In our heavily surveilled world, is reasonable expectation of privacy possible?

George Orwell’s novel 1984, describes an imaginary state severely affected by fear of Big Brother. The citizens of Oceana were subject to extreme surveillance and terrible punishment as a result of disobedience of the government. Orwell alluded to a world in which the all-powerful State utilises deception, secret surveillance and manipulation of history to enslave and control people.

The term ‘Panopticon’ (‘pan’ meaning ‘all’ and ‘opticon’ meaning ‘seeing’) was made famous by the British jurist and philosopher Jeremy Bentham (Jespersen et al. 2007). It was originally the name for kind of prison in which individuals in the cells did not interact with each other and were constantly confronted by the panoptic tower. The individuals were unable to see when there was a person in the tower but they were cognizant of the fact that they can be watched at any moment (Felluga 2002). Today however, panopticon has come to signify the wish to have everything seen and recorded. According to Bentham, maintaining order within a democratic and capitalist society, the populace needs to believe that any person could be surveilled at any time, guaranteeing that people internalise the panoptic tower and police themselves (Felluga 2002).
In a similar way, Foucault’s “Panopticism is the theorisation of surveillance society, derived from Bentham’s project of a prison (Brunon-Ernest 2012).” Foucault surmised that the most integral consequence of the Panopticon is to make the inmate acutely aware of the omnipresent power of the institution through the permanent visibility of surveilling forces. Later, in further development of surveillance society Oscar Gandy (1993) highlighted three actions that take place; collecting, processing and sharing of personal information of either individuals or groups, regardless their role in the system. For Gandy, this data storage mechanism is used daily and constantly for creating models; profiling our personal data making it easier for control and manipulation by government or criminal.
Our society: a prison with a culture of control that runs deep…
The first level includes surveillance cameras that are used to make us behave.
The second level is centered around the consumer, for example membership cards, credit cards, mobiles etc., by sharing all of personal information via networks, shops or cards, people are easily identified and their personal data are viewed/shared by companies, authorities, banks, etc.
The third level is via internet and satellites.

Privacy is a fundamental human right recognised in the UN Declaration of Human Rights, the International Convenant on Civil, Political Rights and in many other international and regional treaties (“Privacy And Human Rights — Overview” 2017).
UN Declaration of Human Rights, Article 12 states:
“No-one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks.”
Violations to a person’s privacy rights depend on the setting and relationship between the parties (Rivera 2017). Some common settings where privacy right violations can occur include:
i) At school
ii) Employer/employee privacy, especially privacy during off-work hours
iii) In hotel rooms and lodges
iv) At retail stores (i.e., in dressing rooms, bathrooms, etc.)
v) In a dwelling place (i.e. tenant privacy rights)
vi) With regards to documents such as health care information, cell phone data, internet usage, etc.
vii) Patient privacy rights or violation of health information privacy
viii) Searches by the police
Is Invasion of Privacy a Crime?

Invading someone’s privacy is not a criminal offense however the methods or acts of invasion are criminal. Generally, invasion of privacy falls under a civil rights violation thus is addressed in civil court proceedings. Furthermore, “in some cases, a perpetrator may be subject to both criminal charges and civil sanctions. This might occur when a perpetrator breaks the law in his quest to gain or publish private information about someone else (“Invasion Of Privacy — Definition, Examples, Cases” 2017).”

Types of Privacy Violations

Recently, invasion of privacy has become a hot topic in the news as two separate instances of such a violation have been reported. It may seem like a small number but at the end of the day, they are serious breaches of persons’ rights and their reasonable expectation of privacy.
Data Protection Act 2011 (Act №13 of 2011)
An Act to provide for the protection of personal privacy and information:
“The object of this Act of the Republic of Trinidad and Tobago is to ensure that protection is afforded to an individual’s right to privacy and the right to maintain sensitive personal information as private and personal.”
A Heavily Surveilled System
Act 13 of 2011
General Privacy Principle: “information shall only be retained for as long as is necessary for the purpose collected and shall not be disclosed for purposes other than the purpose of collection without the prior consent of the individual”
Act 13 of 2011
General Privacy Principle: “collection of information shall be legally undertaken and be limited to what is necessary in accordance with the purpose identified…”
The reality is that the meeting was a matter of public information however it was still a closed door meeting and a recording device was placed in the room without consent by all parties involved. According to Dexter and Stewart (2003), the legal situation with regard to secret recordings depends largely on the following factors:
1. Was the person making the recording a party to at the conversations? Secret recording is permitted either when one party to the conversation consents or when all parties consent.
2. Did the non-consenting party have a reasonable expectation of privacy the conversation? Usually the focus is on the non-consenting party’s expectations concerning the subject-matter of the conversation which they expect would not be recorded.
Since the story aired, the Corporate Communications Department at Parliament issued a statement that denied the presence of cameras during the discussion:
“The Parliament had the use of two cameras in the room, one conventional, and one 360 degree camera located just in front of the Prime Minister and Leader of the Opposition to photograph the entire room…When the time for photographs had ended, all cameras, including the 360 degree camera, were removed from the meeting room before discussions began between the Prime Minister and Leader of the Opposition (Elcock 2017).”
Regardless, We live in a surveillance society
Since the introduction of computerised surveillance or ‘dataveillance’ in the latter part of the 20th century, we have witnessed an increase in monitoring practices in everyday life (Jespersen et al. 2007). “This system of control has arguably been aided in our own culture by new technological advancements that allow governmental agencies to track movement and behaviour (the internet, telephones, cell phones, social security numbers, the census, ATMs, credit cards, and the ever increasing number of surveillance cameras in urban spaces) (Felluga 2002)”.
As a result of Capitalism we place value in efficacy of organising data of individuals for the mass production and dissemination of more goods and information at all costs even exploitation or injustice. Moreover as we move into a more technologically advanced society, information has become a new currency therefore there is greater attempts to surveil more private aspects of people’s lives.

“The result of this surveillance is acceptance of regulations and docility — a normalisation of sorts, stemming from the threat of discipline. Suitable behaviour is achieved not through total surveillance, but by panoptic discipline and inducing a population to conform by the internalisation of this reality (Mason 2017).” In that the observer witnesses a behaviour exhibited by another and monitors the aftermath of such behaviour; the more one observes the more knowledgeable about society she/he becomes on what is and isn’t acceptable.
According to the UN World Report 2017, “The bifurcation between existing norms and what states really do is most evident in the unfolding debate over surveillance. Edward Snowden, a former US government contractor, put that debate into high gear in 2013 by leaking documents to media that showed the United States and its allies were engaging in massive, indiscriminate data collection on people in the US and abroad who had no connection to wrongdoing (Human Rights Watch 2017).” However in the years since, few countries curtailed surveillance powers and moved to legitimise powers similar to what the US has shown to wield.
Additionally, cyberspace has become a platform where we monitor ourselves for Big Brother and our freedom of expression is marked either as activism and thus praised or seen as dissent and used to punish. “The backlash: Dissidents and critics of illiberal governments who tried to avoid suppression by going online soon found themselves monitored, publicly shamed or arrested, a trend in full force today in Turkey, Egypt, Vietnam, Saudi Arabia, China, or Russia’s Chechen Republic (Human Rights Watch 2017).”
Where do we draw the line?
An Intrusion of Solitude: Revenge Porn
Act 13 of 2011
General Privacy Principle: “knowledge and consent of the individual are required for the collection, use or disclosure of personal information.”
“Revenge pornography or non-consensual pornography involves a disgruntled ex-partner distributing on the internet, without the consent of the former partner (the victim), a photograph or video depicting the victim naked or engaged in a sexual act. The image may be distributed broadly using social media, such as Facebook, or targeted to the victim’s family or employer, either by email, text or in hard copy. Typically the image has been taken by the offender with the consent of the victim or taken by the victim and then provided to the offender. However, in some cases, the image may have been taken surreptitiously, without the victim’s consent (Gotsis 2015).”
Worldwide this gross invasion and violation of a person’s privacy is a growing concern.
Sydney, Australia: “AFP report stated that one in five Australians, have fallen prey to abusive behaviour, including having their most intimate moments photographed or recorded on video without consent and then threatened that these humiliating images will be made public on social networks. Eleven per cent of victims saw their images distributed without their consent on social media platforms like Snapchat and Facebook (Buang 2017).”
United States: “The APA reported on a survey of American adults which found that: 36% of survey participants planned to send “sexy” or “romantic” photographs to their partners via email, text and social media on Valentine’s Day; 10% of ex-partners have threatened to post sexually explicit photographs online; and about 60% of those threats became a reality (Buang 2017).”
Japan: From the period 2008 and 2012, the number of alleged incidents of revenge pornography reported to police more than tripled to 27,334.
England & Wales: 149 revenge pornography allegations were recorded by police between January 2012 and June 2014, with six people cautioned or charged; revenge porn has been criminalised as of April 2015 punishable by a prison term of two years. In the first year the law was enforced, more than 200 people were prosecuted.
Unfortunately, many victims are reluctant to report and testify against the perpetrators because of fear and/or embarrassment. Therefore instances of revenge porn crimes are greatly unreported.
The problem with non-consensual pornography is that as technology grows the list of deviances committed by offenders or would-be offenders are also increasing and despite the enactment of privacy laws in many countries in the world the problem is the inconsistency in punishment and the stigma that automatically falls onto the victim as opposed to condemnation of the criminal who violated their victims.
For example, in Massachusetts, video voyeurism charges against Michael Robertson was dismissed. Allegedly, Michael Robertson used his cell phone to take videos and photos up women’s skirts and dresses without their permission while they rode the trolley. “The court explained that although Massachusetts criminalizes the recording of images of people who are nude or partially nude, secretly taping a woman’s crotch did not violate the law because she wore underwear (Citron 2014).”
However, reasonable expectancy of personal privacy is expected even in a public transportation system especially considering the creep was peeping using an enhancing device to invade personal space of many unsuspecting women to surreptitiously film their crotch. As Suffolk County District Attorney Daniel Conley said in a statement “If the statute as written doesn’t protect that privacy, then I’m urging the Legislature to act rapidly and adjust it so it does (Citron 2014).” This is the long and short of it! Privacy is a fundamental human right and as such governments must protect their citizens. Surveillance and “smart” devices are relevant for our time but as a human being a measure of solitude and privacy is also important. As a surveillance society, we cannot be so engrossed by technological progress and devolve as human beings in the process.
References
Brunon-Ernst, A. 2012. Beyond Foucault: New Perspectives on Bentham’s Panopticon.
Ashgate Publishing Limited.
Buang, Salleh. 2017. “‘Sextortion’ And Revenge Porn: What Does Our Law Say?”. New Straits Times. https://www.nst.com.my/opinion/columnists/2017/05/238156/sextortion-and-revenge-porn-what-does-our-law-say.
Citron, Danielle. 2014. “Protecting Sexual Privacy With Law”. Forbes. https://www.forbes.com/sites/daniellecitron/2014/04/16/protecting-sexual-privacy-with-law/#58a5da176f70.
Data Protection Act. 2011. Vol. 13. Trinidad and Tobago: Tenth Parliament Republic of Trinidad and Tobago.
Dexter, Douglas E, and Darnley D Stewart. 2003. SECRET TAPING OF CONVERSATIONS IN EMPLOYMENT DISPUTES. Ebook. http://apps.americanbar.org/labor/techcomm/mw/Papers/2004/dexter-stewart.pdf.
Dowlat, Rhondor. 2016. “500 Females ‘Exposed’ In Online Porn Ring Scandal”. Guardian. http://www.guardian.co.tt/news/2016-06-16/500-females-%E2%80%98exposed%E2%80%99-online-porn-ring-scandal.
Elcock, Jason. 2017. “No Cameras During Rowley, Kamla Meeting Says Parliament …Webcam Used For Greeting Only”. Trinidad Express Newspaper. http://www.trinidadexpress.com/20170720/news/no-cameras-during-rowley-kamla-meeting-says-parliament.
Felluga, Dino. 2002. “Modules On Foucault: On Panoptic And Carceral Society”. Cla.Purdue.Edu. https://www.cla.purdue.edu/english/theory/newhistoricism/modules/foucaultcarceral.html.
Gandy, Oscar. H. 1993. The Panoptic Sort: A Political Economy of Personal Information, Boulder: Westview Press.
Gotsis, Tom. 2015. Revenge Pornography, Privacy And The Law. Ebook. NSW Parliamentary Research Service. https://www.parliament.nsw.gov.au/researchpapers/Documents/revenge-pornography-privacy-and-the-law/revenge%20pornography%20privacy%20and%20the%20law.pdf.
Guardian Media Group. 2017. Police Investigate Leaked Nude Photos Of Young Women Online. Video. https://www.youtube.com/watch?v=ne2zo1vyUVU.
Guardian Media Group. 2017. Camera Story. Video. https://www.youtube.com/watch?v=LRt3qyUX0L0.
Human Rights Watch. 2017. World Report 2017. World Report. Human Rights Watch. https://www.hrw.org/sites/default/files/world_report_download/wr2017-web.pdf.
“Invasion Of Privacy — Definition, Examples, Cases”. 2017. Legal Dictionary. https://legaldictionary.net/invasion-of-privacy/.
Jespersen, Julie Leth, Anders Albrechtslund, Peter Øhrstrøm, Per Hasle, and Jørgen Albretsen. 2007. “Surveillance, Persuasion, And Panopticon”. Researchgate.
Mason, Moya K. 2017. “Foucault And His Panopticon”. Moyak.Com. http://www.moyak.com/papers/michel-foucault-power.html.
Orwell, G. 1949. Nineteen Eighty-Four. London, Secker & Warburg.
“Privacy And Human Rights — Overview”. 2017. Gilc.Org. http://gilc.org/privacy/survey/intro.html.
Rivera, Jose. 2017. “Violation Of Privacy Laws”. Legal Match. https://www.legalmatch.com/law-library/article/violation-of-privacy-lawyers.html.
“The Panopticon, Data Protection And The Surveillance Society”. 2014. Tilburg University.
