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Unlimited Surveillance: Protection for the Police and from the Police - M Packulak

Twice in Supreme Court of Canada (“SCC”) judgments, Justice La Forest referenced the work 1984 by George Orwell when writing about police surveillance.[1][2] In R. v. Wong he writes that “we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy.”[3] The invocation of dystopian fiction in reference to SCC cases should not be discarded as mere hyperbole. Justice La Forest considered surveillance techniques employed by Canadian police to be a serious threat to privacy. These cases were heard in 1990 and 1992, before the invention of modern surveillance methods which would rival the imagination of George Orwell.

The city of Chongqing in China is a city, with 2.58 million cameras monitoring 15.35 million people, facial recognition software alerts police to the presence of people in crowd who match a person of interest.[4] It is easier to imagine such a system in an authoritarian country where human rights violations are common and expectation of privacy is not a right, but the city of London ranks 3rd in Comparitech’s 2021 list of most surveilled cities.[5]

In China the police are an extension of the state, and of state policy. It is well known that China is employing a vast network of video surveillance linked to artificial intelligence system. China maintains a national database with 300,000 criminal faces but they also track “mental illnesses, records of drug use, and those who petitioned the government over grievances.” According to the New York Times, China is using some of these systems to supress citizens based on their ethnicity. A Chinese tech investor in artificial intelligence who spoke with the Times said that “China has an advantage in developing [artificial intelligence] because its leaders are less fussed by ‘legal intricacies’ or ‘moral consensus.’” China is using artificial intelligence to track the approximately 11 million Uighur Muslims, of which nearly 1 million have been displaced into camps.[6]

This technology is potentially a tremendous tool to aid law enforcement and protect against terrorism. The problems with the technology do not come from the equipment, but the users. In China the bias of the state against their Uighur population influences the characteristics that the machine is looking for. “Results generated from these [software] calculations may appear like an objective science, but closer analysis reveals this technology’s foundational reliance on observational biases that are crystallized into the enforcement records used to train this technology.”[7]

In the United States following the January 6th 2021 riots at the U.S. Capitol, technology played a crucial part in the charges laid stemming from that date. As of one year from the date of the riot, investigators have combed through more than 20,000 hours of video and 15 terabytes of data. Over 725 people have been arrested. 145 people have pled guilty to misdemeanors and 165 of have pled guilty to felonies.[8] Beyond the tools available to investigators, there was a huge swell of public involvement in the investigation as the FBI listed photos and video of people wanted for the riot.[9]

Following events like 911 and the U.S. capitol riots, people rallied behind government action such as the FBI call for online sleuthing into riot participants. “A state can prime and prep its citizens to accept otherwise distasteful breaches of personal privacy and rights through the opportunity to take matters into their own hands and enact justice against those they deem guilty.”[10] It is easier to rally the public behind the apprehension of organizations or people with distasteful views. Online public consciousness is not a great example of sober reflection on the consequences of dangerous surveillance precedents. When it comes to pursuit of fanatics or those who seek to do harm, the posse mentality often morphs into a lynch mob mentality quickly.

Fundamental justice is an important concept to democracy and when the values of a society are ignored because of distasteful actions by a group within that society, then the precedent has been set and the risk of improper use of that technology dramatically increases. Of course none of these concerns need be a barrier to using technology to safeguard society. They are a sober reminder though, that the human rights of the distasteful elements of our society must be protected to effectively safeguard the human rights of the entire society.

Technology is ever improving and becoming cheaper to use. Policing has been a controversial topic and the increasing use of surveillance by the police without a clear oversight regime does not foster transparent policing. It is clearly in the best interest of society to use every technology possible to protect people. Mass facial recognition and artificial intelligence can be employed under the watchful eyes of an independent agency to ensure that no one state body has control over the data which is public life. Implementing an oversight regime and a warrant procedure will accomplish the goals of effective policing and privacy in our society.

[1] R v Wise, [1992] 1 SCR 527 at 41 [Wise]. [2] R v Wong, [1990] 3 SCR 36 at 47 [Wong]. [3] Ibid. [4]Matthew Keegan “Big Brother is watching: Chinese city with 2.6m cameras is world’s most heavily surveilled” (2 December 2019), online: The Guardian <www.theguardian.com> [perma.cc/3E5N-Z7V2]. [5] Paul Bischoff, “Surveillance camera statistics: which cities have the most CCTV cameras?” (17 May 2021), online: comparitech <www.comparitech.com> [perma.cc/298N-HJNN]. [6] Paul Mozur “One Month, 500,000 Face Scans: How China is Using A.I. to Profile a Minority”, New York Times (14 April 2019) online: <www.nytimes.com> [perma.cc/LQ4U-KWHX]. [7] Shawn Singh, “Algorithmic Policing Technologies in Canada” (2021) 44:6 Man LJ 245 at 246. [8] Ryan Lucas “Where the Jan 6 insurrection investigation stands, one year later”, NPR (6 January 2022), online: <www.npr.org> [perma.cc/D2ZP-UVRU]. [9] “Most Wanted: US Capitol Violence” (last visited 15 April 2022), online: FBI Most Wanted <www.fbi.gov/wanted/capitol-violence> [perma.cc/L8KY-92Z7]. [10] Megan Ward, “Participatory Security and Punitive Agency: Acclimation to Homeland Surveillance in the United States” (2021) 19:3 Surveillance & Society 346 at 346.

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