Now more than ever before, as you step out into public spaces, you are likely being monitored in ways you have not even realized. Over the past few decades, tools of public surveillance have become increasingly pervasive. You might be filmed by inconspicuous CCTV cameras installed throughout your neighbourhood’s streets. Your face could be scanned you run errands at your local supermarket or nearby shopping mall. Your vehicle may be tracked by smart traffic cameras as you drive around your city. Or, if you’re a public transit user, you could find data on your daily commute patterns logged through your transit pass as you tap on and off the metro.
In the age before these new surveillance technologies, it seemed obvious that what occurred in private was private, while what happened in public was ostensibly not. Yet, renewed attention to the meaning of privacy in the context of widespread surveillance suggests that this conventional understanding is decidedly insufficient. Instead, we are now confronted by the urgent need to carve out a zone of privacy that encompasses certain public situations.
However, considering the word public itself means “exposed to general view,” this at first seems a blatant paradox. Is it even possible for us to recognize something occurring in public as private?
The upending of privacy as we know it
This question of locating some degree of privacy in public is not just hypothetical, but has materialized in several recent cases. Take, for example, the 2019 Supreme Court decision in Canada, R v Jarvis, which brought this issue to the fore. The case involved a teacher, Jarvis, who had been secretly recording the faces and chests of his female students in the classroom and school hallways using a pen equipped with an imperceptibly small, high-definition camera. As the lower courts had not been able to determine that he had made the recordings for sexual purposes beyond a reasonable doubt, the key issue of the case turned on whether the students had a reasonable expectation of privacy despite the public setting.
In a unanimous decision, the Court ruled that Jarvis’ nonconsensual surveillance of his students violated their right to privacy. Although it occurred in a public environment, the professional relationship that should exist between teacher and student and the fact that Jarvis’ students would not have reasonably expected to be recorded were among the set of factors that supported the students’ right to privacy. Noting that understandings of privacy must evolve with technological developments, the Court transformed privacy rules in Canada with its ruling. A reasonable expectation of privacy, they declared, depends on many contextual factors beyond just the sole fact of whether the setting is public or private.
Another fascinating case that has challenged conventional understandings of privacy has centred around aerial surveillance by police forces, such as the kind seen in Baltimore. A shocking Bloomberg article brought to light in 2016 that Baltimore’s police department had been using a set of planes equipped with surveillance cameras to circle the city from above for several hours a day, documenting the daily activities of the city’s residents. These cameras produced time-lapse videos of the entire city from a bird’s eye view which are detailed enough to track the movement of individual people. The program was initially paused in 2016 after its existence was leaked. It was nonetheless revived in 2019 on a smaller scale, targeting specific “troubled” neighbourhoods. Last year, in June 2021, the Court of Appeals for the Fourth Circuit narrowly ruled Baltimore’s aerial surveillance program unconstitutional in a split decision.
Perhaps the most heated debates over privacy infringements in public have involved the American tech company Clearview AI. Its facial recognition technology has been employed by many police forces across the globe, including in Canada, the United States, Britain, France, and Australia. In the United States, police forces have used the software alongside cameras mounted on police vehicles to identify protestors, including at Black Lives Matter demonstrations. Police are not Clearview AI’s only customers. In 2020, the United States’ Immigration and Customs Enforcement (ICE) signed a contract with Clearview AI. The tech company also had previous contracts with private companies, including Walmart and the NBA, but discontinued all partnerships with non-governmental organizations in 2020 after intense public backlash and several lawsuits.
The controversy over Clearview AI extends online. Over several years, the company has scraped social media websites to create a database with billions of images of users; these photos are then made searchable with their facial recognition tools. Although the collected images are publicly available on social media profiles, advocates have claimed Clearview AI violates privacy due to online users’ lack of consent and awareness of the web scraping. In June 2021, Canada’s federal Privacy Commissioner declared that this amassing of online photos violated the privacy rights of Canadians. However, in the United States, this use of Clearview AI has not been banned at a federal level. In fact, it just received approval for a patent for its software from the US government in December 2021.
Towards recognizing a sphere of privacy in public
While Canada has started to recognize some degree of privacy in public through cases like R v Jarvis, other countries like the United States have been less enthusiastic to adopt similar standards. What should fall within a protected zone of privacy is of critical importance to our lives in an increasingly surveilled world. It will demarcate what is considered “fair game” for third parties to collect without permission from what we must first grant our consent.
Moreover, what we will be comfortable with consenting to will likely evolve as new innovations emerge. It is worth acknowledging that new technologies can indeed bring benefits for which we are willing to accept a fair level of surveillance. Many people enjoy the increased convenience offered by Amazon’s ability to accurately predict their next purchases before they even think of buying them, or the peace of mind provided by camera-equipped doorbells. Surveillance is thus not an inherent evil.
Nonetheless, increased data collection does not come without costs. Surveillance is no trivial issue as those who surveil often have motives that can run counter to our own. When governments engage in surveillance, their aims can sometimes entail the limiting of individuals’ civil liberties, such as freedom of speech.
Furthermore, when adopted by private companies, the use of surveillance technology is unavoidably motivated by a profit incentive. Professor Shoshana Zuboff has coined the concept of surveillance capitalism, which she defines as a “new logic of accumulation that … aims to predict and modify human behavior as a means to produce revenue and market control.” We can see the operation of surveillance capitalism when tech companies provide us services seemingly for free in return for the collection of our personal data that is later sold to marketing firms. With the growing power of Big Tech giants like Meta and Google—who are also quite adept at evading government regulation—surveillance capitalism is now an inescapable reality.
It is therefore crucial that we reconceptualize the idea of privacy itself. The expansion of surveillance into almost all aspects of our lives means that we should no longer accept traditional understandings of privacy that permit complete access to us as individuals when in public.
The expectation of some degree of privacy in public is not as counterintuitive as it initially seems. For all of our sakes, we must hope that this ongoing debate ultimately falls on the side of recognizing an expanded sphere of privacy that covers some actions in public.
Kate Schneider is a first year MPhil Politics: Comparative Government student at Pembroke College, University of Oxford.