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“Citizen Journalism” and Privacy

posted by:Teresa Scassa // 11:59 PM // January 30, 2007 // ID TRAIL MIX

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It is increasingly commonplace for video of events, captured by ordinary individuals, to make the news. With the ubiquity of camera phones, the likelihood that someone will be on hand to record incidents otherwise lost to the news media increases significantly. To give an illustration, in the first week of January, a Nova Scotia cabinet minister was forced to resign when the media broadcast images from a cell phone video which showed him leaving the scene of an accident. The video was captured by a witness to the accident.

Examples like this are only one variety of so-called citizen journalism, which can take many forms. In some cases, citizens capture video, or provide commentary on news stories to major media outlets which report and communicate these contributions alongside their professionally prepared content. In other instances, individuals or collectives become the news intermediaries by creating alternative web sites to disseminate news or information on the theme or topic of their choice. Individuals may also dispense with intermediaries entirely, and create their own blogs, or post video footage or verbal commentary on their own website or on a content-sharing forum such as YouTube. These phenomena have given rise to a lively debate about the very nature of journalism.

Citizen journalism raises interesting privacy issues. Online video footage, photographs and even written commentary can feel extremely invasive of one’s private sphere. This is particularly the case where one has no expectation that one’s activities are being recorded. Yet in Canada, for example, legislation such as the federal Personal Information Protection and Electronic Documents Act (PIPEDA), the Personal Information Protection Act (PIPA) in each of B.C. and Alberta, the B.C. Privacy Act, (to give a few examples), contain exceptions for information collected, used or disclosed for journalistic purposes. These exceptions from basic privacy norms recognize that the public interest in news events will tend to outweigh individual privacy interests.

What is news, then? And what is journalism? Is it anything that takes place that someone considers worth reporting or worth reading about? Or is news defined in terms of either who gathers it (journalists) or who reports it (established media). To a large extent, the legislated exceptions from privacy legislation mentioned above seem premised on a particular understanding of journalism – one that involves an executive editorial control that acts as a filter for inappropriate content, and that follows accepted norms for news reporting. Yet there is a push in some quarters to recognize ordinary citizens acting as news intermediaries as being engaged in journalism. (See, for example, the discussion by Michael Geist in “We are all Journalists Now”, http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=1280)

Where citizens send their cell phone videos to news outlets to be broadcast as part of television news programs, the result can be characterized as traditional media outlets expanding the scope of sources on which they rely for news footage. The screening mechanisms, quality control, verification measures and so forth, presumably remain in effect. Thus it is likely that cell phone footage broadcast over television networks will benefit from journalism exceptions in privacy legislation.

The situation is less straightforward, however, when so-called citizen journalists avoid the intermediation of professional news outlets and offer their footage online by posting it on private, non-professional news sites, on content-sharing sites such as YouTube, or on their own personal websites. Absent the formal infrastructure, do their activities constitute journalism? To put it another way, do the exceptions protect an industry, or a particular kind of activity? And if it is the activity, then is there a basis for distinguishing between activity that merits the label ‘journalism’ and that which falls below the unarticulated standard? (And here again, a journalist might be defined in terms of the acceptance of their work by an established media industry). It is interesting to note that in a recent decision from the U.S. District Court of South Carolina, a judge, in considering whether a blogger’s comments were ‘journalism’ proposed a functional analysis “which examines the content of the material, not the format, to determine whether it is journalism.” (BidZirk, LLC v. Smith, April 10, 2006).

Of course, with a statute such as PIPEDA, which only applies to the collection, use or disclosure of personal information in the course of commercial activity, making one’s cell phone video footage freely available to all interested parties does not trigger the application of the Act in the first place. B.C’s PIPA does not apply to a person acting in a “personal capacity”, whatever that might mean. (If someone is not acting in a “personal capacity” when they post video footage of events online, then in what capacity are they acting? Is it necessarily journalistic?) It also does not apply where the collection, use or disclosure is for journalistic purposes “and for no other purpose” (Query: what is a journalistic purpose? Is it just to see something in print, or does it include a desire to right a wrong, see justice done, fight crime, fight pollution, etc.? If these goals are part of the purpose for posting footage, for example, then is this a journalistic purpose alone, or a journalistic purpose combined with some other purpose?) B.C.’s Privacy Act, which creates a cause of action for a violation of an individual’s privacy rights, provides that a publication of material does not violate privacy if “the matter published was of public interest”.

The wording of these various exceptions raises interesting questions about the scope and purpose of journalism exceptions in privacy legislation. Is the goal to allow an industry to continue to operate in its customary manner? Or do the exceptions serve a broader public interest objective? The B.C. Privacy Act (to use an example) focuses on the issue of the “public interest” in determining whether a publication is a violation of privacy rights. With cell phone footage posted online, therefore, the issue under might be whether disclosure of the footage served a “public interest”. One may wonder whether the choice by the drafters of such statutes as PIPEDA or PIPA to use “journalism” as the basis for the exception aims to capture more than simply the public interest. In other words, is it possible that those statutes focus on a more traditional concept of journalism which assumes the added protective layer of editorial choice and unwritten norms or conventions?

Some say citizen journalism will ultimately make politicians, police, public figures and corporations more accountable, as they can no longer assume that their conduct will remain largely insulated from public view. However, others raise concerns about the impact of some forms of citizen journalism on personal privacy. They note that the targets of such journalism may not just be public figures and institutions, but may be private citizens captured committing minor infractions in their course of their daily lives. For example, if municipal by-laws say that trash cannot be put on the curb until the morning of pick-up day to prevent animals from getting into the trash and making a nasty mess, does a person who puts their trash out the night before deserve to have their photograph posted on a website which denounces those who contribute to urban pollution? Perhaps they do. But the level of exposure may be more than is warranted by the public interest. It might expose that individual to a backlash that is out of proportion to the offence. It is also not particularly nuanced; it does not all for a consideration of the “other side”. Is there a difference between journalism and vigilanteism? In Oklahoma City, one man decided to post on his web site video footage of johns soliciting sex from prostitutes in his neighborhood in an effort to combat prostitution in his neighborhood. (http://showmenews.com/2006/Aug/20060817News023.asp) Is this citizen journalism or vigilanteism? Or a bit of both?

To side track for a moment, it is interesting to consider the debates that have arisen regarding the online publication of court decisions. The publication of court decisions has always been an important part of an open and transparent system of justice. However, the impact on individuals of the internet publication of sensitive personal information has required some modification of this general principle of openness. The Canadian Judicial Council (CJC) has developed a protocol for the drafting of reasons for judgment by judges which is intended to balance the principle of openness with the reasonable privacy interests of litigants. (http://www.cjc-ccm.gc.ca/article.asp?id=2814) Yet in the absence of a court-ordered publication ban, the CJC would only restrict the publication of personal information in court decisions in the most extreme circumstances:

. . . there may be exceptional cases where the presence of egregious or sensational facts justifies the omission of certain identifying information from reasons for judgment. However, such protection should only be resorted to where there may be harm to minor children or innocent third parties, or where the ends of justice may be subverted by disclosure or the information might be used for an improper purpose. (CJC, Recommended Protocol for the Use of Personal Information in Judgments, para 31)

Of course, the publication of judicial decisions is not citizen journalism. The motivation towards openness in the reporting of judicial decision-making is supported by both a strong sense of an underlying public interest that is being served, and confidence in a professional and accountable judiciary. To return again to the journalism exceptions in privacy legislation, perhaps it is a sense of the public interest served by the professional news media combined with a certain confidence (whether warranted or not) in the professionalism and accountability of the established news media that lies behind the legislated exceptions to privacy norms in the collection, use and disclosure of personal information. If this is the case, then citizen journalists should be wary.

Teresa Scassa is Associate Professor and Director of the Law and Technology Institute at the Dalhousie University Law School.
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When Less is More: Privacy, Security and Civil Liberties from Johannesburg to Washington

posted by:Jena McGill // 11:59 PM // January 23, 2007 // ID TRAIL MIX

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Events deemed “national emergencies” have long provided justification for infringing civil liberties. In some instances, “security concerns” have led to the complete revocation of even basic rights, as was the case during the World War II internment of more than 22,000 Japanese Canadians on the basis of an alleged security “threat.” As we are well aware, “security” against the “terrorist emergency” has become the unofficial trump card of the post-9/11 world.

As a result of ballooning security issues and the threats that security “solutions” often pose to privacy interests and civil liberties, understanding the tension between privacy and security has grown both increasingly important and progressively more troublesome. In response to escalating levels of unwelcome surveillance and the scores of other unsolicited, privacy-invasive practices that pepper our day-to-day lives in the name of security, privacy advocates continue to call for appropriate limits on privacy-eroding laws and technologies that threaten to eat away at our privacy interests and civil liberties.

In the quest to define and promote these limits, one of the greatest challenges for the privacy community is answering the “how to” question when it comes to balancing privacy-related values with other, equally important but sometimes competing interests and rights. The privacy versus security contest is perhaps the most topical and certainly one of the most difficult tensions with which we must currently come to grips. The two ideals are often pitted against one other as rivals in an “either/or” dichotomy. An increase in security will necessarily come at a cost to our privacy and civil liberties – a cost that the privacy community generally deems too great to pay....or is it?

Earlier this month, news headlines hailed the success of a massive 350-camera surveillance system of closed circuit televisions installed throughout downtown Johannesburg, South Africa in 2001 [1]. Branded as one of the most dangerous cities in the world, Johannesburg credits the downtown cameras with drastically reducing the city’s crime rate - generous estimates cheer an 80% decrease in crime following the installation of the surveillance system. Prior to the introduction of downtown surveillance, Johannesburg’s high level of crime was blamed for stifling the social and economic life of the city, and virtually paralyzing its population. With crime now on the decline, Johannesburg officials anticipate that the city’s economic and social life will rebound and it will become a thriving metropolis and business centre. Extensive, privacy and anonymity-eroding surveillance has, ostensibly, saved the city.

Contrast Johannesburg with the latest round of U.S. law-making “in the name of national security.” The federal government is currently finalizing a plan to add to the FBI’s system of federal and state DNA databases the genetic codes of tens of thousands of illegal immigrants, captives in the “war on terrorism” and others accused but not convicted of federal offenses [2]. In most states, a person must be convicted of a crime before his or her DNA is added to the national system. The new plan, however, would apply to any U.S. citizen arrested under federal authority and to all non-U.S. persons who are detained for any reason at all. (The majority of the latter group will inevitably be illegal immigrants caught at the border or rounded up by law enforcement after entering the country.) This plan strikes a balance that has become typical of U.S.-policy making post 9/11: less privacy in the name of more security. Predictably, proponents allege that increasing the pool of DNA profiles available to law enforcement officials will assist in solving crimes and will make it easier to identify and track potential “terrorists.” Opponents of the plan, including the privacy community and the American Civil Liberties Union (ACLU), allege that mass seizures of biometric information are a gross violation of individual privacy and erode basic civil liberties.

The impetus behind both the Johannesburg surveillance system and the U.S.’ DNA collection plan is not dissimilar – to prevent crime and increase the efficiency of law enforcement [3]. In the latter example, as the ACLU points out, there is a very high risk that the collection and retention of DNA by government agencies will have a seriously detrimental impact upon individual privacy and civil liberties. The former case, however, is less certain. The privacy-invasive surveillance network appears to have impacted positively upon the rights of Johannesburg’s citizens by ensuring a higher degree of safety in the city’s downtown. Individuals are now able to participate in their communities and more fully enjoy their rights and freedoms. While the dialogue of the privacy community often focuses upon the negative effects that privacy-invasive technologies can have upon rights and liberties, the Johannesburg example asks us to consider how such technologies and practices may in fact work to further civil liberties and enhance the enjoyment of rights.

When we talk about privacy, it is always necessary to ask whose privacy is at stake and under what kinds of circumstances. These questions may yield very different answers depending on the context and the relative weight of privacy as against other relevant values and interests in a given situation. In the clash between privacy and other interests, and particularly when it comes to striking a balance between privacy and security, the North American privacy community often adopts a “more privacy equals more liberty” standpoint. We know, however, that this equation does not always hold true. Feminist scholars, for instance, have highlighted the ways in which privacy has been used as a shield to cover up the degradation and abuse of women and others in the private sphere. Too much privacy is not only possible, but can lead to deeply harmful outcomes.

The concern at the opposite end of the spectrum, of course, is that a right once ceded is eroded. Privacy infringements may be subject to a classic slippery slope argument – give away a little and you risk losing a lot. Are there bright line differences between gratuitous invasions of privacy and necessary sacrifices made in the name of some “greater good”? In the abstract, it is easy to agree that the concept of privacy is important and should be defended. The ways in which privacy’s theoretical importance translates into diverse real world situations is incredibly varied and at times conflicting. This makes privacy a necessarily qualified concept, and means that it is critical to contextualize its relative value within the larger spectrum of competing and complementary values that exist in a given situation.

The relative nature of privacy includes a number of considerations. Most would agree that while almost all societies appear to value privacy to a certain extent, there is a great deal of disparity in the ways in which privacy is sought and obtained, and in the levels of privacy to which a given culture or society aspires. A related inquiry is whether or not there are any aspects of life that are innately private and not just conventionally so. One of the ongoing difficulties in defining privacy and calculating its weight is that it is strongly relative and inevitably contingent on factors including economics, social norms and the technology available in a given socio-cultural domain.

There is perhaps a third dimension to the relative nature of privacy that depends upon basic human needs. The citizens of Johannesburg have, willingly or otherwise, sacrificed a great deal of their privacy and anonymity to the downtown surveillance system. Without surveillance, however, everyday activities carried an increased risk as a result of the city’s high crime rate. When basic needs, like physical safety, are not being met, as was the pre-surveillance situation in Johannesburg, privacy may be accorded less weight in balancing a society’s needs.

This idea resonates within the framework of Maslow’s Hierarchy of Needs and related schemes designed to explain human needs and desires. Such hierarchies propose that humans strive to meet successively higher psychological needs like esteem, respect and self-actualization only as their basic physiological needs, including physical safety, food and shelter, are satisfied. The basic concept is that the higher needs only come into focus once all the needs lower down in the pyramid are satisfied. Where does privacy fall in the Hierarchy of Needs? It is possible to argue that privacy is or should be located somewhere above basic physiological needs. When the necessaries of life are not fulfilled, privacy takes on a relatively diminished importance.

We spend a great deal of time thinking, talking and writing about how to define and defend this “thing” called privacy. One of the critiques often leveled against privacy is that its definition is subject to a patchwork of meanings, making it difficult to “pin down” and complicated to use and protect. At the end of the day, maybe this is not a critique at all, but recognition of privacy’s relative and multiple character and its different meanings, uses and levels of importance around the world. Johannesburg’s surveillance project reminds us that “less may sometimes mean more,” and that in our own privacy dialogue we must continually recall the context within which we live and work.

[1] CBC/Global News Bit, (January 6, 2007).
[2] See Richard Willing, “Detainee DNA may be put in Database” USA Today (January 19, 2007), online: http://www.usatoday.com/news/washington/2007-01-19-detainee-dna_x.htm.
[3] I acknowledge, but do not address here, the critical differences between the nature of the information being collected in Johannesburg and that proposed in the U.S. Capturing a video image via surveillance and collecting a genetic code through mandatory detainee DNA collection represent two distant points on a spectrum of invasive data collection practices, not least because of their differing potentials for misuse.

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Who is That Masked Woman? Masking and Unmasking in Public Places

posted by:Gary Marx // 11:59 PM // January 16, 2007 // ID TRAIL MIX

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In the Netherlands the government has proposed a public ban on covering the face with clothing such as the burqa, the Islamic head-to-toe robe. Similar restrictions have been suggested, and in specific contexts are in place, elsewhere in Europe. For Dutch leaders in a government facing re-election, the issue reflects contemporary religious and political conflicts, however miniscule the number of effected women. But the issue goes beyond current events to broader questions involving expectations about public behavior.

In modern societies the law is relatively clear about the rights others have with respect to the image an individual offers in “public”. Unlike some traditional societies in which the eyes must be averted or where veils are mandatory, in our culture appropriate looking is permitted (and can even be a sign of respect). In Canada and the United States what can be seen in public can also generally be photographically captured.

The presenting individual has rights as well. He or she can appear in ways that others may find offensive or provocative (whether sexually or stylistically). While the fashion police and the reticent may disparage such appearances, the real police have no criminal sanction to enforce. The enlightenment heritage protects the freedom to present the self as one chooses –I am free to be me and maybe even you. This contrasts markedly with societies where dress and body adornment are rigidly controlled and tied to social position.

In our society individuals are permitted and even encouraged to alter and disguise their “natural” appearance. They can wear baggy or padded clothes or those that accentuate muscles and curves. They can dress in age inappropriate ways and wear the cloths of the opposite sex. Cosmetic surgery, liposuction, botox, hair implants, elevator shoes, makeup and tinted contact lens are viewed by many persons as admirable forms of self-expression and self-help.

There are of course limits. The law in principle is clear about what must not be offered in public. The famous “naked man” of the University of California, Berkeley was arrested many times for what he failed to wear. In many jurisdictions women who breast feed in public places (or even in “private” places accessible to and visible to the “public”) may face arrest or exclusion.

The law and our expectations however are less clear and in conflict regarding what must be offered in public. When must the face be revealed?

It is well within the bounds of a pluralistic society to accept covering the face for legitimate purposes in public places, whether for religious reasons, anonymity in political communication, modesty or to hide disfigurement (e.g., the phantom of the opera). The acceptable link between form and function with respect to a mask on the ski slopes, the motorcycle helmet visor, the respirator or a mask for a costume party is clear. Society, or at least literature, might have been worse off if Zorro and the Lone Ranger lost their anonymity.

But what of settings in which a mask is worn for anti-social purposes, has unintended undesirable consequences or its link to religion is disputed? What happens when a valid religious justification conflicts with other important goals?

In the later 19th century a number of U.S. states passed anti-masking laws directed against the Klan. Consider as well prohibitions on wearing hooded sweatshirts in shopping malls or entering a bank while masked. The issue is not just that malls like banks are private places and hence freer to set their standards, but that as means of deterrence, accountability and identification there are strong grounds for prohibiting masking. In Denmark a series of bank and post-office robberies were carried out by a woman dubbed the “burka-robber”. In some jurisdictions there are additional penalties for wearing a mask when carrying a concealed weapon or in the commission of a crime.

The modern notion of a public sphere (whether a physical or cyber place) invites all citizens to participate regardless of social attributes. It implies legal rights of access, observation and expression. But it also involves more informal expectations of reciprocity in which individuals encounter each other as equals and are expected to behave within the bounds of civility (whether required legally or simply by manners). One aspect of this is being able to respond to the other by reading facial appearances and expressions.

The masking of the face brings a lack of reciprocity relative to those who present their faces (however adulterated). The masked person can see us, why can’t we see them? One way mirrors are not very appreciated in open societies. Paradoxically the covered face calls attention to itself and is in your face far more than the visible one. Beyond inhibiting interaction, the inability to see an individual’s face may engender fear and discomfort given the symbolism associated with the mask of the hangman and the criminal and the presumption that those who are hiding do indeed have something to hide.

But what is being hidden when a women covers her face and body? And why?
In Islam and Judaism covering the head is a sign of humility before God. Yet the burqa in being restricted to women goes far beyond this to issues of gender equality. Clerical supporters of the burqa suggest that it is a way of calming male passions, as well as an expression of modesty. Whether it has this impact (or the reverse given our fascination with what is hidden) is a question for empirical research. But even if it is factually correct, why not be consistent and consider female passions that may be aroused by viewing the unmasked male? In a less sexist and sexualized environment perhaps the need to mask the face would not be felt. Until then, gender equity would suggest the need to mask men as well as women. The mandatory masking of women, as was done under the Taliban, excludes them from full interaction in public settings. The dynamism and heterogeneity of the public sphere and the serendipitous encounter favored by urban theorists such as Jane Jacobs is lessened.

A number of European cases involve prohibiting teachers or students from masking their faces. Courts have ruled that the interaction that occurs in the classroom is inhibited when the face can not be seen. Similarly the broad vision required in driving a car may be impaired and a photo-id on a passport or driver’s license becomes moot.

Rather than legal prohibition, there may be indirect pressure against masking because of the secondary consequences it is presumed to have. For example in Amsterdam and Utrecht there are proposals to deny benefits to unemployed women who wear the burqa because it is seen to make them unemployable. An alternative of course would be anti-discrimination legislation in employment.

Opposition to masking based on its functional consequences is distinct from that based on implications for separating church and state or for the maintenance of order. In France for example the prohibition on head scarves and skull caps in schools reflects secularism and goals of equity and assimilation. In Germany their have been proposals to do an end run around the issue by requiring all students to wear uniforms. In some United States high schools there are prohibitions on clothes reflecting gang colors or those deemed to be too provocative.

Such cases reflect the inherent value conflicts between the individual and the community (or better between various communities) which need to be continually debated. Yet these self-presentation cases are not based on a concern with making the individual’s unique identity public. Indeed with respect to symbols of group affiliation, the situation is reversed –the individual seeks to advertise rather than hide an aspect of identity, while authorities seek to prohibit this.

Given the ubiquity and controversy over public surveillance and the move toward facial recognition technology, masking the face in public might even be seen as heroic resistance to the loss of public anonymity (let alone a way to resist disease). In one sense it is equivalent to using a paper shredder, pseudonyms, encryption and a floppy hat and sun glasses to protect privacy.

The issue may also be temporary as a result of the pace of innovation in the tools of identification. In a few decades it could even be seen as a quaint historical remnant of a backward age when identity was still determined by appearance and cards in the wallet, rather than by involuntary transmissions from implanted chips or distinctive scent.

But until then, it would be as wrong to categorically prohibit masks related to religious beliefs in public as it would be to require them. As with so many of our most contentious social issues the answer to masks should not be “never” or “always” but “it depends”.

What it ought to depend on is the context, motives, consequences and alternatives. In settings where the social costs can be significant or where an important community goal is subverted masking is undesirable. For benign activities such as walking on the street or visiting the library tolerance is required, although it is not cost free.

One would also hope that those who support masking are aware of the impact this may have on others and of the legitimate reasons for opposition to masking motivated not by religious intolerance, but by a different weighing of competing values.


--
Gary T. Marx is Professor Emeritus MIT (garymarx.net).

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Comment on U.K.'s Proposed 'Supercomputer'

posted by:Carole Lucock // 05:53 PM // January 15, 2007 //

In today's U.K. Guardian, A.C. Grayling comments on the vision behind a proposed supercomputer.

"It is a vision of an obedient, orderly, quiet, submissive, tidy, untroublesome Britain, its little unit-clones of citizens lined up in queues, modestly glowing with solid bourgeois virtue, their height, weight, bank details, medical records, daily calorie intake, bowel movements, salary, TV viewing habits, voting record, sexual proclivities, parents' names, holiday destinations and shoe sizes all stored on a big, gleaming, throbbing computer in the basement of 10 Downing Street, with wires running to police HQ, MI5, every government ministry, the Inland Revenue, and the equally big, gleaming, throbbing but not-quite-working NHS computer, all stored and packaged ready to pop up at the press of a button as a citizen is tracked across town by thousands of CCTV cameras."

Click HERE for full article, "Computer Spells Woe."

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SMELLS LIKE TEEN SPIRIT

posted by:Ian Kerr // 11:59 PM // January 09, 2007 // ID TRAIL MIX

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With the lights out its less dangerous
Here we are now
Entertain us
I feel stupid and contagious
Here we are now
Entertain us

Kurt Cobain


all is quiet on new years day. the pizza last night at colonnade was warm and comforting not unlike our nearby fireplace, where i now sit cross-legged with my laptop, well, on my lap. it occurs to me just lucky i am and how nice it was to spend a low key evening with family. (i have always thought of new years eve as a night that you have to kiss people you normally wouldn’t spit on…happy to have transcended that phase of life.)

rather than waking erin and newton, both of whom have an incredible ability to sleep easily and peacefully, i strangely find myself reflecting on the time that i spent last summer nosing around the caselaw on sniffer dogs.

at the time, i was preparing for an NJI conference, where my idtrail colleagues and i offered 150 judges a full day workshop on the reasonable expectation of privacy. we will be doing a funky-fied version of it again in montreal at CFP 2007, which is being organized this year by privacy guru and director of strategic policy and research at the office of the privacy commissioner of canada (and former idtrail research coordinator) stephanie perrin.

sniffer dogs look a lot like my dog — however, unlike newton, they are specially trained to “sniff-out” contraband such as illegal drugs or explosives.

i am not a criminal law specialist, nor do i claim any particular expertise in the law of search and seizure. but i do care a lot about it. it is the area of law most significant to the development of a crucial legal construct: the reasonable expectation of privacy.

the ‘reasonable expectation of privacy’ standard provides the benchmark for circumstances in which the state (and sometimes the private sector) is constitutionally permitted to interfere with an individual’s privacy interests. my own interest in the subject and part of the contribution that i had hoped to make at the NJI workshop stems from my deep concern that emerging surveillance technologies will be understood by courts to diminish our expectation of privacy; as i discuss in my NJI presentation, i think that this would be a dreadful, terrible mistake. an epic social disaster, really.

the crossroads for an exploration of the most recent sniffer dog cases, in my view, is a case that had nothing to do with sniffer dogs: a 2004 supreme court of canada decision called tessling.

at issue in tessling was the RCMP’s use of FLIR (forward looking infrared), a technology that captures the infrared portion of the electromagnetic spectrum. as the supreme court described it, it is a camera that takes pictures of heat instead of light. in tessling, the RCMP used an airborne FLIR system so that officers could measure from way-up-in-the-sky the heat emanating from a house occupied by a guy called walter tessling.

you see, the RCMP were suspicious that tessling had a grow-op in his house. but their sources were unreliable. the point of using airborne FLIR was to get better evidence — without trespassing on the property — so that an officer could appear before a judge and assert reasonable grounds to believe that tessling was growing pot in his house. (mere suspicion is not enough to get a search warrant.)

tessling’s lawyer argued that, without a warrant, the airborne use of FLIR to measure the heat coming off the walls of his house amounted to an illegal search and that the FLIR-evidence ought therefore be inadmissible in court.

the supreme court disagreed, stating at paragraph 63 of the decision that:

external patterns of heat distribution on the external surfaces of a house is not information in which the respondent had a reasonable expectation of privacy.

i could go on at some length about the decision and the legal framework used to determine that walter tessling did not have a reasonable expectation of privacy in the heat waves emanating from his house. but a discussion of the tessling decision or the legal framework it supports is not my current purpose. (if you are looking for that background, you should *most definitely* check out my friend and colleague jane bailey’s superb NJI presentation.)

since my focus is on sniffer dogs, tessling is relevant only insofar as its outcome seems to invite subsequent courts to consider adopting an extension of its logic — namely, in searches involving sniffer dogs, to ask:

whether external patterns of smell on the external surface of a knapsack is, or is not, information in which a person holds a reasonable expectation of privacy.

with the growing concern about various sorts of contraband, this is a burning question in canadian courts.

the answer to this question, i suggest, needs to be understood within the broader context of a recent and increasing trend in law enforcement — the adoption of ‘jetway’ programs (smell the irony in the ‘jetway’ nomenclature: this program is geared towards the surveillance of people who can ill-afford to travel by plane; it mostly takes place at bus terminals.)

jetway was developed in the US but has been used across canada for about 5 years. according to our courts, this program targets travelers said to look “out of the norm” in terms of their clothing, their behaviour, or their actions. once targeted, the abnormal-looking-individual is approached by a police officer along with a four-legged friend. the officer immediately shows police identification and engages the target in conversation, watching all the while for unusual behavior. the target is either discounted quickly and allowed to walk away, or is further engaged in a conversation that swiftly becomes more “personal and intrusive”. police describe these encounters as “strictly consensual”, claiming that the target is free at any time during the conversation to walk away. however, the police will often demand to see the target’s travel tickets and identification; sometimes this leads to a further ‘request’ that the target ‘consent’ to a baggage search. targeted persons usually capitulate. most don’t realize that they have any choice in the matter.

even if a target refuses to consent to a baggage search, the police dog does with its nose what the officer was not permitted to do with his or her hands and eyes: the pooch determines the contents in the bag and reacts in response to certain forms of contraband. permission or no permission, the sniffer dog sniffs.

funded to the tune of more than $500,000, canada’s federal jetway training course has been responsible for training hundreds of RCMP officers and enforcement officers from other agencies. similar provincial and municipal programs exist. approximately 5% of officers trained are reported to participate in it daily.

Q – do these sniffer dog programs constitute a ‘search’ of the sort that ought to invoke constitutional safeguards?

it turns out that canadian courts are all over the map on this…

(so much so that i am willing to supervise the PhD of anyone who can convince me that they could provide a theoretical account that reconciles the different decisions that the courts have rendered on the issue.)

consider the following sample of judicial pronouncements from across canada:

1. “The use of investigative tools and aides such as police dogs to detect contraband or explosives on public buses is not beyond the realms of reasonable expectations of the traveling public.
The dog sniff does not constitute a “search” within the purview of section 8 of the Charter. As there was no “search”, there could be no breach of [the target’s] right to be secure from unreasonable search or seizure.” [R. v. Gosse at para 28 and 40 (New Brunswick)]
2. “I find that the police conducted searches without the consent of [the targets] prior to their arrest by the use of the police dog. I reject the argument that [the dog] was simply used as an investigatory technique. It is clear from the evidence … that the dog was extremely reliable in detecting the odour of drugs emanating, as previously stated, either from drugs themselves, a recent presence of drugs, or items such as cash that have been in the presence of drugs or handled by persons who have themselves handled drugs. The sole purpose of the dog being at the bus depot that day was to assist the officers in locating drugs.” [R. v. Dinh at para 28 (Alberta)]
3. “In conclusion, I am of the opinion the [target] did not have a subjective expectation of privacy that could reasonably be supported. [The target] chose to travel by public transport which would provide no control or protection from others entering his immediate space. The use of dogs by police was known and he was aware of the effect of passing in close proximity of such a dog. The use of trained police dogs to detect the scent of contraband in public areas such as train, bus and airplane depots is a legitimate police investigatory tool and does not infringe on any legitimate privacy interest protected by section 8 of the Charter.” [R. v. McCarthy at para 36 (Nova Scotia)]
4. “I am not persuaded that the judgment of the Supreme Court of Canada in Tessling is supportive of the … position that a dog sniff is not a search. In Tessling, the house of the accused was specifically targeted as a result of information that the accused was involved in a marijuana grow operation. I see a significant difference between a plane flying over the exterior of a building (on the basis of information received) and the taking of pictures of heat patterns emanating from the building, and a trained police dog sniffing at the personal effects of [the targets] in a random police search.” [R. v. A. M. at para 47 (Ontario)]
5. “Justice Binnie in Tessling notes that FLIR imaging generates information about the home but section 8 protects people, not places. As I noted earlier, he emphasizes the fact that the information generated by FLIR imaging about the respondent does not touch on "a biographical core of personal information", nor does it "tend to reveal intimate details of his lifestyle".
Nor does the information that the dog’s actions supply.”
I conclude that [the target] did not have a reasonable expectation of privacy in the area surrounding his vehicle. The dog sniff did not constitute a search. [R. v. Davis at para 21-23 (British Columbia)]

if one were to start counting judicial noses in the dozen or so reported canadian decisions, almost half of them have held that the use of sniffer dogs without a warrant constitutes a search that infringes the section 8 Charter guarantee to be secure against unreasonable search and seizure. slightly more than half deny that the use of sniffer dogs constitutes a search — usually on the basis that people do not have a reasonable expectation of privacy in the smells that emanate from their personal effects.

part of the explanation for the apparent schizophrenia in the caselaw is that the reasonable expectation of privacy test requires a decision based on the ‘totality of the circumstances’. to be fair to the courts, the fact patterns for the above decisions range from dogs sniffing knapsacks at bus depots, to dogs sniffing rental cars on open roads, to dogs sniffing kids’ school lockers. it is not surprising that such different facts could lead to different judicial pronouncements regarding the reasonable expectation of privacy in at least some cases.

judicial inconsistencies aside, there are, in my view, several other troubling aspects to the jurisprudence.

for starters, i am uneasy about the pickwickian logic adopted by an overwhelming majority of our courts across canada. it goes roughly like this: if there is no reasonable expectation of privacy, then there was no search. in other words, if i do not have an expectation of privacy in the smells emanating from my backpack, then when three police officers show up at my law school and randomly comb the halls with their trusty german sheppard, sniffing for students with dope, this is not to be considered a police search.

to me, this smacks of humpty dumpty’s scornful response to alice in through the looking glass that, "When I use a word it means just what I choose it to mean – neither more nor less." if police and their dogs are on duty and doing their thing but are not ‘searching’, then what exactly are they doing?!

this approach to defining police searches is further problematized by the recent trend to understand and define privacy in terms of informational privacy. my concern, one shared by many of the participants at our NJI workshop, is that the informational privacy approach is excessively reductionist in nature. once police activities are understood as nothing more than ‘capturing heat emanating from the wall of a building’ or ‘intercepting chemical emissions oozing through a backpack’, it is no longer possible to appreciate the deep social significance of RCMP planes beaming infrared lights at our homes in the middle of the night or OPP police officers and their guard dogs randomly patrolling our high schools, city streets and bus stations. (thankfully, as indicated in quotation #4 above, this point was not lost on the Ontario Court of Appeal.)

i am also troubled by the fact that, practically speaking, it matters squat what the courts think about privacy or how they define a search. regardless of whether sniffer dogs are said to conduct searches or whether the court finds that a target has a reasonable expectation of privacy in escaping odours, the evidence gathered through jetway programs is, at the end of the day, almost always admitted in law courts. according to most courts, to exclude the evidence, would bring the administration of justice into disrepute.

by admitting evidence in spite of the fact that it was obtained through a privacy breach, and/or by failing to provide any alternative remedies in the case of such privacy breaches, the courts are relinquishing the strongest deterrent available to prevent police from orchestrating investigations that are designed to interfere with privacy. without deterrents or remedies, such investigatory techniques are sure to become standard practice. and once they are standard practice – you guessed it – it becomes unreasonable for us to expect the police to act otherwise. quotation #3 above demonstrates this point nicely: since the target must have known that police regularly use dogs to sniff out drugs, he could no longer reasonably expect privacy with regard to smells emanating from his personal effects.

here, the notion of ‘expectation’ is completely stripped of its previous normative commitments.

instead, we are forced, as herbert hart might have put it, to take an external perspective of our expectations of privacy. like holmes’ ‘bad man’, who has not internalized the law as a reason for behaving a certain way but only sees legal rules as mere predictions about what the courts will do in fact, the reasoning adopted in quotation #3 above and by many members of the canadian judiciary tends to reduce our privacy expectations to nothing more than predictions about how the police will in fact behave and what technologies the consider state of the art.

its no longer about how they ought to behave.

the discourse is no longer centered on democracy, rights, duties or even interests. it is about the state of the art and the current standards of practice. as such, the ‘reasonable expectations’ test becomes a strange kind of factual inquiry.

the reasoning in quotation #3 above perfectly illustrates the crucial problem with the ‘reasonable expectations’ standard stripped of its normative meaning. once an expectation is understood as nothing more than a prediction: if you want to change the standard, all you have to do is change the expectations. and if you want to change the expectations, all you have to do is change the standard.

it’s a circle that rolls round upon itself.

and once that ball is rolling, it doesn’t take long to snowball. although i am quite certain that this is not what justice binnie had intended, the post-tessling trend in courts across canada has been to reduce our understanding of police search activities to an impersonal, non-social, merely informational transaction in a way that tends to shrink our reasonable expectations of privacy.

i find this trend particularly disconcerting in light of concurrent surveillance programs in the private sector and in light of rapidly developing surveillance technologies.

in what has to be one of the most unnoticed ‘anti-piracy’ surveillance news stories in 2006, the motion picture association of america very recently sponsored a world tour of two sniffer dogs named ‘lucky’ and ‘flo’. this gorgeous pair of black labs can be seen in this video sniffing-out polycarbonates, a byproduct of CDs & DVDs. with demonstrations across north america, central america, europe and asia, the purpose of this tour is to convince customs agents and border authorities, worldwide, to use anti-piracy canine units at airports, seaports, and anywhere else that bootleg CDs & DVDs are being transported. (a special shout-out to JereMe for bringing this story to my attention)

clearly, this is absolute תעגושמ. but, I assure you, it is not fiction. far from it.

and in the same world where dogs are being trained to sniff-out DVDs in gym bags, technologists are perfecting new means of remote sniffing. from simple devices that detect, measure and analyze electricity consumption to gas chromatography and other advanced forms of machine olfaction that are used to detect, measure and analyze odours in the air that even dogs cannot.

to take one very primitive technological example, consider digital recording ammeters (DRA). DRA is a technology that is capable of measuring the flow of electricity and producing graphical representations of the cycle of electrical consumption that takes place within a residence. among other things, these graphs can be used to identify grow-ops which, as it turns out, produce a very particular pattern of electrical flow. [grow-ops tend to use 18 hours of light and 6 hours of darkness to grow the plants and then switch to 12 hours of light and 12 hours of darkness in order to simulate autumn, thus producing the buds, which are the saleable product from the marijuana plant.]

with DRA, the police no longer need the expensive infrared fly-overs used in tessling. they just need to hook-up one of these load profile devices to a nearby public utilities pole; DRA can determine with nearly 100% accuracy whether there is a grow-op (though the DRA cannot, with any degree certainty, determine what is being grown). of course, DRA could also be used to determine other activities going on inside a home.

canadian courts have considered whether the police’s use of DRA constitutes an unreasonable search. like the sniffer dog cases, these decisions are all over the map. in a slender majority of the cases that i have read (6 to 5), courts have applied a tessling type analysis to DRA. for example, this court, this court, this court and this court all held that use of the DRA device to monitor a home was not a search and it therefore did not interfere with the target’s reasonable expectation of privacy — even though the entire reason for using DRA was to surreptitiously determine the nature of a target’s activities inside of a dwelling without transgressing its physical boundaries.

in my view, DRA and other primitive technologies need to be understood in light of one of the most rapidly developing areas in the field of information and communications technology: sensor networks. through the use of wireless technologies consisting of spatially distributed autonomous sensor devices, we are developing an astonishing capability to monitor and meter personal, physical and environmental conditions at greater and greater distances.

and, practically anyone can use these devices for practically innumerable purposes!

it doesn’t require much imagination think beyond today’s prototypes. consider the ingenious feral robotic dogs. with a few clever hacks, commercially available toy dogs (such as the famous sony aibo) have been turned into robotic sniffer dogs — enabling citizens to ‘sniff-out’ corporate contaminants from remote distances. granted, this project (by the brilliant natalie jeremijenko) is a happy use of sensor networks. a form of counter-corporate sousveillance. but it is not hard to see that there will be other uses, less happy.

the stunning technological developments that are just around the corner should give us some pause when we think about the simplistic and reductionistic way that our courts are becoming more and more inclined to think about the sniffer dog cases in particular and the reasonable expectation of privacy in general.

okay. newton has come downstairs to sniff-out a second breakfast and i hear erin’s quiet footsteps, so i’ll end now with an allegory.

kurt cobain, the troubled soul behind the legendary grunge band, nirvana, set out in the early 1990s to write what he called, “the ultimate pop song”; a song that would bust-down the barricade between alternative and mainstream rock music and perhaps serve as an anthem for generation x; a song that he called smells like teen spirit.

according to pop folklore, the rocker subsequently described as the spokesman for (or, was it against?!) the coming generation of excessive consumption borrowed the song title from a line spray-painted on the wall of his bedroom by his pal kathleen hanna:

"KURT SMELLS LIKE TEEN SPIRIT"

as the story goes, since he and kathleen (lead singer of the riot grrrl punk band bikini kill) had recently spent late evenings talking about the politics of anarchy, the future of alternative music and the plagues of humanity, cobain took her graffiti message as a slogan expressing how he had captured the spirit of a generation through his music.

apparently, kurt cobain had no idea what he smelled like!!

comically or tragically (depending on one’s point of view), the paint sprawl had a less inspired meaning. it turns out that hanna’s words were to be taken literally. she simply meant to say that kurt smelled like Teen Spirit,™ the deodorant worn by tobi vail (kathleen hanna's bandmate and kurt's then pelvic affiliate). cobain had not heard of this colgate product, nor had he realized that his friends thought of him as branded by his soon-to-be-causual-ex-partner’s scent.

i suspect that none of us really know what we smell of, or who is smellin’ us.


{REFRAIN}

a denial, a denial, a denial, a denial, a denial,
a denial, a denial, a denial, a denial

ian kerr
new years day, 2007

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