Guidelines for the Use of Video Surveillance of Public Places by Police and Law Enforcement Authorities
Over the past ten years, digital cameras have shrunk in cost and size, and have proliferated across the country. Networking these cameras used to be a significant expense, but now thanks to the Internet, wireless hubs, and progress in digital streaming and image compression, transmission adds little expense or technical challenges.
As a result, and partly in response to a growing perception that video surveillance increases our security, video surveillance of public spaces is increasing rapidly, by public sector authorities, private sector parties, and property owners.
Video surveillance of public places nonetheless presents a challenge to privacy, to freedom of movement and freedom of association, all rights we take for granted in Canada. This is especially true when the surveillance is conducted by police or other law enforcement authorities.
Widespread Use by Law Enforcement
The use of video surveillance to detect, deter and prosecute crime has increased significantly over the last few years—in Canada and abroad. Police and law enforcement authorities increasingly view it as a legitimate tool to combat crime and ward off criminal activity—including terrorism. Recent events have heightened the interest of public authorities in deploying video-surveillance in public places. It is widespread in the United Kingdom and increasingly used by law enforcement and anti-terrorism authorities in the U.S. and Canada, particularly since September 2001.
Here at home, police and public security agencies monitor public parks and streets. Some cities have put in place video surveillance systems for specific festival periods. The Royal Canadian Mounted Police (RCMP) use cameras to monitor high-security areas such as Parliament Hill. Cameras are used to survey Canada-US border crossings. They are very extensively used in airports, and port authorities are becoming increasingly interested in using video cameras to monitor their facilities.
A Challenge to Privacy
Video surveillance of public places subjects everyone to scrutiny, regardless of whether they have done anything to arouse suspicion. At the very least it circumscribes, if it does not eradicate outright, the expectation of privacy and anonymity that we have as we go about our daily business.
The medium’s very nature allows law enforcement to observe and monitor the movements of a large number of persons, the vast number of whom are law-abiding citizens, where there are no reasonable grounds to be capturing a record of their activities. When video surveillance was done with tapes, where an operator had to watch each event to make a judgement about an individual, the volume of work kept misuse down to a minimum. Now we have facial recognition systems and pattern recognition software that can massage the vast stream of images, so the actual use of the data increases, even if it is not by human operators. The likelihood of images being retained for further data mining increases simply because the workload is now potentially manageable. The risk of systematized observations of groups or persons now exists, simply because it is technically feasible. On top of all this, fear of terrorism and street crime has driven the numbers of cameras up, as public officials seek to assuage the fears of citizens and gain control of the uncontrollable.
Proliferation of video-surveillance raises a concern that inferences will be drawn about people, that the data will be used for trivial or discriminatory purposes. People are well aware of the presence of cameras, in fact there is a brisk trade in fake cameras because they are promoted as being as effective as real ones in deterring bad behaviour. For these reasons, there is good reason to believe that video surveillance of public places by the police or other law enforcement authorities has a chilling effect on behaviour—and by extension on rights and freedoms.
The Need for Guidelines
Given the widespread use by police of video surveillance in public spaces, and its potentially chilling effect on privacy, the Office of the Privacy Commissioner of Canada (OPC) offers these guidelines to help define and circumscribe the use of this medium. The guidelines below set out principles for evaluating the need for resorting to video surveillance and for ensuring that, if it is conducted, it is done in a way that minimizes the impact on privacy.
These guidelines were developed as a result of the work of a discussion group established jointly by the Office of the Privacy Commissioner of Canada and the RCMP with other stakeholders, following an investigation into the use of video surveillance in Kelowna which started in 2001.
In the conduct of these discussions, we reviewed the extent of use of video surveillance in Canada and abroad, the circumstances that gave rise to this use, the way in which video surveillance has been conducted, and an assessment of the effectiveness of the tool in curbing or investigating crime.
Scope of Application
The guidelines are intended as guidance for overt, general video surveillance by law enforcement agencies—what some police forces refer to as "community cameras"—in places to which the public has largely free and unrestricted access, such as streets or public parks.
They apply to continuous or periodic video recording, observing or monitoring of individuals in open, public spaces, in the absence of particularized suspicion of an individual or individuals.
While the guidelines can be used to promote and protect privacy in other settings, such as police facilities like cell blocks or interview rooms, and more generally could be useful as guidance for other applications of video surveillance technology, their scope remains within the limits of generalized surveillance of public spaces.
These guidelines are not intended to apply to circumstances where targeted video surveillance may be used as a case-specific investigative tool for law enforcement purposes, under statutory authority or the authority of a search warrant.
We anticipate that there will be further technical advances in video-surveillance, and that the appetite for its deployment will continue to grow. Since the OPC started working on these guidelines, there has been continued interest on the use of video surveillance by privacy and data protection authorities, in Canada and abroad. For example, the United Kingdom Home Office published in early 2005 an in-depth study assessing the impact of closed-circuit television systems implemented in a range of contexts. Closer to home, a number of provincial government departments and authorities have published guidelines for the use of video surveillance by public bodies. These include British Columbia, Alberta, Saskatchewan, Nova Scotia, New Brunswick, Newfoundland & Labrador, Ontario, and Quebec in particular which recently completed an extensive consultation on the use of video surveillance cameras in public places by government bodies.
As our knowledge of the efficacy and impact of video surveillance increases and becomes ever more precise, adjustments to how this technology should be controlled will likely need to be made. Indeed, as part of its Contributions Program, the OPC awarded in the fall of 2004 funding to Quebec’s l’École nationale d'administration publique (ENAP) for research on the use of video surveillance cameras in public spaces in Canada. We received the ENAP’s research report in December 2005 and plan to integrate its findings in future work we undertake on video surveillance.
The Office of the Privacy Commissioner will monitor the guidelines set out in this document to ensure that they continue to reflect needs dictated by the state of the technology and its implementation. In the meantime, we are analyzing the application of PIPEDA to the deployment of video surveillance by the private sector, and plan to publish our findings in this regard in 2006.
- Video surveillance should only be deployed to address a real, pressing and substantial problem.
The problem to be addressed by video surveillance must be pressing and substantial, of sufficient importance to warrant overriding the right of innocent individuals to be free from surveillance in a public place. Accordingly, concrete evidence of the problem to be addressed is needed. This should include real evidence of risks, dangers, crime rates, etc. Specific and verifiable reports of incidents of crime, public safety concerns or other compelling circumstances are needed, not just anecdotal evidence or speculation.
- Video surveillance should be viewed as an exceptional step, only to be taken in the absence of a less privacy-invasive alternative.
Less privacy-invasive alternative ways of addressing the identified problem should be chosen unless they are not feasible or significantly less effective.
- The impact of the proposed video surveillance on privacy should be assessed before it is undertaken.
A Privacy Impact Assessment of the proposed video surveillance should be conducted to determine the actual or potential kind and degree of interference with privacy that will result, and the ways in which adverse effects will be mitigated.
- Public consultation should precede any decision to introduce video surveillance.
Public consultation should be conducted with relevant stakeholders, including representatives of communities that will be affected. "Community" should be understood broadly; it should be recognized that a particular geographic area may have several distinct communities, and one community should not be presumed to speak for the others.
- The video surveillance must be consistent with applicable laws.
Video surveillance must be conducted in accordance with all applicable laws, including overarching laws such as the Canadian Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms.
- The video surveillance system should be tailored to minimize the impact on privacy.
The surveillance system should be designed and operated so that the privacy intrusion it creates is no greater than absolutely necessary to achieve the system’s goals. For example, limited use of video surveillance (e.g., for limited periods of day, public festivals, peak periods) should be preferred to always-on surveillance if it will achieve substantially the same result.
- The public should be advised that they will be under surveillance.
The public should be informed with clearly written signs at the perimeter of surveillance areas, which advise that the area is or may be under surveillance, and indicate who is responsible for the surveillance, including who is responsible for compliance with privacy principles, and who can be contacted to answer questions or provide information about the system.
- Fair information practices should be respected in collection, use, disclosure, retention and destruction of personal information.
The information collected through video surveillance should be minimal; its use should be restricted, its disclosure controlled, its retention limited, and its destruction assured. If a camera is manned, the recording function should only be turned on in the event of an observed or suspected infraction. If a camera records continuously, the recordings should be conserved for a limited time only, according to a retention schedule, unless they have captured a suspected infraction or are relevant to a criminal act that has been reported to the police. Information collected through video surveillance should not be used for any purpose other than the purpose that the police force or public authority has explicitly stated in the policy referred to in 14 below. Any release or disclosure of recordings should be documented.
- Excessive or unnecessary intrusions on privacy should be discouraged.
Surveillance cameras should not be aimed at or into areas where people have a heightened expectation of privacy: for example, windows of buildings, showers, washrooms, change rooms, etc. If cameras are adjustable by an operator, reasonable steps should be taken to ensure that they cannot be adjusted or manipulated to capture images in areas that are not intended to be under surveillance.
- System operators should be privacy-sensitive.
The operators of surveillance systems, including operators hired on contract, should be fully aware of the purposes of the system, and fully trained in rules protecting privacy.
- Security of the equipment and images should be assured.
Access to the system’s controls and reception equipment, and to the images it captures, should be limited to persons authorized in writing under the policy referred to in 14 below. Recordings should be securely held, and access within the organization limited to a need-to-know basis.
- The right of individuals to have access to their personal information should be respected.
People whose images are recorded should be able to request access to their recorded personal information. Under many privacy statutes, they have a right of access. Severing the personal information in a recording (including technological blurring or blocking of the identities of others) may be necessary to allow individual access. Policies and procedures should be designed to accommodate these requests.
- The video surveillance system should be subject to independent audit and evaluation.
The system’s operations should be subject to frequent audit, and its effectiveness should be evaluated regularly to identify unintended negative effects. Audit and evaluation should be conducted by persons or organizations independent of the management and direction of the video surveillance system. Audits should ensure compliance with the policy governing the system, including ensuring that only pertinent information is collected, that the system is used only for its intended purpose, and that privacy protections in the system are respected. Evaluation should take special note of the reasons for undertaking surveillance in the first place, as determined in the initial statement of the problem and the public consultation, and determine whether video surveillance has in fact addressed the problems identified at those stages. Evaluation may indicate that a video surveillance system should be terminated, either because the problem that justified it in the first place is no longer significant, or because the surveillance has proven ineffective in addressing the problem. Evaluation should take into account the views of different groups in the community (or different communities) affected by the surveillance. Results of audits and evaluations should be made publicly available.
- The use of video surveillance should be governed by an explicit policy.
A comprehensive written policy governing the use of the surveillance equipment should be developed. The policy should clearly set out:
- the rationale and purpose of the system
- the location and field of vision of equipment
- the rationale and purpose of the specific locations of equipment and fields of vision selected
- which personnel are authorized to operate the system
- the times when surveillance will be in effect
- whether and when recording will take place
- the place where signals from the equipment will be received and monitored, and
- the fair information principles applying to recordings, including
- retention and destruction
- rights of individual access to personal information captured, and
- rights to challenge compliance
The policy should identify a person accountable for privacy compliance and privacy rights associated with the system. The policy should require officers, employees and contractors to adhere to it, and provide sanctions if they do not. It should provide a process to be followed in the event of inadvertent privacy and security breaches. Finally, it should provide procedures for individuals to challenge compliance with the policy.
- The public should have a right to know about the video surveillance system that has been adopted.
Police forces and public authorities should recognize that individuals will want information about video surveillance systems. They may seek to know, for example, who has authorized the recording, whether and why their images have been recorded, what the images are used for, who has access to them, and how long they are retained. Police forces and public authorities should be prepared to provide this information.