Vancouver’s closed-circuit TV public-surveillance system guidelines contradict privacy pledge
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So are there actually any clear rules and documented procedures guiding how decisions about using CCTV are being made, like the decision to target the Occupy Vancouver art-gallery site with round-the-clock surveillance?
“There’s not an application process per se, and it’s not documented,” deputy city manager Sadhu Johnston admitted in a phone interview. He described the process as a “conversation” about needs, purposes, and possible alternatives. “Generally, it [a request for video surveillance] would come from VPD or it would come up during the discussion planning for an event.”
It’s these kinds of ignored policies and slippery-slope practices that make privacy and civil-liberties advocates like Vonn uncomfortable, because they open the door to constant surveillance of the general population. Vonn pointed out that research has consistently shown that mass-surveillance technologies are not particularly successful at preventing or solving crimes in most situations. And she said that databases of collected information, in general, are being used increasingly to form risk profiles, intimidate citizens, and restrict freedoms through such things as “no-fly” and “BarWatch” lists.
“The policy documents are incredibly important because part of what we’re trying to nail down here is what is allowed and not allowed and what does the public need to know,” Vonn insisted. She picked one key element of the city’s policy to clarify: “What is ‘criminal intelligence’?…What is a ‘case’? Because how broad or how narrow this is is entirely dependent on those kinds of definitions. It would certainly be of benefit if the City of Vancouver were to ask the police for clarification, so that [the CCTV] policy could be better sculpted and shaped towards something that was proportionate.”
When asked what constitutes a “case” that generates a “file number”, VPD media officer Lindsey Houghton explained by phone: “Every single call to the Vancouver police generates a file number.”
And what constitutes a “criminal investigation”? “There is a lot of grey area and discretion in when an officer conducts or proceeds with a criminal investigation,” Houghton replied. “And there are an innumerable number of factors that go into how those proceed and which doors get opened and paths they walk down.”
And “intelligence” for a “law-enforcement purpose”? Houghton’s wide-ranging answer began with Sir Robert Peel’s 19th-century principles of policing and ended by praising federal Bill C-30’s authorizations of online-population surveillance.
All this might be deemed worrying, objectionable, or potentially even unlawful if the B.C. privacy commissioner were to review Vancouver’s actual CCTV program instead of the city’s PIA-that-is-not-actually-the-PIA. But there’s a logic driving it all.
Victoria criminal lawyer Michael Mulligan explained that info-hungry police have strong motives to push for ever more surveillance because privacy laws don’t carry much weight in court against relevant evidence, however obtained.
“People talk about, ‘Oh…what about international law; what about privacy law?’ ” Mulligan said. “In a criminal context, all of that’s just interesting but not really relevant.”
Surveillance technologies are so new there’s little criminal-case law around them, Mulligan said; however, in challenging something like CCTV surveillance, the key constitutional issue would be whether or not the act of surveillance amounted to “unreasonable search and seizure” that breached a person’s “reasonable expectation of privacy”.
“I would be very, very surprised if you were able to establish you had a reasonable expectation of privacy with respect to your image as you walked down the road,” Mulligan said. And even if you did establish that your reasonable expectation of privacy had been breached, Mulligan added, legal precedents probably mean that surveillance evidence would still be admitted.
The one caveat to that would be if doing so would “bring the administration of justice into disrepute”, Mulligan said. For example, if a particular surveillance system breaks privacy laws and police know it but constantly use its evidence regardless, “no court is going to want to countenance that or do something which is going to encourage continued unlawful behaviour by the police.”
Does he envision accused criminals challenging CCTV surveillance, then?
“It’s absolutely coming,” Mulligan replied. “It’s going to get litigated.”
Yet for the BCCLA’s Vonn, that merely highlights a recurring problem we are facing as a society. The general public, she said, is forever losing ground in constitutional privacy protections when most of the precedent cases happen in criminal courts, where judges have to weigh privacy concerns against, say, searches that turned up cocaine or a murder weapon.
“We don’t see cases going to court that say, ‘I’m a perfectly ordinary citizen and here’s what the police did in gathering data about me; surely this is unreasonable,’ ” Vonn said. “If judges saw that, we’d see a lot more, ‘Well, of course, that’s unreasonable.’
“We’re only allowing our privacy rights to be vetted through the filter of ‘Well, this is an unreasonable search that turned up a pound of cocaine.’ We’re only seeing the people who were caught, and we’re not seeing the other people who are unreasonably surveilled, and so that filter makes it very difficult for judges. And some judges…throw out the evidence because they know that there’s no other checks on police surveillance.”
Vancouver labour lawyer Will Clements added that although there have been strong workplace arbitration settlements involving inappropriate surveillance by employers, ordinary citizens still can’t win much monetarily in the courts by proving their privacy rights have been breached. “Privacy legislation has a bit of a remedial gap there,” Clements said. “The powers to remedy things aren’t as potent as I think they may need to be.”
That’s possibly part of the reason the City of Vancouver doesn’t seem to feel much need to be overly constrained by any of its surveillance policies. Nevertheless, according to deputy city manager Johnston, those policies are under review right now after four Stanley Cup riot reports, both internal and external, recommended increasing CCTV use.
Johnston said he sympathizes with some people’s concerns about surveillance, but “from a public-safety perspective, I’ve definitely observed the technology being extremely helpful.” He wouldn’t reveal city staff’s review recommendations to council, but he noted that staff have certainly identified a need to deploy CCTV cameras “more readily and with greater flexibility”.