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Roger Clarke's 'Governance of State Surveillance'

State Surveillance and Its Governance

Notes for a Panel Presentation at Computers, Privacy and Data Protection (CDPD) - Brussels - 24 January 2013

Roger Clarke **

© Xamax Consultancy Pty Ltd, 2013

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This document is at http://www.rogerclarke.com/DV/SDS-1301.html

The supporting slide-set is at http://www.rogerclarke.com/DV/SDS-1301.ppt


Abstract

National security agencies have been permitted to apply surveillance technologies without being subject to a regulatory framework that ensures the appropriateness of the designs and of their behaviours. Through function creep, under-regulated State surveillance is extending to law enforcement employees, fraud investigators and even social control agencies more generally.

The example of point-of-view surveillance technologies, and their application by nation-states, demonstrates the threats to democracy inherent in the present, poorly-controlled environment.

In order to re-establish the systematic control that is appropriate in democratic nations, a necessary foundation step is for civil society to define and publish Standards for the evaluation of proposals to implement surveillance, and for the design of surveillance schemes.


Short Statement

The categories of surveillance have proliferated during the last half-century, and their use by the State has increased dramatically (Clarke 1988, 2000, 2001, 2009b, 2010a).

Patterns of State surveillance practice can be observed by means of the recent example of Point-of-View Surveillance (PoVS - 2012a). Law enforcement and national security agencies (LEANS) have political power, and use it. The disbenefits and risks of PoVS are not managed, and their impacts are not mitigated, because LEANS operate to a very considerable extent outside public control. Moreover, the use of PoVS for sousveillance, as a countermeasure to State power, is subject to constraints by the State (2012b). Similar patterns can be seen with State use of other technologies, including ANPR (2009a) and location and tracking of mobile devices (Michael & Clarke 2013).

In a dramatic over-reaction to 11 September 2001 and subsequent terrorist acts in Spain and the UK, western nations have permitted 'national security' interests to elevate themselves to a level never achieved during the Cold War era. There is also considerable evidence of function creep from counter-terrorism to law enforcement and even more general social control activities. All surveillance activities need to be brought back under effective democratic control. The principles are well-understood and capable of straightforward expression and application (2007, 2010a, APF 2010).

In order to get surveillance by the State back under control, several steps are necessary. One is the promulgation of Standards by civil society, to provide a public and quotable declaration of society's voice, as a counterbalance against the declarations by LEANS and the surveillance industries, and as an antidote to the exclusion of civil society from industry standards processes (2010b).

With Civil Society Standards in place, it becomes much more straightforward to communicate the damage done by the governance failures in relation to State surveillance, to expose breaches and exploit them, and to build coalitions of interest in order to force government projects and operations back into compliance with the needs of civilised society.


References

My papers on Surveillance are indexed at http://www.rogerclarke.com/DV/#Surv.

APF (2010) 'APF Policy Statement re Visual Surveillance' Australian Privacy Foundation, January 2010, at http://www.privacy.org.au/Papers/CCTV-1001.html

Clarke R. (1988) 'Information Technology and Dataveillance' Comm. ACM 31,5 (May 1988) Re-published in C. Dunlop and R. Kling (Eds.), 'Controversies in Computing', Academic Press, 1991, at http://www.rogerclarke.com/DV/CACM88.html

Clarke R. (2000) 'Technologies of Mass Observation' Notes for the Mass Observation Movement Forum, Melbourne, October 2000, Xamax Consultancy Pty Ltd, , at http://www.rogerclarke.com/DV/MassObsT.html

Clarke R. (2001) 'While You Were Sleeping ... Surveillance Technologies Arrived', Australian Quarterly 73, 1 (January-February 2001) 10-14, at http://www.rogerclarke.com/DV/AQ2001.html

Clarke R. (2007) 'The Regulation of Surveillance' Xamax Consultancy Pty Ltd, August 2007, at http://www.rogerclarke.com/DV/SReg.html

Clarke R. (2009a)'The Covert Implementation of Mass Vehicle Surveillance in Australia' Proc. 4th Workshop on the Social Implications of National Security: Covert Policing, April 2009, at http://www.rogerclarke.com/DV/ANPR-Surv.html

Clarke R. (2009b) 'A Framework for Surveillance Analysis' Xamax Consultancy Pty Ltd, August 2009, at http://www.rogerclarke.com/DV/FSA.html

Clarke R. (2010a) 'What is Überveillance? (And What Should Be Done About It?)' IEEE Technology and Society 29, 2 (Summer 2010) 17-25, at http://www.rogerclarke.com/DV/RNSA07.html

Clarke R. (2010b) 'Civil Society Must Publish Standards Documents' Proc. Human Choice & Computers (HCC'10), IFIP World Congress, Brisbane, September 2010, at http://www.rogerclarke.com/DV/CSSD.html

Clarke R. (2012a) 'Point-of-View Surveillance Technologies' Xamax Consultancy Pty Ltd, March 2012, at http://www.rogerclarke.com/DV/PoVS.html

Clarke R. (2012b) 'The Regulation of Point-of-View Surveillance: A Review of Australian Law' (2012, before the reviewers of IEEE Technology & Society), at http://www.rogerclarke.com/DV/POVSRA.html

Michael K. & Clarke R. (2013) 'Location and Tracking of Mobile Devices: Überveillance Stalks the Streets' Forthcoming, Computer Law & Security Review, Jan-Feb 2013, at http://www.rogerclarke.com/DV/LTMD.html


Author Affiliations

Roger Clarke is Principal of Xamax Consultancy Pty Ltd, Canberra. He is also a Visiting Professor in the Cyberspace Law & Policy Centre at the University of N.S.W., and a Visiting Professor in the Research School of Computer Science at the Australian National University. He is also Chair of the Australian Privacy Foundation and a member of the Advisory Board of Privacy International.



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