Privacy, Surveillance and Snooping Behind Blue Lines: Surveillance within the Police Force

Conceptions of privacy are changing. With the proliferation of social media, unparalleled connectivity and technological innovation, we have never been more visible. The heightened hive-based nature of our cultures has allowed for not only greater surveillance potential by the state, but has also allowed the populace to survey the state, whether it be through citizen cell phone recording, or more recently through the body cams that seem to becoming almost industry standard in policing practice.

In a surveillance society it is interesting to think of the ways that police may engage in surveillance within the force itself, or how private security firms may self-survey. A recent scholarly paper considered police surveillance within the force and considered the labour/employment and civil/criminal liability issues that may arise.

John Burchill recently reviewed "the risks and consequences of such activities" using "traditional doctrinal research" and concluded that self-surveillance within the force might be "unlawful", and that any "evidence obtained may not be admissible in any proceedings" but nonetheless "employees may be subject to discipline up to and including dismissal for engaging in surreptitious workplace recordings" (Burchill 2017, at 248).

Excerpted below is the conclusion from this week's featured paper: Tale of the Tape- Policing Surreptitious Recordings in the Workplace

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In 2011 ABC News reported that employees are increasingly using digital devices to record conversations in the workplace, and sometimes using the recordings to launch complaints against their employers. While the frequency of secret workplace recordings is unknown, the article suggests that it happens often enough that employers should assume that all meetings with employees are being recorded.151

As such it is to be expected in an era of mass digital communications that many police officers will be increasing their use of digital devices to secretly record conversations in the workplace and/or their interactions with the public, sometimes using such recordings to launch complaints against their employers.

Although Craig MacMillan suggested it may be possible for police officers to make personal interest recordings, where the recordings are covertly or surreptitiously made in the workplace of other officers without a court order, they may not be admissible in any proceedings for a number of reasons - principally because such recordings may be unethical, it would be breach of confidence and privacy, and/or because it would undermine the spirit of trust and confidence between the parties. It may also be unlawful without a court order. However,with the potential of opposing rulings in the Michel Ledoux case between the civil and criminal courts, I anticipate this is a decision ripe for the Supreme Court of Canada to decide.

Nevertheless there is no guarantee that such recordings would not become public and police employers should have clear policies that such practices are prohibited in the police workplace, adopting a similar policy to that of the United States Federal Aviation Administration:

Covert/secret taping, either audio or video, of any conversation or meeting occurring at the workplace or conversation or meetings off-site that deal with workplace issues and matters of official concern are prohibited. Examples of such meetings are promotion interviews, EEO meetings with a counselor or investigator, meetings between a manager and a subordinate, etc. This prohibition applies regardless of any State law which may permit covert/secret tape recording.152

Employers understandably want control over the documentation of what occurs in the workplace. In addition employees may not realize it could be against the law. Prevention is the best precaution against such uses in the workplace. Otherwise there is, of course, no way of knowing whether you are being watched at any given moment by the thought police,“[y]ou have to live--do live, from habit that becomes instinct -in the assumption that every sound you made is overheard, and except in darkness, every movement scrutinized"153

Footnotes from the Article

151 Ki Mae Heussner, “Are You Being Secretly Recorded at Work?” ABC News(19 April 2011), online: ABC <abcnews.go.com/Technology/secretly-recorded-work/story?id=13409126>.

152 US, Federal Aviation Administration, “Human Resources Policy Manual (HRPM) Volume 4: Employee Relations ER -4.1” (Washington: FAA, 2 March 2011).

153 Paraphrasing George Orwell, Nineteen Eighty-Four, 1st ed (United Kingdom: Secker &Warburg, 1949).

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To view this week's featured paper, click this link.