Surveillance, Privacy and Public Space

Bryce Clayton Newell, Tjerk Timan, Bert-Jaap Koops, Bryce Clayton Newell, Tjerk Timan, Bert-Jaap Koops

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351780186
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Today, public space has become a fruitful venue for surveillance of many kinds. Emerging surveillance technologies used by governments, corporations, and even individual members of the public are reshaping the very nature of physical public space. Especially in urban environments, the ability of individuals to remain private or anonymous is being challenged.

Surveillance, Privacy, and Public Space problematizes our traditional understanding of 'public space'. The chapter authors explore intertwined concepts to develop current privacy theory and frame future scholarly debate on the regulation of surveillance in public spaces. This book also explores alternative understandings of the impacts that modern living and technological progress have on the experience of being in public, as well as the very nature of what public space really is.

Representing a range of disciplines and methods, this book provides a broad overview of the changing nature of public space and the complex interactions between emerging forms of surveillance and personal privacy in these public spaces. It will appeal to scholars and students in a variety of academic disciplines, including sociology, surveillance studies, urban studies, philosophy, law, communication and media studies, political science, and criminology.

Chapter 1

Privacy and surveillance in the streets

An introduction

Bryce Clayton Newell

Introduction

Privacy in public space is a recurring topic within a variety of academic fields. Even prior to Warren and Brandeis’s (1890) famous call to protect privacy in the face of advancing methods of photography in 1890, new technologies and individual privacy have been in tension with each other. Today, emerging surveillance technologies used by governments, corporations, and even individual members of the public are reshaping the very nature of physical public space and are challenging the ability of individuals to remain private or anonymous in these spaces, especially in urban environments. Within these spaces, we see complex interactions arise between anonymity and identification; between trade/commercial activity, social interaction, and suspicion. Surveillance and privacy intersect in these spaces, and these intersections are significant, especially as information traditionally kept in private physical spaces or personal activities not subject to long-term and aggregate monitoring are recorded and captured by a variety of visual and other sensors embedded in public space.

Personal information and documents that once stayed (physically) protected behind closed doors or inside peoples’ homes are now stored in the cloud (a so-called “digital home” (Irion 2015), albeit with much more porous walls), and this information is also transmitted through physical public space, subject to capture and analysis (consider, for example, the use of cell-tower simulators, or “stingrays”, that mimic cellular towers and capture calls and data in transit over cellular networks). These developments have resulted in a metaphorical “evaporation” of the home (Koops 2014, 247, 256–257), traditionally seen as the bastion of privacy, as a barrier between surveillance and the details of private life. This “evaporation of houses” (Koops 2014, 257) and the increasing accessibility of private information in and from public space is connected to “ubiquitous trackability” because, as this private data spills over into public space, it adds to the digital profiles already being collected by surveillance in these spaces and, in turn, this aggregation makes further analysis possible that can reveal additional “aspects of private life that used to be confined to private places” (Koops 2014, 259). As such, public space has become a ripe and fruitful venue for surveillance of many kinds.

Privacy and surveillance may both implicate the control of information (Marx 2015a), although each may not be limited only to informational concerns (Koops et al. 2017). Surveillance has been influentially defined as “the focused, systematic and routine attention to personal details for purposes of influence, management, protection or direction” (Lyon 2007, 14). Haggerty and Ericson (2006, 3) also argue that surveillance “involves the collection and analysis of information about populations in order to govern their activities.” The definition of privacy, on the other hand, has been highly contested for decades. Privacy has been defined in many ways, both normatively and descriptively (Koops et al. 2017, 492; Marx 2015a, 35; Moore 2010; Newell 2015, 28; Solove et al. 2006, 40–51). For purposes of this introduction, it is sufficient to say that privacy and surveillance may oppose one another in many contexts but, as Marx (2015a, 33) has argued, they should not necessarily be seen as opposites. In the end, it seems apparent that we need to find new boundary-marking concepts to more appropriately determine the scope of privacy rights for individuals or groups in public space and regulate the scope and techniques of surveillance directed at them. Complicating matters, of course, is the fact that privacy and expectations of privacy may differ by culture (see, for example, Friedman et al. 2008). Despite that concern, however, it is likely that some aspects of privacy are shared across cultures (Moore 2010, 49–52) and that certain boundary-marking concepts might be used, or be at least usable, in many different cultures (for example, “personal space”). If this is true, then the cross-cultural (and even time-dependent) variability lies in where the boundary itself is placed – for example, how and where exactly do we draw the line between “personal space” and “not personal space”?

In the chapters that follow, various authors identify ways in which privacy and surveillance interact and intersect in public space. These analyses provide insights, empirical findings, and arguments that can help illuminate possible boundary-marking concepts and frame future scholarly debate about how we should regulate (or not regulate) surveillance in public space. They also argue for alternative understandings of how we should understand the impacts that modern ways of living and technological progress have on the experience of being in public and – at the extreme – the very nature of what public space really is. The contributions are also highly multidisciplinary, and range in methods from philosophical to empirical to legal, and provide a broad overview of the changing nature of public space and the complex interactions between emerging forms of surveillance and personal privacy in these public spaces.

In the next section, I summarize how the authors of the subsequent chapters conceptualize and problematize the notion and definition of “public space”, as this provides a useful lens through which to view the ensuing analyses of the role of privacy and surveillance in these spaces. Following this summary of what the “public space” is (or can be), I then outline a series of concepts proposed by the authors that are frequently related and often intertwined – but that present possible avenues for improving current privacy theory and that may serve as useful boundary-marking concepts for improving how we currently regulate surveillance (and balance the interests in both privacy and surveillance) in public spaces.

The nature of public space

A number of authors in this book argue that “the idea of public space is considerably larger than its mere spatial dimension” (Fuchs). Véliz identifies a spatial dimension supplemented by considerations of funding and ownership. Trottier discusses both “embodied spaces” and “mediated publics.” Fuchs, while outlining the development and change in the public spaces of São Paulo, Brazil, claims that public space also has political, social, cultural, and legal dimensions. “From such an understanding,” Fuchs argues, “public spaces may also be perceived as a mirror of society and its cities that embodies the balance between publicness and privacy, freedom and restrictions, surveillance and security.” Finding inspiration in “the analytical categories of Hannah Arendt’s ‘public realm’ (2013) and Jürgen Habermas’ ‘public sphere’ (Habermas 1989), which describe the zone of life beyond the state itself where individuals create a collective identity,” Shoemaker and Schmidt identify two dimensions of public space: a physical dimension and a performative dimension (in which individuals “perform public roles, such as the offices of public trust,” or engage in other “forms of communal interaction where individuals address (in speech and action) matters of public concern”). Likewise, according to Fuchs, “The public manifests in moments when people lay down their differences and start interacting with one another, an argument central to Hannah Arendt’s ‘human condition,’ but also the work of Jürgen Habermas on the public sphere (Öffentlichkeit).” Kudina and Baş also provide a definition of public space informed by Arendt’s ideas, arguing that “public space is not necessarily a designated physical location,” but rather is “a place for socialization, interaction, and representation of one’s identity.”

Similarly, public space should not be defined solely by ownership (Fuchs; Véliz; Shoemaker and Schmidt). To Véliz, neither the physical characteristics of a public place (e.g., a place accessible to others and where you will be visible or exposed) nor the matter of funding and ownership of places should be used as metrics to demarcate normative privacy rights. She argues that “privacy cannot be descriptively specified or normatively decided by reference to what is private in a financial sense” or what is private in the spatial sense. Fuchs makes the case that shopping malls exemplify how privately owned spaces can become “public” spaces. Shoemaker and Schmidt examine the university as a public space, “both the nature of its physical spaces and its ideational connection to the public realm.” At their core, universities are public spaces, they argue, “because of how they present themselves to mass publics, but even more because they are sites of contest: inquiry, debate and a struggle for access, as individuals seek to use education and expertise as the pathway to control of the public realm.” This implies that spaces might be public for physical/spatial reasons as well as for ideational reasons. Complicating matters, of course, is the possibility that universities, like many other “public” spaces, may also serve more private functions (and parts of these spaces may serve hybrid purposes).

Both Fuchs and Shoemaker and Schmidt show how fear and the desire for accountability have led to increased surveillance (in both São Paulo and on university campuses). Indeed, “[r]ecording devices, identification schemes, data collection and larger police budgets often appear as rational and relatively unintrusive responses, whatever the evidence of effectiveness” (Shoemaker and Schmidt). Surveillance of ideologically loaded public spaces (like universities) or activities in public space (like protests) provides the watchers with a greater ability to understand the attitudes, beliefs, and political views of those subject to such surveillance. Of course, achieving such law enforcement purposes often relies on the ability to accurately identify suspects. Indeed, identification has become crucial for the functioning of modern government. Interestingly, a number of authors also refer to surveillance (or surveillance technologies) as motivated by suspicion. Indeed, viewing surveillance as a means of capturing information about people in order to govern and influence their behavior, we might see surveillance technologies deployed as technologies of suspicion, and the data collected by them as subject to social constructions of suspicion, including human bias and potential for injustice and discrimination (as Katell posits; see also Trottier).

In some jurisdictions, privacy rights against state surveillance are limited (or virtually eliminated) based on the fact that such surveillance occurs in public spaces (see, for example, the discussion provided by Newell, de Conca, and Thomasen). Although these determinations likely owe their origins to a variety of factors, it is probably not coincidental that modern definitions of “public” often include the notion that what is public is “open to the scrutiny of anyone” (Sennett 1992, 16). Indeed, we find evidence of this in the ubiquity of surveillance cameras and other sensors in public spaces, as well as in commercial activities like the street-mapping projects of companies like Google, Microsoft, and Apple, that “digitally photograph or otherwise record elements of public space and then recreate them as ‘explorable worlds’” (Hargreaves). Additionally, “[t]he transformation of public space into increasingly observed and mediated space follows from the idea that the right to privacy in public is an unreasonable expectation, particularly where surveillance is seen as means of fulfilling moral duties to protect and care for others” (Katell, citing Himma 2015; Gooas et al. 2015).

Concepts, distinctions, and the search for boundaries

The mosaic

A number of chapters throughout this book emerge from concerns regarding the growing “mosaic” of information about individuals collected and aggregated – either over time or en masse – through the operation of multiple forms of surveillance, rather than just the mere fact that surveillance is occurring in public space. The basic idea of the so-called mosaic theory is that the aggregation of numerous individual data points about a person can, in their composite, reveal substantially more about a person than any of the individual pieces of data can on their own – and, thus, also facilitate inferences about the person beyond what is evident in the collected data. Shoemaker and Schmidt identify the risks of the mosaic quite clearly in their chapter about the impact of surveillance on university campuses: “The potential of information systems to paint a nuanced portrait of a student over time undermines privacies that were once protected by the sheer inefficiency of collecting it all in one place.” As summarized by Katell, “[s]cholars have been considering the transformative nature of digitally mediated, pervasive surveillance for decades as long-held perceptions of being anonymous in public have fallen away due to the relentless logging and analysis of our movements, communications, interactions, and transactions.” The (potential) application of the mosaic theory to the regulation of police investigatory conduct in the United States has provoked quite a significant response from legal scholars in recent years (e.g., Gray and Citron 2013; Slobogin 2012), including a number of critical responses (e.g., Kerr 2012; Kugler and Strahilevitz 2015).

In chapter 6, Sedenberg, Wong, and Chuang examine the ability of sensors to detect biosignals (“heart rates, body temperatures, expressions, tones, involuntary reflexes, and biological signatures”) from a distance or by analyzing biological samples (for example, hair or skin) left behind unwittingly by people as they traverse public spaces. They argue that, although “these signals have existed throughout human time,” emerging biosensors allow those in control of the devices “to record continuously and en masse, and to systematically analyze our innate biological nature.” Among other characteristics, these forms of “biosensed data” provide expansive amounts of information about individuals, especially when combined with data from different sources, potentially allowing “inferences” to be drawn “about the body … to deduce emotional states [and] physical reactions,” possibilities that may even reveal information about “memories and thoughts.” Thus, for Sedenberg, Wong, and Chuang, the inferential power granted to those wielding such aggregated information is what makes the surveillance capable of collecting, aggregating, and analyzing this information so problematic.

In their chapter, Kudina and Baş examine the ability of augmented reality technologies, such as Google Glass, to contribute to the persistent and pervasive nature of sensing and surveillance in public space. Augmented reality glasses, characterized by the well-known but ill-fated Google Glass project, were introduced into the public consciousness at a time when mass surveillance in public had already become a norm. However, as an example of an individual wearable technology, Google Glass brought practices of (and the potential for) observation to a new level. When wearables are watching, typically through small embedded sensors (e.g., cameras), they do so surreptitiously, or, at least, they create ambiguities and uncertainty about the extent and scope of observation taking place.

Later in the book, Završnik and Križnar examine the idea of the mosaic in the context of geolocation. Drawing from recent case law in the United States and the European Court of Human Rights, they echo the concerns of judges (and others) that, “disparate location data … one leaves behind in the digital age have grown to an unprecedented level. Seemingly irrelevant data on its own, such as phone logs or GPS data from smart phones, can reveal sensitive personal data on an aggregate level: where you live, where you work, when you travel, who you meet with, and who you sleep with.” Završnik and Križnar offer an optimistic vision of the mosaic theory as a “new legal remedy within the European legal framework” with the potential to “further develop the legal standard of reasonable expectation of privacy in public space.” They argue that society would benefit from legally recognizing that “disparate pieces of information may have no informative value on their own, but can have great value on an aggregate level” and that such recognition could “curtail disproportionate employment of mass surveillance technologies.”

Relatedly, Katell argues that public space surveillance may also lead to “bias and discrimination against marginalized segments of society,” in which “surveillance, open government records, reidentification of data subjects, and quantified reputation” all come together to disproportionally affect certain groups more than others. Surveillance, including forms advocated for by civil liberties advocates (e.g., body-worn police cameras), “is inherently biased” because of the way it is used and the purposes for which it is used (e.g., police work). The “overproduction of police data,” or data created by other (non-police) surveillance in public spaces, also includes the capture of information about bystanders. These realities are connected to the realities of surveillance identified by Haggerty and Ericson (2000) (the “surveillant assemblage”) and Lyon (2003; 2007) (“social sorting”), and the pervasiveness of surveillant sensors in public spaces “raise questions pertinent to public anonymity and privacy in general because they gather and retain information indiscriminately, sweeping up anyone and everyone who happens to be in sensor range of the device when it is active.”

Voluntary versus involuntary eman...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• List of contributors
• Acknowledgements
• 1. Privacy and surveillance in the streets: An introduction
• 2. In the privacy of our streets
• 3. Building ivory surveillance towers: Transformations of public space in higher education
• 4. The changing nature of public space in São Paulo: A taxonomic approach
• 5. A window into the soul: Biosensing in public
• 6. Adverse detection: The promise and peril of body-worn cameras
• 7. “The end of privacy as we know it”: Reconsidering public space in the age of Google Glass
• 8. Revisiting privacy in public spaces in the context of digital vigilantism
• 9. Emergency calls with a photo attached: The effects of urging citizens to use their smartphones for surveillance
• 10. “I’m a creep, I’m a weirdo”: Street photography in the service of the male gaze
• 11. Legal standards of location privacy in light of the mosaic theory
• 12. Surveillance and privacy in North American public spaces
• Index