Introduction
In the criminal justice system, surveillance stands as a multifaceted and complex phenomenon, a developing scenery where ethics, technology, and legal framework intersect. It takes various forms, such as electronic monitoring, physical observation, data collection and analysis, and video recording, and these techniques are mostly utilized by law enforcement to maintain security, protect against threats, enforce laws and regulations, and investigate criminal activity. The line between individual privacy and public safety becomes increasingly blurred in the digital world, characterized by rapid technological innovations and advancements in surveillance capabilities. All through history, surveillance has undergone a profound transformation, moving from analog, traditional methods to a digital era where stylish technologies wield unparalleled power. As it becomes more common and at the disposal of law enforcement agencies, the implications for ethical considerations and civil liberties demand a closer examination. According to Bennett et al. (2014), most Canadians are accustomed to airport security and surveillance cameras, but moderately few are cognizant of the degree to which the potential for surveillance is currently entrenched in every single side of their lives. Additionally, the legal background and regulations governing surveillance practices further complicate this landscape, as striking a balance between surveillance protecting individual rights and maintaining public safety requires nuanced scrutiny of the evolving legal landscape. The complicated relationship between constitutional principles and the imperative of contemporary law enforcement practices impacts the parameters within which surveillance operates. As society hurtles towards an increasingly digitized future, the implications of pervasive surveillance necessitate meticulous investigation to ensure that the critical fabric of ethics, justice, and individual rights and freedoms are not violated. This analytical paper critically dissects the intricate dimensions of surveillance in the criminal justice system by delving into the historical evolution of surveillance techniques, dissecting various forms of surveillance utilized by law enforcement, scrutinizing the legal frameworks in Canada, Europe, and the United States, analyzing the ethical implications surrounding consent and proportionality, and presenting a personal perspective on the delicate balance between enhanced security measures and the preservation of individual rights: .by providing a comprehensive and analytical examination of these key aspects, the paper aims to contribute a deeper understanding of the multifaceted challenges and considerations inherent I contemporary surveillance practices within the criminal justice system.
Historical Evolution of Surveillance
In history, surveillance is referred to as espionage or spying. It mainly occurred as a means of gathering or collecting information, supervising the actions of other individuals, particularly enemies, and utilizing the collected or gathered information to increase an individual understanding of the party being spied upon. Since ancient times, surveillance has undergone a significant historical evolution as a tool of social control and order. According to Lyon (2022), the concept of surveillance is pivotal to a contemporary understanding of the digital world, although unlike other concepts utilized in this context, world surveillance is over two hundred years old and thus has seen major political, social, and technical changes that have prompted shifts in its meaning. In the medieval period, surveillance occurred most often through people to spy or a group of people to monitor and gather intelligence on their subjects. There is a shift from manpower to technology, marking a significant turning point in surveillance practices.
In the ancient period, ruling elites and monarchs relied heavily on community-based surveillance systems where local communities were tasked with keeping an eye on one another to foster mutual scrutiny. The community-based surveillance is aimed at preventing dissent and maintaining social cohesion. Despite being an informal way of surveillance, it resulted in an effective surveillance system at that time.
The emergence of the Industrial Revolution resulted in unprecedented societal changes, influencing surveillance methods. On the other hand, urbanization and the rise of centralized institutions prompted the development of formalized surveillance systems. Multinational and local corporations and governments began utilizing early technologies such as photography and telegraph to facilitate their monitoring and information-gathering capacity.
In the 20th century, surveillance has witnessed a paradigm shift with the advent of electronic surveillance. According to Lyon (2022), the mention of electronic means hints at the simple watching over, making visible through different means such as gathering data, analysis, interpretation and action. The proliferation of telephones, radios, and closed-circuit television (CCTV) systems allowed authorities to monitor larger populations more efficiently. Critical international events, including the Cold War, World War I, and World War II, played critical roles in accelerating the development and deployment of surveillance technologies. Governments, particularly the criminal justice departments, sought to bolster national security by intensifying surveillance efforts.
The digital age, characterized by significant technological development, ushered in a new era of surveillance. The widespread adoption of the internet, coupled with the digitization of personal information, transformed surveillance into a highly interconnected and sophisticated network. Private entities and Governments began harnessing the power of artificial intelligence, data analysis, and biometric technologies to facilitate their surveillance capacity.
Although historical surveillance practices were influenced by the need for social control and order, the evolution of surveillance technologies has raised concerns regarding privacy and individual freedoms. As communities grapple with the ethical implications of ubiquitous surveillance, understanding the historical trajectory presents valuable insights into the compound relationship between historical context and technological advancements, societal norms and power. The constant interplay between historical context and technological advancements shapes the contours of contemporary surveillance landscapes, raising queries regarding the subtle balance between security and individual rights.
Types of Surveillance in the Criminal Justice System
According to Heibutzki (2018), in the criminal justice system, surveillance is the surreptitious observation of laces, individuals, and vehicles, particularly by law enforcers, to investigate allegations of unlawful behaviours. The methods utilized range from physical observation to the electronic monitoring of conversations. Understanding the range and complexities of these surveillance methods is relevant for a comprehensive analysis of their impacts on security, privacy, and justice.
Physical Surveillance: One of the oldest tools used in the criminal justice system. It is more common to law enforcement officers, particularly if they suspect an individual is engaging in illicit activities (United Nations Office on Drugs and Crimes, 2018). It entails the manual and discreet observation of individuals or locations and relies on human agents, often equipped with specialized training to visually track and gather intelligence on suspects. Even in the digital era, the method is widely used globally, although different nations have placed some restrictions on surveillance. For instance, a right to privacy in an individual’s home has immediate universal acknowledgement, so nations limit such interruption. The inception of when a criminal justice officer can move in private spaces relies on the jurisdiction. It may consist of probable cause, reasonable probable grounds, and reasonable suspicion, necessitating prior judicial authorization.
Electronic surveillance: The criminal justice system incorporates the use of advanced technologies to monitor and gather information on individuals. These technologies include monitoring of fax, email, internet, use of drones, computer forensics, license plate readers, data stored in the cloud, and telephone communications (Heibutzki, 2018). It also incorporates microphones, GPS trackers and other monitoring tools that gather information. It aims to enhance law enforcement’s capacity to investigate and prevent criminal activities. According to the United Nations Office on Drugs and Crimes (2018), electronic surveillance is the preferred investigative method in cases of organized crimes where an outsider cannot penetrate the criminal gang or where physical surveillance would present unacceptable risks to the safety of investigators. In most countries, including Canada, this activity requires a court order to proceed with a government affidavit illustrating that a crime has been, is being, or will be committed.
Computer Surveillance: Not all crimes are committed in person, which is where computer surveillance comes in (National Institute for Trial Advocacy, 2023). It plays a critical role in investigating and preventing cybercrimes as it involves monitoring individual computer activities, delving into their emails, internet history, and other online engagements particularly completed or can be completed by a computer. Law enforcement officers can track illicit online behaviour by scrutinizing digital footprints, identifying potential threats and gathering relevant evidence for cybercrime investigations. The surveillance method is indispensable in the digital age, characterized by technological innovations, as it presents law enforcement officers with the tools necessary to navigate the complexities of virtual crimes and uphold the principles of justice in an increasingly digital landscape.
Social Media Surveillance: In the criminal justice system, social media monitoring has been a significant tool for investigators. According to the National Institute for Trial Advocacy (2023), information shared on social media platforms is not protected by a reasonable expectation of privacy; hence, investigators can monitor a criminal or suspect social media account activity to gather information regarding their interests, activities, and contacts. By scrutinizing publicly available information such as interactions, photos, and posts on different social media platforms, including Twitter, Facebook, and Instagram, police can gather pertinent evidence and intelligence, leading to the broader investigative process.
Financial Surveillance: This is a critical component of the criminal justice system, aimed at thwarting financial crimes, especially money laundering. Financial surveillance entails monitoring financial activities and transactions to detect and prevent financial crimes such as money laundering (National Institute for Trial Advocacy, 2023). By scrutinizing the money flow, criminal justice system authorities can trace the movement of funds across accounts, uncovering probable criminal enterprises. It serves as a proactive strategy to detect and prevent unlawful financial activities. Law enforcement agencies leverage sophisticated tools and algorithms to analyze vast amounts of financial data, allowing them to pinpoint abnormalities and suspicious transactions. This method uncovers financial crimes and disrupts the financial infrastructure that supports criminal organizations. The intersection of the criminal justice system and financial surveillance underscores the relevance of staying ahead of evolving strategies utilized by those seeking to exploit financial systems for illegitimate gains.
Biometric Surveillance: In the digital era, biometric surveillance is pivotal to criminal justice. It applies diverse technologies to identify individuals based on their unique physical characteristics, such as facial recognition, fingerprints, and iris scans (Bennett et al., 2014)). In the criminal Justice System, CCTV is frequently used for biometric surveillance, allowing law enforcement to monitor public spaces and analyze biometric data in real-time.
Law and Regulations
Surveillance within the criminal justice system operates within a carefully constructed legal framework designed to balance maintaining public safety with protecting individual freedoms and rights. Within this context, protecting privacy becomes significant, with legal instruments targeting to balance the requisite for effective crime prevention and the protection of civil liberties. Internationally, the regulation of surveillance is diverse.
In Canada, the cornerstone of the legal landscape is the Canadian Carter of Rights and Freedoms. The Canadian Charter of Rights and Freedoms promises the freedoms and rights set out in it subject only to rational bounds defined by law that can be perceptibly vindicated in a free and democratic society (Government of Canada, 2023). It plays a critical role in shaping the permissible boundaries of surveillance activities. Section 8 of the charter protects against unreasonable search and seizure as everybody has the right to be secure against irrational search or seizure, and any evidence obtained in violation of these rights is deemed inadmissible in court (Molnar & Parsons, 2016). Additionally, the Personal Information Protection and Electronic Documents Act (PIPEDA) oversees individual information gathering, use, and disclosure (Office of the Privacy Commissioner of Canada, 2021). Although it primarily concentrates on privacy in commercial activities, it has implications for surveillance technologies utilized by private entities collaborating with law enforcement agencies. The tension between privacy rights and the state’s duty to facilitate public safety led to the establishment of the Security of Canada Information Sharing Act (SCISA), which governs the government’s institutions to gather, analyze, and share information associated with national security without violating privacy law. Additionally, a case such as R.V. Collins has shaped the interpretation of section 8 of the charter: the Supreme Court ruled that if the evidence is collected in a manner that violates individual rights to be free from unreasonable searches and seizures, that the evidence is inadmissible unless the prosecution can prove that its admission would not bring the administration of justice into disrepute (Supreme Court Of Canada, 2023). Such a case stresses the need for accountability, transparency, and proportionality in the authorization and execution of surveillance measures.
Drawing upon the European Member States, the EU established the European Union Data Protection Directive 1995, which requires all its members to protect citizens’ rights to privacy concerning the processing of personal data (Taylor, 2015). The members have implemented it in different ways. For instance, the UK established the Data Protection Act 1998 (DPA 98) (Taylor, 2015). This act protected personal data stored in computers or any other form, including an organized paper-filling system. Such legislation is critical in shaping how surveillance practices within the Criminal Justice System adhere to data protection standards and respect individual privacy.
In the US, a welter of regulations and statutes at state and federal levels directs and monitors the use of surveillance technologies. The US Supreme Court’s Fourth Amendment jurisprudence sets the minimum legal necessities that surveillance by the government should meet (Slobogin & Brayne, 2022). It restricts unreasonable searches and seizures of individuals, persons, papers, and effects. It necessitates that warrants authorizing search or seizure be grounded on probable cause and illustrate the individual or things to be seized and a particular place to be searched. According to Slobogin & Brayne (2022), the Supreme Court can determine when surveillance is search or seizure and if it triggers Fourth Amendment Protection. Taylor (2015) claims that in the US, constitutional interpretation involves courts, materializing several laws and executive orders regarding data protection. In the case of Katz v. United States, 389 US 347 (1967), the US Supreme Court ruled out that the government’s use of a listening device to record conversations without a warrant violated the Fourth Amendment’s protection against unreasonable searches and seizures, hence invalidating the FBI’s writeup evidence and overturned Katz’s criminal conviction (Slobogin & Brayne, 2022). Additionally, the Privacy Act 1974 and the Computer Matching and Privacy Act 1988 apply to individual information held by the federal government. However, it does not have authority over how it is collected.
Ethical Implications
Surveillance within the criminal justice system requires thoroughly examining its ethical implications. The issue of consent is a key concern in surveillance in the Criminal Justice System. The issue of consent is entrenched in the social contract theory, and privacy, as a critical right, questions the informed agreement of people facing pervasive surveillance. Social contract theory says that individuals implicitly agree to certain limitations on their freedom in exchange for societal protection and order (Ramee, 2021). Nevertheless, the theory is contingent on people being aware of and consenting to the terms of the contract. In the context of surveillance, questions arise regarding whether an individual is aware of the nature and extent of surveillance activities and whether their consent is informed. Additionally, the concept of privacy as critical fundamental human rights as surveillance practices raises ethical questions concerning the extent to which individuals have control over the data collected concerning them.
The principle of proportionality, a foundation in just war theory, declares that the use of force must be proportionate to the threat faced. In the context of surveillance, the level of intrusion must be proportional to the perceived threat. The utilitarian perception, which examines actions grounded on their overall societal benefits, may clash with deontological views that stress adherence to moral principles irrespective of the consequences.
My perspective
I am not exceptional, but I am also navigating through the complications of surveillance in the criminal justice system, and it is evident that the rapid technological innovations leading to the evolution of surveillance technologies necessitate us to reevaluate traditional perceptions of security and privacy. As a society, we find ourselves at a crossroads where the advantages of enhanced security must be weighed against the probable encroachment on individual rights. I grapple with the implications where biometric and digital footprint data are intricately woven into our daily experiences. Irrespective of the benefits of surveillance in the criminal justice system, I question the ethical dimensions of unchecked and intrusive practices. This exploration allows me to analytically engage with the subject matter, contemplating the implications for the criminal justice system and the broader societal landscape we are shaping in this digital world.
Conclusion
The complex nature of surveillance within the criminal justice system, incorporating historical evolution, types of surveillance, legal frameworks, and ethical implications, underscores its multifaceted significance in contemporary society. Its evolution from historical community-based systems to advanced technological tools and innovations replicates a profound transformation that necessitates a balance between security imperatives and individual rights. Legal frameworks in Europe, Canada, and the US present a regulatory background stressing protecting privacy rights. Ethical considerations such as consent and proportionality pinpoint the need for nuanced strategies in deploying surveillance technologies. As society navigates the effects of technological innovation, balancing enhanced security and safeguarding human rights remains a crucial challenge for the criminal justice system.
References
Articles
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Heibutzki, R. (2018). Types of Surveillance in Criminal Investigations. Chron.com. https://work.chron.com/types-surveillance-criminal-investigations-9434.html
Lyon, D. (2022). Surveillance. Internet Policy Review, 11(4). https://doi.org/10.14763/2022.4.1673.
National Institute for Trial Advocacy. (2023, April 25). 6 Types of Surveillance for Investigations Explained. NITA. https://investigativeacademy.com/6-types-of-surveillance-for-investigations-explained/
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Ramee, M. F. (2021). The Social Contract Theory in the Face of Empirical Morality: Integration and Its Consequences. https://academicworks.cuny.edu/cgi/viewcontent.cgi?article=1108&context=bb_etds
Slobogin, C., & Brayne, S. (2022). Surveillance Technologies and Constitutional Law. Annual Review of Criminology, 6(1). https://doi.org/10.1146/annurev-criminol-030421-035102
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Book chapter (10)
Molnar, A., & Parsons, C. (2016). Unmanned aerial vehicles (UAVs) and law enforcement in Australia and Canada: Governance through ‘privacy ‘ in an era of counter-law? National Security, Surveillance and Terror: Canada and Australia in Comparative Perspective, 225-247. https://www.defence.lk/upload/ebooks/(Crime%20Prevention%20and%20Security%20Management)%20Randy%20K.%20Lippert,%20Kevin%20Walby,%20Ian%20Warren,%20Darren%20Palmer%20(eds.)%20-%20National%20Security,%20Surveillance%20and%20Terror_%20Canada%20and%20Australia%20in%20Comparative%20Perspective.pdf#page=246
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