[Mike Larsen: This post, authored by contributor paul552, is based on a research paper prepared for CRIM 2355 Police Deviance and Accountability at Kwantlen Polytechnic University]
The rise of the “information society” in the 20th century has opened the floodgates to mass “electronic surveillance”, the technique of monitoring private communications of individuals. This can be considered as one of the most powerful tools within the police arsenal as it helps them to identify and monitor suspects in modern crime-prevailing societies. In Canada, the Protection of Privacy Act was implemented in 1974 in order to protect the citizen’s right to privacy from police surveillance. Various police agencies display a particular interest in the classification and cataloguing of personal information collected from various populations. According to various scholars, surveillance techniques have evolved from individualized surveillance that characterized the beginning of the 20th century to mass surveillance that is utilized in late modern societies (Loftus & Goold, 2012, p.275-276). After the September 11 attacks there was a shift in the landscape of policing as proactive and intelligence-led approaches to crime control were adopted as opposed to the traditional method of reactive policing. The import of risk rationale and surveillance technologies is a source of ongoing change in policing, and increasingly underpins policing practices, and these proactive and intelligence-led approaches target particular people, locations and behaviours in a systematic way utilizing an arsenal of sophisticated sources of intelligence and surveillance techniques (Loftus & Goold, 2012, p.276).
The highly controversial internet surveillance bill know as Bill C30, recently proposed by the Harper government, sparked public outrage and concern as it entrusted the police with certain powers such as the mandatory release of information about Internet subscribers to them including names, addresses, email addresses and other means of identification without the need for a warrant (Bill C30 is no loss, 2013). A large number of Canadians opposed the Bill as they felt that it would constitute a serious intrusion of privacy and eliminating the need for police to obtain warrants could lead to an alarming potential of abuse of these new powers. The government took into account the public concern and acted upon it by discarding the highly controversial internet snooping bill. In Canada the Office of the Privacy Commissioner and the provincial Offices of the Information and Privacy Commissioner published a set of standardized quasi-legal provincial and federal guidelines for using public-area video surveillance between 2001 and 2006 and these guidelines are based on undifferentiated municipal, provincial and federal privacy protection legislation, and consist of principles to assist federal, provincial and municipal institutions and law enforcement agencies in deciding whether the collection of personal information by means of video surveillance is justified and, if so, how to build privacy protection into monitoring programmes (Hier & Walby,2011, p.846). Though the guidelines have been addressed in most cities that developed surveillance programmes between 2001 and 2010, the implementation and enforcement of these guidelines remain inconsistent.
The accommodation of a Canada-wide privacy protection framework on the use of video surveillance by law enforcement agencies began with the initiation of privacy protection advocacy work in the province of Québec. In 1991, La Ligue des droits et libertés and the Commission d’accès à l’information (CAI) conducted an investigation into whether or not the Sherbrooke Police Service was collecting personal information on citizens and, if so, whether the collection of ‘nominative’ information was necessary to carry out law enforcement duties( Hier & Walby,2011, p.848). Although the police had installed cameras in 1989 to address violent crime, and police representatives claimed that there was a 22 percent decline in crime between 1989 and 1992, an independent investigation by La Ligue des droits et libertés shed light on the fact that in two years of operation, the videotapes had only been screened once or twice, and that the declining crime rate statistics were related to theft, driving offences, break and entries and not to violent crime( Hier & Walby,2011, p.848). The federal privacy commissioner of Canada, George Radwanski sent officers in 2001 to inspect the monitoring system of the RCMP in the city of Kelowna, British Columbia and found out that the program was in direct violation of the legislation as it involved the continuous recording of public activity, and he engaged in a constitutional challenge of public video-surveillance under the Charter due to the privacy violation involved (Bennett,2003, p.236).The challenge was rejected by the court and the court ruled that, as the Privacy Commissioner of Canada, he did not have the legal authority to challenge the RCMP’s use of video surveillance, under the Charter.
Social media are online locations that are utilized by users who build profiles and share information with each other. Various police investigative agencies are constantly trying to exploit the interpersonal sociality that takes place here.
Police scrutiny includes exploiting social media interfaces as well as superseding them and investigators can access users’ personal details in a way that facilitates otherwise exceptional techniques (Trottier, 2012, p.412).The response to the 2011 riots in Vancouver depicts the extent to which police are adapting to the mass volume of information displayed on social media networks such as facebook. Names, descriptions and photographs of suspected rioters were submitted by the public to the police through facebook. Investigations conducted by the police beneﬁtted from the myriad of photographs and videos that they had received and they even visited various facebook groups to search for further evidence. Comments made by VPD Sergeant Dale Wiedman such as they “have names of suspects before we know exactly what they did and where they did it” clearly indicates that people had become suspects without any reasonable doubt and identifying suspects before knowing “what they did” furthers preemptive policing as identiﬁcation and judgment occur before any formal investigation takes place (Trottier, 2012, p.416). Such actions can lead to miscarriages of justice within the criminal justice system. The search features on social media sites such as facebook, allow the police to conduct interface-based investigation resulting in the gathering of evidence, by searching for identities, events, groups etc (Trottier, 2012, p.417).Though this kind of investigation is based on an individual interacting with another, it generally involves some degree of deception and the police can gather evidence from a user’s proﬁle anonymously without making their presence known to that individual. The U.S. government is developing a “Persona Management Software” which allows investigators to manage several seemingly authentic fake proﬁles online which can be use to create an entirely ﬁctional identity, or imitate a known colleague, although both approaches would violate Facebook’s terms of service thus resulting in the exploitation of interpersonal exchanges for investigative gain (Trottier, 2012, p.418). The case of R. v. Plant demonstrates a clear violation of citizens privacy rights by the the police, resulting in the unlawful access of personal information as well as the protection of personal information under the Canadian Charter of Rights and Freedoms, enforced by the Supreme Court of Canada. The Supreme Court was faced with a situation in which the police had acquired online computer access to the local hydro company’s computer records and direct access to his home without a warrant and through this intrusion they had gathered information regarding the electrical consumption of a suspected hydroponic marijuana grower (Eddie, 2000, p.68). The defendant claimed that he had a reasonable expectation of privacy regarding the information pertaining to his hydro consumption and the Supreme Court ruled that though the seizure of consumption records was not in violation of section 8 of the Charter, the illegal search of his home violated his Charter rights.
Punch has constructed a typology of police officers based on their relationship to deviance and corruption. “The Dirty Harry” syndrome among certain police officers occurs when they believe that tough and devious tactics have to be used to achieve results such as arrests and confessions (Punch, 2009, p.24). These officers consider the law to be too lax and according to them such unorthodox methods have to be deployed to obtain convictions against the real bad guys. It is a necessary evil for them where they consider the “the ends to justify the means”. Privacy violations such as unlawfully accessing or exchanging personal information, committed by police officers who belong to this typology, consider the criminal justice system to be extremely tolerant and believe that criminals are exploiting the loop holes within the system. In the 21st century as economies are moving towards globalization, modern technology especially the internet facilitates the growth of cybercriminals who commit a wide range of criminal activities from anywhere within the world. Terrorists use the internet to publish online propaganda and actively seek new recruits online. Paedophiles use online technology to prey on vulnerable children. In such instances the Dirty Harry’s within police departments might believe that unorthodox tactics such as illegal wiretaps, unauthorized surveillance, keeping tabs or snooping through the internet without prior permission or legal authority and the unlawful exchange of such information can secure convictions and prevent the ‘bad guys’ from slipping through the cracks in the criminal justice system. The three-level typology of police/corruption explained by Maurice Punch can be used to explain the phenomenon of violation of citizen’s privacy rights by the police. Noble cause: combative (strategic) corruption, that comes under the broader context of deviance/corruption arising “within the police domain”, can explain the illicit means such as violating privacy rights, practised by police officers, to gain convictions against major criminals, terrorists and various gangs (Punch, 2009, p.29). Such officers believe that citizens have to give up certain privacy rights to guarantee their well being and safety and in order “for the greater good” to prevail in society. In the case of R. v. Wier, police in Alberta requested for an email message containing child pornography and the billing address of the owner, from the internet service provider who had found it, without the required warrant (Ismaili, Sprott, & Varma, 2012, p.342). This prompted the court to declare that the privacy rights of the accused had been violated as the transfer of the email to the police was considered to be a warrantless search and it breached section 8 of the Charter. This case depicts the fact that though the police wanted to do the right thing they broke the law to secure a conviction. In terms of accountability mechanisms in Canada, the office of the Privacy Commissioner of Canada acts an ombudsman’s office overseeing the compliance of the Privacy Act, which involves the information gathering practices of federal agencies such as the RCMP as well as the private sector (Bennett, 2003, p.225-226). This office lacks adequate funding and personnel and hence does not possess the infrastructure or resources required to address complains give by public regarding privacy violations or the power to take necessary action against the police.
In order to strengthen the accountability mechanisms surrounding privacy violations committed by police, the federal government has to delegate more personnel and resources to the office of the Privacy Commissioner of Canada, to look into police deviance and provide necessary powers to take direct action against such officers involved. The creation of a new oversight body similar in structure to the Independent investigations office of BC or the SIU of Ontario, would be required to investigate serious misconduct or deviance involving privacy violations perpetrated by police officers. New legislations will be required to ensure the cooperation of police agencies with such an external review body during the course of investigations into allegations of police misconduct. The new organisation should have all the powers of a normal law enforcement agency which would include the right to lay criminal charges against officers who are found to have been engaging in misconduct involving privacy violations and be able to recommend organisational disciplinary actions, various policy reforms etc.
In Conclusion, police surveillance that was once focused on the individual suspect is now extended to cover a broader majority of the population and police agencies are increasing their efforts to exploit private information distributed through social media networks like facebook, through social media policing. Police officials who engage in such deviant behaviour belong to the “Noble cause corruption” typology as they believe that the “ends justifies the means”.
Bennett, Colin J. (2003). The privacy commissioner of Canada: Multiple roles, diverse expectations and structural dilemmas. Canadian Public Administration,46(2), 218-242. doi: 10.1111/j.1754-7121.2003.tb00913.x
Bill C30 is no loss. (2013). Edmonton Journal. Retrieved from http://ezproxy.kwantlen.ca:2048/login?url=http://search.proquest.com/docview/1291507305?accountid=35875
Eddie, G. (2000). E-mail, the Police, and the Canadian Charter of Rights and Freedoms: Retooling Our Understanding of a Reasonable Expectation of Privacy in the Cyber Age. International Review Of Law, Computers & Technology, 14(1), 63-78. doi:10.1080/13600860054908
Hier, Sean P., & Walby, K.(2011). Privacy pragmatism and streetscape video surveillance in Canada. International Sociology, 26(6), 844–861.
doi : 10.1177/0268580910394007
Ismaili, K., Sprott, J. and Varma, K. (eds.) (2012). Canadian Criminal Justice Policy: Contemporary Perspectives. Toronto: Oxford University Press
Loftus, B., & Goold, B.(2012).Covert surveillance and the invisibilities of policing. Criminology and Criminal Justice, 12(3), 275-288.
Punch, M. (2009). Police corruption: Deviance, accountability and reform in policing. Cullompton, Devon: Willan Publishing.
Trottier, D. (2012). Policing Social Media. Canadian Review of Sociology/Revue canadienne de sociologie, 49(4), 411-425. doi: 10.1111/j.1755-618X.2012.01302.x