Privacy Commissioner's finding on video surveillance by RCMP in Kelowna

Ottawa, October 4, 2001 - The Privacy Commissioner of Canada, George Radwanski, today released the following letter of finding to David Loukidelis, Information and Privacy Commissioner of British Columbia, following an investigation of video surveillance activities by the Royal Canadian Mounted Police (RCMP) in Kelowna, B.C.

Dear Commissioner Loukidelis:

This letter constitutes my findings with regard to your Privacy Act complaint. In a letter dated June 25, 2001, you complained regarding the actual and the proposed installation of Royal Canadian Mounted Police surveillance cameras in the downtown core of the City of Kelowna.

You requested that I investigate the lawfulness of this surveillance under the Privacy Act and its conformity with the privacy rights of Canadians.

The questions you have raised in your complaint are of national importance. There appears to be a rapidly growing interest in recourse to video surveillance cameras among municipal police forces across Canada. The privacy issues involved are of the greatest seriousness and have already sparked many inquiries to my Office from the public and the media.

The activities of municipal police forces do not normally fall within my jurisdiction as federal Privacy Commissioner. It is only because the federal RCMP happens to serve as the municipal police force in Kelowna that I do indeed, in this particular instance, have jurisdiction. Nevertheless, because the issue of video surveillance has vitally important implications for the privacy rights of all Canadians, it is my hope that my findings in this instance may also be more broadly helpful to municipal and law enforcement authorities, and to public opinion.

We established during our investigation that on February 22, 2001, following consultation with City of Kelowna officials and downtown business representatives, the RCMP installed one camera in the area of the Bennett Clock on Queensway Avenue in Kelowna. The monitored area is signed, “This area of the City of Kelowna may be monitored by video surveillance for law enforcement purposes. For further information contact Kelowna RCMP (250) 762-3300. Information collected in accordance with the Federal Privacy Act”. There are 11 signs posted in the area under surveillance.

We also established that at least five other locations have been selected for installation of surveillance cameras as soon as funds become available, as part of a plan to eventually provide total coverage of all downtown streets and avenues in Kelowna.

While the camera already installed was purchased with funds provided by the City and the Downtown Kelowna Association, it is operated and maintained solely by the RCMP. At the time of the complaint, the camera recorded video only on a continuous basis, 24 hours a day, seven days a week. The videotapes were changed daily and retained for a six-month period unless used for an administrative purpose, in which case any tape so used is to be retained for at least two years. The City of Kelowna hired four watch commander assistants to work for the RCMP Detachment and monitor the cameras and perform other duties for the RCMP. These assistants recorded the date and times the videotapes were changed as well as unusual happenings, if observed. There is no review made of the tapes after they are recorded unless there is a need to do so, for example after an incident is subsequently reported to police.

Personal information is defined in the Privacy Act as any “information about an identifiable individual that is recorded in any form”. An individual caught within the visual range of a video surveillance camera can, in theory, be identified. The captured image reveals information about the individual (such as the individual's whereabouts and behaviour). When the picture is recorded, there is a collection of personal information within the meaning of the Act.

Section 4 of the Privacy Act states that “no personal information shall be collected by a government institution unless it relates directly to an operating program or activity of the institution”. It is a tenet of the Act that an institution can collect only the minimum amount of personal information necessary for the intended purpose. There must be a demonstrable need for each piece of personal information collected in order to carry out the program or activity.

There is no doubt that preventing or deterring crime can be regarded as an operating program or activity of the RCMP in its capacity as Kelowna's police force. But even setting aside for the moment the serious questions that exist about the deterrent effectiveness of video surveillance in public places, it does not follow that monitoring and recording the activities of vast numbers of law-abiding citizens as they go about their day-to-day lives is a legitimate part of any such operating program or activity.

This type of wholesale monitoring or recording certainly runs afoul of the requirement to collect only the minimum amount of personal information required for the intended purpose. Moreover, the broad mandate to prevent or deter crime clearly does not give police authorities unlimited power to violate the rights of Canadians. They cannot, for instance, compile detailed dossiers on citizens “just in case.” They cannot force people at random to identify themselves on the street. They cannot enter and search homes at will, without proper authorization.

It is equally clear, in my view, that police forces cannot invoke crime prevention or deterrence to justify monitoring and recording on film the activities of large numbers of the general public.

In the normal course of law enforcement, cause (reasonable grounds) is a basic pre-condition for the collection and retention of personal information. In the case of video surveillance, information is recorded regardless of the existence of specific cause. By recording continuously, as opposed to recording only selective incidents related to law enforcement activities, the RCMP was unnecessarily collecting information on thousands of innocent citizens engaged in activities irrelevant to the mandate of the RCMP.

I therefore find the video surveillance in Kelowna that was the subject of this complaint to be in contravention of the Privacy Act. The complaint is well founded.

I note in passing that in finding this sort of video surveillance to be unacceptable from the point of view of privacy rights, my position is consistent with that of the Québec Information and Privacy Commissioner who had investigated a similar surveillance activity in the City of Sherbrooke in 1992. The Québec Commissioner concluded that the City of Sherbrooke contravened the Québec privacy legislation by “systematically collecting nominative information on video tape when it was not necessary for the carrying out of its duties or the implementation of a program under its management”.

I also note that I believe my reasoning to be consistent with that of the Supreme Court of Canada in its decision in the 1990 case of R. v. Wong, wherein the Court stated: “to permit unrestricted video surveillance by agents of the state would seriously diminish the degree of privacy we can reasonably expect to enjoy in a free society.we must always be alert to the fact that modern methods of electronic surveillance have the potential, if uncontrolled, to annihilate privacy.”

In a letter dated September 10, 2001, Commissioner Zaccardelli of the RCMP has informed me that continuous video recording of the surveillance camera was terminated on August 28, although he explicitly alludes to the possibility that the Kelowna RCMP Detachment may decide to resume continuous random videotaping at some future date. He states that at present the area under surveillance will only be videotaped if a violation of the law is detected.

This puts the present use of the surveillance camera into compliance with the letter of the Privacy Act, which applies only to information “that is recorded in any form.” Nevertheless, for reasons I will detail below, I am not satisfied that a continuation of the video camera surveillance without continuous recording is sufficiently respectful of the spirit of the privacy law nor of the privacy rights of Canadians. In my view, only outright removal of the camera would meet that standard.

I will explain my reasoning in the course of addressing the broader privacy issues raised by the growing inclination to resort to video surveillance in public places. Because of the enormous importance of these issues to the fundamental privacy rights of all Canadians, I believe that it is not only appropriate but necessary for me to take this occasion to do so.

Let me begin by saying that I am well aware that, in the wake of the tragic events of September 11, there is probably some considerable public perception that a proliferation of video surveillance cameras in our streets and parks would somehow make us safer from terrorist attacks.

But even if New York City had been endowed with so many surveillance cameras as to turn the whole city into a giant TV studio, this would have done nothing to prevent the terrorists from crashing aircraft into the World Trade Center. In fact, it is difficult in general to believe that massive-scale video monitoring of streets and other general-use public places could be an effective or practical defence against terrorism.

Indeed, the growing enthusiasm for video surveillance cameras to date has focused not on anti-terrorism applications, but rather on their purported effectiveness against more conventional crimes. It is in this context, which gave rise to the complaint at hand, that I wish to examine the merits of such surveillance.

I have often stated my belief that privacy will be the defining issue of this new decade. Quite apart from the new pressures the current situation is likely to create, this is because a host of emerging technological challenges to privacy will force us to make choices that will determine what kind of Canadian society we will have not only for ourselves, but for our children and grandchildren. And if privacy at large will be the defining issue, few privacy issues will do more to shape that definition than the choices we make about video surveillance.

If we cannot walk or drive down a street without being systematically monitored by the cameras of the state, our lives and our society will be irretrievably altered. The psychological impact of having to live with a sense of constantly being observed must surely be enormous, indeed incalculable. We will have to adapt, and adapt we undoubtedly will. But something profoundly precious-our right to feel anonymous and private as we go about our day-to-day lives-will have been lost forever.

The Orwellian idea that “Big Brother is watching” will have become no longer apocryphal, but a literal and permanent daily reality.

That is a choice, and a sacrifice, that we are being invited to make in the name of rendering ourselves safer from crime. But there are several things that I consider to be profoundly wrong with that invitation.

First, there is no persuasive evidence that video surveillance of public places is, in fact, an effective deterrent to crime. It may be that it reduces street crime in locations where cameras are present, but only by displacing it to locations where they are not. Such a circumstance would mean that effective deterrence could be achieved only by having police surveillance cameras everywhere, even in the residential areas outside our homes.

But even then, full deterrence seems unlikely. Setting aside the conceptual improbability of achieving a truly crime-free society through the mere dispersal of cameras, the empirical evidence does not support it. In Britain, which now has more than one million surveillance cameras, violent crime has actually increased.

This is not altogether surprising. In this era of public sector cost-cutting, the use of video cameras tends to replace or reduce, rather than supplement, the presence of police officers on the streets. While a police officer who is physically present can intervene to stop a crime in progress, rescue the victim and arrest the suspect, it is far less clear what can be accomplished by an officer watching on a screen several miles away. In the case of the most serious crimes, the filmed record might assist in eventually apprehending and convicting the offender. But this does little to prevent the crime or spare the intended victim, particularly since most offenders don't carefully weigh the prospects of being caught.

The second shortcoming of the invitation to sacrifice our privacy to surveillance cameras is that the need to make so grave a sacrifice has not been demonstrated. Crime rates in Canada have been declining, not rising.

The third, and perhaps most important, objection is this: Even if video surveillance were in fact an effective deterrent to crime, the means by which we choose to combat crime need to be weighed against other important social values and goals.

In police states, there may be little or no crime, but there is also little or no freedom. Here in Canada, we temper law enforcement activities to accord with the kind of society we choose to be. We do not permit egregious violations of human rights, however effective they might be in deterring or solving crimes.

We make these choices because, while wanting a safe society, we recognize that there is more to safety and a high quality of life than merely the absence of crime. This same perspective needs, in my view, to be brought to the issue of surveillance cameras in our streets and public places. How great a price, in terms of our fundamental right to privacy, are we really prepared to pay?

I am aware of the argument that there is, in any event, no reasonable expectation of privacy in a public place. Certainly, it would not be reasonable to expect privacy where there are signs posted warning that we are under video surveillance.

But while “reasonable expectation of privacy” is a specific legal term, what is far more important is the right to privacy. That fundamental human right cannot be extinguished simply by informing people that it is being violated.

This is particularly true in the case of public space such as streets. People may have the choice of refusing to enter a store if there are signs warning that they are subject to video surveillance. But if there is a proliferation of surveillance cameras in our public streets, short of levitating above those cameras, people will have no way of withholding consent and still getting from place to place.

In my view, there are gradations to the right to privacy. Clearly, we have a greater right to privacy in our homes than in public places, where we are inevitably likely to be noticed and observed by those with whom we share the space. But in those public places, we retain the privacy right of being “lost in the crowd”, of going about our business without being systematically observed or monitored, particularly by the state.

I share this view with the Supreme Court of Canada, which stated in its Wong decision: “there is an important difference between the risk that our activities may be observed by other persons, and the risk that agents of the state, in the absence of prior authorization, will permanently record those activities on videotape, a distinction that may in certain circumstances have constitutional implications. To fail to recognize this distinction is to blind oneself to the fact that the threat to privacy inherent in subjecting ourselves to the ordinary observations of others pales by comparison with the threat to privacy posed by allowing the state to make permanent electronic records of our words or activities.”

Finally, I want to return to the issue of the distinction between video surveillance and the recording on film of the results of that surveillance. While the Supreme Court in Wong put great emphasis on the risks inherent in the creation of a permanent electronic record, particularly in the light of technological advances since 1990, I believe that video surveillance in public places can present a serious threat to privacy rights even in the absence of recording.

The Privacy Act, unlike the more recent Personal Information Protection and Electronic Documents Act (PIPEDA) that deals with the private sector, limits its provisions to personal information “recorded in any form.” Therefore, observing people on the streets through video cameras without routinely making a recording would comply with the letter of the Privacy Act. However, I am not satisfied that this would fully meet the spirit of the law, nor that it would be sufficiently respectful of the privacy rights of Canadians.

Indeed, I understand that it was precisely the prospect of this sort of video surveillance that caused the reference to “recorded in any form” to be omitted from PIPEDA.

My first concern is that the very presence of video cameras, whether they are recording at any given moment or not, is what creates the privacy-destroying sense of being observed. Moreover, whatever assurances may be given by the public authorities, people have no basis for being certain at any time that such cameras are in fact not recording. The basic nature and purpose of a camera is to record; short of having privacy invigilators in place at all times, there is no way for the public to know whether or when recording might be taking place.

My second concern is that if a proliferation of video surveillance cameras in public places is allowed to take place, it is a virtual certainty that function creep will lead inexorably to the linkage of those cameras with biometric technology that permits identifying individuals by matching their facial characteristics with photos that are on record.

Far from being some futuristic fantasy, this is already being attempted in some U.S. cities, to considerable public consternation. Once sufficient cameras were in place, there is every reason to believe that this approach would initially be advanced by some Canadian police force as well, as an effective way to protect the public from known criminals-as was done in the U.S. at the stadium during the last Super Bowl Game. From there, it would only be a short distance to using readily available photo sources for the general population, such as driver's licence application records, to be able to identify anyone in a monitored public place at any time, or to monitor the whereabouts and activities of any given individual as he or she moved from place to place.

I need hardly elaborate on the effect this would have on privacy rights, or the kind of transformation it would work on Canadian society. Such surveillance/identification would be as deeply wrong as it is unnecessary. Just because something is technologically possible, that does not mean it is socially justifiable or acceptable. But the only effective way to prevent it is to prevent the proliferation of surveillance cameras in the first place.

None of this is to say that there may not be some specific circumstances where it is appropriate for police forces to use surveillance cameras in public places to maintain safety and order.

For instance, video surveillance, without continuous recording, appears justifiable at particularly sensitive locations that are so susceptible to some form of terrorist or other attack as to require intensive security measures.

Similarly, it is conceivable that in some particular place there might be such an exceptional threat to public safety, combined with other circumstances that made conventional policing unfeasible, that installing video surveillance would be justifiable.

There can also be special circumstances where, to investigate a particular crime, it might be appropriate for police to temporarily establish a video camera in a given location and record images of everyone who frequents that location. For example, if a series of sexual assaults occurred in a given park, police might want to tape the people using that park and show the tapes to the victims to see if they could identify the attackers. Likewise, there are circumstances where police video surveillance of specific individuals suspected of a given offence is an acceptable investigative technique.

But all these circumstances differ fundamentally from accepting widespread video surveillance of the general population. From the perspective of privacy rights, video surveillance by the state can only be justified when it is demonstrable that keeping the peace could not be accomplished by any other less privacy-invasive means. Solid evidence is required in each case to justify the use of generalized video surveillance rather than other traditional means of law enforcement. Convenience, efficiency or cost savings should never qualify as such evidence. Video surveillance of Canadians by the state should be the very rare exception, not the norm.

I have gone to considerable lengths in addressing the broader issues raised by this complaint, because of my profound belief that the choices we Canadians make about video surveillance by agents of the state will go a long way towards determining what kind of society we shape for ourselves.

Privacy is a fundamental human right, recognized as such by the United Nations. The level and quality of privacy in our country risks being struck a crippling, irreparable blow if we allow ourselves to become subjected to constant, unrelenting surveillance and observation through the lens of proliferating video cameras controlled by the police or any other agents of the state.

Although most police forces are outside the purview of the federal Privacy Act, and although the Privacy Act itself does not provide sufficient protection against video surveillance without continuous recording, it is very much my hope that these observations may be of some help in contributing to an informed public opinion, which in the final analysis is always our strongest defence against ill-considered violations of our rights.

This concludes my investigation of your complaint. The Royal Canadian Mounted Police has been informed of the results. If you have any questions, please do not hesitate to contact me at 1-800-282-1376.

Yours sincerely,

George Radwanski
Privacy Commissioner of Canada