Introduction to the Special Edition on Surveillance
This is a Special issue of the European Journal of Law and Technology collecting a selected number of papers given at the Workshop 'Surveilling Surveillance' held in Florence on 25 and 26 September 2012, hosted by the National Research Council of Italy (CNR). The Workshop was organized within the SMART Project (Scalable Measures for Automated Recognition), co-funded by the European Commission under the Seventh Framework Programme (http://www.smartsurveillance.eu/). The issue is edited by the Workshop Program Chairs, Joseph A. Cannataci, who is also the SMART Project Coordinator, Sebastiano Faro and Maria Angela Biasiotti.
During the Workshop, SMART Project members together with academics and stakeholders met to discuss the present status of smart surveillance systems as well as the risks and opportunities inherent to the use of these technologies from a multidisciplinary approach. Smart surveillance systems use technology to collect raw data via interlinked multisensory receptors to allow automated data processing, assessment and analysis as well as (semi-)automated decision-making with the gathered data. Such systems are increasingly becoming common and more widely used by police and security forces around the world raising concerns of individuals regarding privacy and protection of personal data. Despite the rapid increase in their use, there is a question regarding the adequacy of the legal framework for regulating such technologies. Which laws are applicable in this context? What safeguards are envisioned? Can the laws be technology-neutral but sector specific, thus permitting a measured approach to the appropriateness of smart surveillance technologies in key security applications? Can the laws and policies be extended to all security applications of smart surveillance? The SMART project addresses these and other related questions and issues through a comprehensive and multidisciplinary approach well represented here by the variety of the ten selected papers, which deal with the surveillance issue from different perspectives within various contexts.
The first paper is by Cannataci, who examines the fate of proposals launched by the European Commission in 2012 for new legislation in the field of privacy and data protection. The author analyzes some problems with the logic and the credibility of the rationale and answers provided publicly by the European Commission on some specific aspects relating to the two proposals especially the design and structure of the Data Protection Reform Package (DPRP). This paper offers the most recent picture of the current scenario since it has been revised and up-dated to end October 2013 thus also taking into account the impact of the revelations about mass surveillance which have been circulating since May 2013 thanks to material provided to select world media by ex US intelligence analyst Edward Snowden. The latter revealed a high level of automated surveillance beng carried out by programmes like TEMPORA and PRISM which would easily qualify within the definition of SMART surveillance. The paper opens by first identifying twelve facts which should serve as a benchmark in order to measure whether existing and newly announced legal frameworks are fit for purpose and can adequately regulate a given real-life situation in the 21st century. The paper then moves to consider some risks emanating from these facts and finally focuses attention on the legal and socio-political development which is occurring as work on the DPRP moves forward from the confines of the European Parliament's sub-committee on Civil Liberties (LIBE) to the more self-conscious and nationalistic world of the European Council. The paper concludes by examining the existing evidence to discern the most likely routes that may be taken in formulating an international binding legal instrument that would be fit for purpose in the context of the facts and risks previously identified. In doing so it envisages the operation of an independent International Cyber-Authority created in terms of a multi-lateral convention which would be likely to be promoted by one of the major European powers acting in tandem with the United States.
Mezzana and Krlic take a sociological approach to identifying a number of phenomena and processes which profoundly affect the dynamics of contemporary surveillance. They make a special reference to the increasing significance of human agency in contemporary societies, the socialisation of technological innovation processes, and collective technological responsibility. By using the notion of context of meaning, authors analyze the relationship between human agency, security technologies, surveillance system and privacy, in terms of the dynamic relationship between dangers-social regimes-social risks.
Wisman's paper is focused on the scenario of the Internet of Things, a global network infrastructure, linking physical and virtual objects through the exploitation of data capture and communication capabilities. The author outlines how the use of data collected to offer services for a different goal, commonly known as function creep, can transform the Internet of Things vision of a tailored-service-society into an unprecedented surveillance-society.
Koch, Matzner and Krumm deal with the most-widely deployed smart surveillance technology, namely smart CCTV. They emphasize how these technologies could lead to more privacy intrusion and analyze connected ethical and legal problems.
Galetta figures out how to overcome the limits of the presumption of innocence in the surveillance society as although the way surveillance technologies and practices operate is pretty known, their manifold and subtle effects on human rights are mostly unknown and obscure. The impact of surveillance on the right to be presumed innocent is debated by the author in detail addressing the rather provocative question of whether it is desirable either to reformulate human rights or better regulate the use of surveillance technologies.
Novario analyzes the impact of surveillance technologies on cyberspace, proposing the legal informatics approach as the possible solution for balancing surveillance and fundamental rights.
Sulić Kenk, Križaj, Štruc and Dobrišek address the technical and legal aspects of the existing and forthcoming smart surveillance technologies that are (or are expected to be) employed in the border control application area. The authors provide a brief overview of smart surveillance technologies in border control applications, especially those used for controlling cross-border traffic, discuss possible proportionality issues and privacy risks raised by the increasingly widespread use of such technologies, as well as good/best practises developed in this area.
Bodei, Degano, Ferrari, Galletta and Mezzetti propose a survey on some critical issues arising in pervasive applications, in particular in the interplay between context-awareness and security. The authors outline the techniques adapted for guaranteeing applications to securely behave in the digital environment they are part of.
Finally, two papers are devoted to briefly present results of projects involving surveillance technologies. Pospisil and Skrob present the components of the project 'Improvement of risk area security using combined methods for biometrical identification of subjects', which solves the identification of subjects through multi-factor biometric identification. Fantechi, Nugent, Pinzuti, Vicario and Magherini introduce ARA (Automated Recogniser of ADLs - Activities of daily Living), a system for the automated and real-time recognition of human activities in a sensorised environment, guaranteeing the user's privacy and the data security.
In addition to these papers, a commentary by professor Stefano Rodotà, former president of the Italian Data Protection Authority (1997-2005) and of Article 29 Data Protection Working Party (1998-2002), drafts the legal scenario where surveillance technologies are implemented and utilized, with a view to the current situation and future prospects.
At the time of putting the finishing touches prior to publication of this special issue at end October 2013, the Snowden affair has sparked off and steadily fed the fires of the biggest scandal and discussion about surveillance in living memory. Surveillance cannot help being an important part of a national and supranational political agenda. The overhaul of oversight mechanisms and legal safeguards within intelligence services that is part of the blowback from the ongoing Snowden saga is expected to be one of the most far-reaching since at least the second world war. Whether it will also lead to the re-writing of the rules of engagement for internet-based espionage and cyberwar as contemplated by Cannataci in the concluding part of his paper is simply one of the many known unknowns we may have to face over the coming three years or so. As ever, in surveillance as in other areas of the security sciences, we can count on the unknown unknowns to continue to surprise us.