 
about an identifiable individual that is recorded in any form". An 
individual caught within the visual range of a video surveillance camera 
can, in theory, be identified. The captured image reveals information about 
the individual (such as the individual's whereabouts and behaviour). When 
the picture is recorded, there is a collection of personal information 
within the meaning of the Act.

Section 4 of the Privacy Act states that "no personal information shall be 
collected by a government institution unless it relates directly to an 
operating program or activity of the institution". It is a tenet of the Act 
that an institution can collect only the minimum amount of personal 
information necessary for the intended purpose. There must be a 
demonstrable need for each piece of personal information collected in order 
to carry out the program or activity.

There is no doubt that preventing or deterring crime can be regarded as an 
operating program or activity of the RCMP in its capacity as Kelowna's 
police force. But even setting aside for the moment the serious questions 
that exist about the deterrent effectiveness of video surveillance in 
public places, it does not follow that monitoring and recording the 
activities of vast numbers of law-abiding citizens as they go about their 
day-to-day lives is a legitimate part of any such operating program or 
activity.

This type of wholesale monitoring or recording certainly runs afoul of the 
requirement to collect only the minimum amount of personal information 
required for the intended purpose. Moreover, the broad mandate to prevent 
or deter crime clearly does not give police authorities unlimited power to 
violate the rights of Canadians. They cannot, for instance, compile 
detailed dossiers on citizens "just in case." They cannot force people at 
random to identify themselves on the street. They cannot enter and search 
homes at will, without proper authorization.

It is equally clear, in my view, that police forces cannot invoke crime 
prevention or deterrence to justify monitoring and recording on film the 
activities of large numbers of the general public.

In the normal course of law enforcement, cause (reasonable grounds) is a 
basic pre-condition for the collection and retention of personal 
information. In the case of video surveillance, information is recorded 
regardless of the existence of specific cause. By recording continuously, 
as opposed to recording only selective incidents related to law enforcement 
activities, the RCMP was unnecessarily collecting information on thousands 
of innocent citizens engaged in activities irrelevant to the mandate of the 
RCMP.

I therefore find the video surveillance in Kelowna that was the subject of 
this complaint to be in contravention of the Privacy Act. The complaint is 
well founded.

I note in passing that in finding this sort of video surveillance to be 
unacceptable from the point of view of privacy rights, my position is 
consistent with that of the Québec Information and Privacy Commissioner who 
had investigated a similar surveillance activity in the City of Sherbrooke 
in 1992. The Québec Commissioner concluded that the City of Sherbrooke 
contravened the Québec privacy legislation by "systematically collecting 
nominative information on video tape when it was not necessary for the 
carrying out of its duties or the implementation of a program under its 
management".

I also note that I believe my reasoning to be consistent with that of the 
Supreme Court of Canada in its decision in the 1990 case of R. v. Wong, 
wherein the Court stated: "Što permit unrestricted video surveillance by 
agents of the state would seriously diminish the degree of privacy we can 
reasonably expect to enjoy in a free societyŠwe must always be alert to the 
fact that modern methods of electronic surveillance have the potential, if 
uncontrolled, to annihilate privacy."

In a letter dated September 10, 2001, Commissioner Zaccardelli of the RCMP 
has informed me that continuous video recording of the surveillance camera 
was terminated on August 28, although he explicitly alludes to the 
possibility that the Kelowna RCMP Detachment may decide to resume 
continuous random videotaping at some future date. He states that at 
present the area under surveillance will only be videotaped if a violation 
of the law is detected.

This puts the present use of the surveillance camera into compliance with 
the letter of the Privacy Act, which applies only to information "that is 
recorded in any form." Nevertheless, for reasons I will detail below, I am 
not satisfied that a continuation of the video camera surveillance without 
continuous recording is sufficiently respectful of the spirit of the 
privacy law nor of the privacy rights of Canadians. In my view, only 
outright removal of the camera would meet that standard.

I will explain my reasoning in the course of addressing the broader privacy 
issues raised by the growing inclination to resort to video surveillance in 
public places. Because of the enormous importance of these issues to the 
fundamental privacy rights of all Canadians, I believe that it is not only 
appropriate but necessary for me to take this occasion to do so.

Let me begin by saying that I am well aware that, in the wake of the tragic 
events of September 11, there is probably some considerable public 
perception that a proliferation of video surveillance cameras in our 
streets and parks would somehow make us safer from terrorist attacks.

But even if New York City had been endowed with so many surveillance 
cameras as to turn the whole city into a giant TV studio, this would have 
done nothing to prevent the terrorists from crashing aircraft into the 
World Trade Center. In fact, it is difficult in general to believe that 
massive-scale video monitoring of streets and other general-use public 
places could be an effective or practical defence against terrorism.

Indeed, the growing enthusiasm for video surveillance cameras to date has 
focused not on anti-terrorism applications, but rather on their purported 
effectiveness against more conventional crimes. It is in this context, 
which gave rise to the complaint at hand, that I wish to examine the merits 
of such surveillance.

I have often stated my belief that privacy will be the defining issue of 
this new decade. Quite apart from the new pressures the current situation 
is likely to create, this is because a host of emerging technological 
challenges to privacy will force us to make choices that will determine 
what kind of Canadian society we will have not only for ourselves, but for 
our children and grandchildren. And if privacy at large will be the 
defining issue, few privacy issues will do more to shape that definition 
than the choices we make about video surveillance.

If we cannot walk or drive down a street without being systematically 
monitored by the cameras of the state, our lives and our society will be 
irretrievably altered. The psychological impact of having to live with a 
sense of constantly being observed must surely be enormous, indeed 
incalculable. We will have to adapt, and adapt we undoubtedly will. But 
something profoundly precious-our right to feel anonymous and private as we 
go about our day-to-day lives-will have been lost forever.

The Orwellian idea that "Big Brother is watching" will have become no 
longer apocryphal, but a literal and permanent daily reality.

That is a choice, and a sacrifice, that we are being invited to make in the 
name of rendering ourselves safer from crime. But there are several things 
that I consider to be profoundly wrong with that invitation.

First, there is no persuasive evidence that video surveillance of public 
places is, in fact, an effective deterrent to crime. It may be that it 
reduces street crime in locations where cameras are present, but only by 
displacing it to locations where they are not. Such a circumstance would 
mean that effective deterrence could be achieved only by having police 
surveillance cameras everywhere, even in the residential areas outside our 
homes.

But even then, full deterrence seems unlikely. Setting aside the conceptual 
improbability of achieving a truly crime-free society through the mere 
dispersal of cameras, the empirical evidence does not support it. In 
Britain, which now has more than one million surveillance cameras, violent 
crime has actually increased.

This is not altogether surprising. In this era of public sector 
cost-cutting, the use of video cameras tends to replace or reduce, rather 
than supplement, the presence of police officers on the streets. While a 
police officer who is physically present can intervene to stop a crime in 
progress, rescue the victim and arrest the suspect, it is far less clear 
what can be accomplished by an officer watching on a screen several miles 
away. In the case of the most serious crimes, the filmed record might 
assist in eventually apprehending and convicting the offender. But this 
does little to prevent the crime or spare the intended victim, particularly 
since most offenders don't carefully weigh the prospects of being caught.

The second shortcoming of the invitation to sacrifice our privacy to 
surveillance cameras is that the need to make so grave a sacrifice has not 
been demonstrated. Crime rates in Canada have been declining, not rising.

The third, and perhaps most important, objection is this: Even if video 
surveillance were in fact an effective deterrent to crime, the means by 
which we choose to combat crime need to be weighed against other important 
social values and goals.

In police states, there may be little or no crime, but there is also little 
or no freedom. Here in Canada, we temper law enforcement activities to 
accord with the kind of society we choose to be. We do not permit egregious 
violations of human rights, however effective they might be in deterring or 
solving crimes.

We make these choices because, while wanting a safe society, we recognize 
that there is more to safety and a high quality of life than merely the 
absence of crime. This same perspective needs, in my view, to be brought to 
the issue of surveillance cameras in our streets and public places. How 
great a price, in terms of our fundamental right to privacy, are we really 
prepared to pay?

I am aware of the argument that there is, in any event, no reasonable 
expectation of privacy in a public place. Certainly, it would not be 
reasonable to expect privacy where there are signs posted warning that we 
are under video surveillance.

But while "reasonable expectation of privacy" is a specific legal term, 
what is far more important is the right to privacy. That fundamental human 
right cannot be extinguished simply by informing people that it is being 
violated.

This is particularly true in the case of public space such as streets. 
People may have the choice of refusing to enter a store if there are signs 
warning that they are subject to video surveillance. But if there is a 
proliferation of surveillance cameras in our public streets, short of 
levitating above those cameras, people will have no way of withholding 
consent and still getting from place to place.

In my view, there are gradations to the right to privacy. Clearly, we have 
a greater right to privacy in our homes than in public places, where we are 
inevitably likely to be noticed and observed by those with whom we share 
the space. But in those public places, we retain the privacy right of being 
"lost in the crowd," of going about our business without being 
systematically observed or monitored, particularly by the state.

I share this view with the Supreme Court of Canada, which stated in its 
Wong decision: "Šthere is an important difference between the risk that our 
activities may be observed by other persons, and the risk that agents of 
the state, in the absence of prior authorization, will permanently record 
those activities on videotape, a distinction that may in certain 
circumstances have constitutional implications. To fail to recognize this 
distinction is to blind oneself to the fact that the threat to privacy 
inherent in subjecting ourselves to the ordinary observations of others 
pales by comparison with the threat to privacy posed by allowing the state 
to make permanent electronic records of our words or activities."

Finally, I want to return to the issue of the distinction between video 
surveillance and the recording on film of the results of that surveillance. 
While the Supreme Court in Wong put great emphasis on the risks inherent in 
the creation of a permanent electronic record, particularly in the light of 
technological advances since 1990, I believe that video surveillance in 
public places can present a serious threat to privacy rights even in the 
absence of recording.

The Privacy Act, unlike the more recent Personal Information Protection and 
Electronic Documents Act (PIPED) that deals with the private sector, limits 
its provisions to personal information "recorded in any form." Therefore, 
observing people on the streets through video cameras without routinely 
making a recording would comply with the letter of the Privacy Act. 
However, I am not satisfied that this would fully meet the spirit of the 
law, nor that it would be sufficiently respectful of the privacy rights of 
Canadians.

Indeed, I understand that it was precisely the prospect of this sort of 
video surveillance that caused the reference to "recorded in any form" to 
be omitted from the PIPED Act.

My first concern is that the very presence of video cameras, whether they 
are recording at any given moment or not, is what creates the 
privacy-destroying sense of being observed. Moreover, whatever assurances 
may be given by the public authorities, people have no basis for being 
certain at any time that such cameras are in fact not recording. The basic 
nature and purpose of a camera is to record; short of having privacy 
invigilators in place at all times, there is no way for the public to know 
whether or when recording might be taking place.

My second concern is that if a proliferation of video surveillance cameras 
in public places is allowed to take place, it is a virtual certainty that 
function creep will lead inexorably to the linkage of those cameras with 
biometric technology that permits identifying individuals by matching their 
facial characteristics with photos that are on record.

Far from being some futuristic fantasy, this is already being attempted in 
some U.S. cities, to considerable public consternation. Once sufficient 
cameras were in place, there is every reason to believe that this approach 
would initially be advanced by some Canadian police force as well, as an 
effective way to protect the public from known criminals-as was done in the 
U.S. at the stadium during the last Super Bowl Game. From there, it would 
only be a short distance to using readily available photo sources for the 
general population, such as driver's licence application records, to be 
able to identify anyone in a monitored public place at any time, or to 
monitor the whereabouts and activities of any given individual as he or she 
moved from place to place.

I need hardly elaborate on the effect this would have on privacy rights, or 
the kind of transformation it would work on Canadian society. Such 
surveillance/identification would be as deeply wrong as it is unnecessary. 
Just because something is technologically possible, that does not mean it 
is socially justifiable or acceptable. But the only effective way to 
prevent it is to prevent the proliferation of surveillance cameras in the 
first place.

None of this is to say that there may not be some specific circumstances 
where it is appropriate for police forces to use surveillance cameras in 
public places to maintain safety and order.

For instance, video surveillance, without continuous recording, appears 
justifiable at particularly sensitive locations that are so susceptible to 
some form of terrorist or other attack as to require intensive security 
measures.

Similarly, it is conceivable that in some particular place there might be 
such an exceptional threat to public safety, combined with other 
circumstances that made conventional policing unfeasible, that installing 
video surveillance would be justifiable.

There can also be special circumstances where, to investigate a particular 
crime, it might be appropriate for police to temporarily establish a video 
camera in a given location and record images of everyone who frequents that 
location. For example, if a series of sexual assaults occurred in a given 
park, police might want to tape the people using that park and show the 
tapes to the victims to see if they could identify the attackers. Likewise, 
there are circumstances where police video surveillance of specific 
individuals suspected of a given offence is an acceptable investigative 
technique.

But all these circumstances differ fundamentally from accepting widespread 
video surveillance of the general population. From the perspective of 
privacy rights, video surveillance by the state can only be justified when 
it is demonstrable that keeping the peace could not be accomplished by any 
other less privacy-invasive means. Solid evidence is required in each case 
to justify the use of generalized video surveillance rather than other 
traditional means of law enforcement. Convenience, efficiency or cost 
savings should never qualify as such evidence. Video surveillance of 
Canadians by the state should be the very rare exception, not the norm.

I have gone to considerable lengths in addressing the broader issues raised 
by this complaint, because of my profound belief that the choices we 
Canadians make about video surveillance by agents of the state will go a 
long way towards determining what kind of society we shape for ourselves.

Privacy is a fundamental human right, recognized as such by the United 
Nations. The level and quality of privacy in our country risks being struck 
a crippling, irreparable blow if we allow ourselves to become subjected to 
constant, unrelenting surveillance and observation through the lens of 
proliferating video cameras controlled by the police or any other agents of 
the state.

Although most police forces are outside the purview of the federal Privacy 
Act, and although the Privacy Act itself does not provide sufficient 
protection against video surveillance without continuous recording, it is 
very much my hope that these observations may be of some help in 
contributing to an informed public opinion, which in the final analysis is 
always our strongest defence against ill-considered violations of our rights.

This concludes my investigation of your complaint. The Royal Canadian 
Mounted Police has been informed of the results. If you have any questions, 
please do not hesitate to contact me at 1-800-282-1376.

Yours sincerely,

George Radwanski
Privacy Commissioner of Canada


- 30 -


For more information, contact:

Anne-Marie Hayden
Media Relations
Office of the Privacy Commissioner of Canada
Tel.: (613) 995-0103
[EMAIL PROTECTED]
www.privcom.gc.ca

The Privacy Commissioner of Canada is an Officer of Parliament and an 
advocate of the privacy rights of Canadians with a mandate to investigate 
complaints and conduct audits under two federal laws; publish information 
about personal information-handling practices in the public and private 
sectors; take matters to the Federal Court of Canada; conduct research into 
privacy issues; and promote awareness and understanding of privacy issues 
by the Canadian public.


Last Updated: 10/4/2001 5:

-- 
Progress, far from consisting in change, depends on retentiveness.
Those who cannot remember the past are condemned to repeat it.
"The Life of Reason," 1906, George Santayana (1863-1952)
--
Robert Guerra <[EMAIL PROTECTED]>
PGP Keys <http://pgp.greatvideo.com/keys/rguerra/>




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