Law disciplines technology, though it does so in a partial and incomplete way. This fact is reflected in the old adage that technology outstrips the capacity of law to regulate it. The rise of new technologies poses a significant threat to human rights. The pervasive use of closed-circuit television (CCTV), as well as mobile CCTV, telecommunications interception, and low-cost audiovisual recording and tracking devices (some of these discreetly wearable), extend the power of the state and corporations to significantly intrude into the lives of citizens.
Regulatory failure to control the media's appetite for salacious stories, and the resulting corruption of some senior police , are the subject of a major inquiry in the United Kingdom into the culture, practices, and ethics of the press. Chaired by Lord Justice Levenson, the inquiry examines phone-hacking and other potentially illegal behavior. The investigation is assessing the relationship between the U.K. press and police and the extent to which that relationship has operated in the public interest .
Recommendations for enhancing the regulation of the press must balance the need for press freedom with the highest ethical standards. The introduction of the Human Rights Act 1998 (U.K.) has led to a change in the attitude of British police regarding their role in the protection of human rights. However, the new law clearly had negligible impact on the Fourth Estate.
Australia is not immune to similar risks of regulatory failure. There has been a similar, though less wide-ranging review instigated by the Australian federal government. For instance, media organizations have found that hacking into email and computer systems runs the risk of prosecution under Australian federal criminal law . Unauthorized interception of communications (telephone, SMS, or email), or gaining unauthorized access to intercepted material, are Australian federal offenses carrying stiff penalties. Yet there do not appear to have been any prosecutions for this type of illegal conduct in Australia. And Australia is not the only country to have this possible discrepancy between laws on the books, and enforcement.
While misuse of surveillance by corporations may be difficult to detect, Australia exercises continuous oversight over surveillance for law enforcement and national security purposes. The Telecommunications (Interception and Access) Act 1979 (Cth) (TIA) has numerous oversight mechanisms, including reporting obligations by law enforcement agencies to the Attorney General and the Commonwealth Ombudsman. Each year, the Australian Attorney General's Department collates these data and submits a report to Parliament. The annual report tracks an (ever upwards) trend in surveillance. However, today this information barely rates a media mention.
Intrusive surveillance technologies, once reserved only for the investigation of serious federal offenses, is now universally available to law enforcement officials across Australia to gather evidence and intelligence relating to a wide range of offenses. Clearly, the line between what is considered intelligence and what is considered evidence is beginning to blur as a result of advancements in social media and more broadly, social computing. The most worrisome trend is in the increased number of warrants for intercepting and accessing communications relating to terrorism offenses. Unlike drug crimes, these warrants are not producing material that is adduced in legal proceedings. Law enforcement surveillance is therefore serving an intelligence-gathering rather than evidence-gathering function, supplanting or more likely further extending surveillance performed by the Australian Security Intelligence Organisation (ASIO) for national security. Indeed, the Telecommunications Interception and Intelligence Services Legislation Amendment Act 2010 (TIISLA) has amended the TIA Act to remove legislative barriers to interoperability between national security and law enforcement agencies, and has enhanced those agencies ability to share information.
Technological innovations do not only benefit law enforcement. They also enhance the visibility of police misconduct that hitherto has been difficult, if not impossible, to establish. Police stations are subject to monitoring, both inside and outside interview rooms. There is also increasing CCTV monitoring in urban inner city precincts that inevitably capture video evidence of police going about their work. In 2010, a Queensland Police officer was sentenced to nine months imprisonment after a violent assault on three people in his custody was recorded . A YouTube video was posted showing the officer punching 23-year-old Timothy Steele in the head and forcing a high-powered fire hose into his mouth. The footage also showed the officer slamming Renee Toms, then 21 years of age, to the floor of the station house before pulling her by the hair, lifting her off the ground . In another incident in 2008, unlawful use of police power against a homeless man was captured on the Brisbane City Council CCTV system, providing critical evidence at the trial of the homeless man charged with refusing to comply with police directions and resist/assault police .
Due to the proliferation of CCTV, the number of “captured” incidents showing police misconduct has risen. Some police are now calling for new video technologies to be worn at all times to increase public confidence, protect officers, and to gather up-to-the-second intelligence and evidence .
Beyond these CCTV systems, which are not always working or focused on the right spot, youth on the streets who are most likely to encounter police in tense and difficult interactions increasingly resort to self-help surveillance. The incorporation of point-of-view (POV) surveillance devices into mobile devices has enhanced the capability of citizens to exercise what Steve Mann has called “sousveillance” . Some researchers have considered sousveillance to be surveillance from below (by citizens) rather than from above (by the state). Mann himself has stated that sousveillance is a form of “reflectionism” . In essence, sousveillance is the “philosophy and procedures of using technology to mirror and confront bureaucratic organizations” . Police misconduct captured on high-definition recording devices can be immediately uploaded to personal blogs, Facebook, YouTube, and other social media sites. This “new visibility” (see generally, ) of policing in the 21st century increases public transparency of officer conduct, and stimulates community and media interest in use-of-force incidents. Although there is evidence that the new “less lethal force” options available to police, such as Tasers or Oleoresin Capsicum (OC) spray, help reduce lethal outcomes for citizens and minimize officer injury, recurrent images of incidents of police brutality have intensified community anxiety and demands for enhanced police accountability.
This special section on the social implications of national security technologies addresses questions of human rights, regulation, and legislation; evidence-based policy; and emerging forms of social modelling and simulation. Many of the cases addressed in this special section are based on the Australian experience, but are universally applicable and relevant.
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Keywords: Special issues and sections, Government policies, Privacy, Social factors, Surveillance, Security, Ethics
Citation: Simon Bronitt, Katina Michael, "Human Rights, Regulation, and National Security", IEEE Technology and Society Magazine, ( Volume: 31, Issue: 1, Spring 2012 ), p. 15 - 16. Date of Publication: 05 March 2012, DOI: 10.1109/MTS.2012.2188704