Vancouver’s closed-circuit TV public-surveillance system guidelines contradict privacy pledge

The City of Vancouver got a $400,000 provincial government grant to expand its closed-circuit television (CCTV) public-surveillance system—then ignored the commitments it made to protect citizens’ privacy. At least, that’s what’s suggested by two seemingly contradictory documents recently obtained by the Georgia Straight through freedom-of-information requests: the city’s CCTV privacy-impact assessment and its CCTV policy guidelines.

Under privacy law, privacy-impact assessments (PIAs) are supposed to describe how an agency will handle personally identifiable information it collects, like images of people on public streets. The city’s PIA, written in 2009, was reviewed by the B.C. privacy commissioner, as is commonly done with PIAs to help ensure programs are reasonable and lawful. That PIA states that there “will be no recording or storage of images” during any CCTV public surveillance. The video cameras will only operate and be monitored in real time, the PIA says, to facilitate real-time responses to emergency situations “without collection and/or storage of images”. Therefore, the PIA explains, Vancouver’s CCTV system presents no threat to people’s privacy because “no personal information is being collected, used or disclosed.”

However, the city’s active CCTV policy guidelines state: “The information collected by the CCTV system will be recorded…[and] will be retained for 30 days” for undisclosed reasons.

Meanwhile, in its 2009 PIA, the city also commits to hosting “broad and inclusive” consultations including “as wide and disparate a range of stakeholders as possible” with a clearly defined “engagement process” and “deliverables”. This section pointedly adds: “Amongst stakeholders who will be invited to participate will be the British Columbia Civil Liberties Association.” (BCCLA critics of CCTV have long called for exactly such public consultations.) Perhaps tellingly, the PIA concludes with four spots for signatures from senior city and B.C. government representatives—all blank.

“I’m not sure what that means,” BCCLA policy director Micheal Vonn said during a phone interview after reviewing the documents and the missing signatures. “What it does seem to indicate is that there’s a certain cavalierness about following up on this.…It doesn’t look like the process was followed.” And as for the community consultations involving the BCCLA, she commented: “I have to say, I have no record of that consultation. Although I don’t know what they mean by ‘consultation’.”

Asked about the contradictions in the documents and the unmet commitments in the PIA, Kevin Wallinger, Vancouver’s director of emergency management, gave an interesting explanation. Even though the Straight specifically requested the city’s CCTV privacy-impact assessment, Wallinger said that what was obtained is not actually the CCTV privacy-impact assessment. At least, not anymore.

“The privacy-impact assessment was developed and put together as part of a grant application [in early 2009] with the [former] Ministry of Public Safety and Solicitor General,” Wallinger said. “And the receipt of that [$400,000] funding was contingent on having the PIA in place.” Wallinger explained that the grant was for a project that primarily consisted of the construction of the CCTV control room as part of security enhancements for the 2010 Winter Olympics. “That [PIA] was done specifically for the intended use during the Olympics, which have come and gone,” Wallinger said. After the Olympic surveillance project ended, Wallinger said, the PIA was no longer in force and the city reverted to its normal practices based on the second document the Straight obtained, the city’s CCTV policy guidelines, which were written in 2005.

And the lack of signatures on the PIA? “Either an oversight in documentation or whatever,” Wallinger said. “But it was done; it wasn’t signed, and we still received the grant funding.”

There’s only one problem with this explanation. In Wallinger’s own 2009 report on the matter to city council, in which he recommended accepting that grant money, he only mentioned the Olympics in passing. Instead, he made it clear the main intent of the grant was actually to help create a long-term CCTV solution for Vancouver. The grant project, Wallinger wrote, would construct a control room to support “rapidly deployable temporary monitoring capabilities at large public events or in response to hazards, emergencies, and other unforeseen eventualities” and help the city “in the long term address its disaster recovery and business resumption needs”. In the three-page PIA itself, these same, long-term intentions are reiterated, and the Olympics are never mentioned.

Similarly, the Ministry of Public Safety and Solicitor General made no mention of the Olympics when it issued a news release about the grant, saying the Vancouver CCTV expansion would help “reduce violent and nuisance crimes” in “high-crime locations and in special-event situations”.

So, apparently, the PIA should still be valid. And the city has been ignoring the commitments it made to the provincial government to hold public consultations on CCTV and to neither record nor retain CCTV data.

The Straight made repeated attempts, without success, to obtain an interview with B.C. Minister of Justice and Attorney General Shirley Bond in order to investigate these failings. Ministry spokesperson Amy Lapsley finally sent the Straight the following statement, allegedly from Bond: “I have only just become informed of this issue and want to thank you for bringing it to my attention.…I have directed ministry staff to look into this matter and to work with the City of Vancouver to ensure that all terms of the grant are in fact met.”

However, getting the city’s policy document more in sync with its PIA document won’t likely improve much, in any case. During discussions with Wallinger, it became clear that on many key privacy-protection issues, the city is also increasingly ignoring its own six-page policy document.

The “Closed Circuit Television Systems Setup and Monitoring Policy” authorizes, for example, strictly “short-term” installations of cameras for specific events. However, Wallinger admitted that many cameras remained in place for months in downtown areas last year. “During the [June Stanley Cup] final series, we actually installed the cameras,” he said. “We actually left some of the cameras up through the Canada Day celebration, and also the Celebration of Light fireworks at the end of July.”

And who’s allowed to access that stored video data? Wallinger replied: “I think our procedures are pretty specific in that it’s the Vancouver Police Department or other city departments.” Since 2010, Wallinger said, the VPD has accessed the CCTV videos “30 or 40 times” via a request form. “We’ve got a process in place. Within that 30-day period, they need to give us a file number and the specific incident.” Yet the city’s CCTV policy guidelines don’t actually describe any processes or forms for authorizing such routine access to stored video footage by police or city departments without search warrants or court orders.

And where it’s not being ignored, the policy is so vague as to seemingly allow unlimited uses of CCTV. For example, one of the “permissible uses” for CCTV surveillance is “planning”, which includes purposes as varied as “traffic management”, “property development”, “related purposes”, and “city planning”. Another permissible use is “law enforcement”, which includes everything from “investigations that lead or could lead to a penalty or sanction” to the all-encompassing “criminal intelligence”. One section describes how rationales for specific deployments of CCTV should be proposed yet identifies only two evaluation criteria: the proposal must not be illegal, and it should be “a cost-effective and reasonable use of the CCTV systems and of staff resources”.

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”.