Privacy in the Modern World. thesis Leiden University
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Privacy in the Modern World. thesis Leiden University

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Increasing contemporary security concerns seems to justify the use of innovative technology tools, such as Closed Circuit Television (CCTV) cameras. However, these innovative tools are also means for ...

Increasing contemporary security concerns seems to justify the use of innovative technology tools, such as Closed Circuit Television (CCTV) cameras. However, these innovative tools are also means for increasing social control by the state. It is postulated that without proper accountability mechanisms, the use of privacy invading surveillance technologies will contribute to the creation of a ‘panoptic surveillance state’. For that reason this research intends to conduce to a more accountable deployment and use of CCTV cameras, by focusing on proportionate ‘checks and balances’, which implies that public authorities are held accountable for their laws, regulations, policies, and actions. The intended approach of this research is to analyse and assess the governmental accountability mechanisms, which reflect the deployment and use of CCTV by public authorities in public areas, in the United Kingdom and in the Netherlands.

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Privacy in the Modern World. thesis Leiden University Privacy in the Modern World. thesis Leiden University Document Transcript

  • MASTER THESIS ALEX HAGEMAN – S1013068 - FEBRUARY 2014 SUPERVISOR: DR MATTHYS - SECOND READER: DR DEVROE MASTER: CRISIS AND SECURITY MANAGEMENT - LEIDEN UNIVERSITY   PRIVACY IN THE DEVELOPING WORLD Analysing and assessing public accountability mechanisms regarding Closed Circuit Television surveillances and its alleged consequences for our fundamental right to privacy. it’s not the question whether you or me have something to hide, it is the question whether they that monitor have that right to monitor you or me and our private collectivities
  • Page 2 of 110 Thesis in fulfilment of the Master of Science in Public Administration in Crisis and Security Management at the Faculty Campus The Hague at Leiden University Photo retrieved from: www.poliziek.info
  • Page 3 of 110 The contemporary surveillance society David Murakami Wood stated that we are already living in a surveillance society for some time: • Video cameras are watching us everywhere – in buildings, shopping streets, roads and residential areas. Automatic systems can now recognize number plates, and increasingly recognize faces. Cameras are updated with intelligent software that can identify real-time unlawful behaviour; • Electronic tags make sure that those on probation do not break their release conditions, and people arrested by police have samples of their DNA taken and kept whether they are guilty or not. ‘Criminal tendencies’ are identified earlier and earlier in life; • We are constantly asked to prove our identity, for benefits, healthcare, and so on. The government introduced a new system of biometric ID cards, including ‘biometrics’ (fingerprints and iris scans) linked to a massive database of personal information; • When we travel abroad, who we are, where we go and what we carry with us is checked and monitored and the details stored. Our passports are changed: computer chips carry information, and like ID cards; there are now biometric passports; • Many schools use smart cards and even biometrics to monitor where children are, what they eat or what books they borrow from the library; • Our spending habits are analysed by software, and the data is sold to all kinds of businesses. When we call service centres or apply for loans, insurance or mortgages, how quickly we are served and what we are offered depends on what we spend, where we live and who we are; • Our telephones, e-mails and internet use can be tapped and screened for key words and phrases by most intelligence services; • Our work is more and more closely monitored for performance and productivity, and even our attitudes and lifestyle outside work are increasingly scrutinised by the organisations that employ us. Source: Wood, D.M., & Ball, K. (2006). A report on the Surveillance Society. Surveillance Studies Network. Public Discussion Document, 1-98. View slide
  • Page 4 of 110 Abstract Increasing contemporary security concerns seems to justify the use of innovative technology tools, such as Closed Circuit Television (CCTV) cameras. However, these innovative tools are also means for increasing social control by the state. It is postulated that without proper accountability mechanisms, the use of privacy invading surveillance technologies will contribute to the creation of a ‘panoptic surveillance state’. For that reason this thesis intends to conduce to a more accountable deployment and use of CCTV cameras, by focusing on proportionate ‘checks and balances’, which implies that public authorities are held accountable for their laws, regulations, policies, and actions. The intended approach of this research is to analyse and assess the governmental accountability mechanisms, which reflect the deployment and use of CCTV by public authorities in public areas, in the United Kingdom and in the Netherlands. Results of the analysis will be established through a developed and amalgamated ‘CCTV-accountability Assessment Framework’ (CAF) of multiple authors, which will do what is explained in part 3: chapter 1.3. Additionally, this research will describe proportionate and well-encompassed recommendations for possible inadequacies in accountability mechanisms. The rationale here is that whenever governmental authorities implement CCTV cameras in a legitimate and proper manner by the control of accountability mechanisms, it can help to ensure that efforts to improve security do not lead to the creation of the earlier-mentioned ‘panoptic surveillance society’. Moreover, an accountable CCTV system is more likely to gather public support when the protected community understands the objectives, and knows that it is the result of a thoughtful analysis. In regard to the rationales for the selected country case studies, this research selected the United Kingdom because it is argued by some authors to be a “bad example”, due to the normalization of surveillance, its massive amount of surveillance technologies, and the argued lack of proper accountability mechanisms. The Netherlands is selected because it is argued to transform into a surveillance society, similar as the United Kingdom. Altogether, just like there are strong arguments in favour of achieving economic growth in an environmentally-friendly manner, the prolonging of (national) security can evidently also be maintained in a privacy-friendly manner. The conclusion will answer the main question, which is: To what extent do the accountability mechanisms in the Netherlands and the United Kingdom safeguard the compatibility between security and the right to privacy regarding the increasing use of CCTV technologies in public areas, by public authorities? View slide
  • Page 5 of 110 Preface In 2004, the 9/11 commission stated: “We must find ways of reconciling security with liberty, since the success of one helps the other. The choice between security and liberty is a false choice. Our history has shown us that insecurity threatens liberty. Yet if our liberties are curtailed, we lose the values that we are struggling to defend” (9/11 Commission, 2004: 395). Hence, in this regard, the question whether justice or security is the first virtue of the 21 st Century society remains. The problem of enhancing security without undermining justice – managing risk without undermining the rule of law – has always confronted societies, but recent developments such as the expanding scope of criminal law, new counter-terrorism measures, stricter migration control, and an increasingly pronounced concern with public safety, poses new challenges. The fundamental right to privacy is such a challenge. While there are human right violations all across the globe, in Europe, especially in Western Europe, the threat upon the right to privacy are “at the hands of those who control advanced surveillance technologies, and is, and will remain the story of the early 21 st Century” (Klitou, 2012: v). This thesis intends to contribute to both legal- and social science debates surrounding the development of the so-called ‘surveillance society’. It is dedicated to analyse and assess accountability mechanisms in the United Kingdom and the Netherlands. Accountability mechanisms which should govern the deployment and use of Closed Circuit Television surveillances in a ‘checked and balanced’ manner, which concern the fundamental right to privacy and the prolonging of (national) security. Moreover, this research serves to point out both the wanted and unwanted aspects of these new surveillance technologies and recommends how to prevent the erosion of privacy. The CCTV projects are still of particular interest because they are ‘works in progress’. Some of their core elements are already in use. We call those ‘first generation CCTV cameras’, but in today’s society, a ‘second generation’ is en route, which is an innovative, operational ‘smart’ surveillance technology. These ‘smart’ technologies are still mostly discussed at this point, and therefore not implemented on a wide scale within the Netherlands and the UK. However, these innovative technologies can become increasingly widespread. National security, public safety, the prevention and detection of crime, and the control of borders, are among the most powerful forces behind the use of a wide range of CCTV techniques and the collection and analysis of large quantities of personal data (House of Lords, 2009: paragraph 45). Although these new technologies have enlarged the range of available possibilities for public and private agencies to increase security, it is postulated by Mathiesen (1997: 229), that it contributes to the creation of a ‘panoptic surveillance state’, up to the point where questions concerning ‘ethics and bias’ are raised by the public- and human rights organizations. These ‘ethics and biases’, are a part of this research, and are actuated by arguments, such as: “CCTV technologies are contributing to a trend in state surveillance whereby people are kept under constant observation without any prior indications of involvement in criminal activities or disorderly behaviour” (Eijkman, 2012b: 3). From this perspective, Vernon Coacker (UK Member of Parliament), made some striking statements in a report of the UK House of Lords (2009), which partially reflects the root causes for writing this thesis: “Respect for human rights should be a core principle of states. We have to cherish the right to privacy. That is fundamental to all of us and needs to be protected. The UK government
  • Page 6 of 110 has always been clear that where surveillance affects privacy, it should only be done where it is both necessary and proportionate … of course, the other principle to balance up with all of that is the desire to protect the public … not only from terrorism but also from serious crime … it is about where we draw the line and how we have to find a correct balance between these things which is absolutely essential. However, it is not always easy to do that.” Vernon Coacker also stated: “different times require the appropriate response to that particular time. Times change, technologies change. There are difficulties, there are threats to us, as we know only too well, which we have seen in our streets, which requires us to take action. Additionally, society should respond in the appropriate way to the threat that it faces at that particular time, always having regard to the need to balance national security with human rights, and the judgment of where that line should be drawn will vary one age to the next” (House of Lords, 2009: paragraph 263). Regarding my perspective; I find the knowledge about the consequences of our (future) ‘information society’, and the advancement of the latest technologies capable of infringing upon the right to privacy extremely important. Also, I deem the debates surrounding privacy and security as extremely relevant, but also rather complex. Complex, because security is just like privacy a universal human right, and we need our governments to protect our human rights, and foremost, we need the government to protect us against injury, harm, or termination. Additionally, we want our governments to protect our national interests, and our properties and objects from unlawful or unauthorized damage or destruction. We also want our governments to act in a proportionate manner, and not in a manner where high-profile judicial mismanagement of CCTV are easily ‘handled’; or the ways in which certain legal protections are sidestepped, or cast aside in the battle against anti-social behaviour. Altogether, complexities arise because the ‘security versus privacy debate’ places governments between ‘a rock and a hard place’; in trying to protect our national or individual interests and properties, and at the same time safeguard our fundamental right to privacy. Hence, it could be argued that the context of privacy protection has changed. The threshold to monitor civilians for security and safety purposes is lowered, and legislation, guidelines and ‘best- practices’ needs to be updated. From a ‘safety and security perspective’, innovative monitoring and surveillance technologies are to be welcomed. Nonetheless, the effects for democratic societies and the protection of citizen’s rights have to be taken into account as well. And for these reasons, I believe it is time to thoroughly analyse and asses the great challenges and threats, posed by (smart) CCTV surveillance, on the right to privacy, and to oppose the prediction that privacy will end soon, as multiple academic authors depict.
  • Page 7 of 110 Table of contents List of abbreviations............................................................................................................................................ 8 Part 1 Introduction............................................................................................................................................ 10 Chapter 1 Central thesis....................................................................................................................... 10 1.1 Contextual problem statement...........................................................................10 1.2 Research objectives.......................................................................................... 13 Part 2 Conceptual framework.......................................................................................................................... 15 Chapter 1 The concept of security........................................................................................................15 1.1 Security as a contested concept....................................................................... 15 1.2 Security in historical perspective....................................................................... 15 1.3 Redefining the concept of security in a contemporary design........................... 16 1.4 Conclusion.........................................................................................................17 Chapter 2 Closed Circuit Television......................................................................................................18 2.1 The evolution of Closed Circuit Television technology.......................................18 2.2 What is Closed Circuit Television?.....................................................................19 2.3 Types of Closed Circuit Television.................................................................... 21 2.4 Criticisms regarding Closed Circuit Television.................................................. 22 2.5 Conclusion......................................................................................................... 23 Chapter 3 The concept of privacy.........................................................................................................24 3.1 Privacy as a contested concept......................................................................... 24 3.2 Conclusion......................................................................................................... 26 Chapter 4 The concept of public accountability mechanisms.............................................................. 27 4.1 Accountability as a contested concept.............................................................. 27 4.2 What is accountability........................................................................................ 28 4.3 Types of accountability...................................................................................... 29 4.4 The relevancy of accountability mechanisms.................................................... 31 4.5 Conclusion......................................................................................................... 31 Part 3 Theoretical framework...........................................................................................................................33 Chapter 1 Assessment framework........................................................................................................33 1.1 GAP Framework – Global Accountability Project: Blagescu et al...................... 34 1.2 Public Accountability Framework: Bovens......................................................... 35 1.3 CCTV’s-accountability Assessment Framework................................................ 36 Part 4 Methodology & Approach..................................................................................................................... 40 Chapter 1 Operationalization................................................................................................................ 40 1.1 Type of research, methodology, and approach................................................. 40 1.2 Rationale behind the selection of cases............................................................ 41 1.3 Main sources of information...............................................................................42 1.4 Research questions........................................................................................... 44 1.5 Issues and areas not substantially addressed...................................................44 1.6 Assessment framework..................................................................................... 45 1.6.1 Operationalization............................................................................ 45 Part 5 Analysis & Assessments...................................................................................................................... 56 Chapter 1 Accountability mechanisms in the United Kingdom............................................................. 56 1.1 SECTION 1: Democratic dimension.................................................................. 58 1.2 SECTION 2: Constitutional dimension............................................................... 67 1.3 SECTION 3: Cybernetic dimension................................................................... 68 Chapter 2 Accountability mechanisms in the Netherlands................................................................... 71 2.1 SECTION 1: Democratic dimension.................................................................. 73 2.2 SECTION 2: Constitutional dimension...............................................................80 2.3 SECTION 3: Cybernetic dimension................................................................... 82 Part 6 Conclusion............................................................................................................................................. 85 Part 7 Recommendations.................................................................................................................................89 Part 8 References..............................................................................................................................................94 Part 9 Appendix.................................................................................................................................................102
  • Page 8 of 110 List of abbreviations 2012 Act Protection of Freedoms Act, 2012 AFSJ Area of Freedom Security and Justice ALPR Automatic License Plate Recognition CAF CCTV-accountability Assessment Framework CCTV Closed Circuit Television Code of Practice Surveillance Camera Code of Practice CSC Chief Surveillance Commissioner CST Council of Science and Technology DPA Data Protection Act Dutch DPA Dutch Data Protection Authority ECHR European Convention for the Protection of Human Rights ECtHR European Court of Human Rights EU European Union HRA Human Rights Act IC Information Commissioner ICC Interception of Communication Commissioner ICO Information Commissionaire’s Office IPT Investigatory Powers Tribunal MOD Ministry of Defence MOJ Ministry of Justice OSC Office of Surveillance Commissioners PDPA Personal Data Protection Act PIA Privacy Impact Assessment RIPA Regulation of Investigatory Powers Act SCC Surveillance Camera Commissioner SIA Security Industry Authority UK United Kingdom WPR Wet Persoonsregistraties, or the Registration of Personal Data Act
  • Page 9 of 110 INTRODUCTION
  • Page 10 of 110 Chapter 1 Central thesis 1.1 Contextual problem statement Before starting an extensive elaboration on a part of the problem in the widely discussed security versus privacy debate, it is important to recognize the assumption that the collective interest to security and the rights to privacy are competing values, and deemed irreconcilable in the European Union (EU), which could have disadvantages for the exercise of human rights in democratic societies. Therefore, analysing accountability mechanisms, and assess whether these mechanisms provide proper checked and balanced elements is deemed necessary. Besides, Article two of the treaty on the EU, outlined in the next paragraph, complements this argument. In the context of EU’s ‘Area of Freedom, Security and Justice’ (AFSJ), the “EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights” (European Union, 2008: title 1, article 2), which include the right to privacy. However, as acknowledged by the EU Court of Justice, “the fundamental rights recognized by the Court are not absolute (…). Consequently, restrictions may be imposed on the exercise of those rights (…) provided that those restrictions in fact correspond to objectives of general interest pursued by the European Community and do not constitute, with regard to the aim pursued, a disproportionate and intolerable interference, impairing the very substance of those rights” (Hofmann, Rowe, & Turk, 2011: 159). The objectives of general interest, or aims, pursued by the EU, are the promotion of peace, the preservation of its traditions, and citizens’ well being. Furthermore, security is instrumental to the pursuit of the objective of general interests by the EU, and the protection of fundamental rights can be seen as a public good. Hence, the protection of public or national security is seen as a legitimate aim for justifying restrictions on the exercise of the rights in a democratic society. Moreover, this statement – coupled with the increasing contemporary security concerns, such as: the increase in anti-social behaviour and international terrorism – seems to justify the use of innovative technological tools, which could risk invasive and abusive surveillances: where the few, in this case the state, continuously keep under observation the many, the people, what facilitates the creation of a ‘surveillance society’ (Mathiesen, 1997: 221). Altogether, this complements the often discussed question: about how the balance is struck between achieving as much security as possible, by eliminating risks, and still upholding sufficient privacy for all. In regard to increasing contemporary security concerns, the EU has promoted a broad spectrum of measures serving a wide understanding of security, ranging from crime prevention to measures surrounding the ‘war on terrorism’. Broadly speaking, three main strategies can be identified: an increase in the grant of very broad powers to the police; the creation of broad terrorism offences, including early-intervention offences and the use of preventive measures to curb the activities of individuals outside the criminal justice system; and an increased use of a form of surveillance (Fenwick, 2011: 107), which includes the use of CCTV cameras. Although some argue that (national) security is a legitimate aim for justifying restrictions on the exercise of human rights, and that new technologies, such as surveillance, is a powerful tool to prevent anti-social behaviour; PART ONE - INTRODUCTION
  • Page 11 of 110 questions are raised about the relation between public authorities and citizens, and therefore about human rights compliances regarding laws and regulations. These concerns are partly addressed by focusing on ‘checks and balances’, which implies that public authorities are held accountable for their laws, regulations, policies, and actions (Eijkman and Weggemans, 2011: 147). In addition, Fisher (2004) stated that we are living in an “age of accountability” (p.1), where demands for public officials to account for their decisions transcend levels of governance, and are on the rise. However, other than a few descriptions of existing formal accountability arrangements, there have been almost no efforts to describe and evaluate how existing accountability mechanisms regarding public institutions and their actions operate, although democratic principles affirm that the public at large should have the ability and power to influence the decisions that affect their lives (Kraft-Kasack, 2008: 537; Stie, 2010: 3). Furthermore, on the international level, the former United Nations Special Rapporteur on the ‘promotion and protection of human rights and fundamental freedoms while countering terror’, Martin Scheinin, has highlighted the “erosion” of the rights to privacy in relation to the fight against terrorism (UN Human Rights Council, 2009: 2). According to Scheinin (2009) the increased use of surveillance powers in public places and on large groups of people leads to weaker systems of authorisation and oversight. Moreover, technologies, according to Scheinin (2009), lack adequate legal safeguards (UN Human Rights Council, 2009: 14). If there are, for instance, no proper checks and balances in relation to new technological tools, there is the risk of eroding the fundamental rights to privacy. In addition, the creation of a surveillance society affects, besides potential terrorists and serious criminals, also ordinary people, who run the risk of being (preventively) labelled a threat to national security or public order (Eijkman, 2012b: 2). In this regard, and in the perspective that media, interest groups, and citizens, are all adopting an increasingly more critical attitude toward governments, deployed accountability mechanisms should be more analysed and assessed on proportionality. This is deemed relevant, because the respect for authority is fast “dwindling” and the confidence in public institutions is under pressure in various Western countries (Elchardus and Smits, 2002). In regard to upholding as much freedom as possible and to counter the risk that innocent individuals are associated with security measures, and additionally, to prevent the earlier mentioned erosion on the right to privacy, the EU ‘formally’ relies on elaborated systems of privacy and personal data protection laws. These laws detail concrete safeguards that substantiate the human right to respect for privacy life as established by the European Convention for the Protection of Human Rights (ECHR) (Fuster et al., 2013: 30). Moreover, in order to minimize harm and breaches of human rights as a result of expanded surveillance systems, well-encompassed safeguards and effective oversight is required. The Council of Europe’s ‘Venice Commission’ stated that a scrutiny check is considered important for holding public authorities accountable regarding the implementation of video surveillance and its effect on human rights (Venice Commission, 2007). Such a ‘scrutiny check’ should be based on international human rights law criteria (Eijkman and Weggemans, 2011: 147).
  • Page 12 of 110 This research will focus on some of the elements of these international criteria for the use of CCTV in a proper and accountable manner, for example: the purpose specification (e.g., what is the surveillance scheme trying to do?); accountability/oversight (e.g., who is legally responsible for the CCTV schemes?); transparency (e.g., providing notice and contact information to the public at large); limitation/retention (e.g., restricting access, and specifying the timeframe for retention); security/evaluation (e.g., audit procedures, clear and well-documented handling procedures, privacy and security safeguards in schemes). Hence, on the international level there are clear emerging criteria for public accountability in relation to visual surveillance. However, two highly acclaimed human rights organisations, ‘JUSTICE’ and ‘Liberty’, argued that, despite the enormous growth of surveillance cameras, there is no framework governing the use and implementation of these cameras. JUSTICE also stated that it is “important to bear in mind the limitations of the constitutional framework for the protection of the constitutional rights” (JUSTICE, 2007: 30). Furthermore, critics of smart surveillance, and advocates of human rights, argue that the rapid development and deployment of new surveillance technologies, in combination with its rigid character have led to parts of laws and policies becoming outdated or incomplete, including the safeguards that substantiate human rights as established by the European Convention for the Protection of Human Rights. In addition, human rights advocates claims that surveillance technologies, such as CCTV, remains largely unregulated due to the fact that effective regulation can only be achieved if it is in place before CCTV has spread widely (Gras, 2004: 228). According to Fenwick, the lack of national guidance, and the lack of concrete privacy safeguards for the use of technological surveillance tools, militates against the measures found proportionate in democratic societies (Fenwick, 2011: 112). Backed by case studies and overall analysis, this research is centred on the innovative technologies of CCTV surveillance that could, without the proper accountability mechanisms, create panoptic surveillance societies. Additionally, as the discussion about governmental accountability in relation to innovative, technological CCTV measures progresses, one could raise the question whether state accountability should be reconsidered (Eijkman, 2012b; Eijkman & Weggemans 2011; Eijkman & Weggemans, 2013). In this perspective, this research analyses the accountability mechanisms regarding the use of CCTV (concerning the relevant checks and balances in privacy and security) in the Netherlands and in the UK, and assesses these mechanisms according to an amalgamated theory and definition of Bovens (2005, 2007a, 2007b, & 2010) and Blagescu, de Las Casas, and Lloyd (2005). After the assessment, recommendations for checked and balanced accountability mechanisms will be established. These checks and balances are deemed necessary for the deployment and use of (smart) CCTV surveillance in the Netherlands and the UK (or the European Union in that matter) that coincides the necessity of upholding national security, with a human right-based perspective. In this perspective, and in the light of different articles and statements made by various academics, such as: Whitaker (2000), Spinello (1997), Garfinkel (2001), and Holtzman (2006), that privacy (at least as we know it) will end in the near future, if we do nothing about it, or is already on its way to ending, makes a valid reasoning and seemingly urgent calling to analyse and assess governmental accountability mechanisms for the deployment and use of CCTV surveillance.
  • Page 13 of 110 1.2 Research objectives This section outlines the research objectives in an abstract and concise manner; and are as followed: First, defining the four contested variables in a conceptual framework for finding common ground, and a language of reconciliation; second, analysing the accountability mechanisms regarding the use of CCTV in the Netherlands and the United Kingdom; third, evaluating and assessing the accountability mechanisms through an amalgamated theory of multiple authors; fourth, defining an approach for striking a balance between privacy on the one hand, and security on the other; last, developing recommendations for proper checks and balances, which will reflect the accountability mechanisms that coincides the necessity of upholding national security, with a human right-based perspective.
  • Page 14 of 110 CONCEPTUAL FRAMEWORK
  • Page 15 of 110 Chapter 1 The concept of security Besides globalization, the concept of security is implicitly related to the concept of human values, as it is to CCTV. From that perspective and the perspective of finding a language of reconciliation between security and human rights, or, put another way, when searching for some basis upon which ‘liberals’ can engage with those who promote the pursuit of security, it is important to develop a well- encompassed understanding of each of these concepts. In this chapter, the frequently asked question: “how to define the concept of security?” is answered by providing a detailed review and analysis of the concept. Therefore, paragraph 1.1 explicates the argument that security is seen as a contested concept. Paragraph 1.2 outlines a contemporary historical overview of the evolving concept of security, along with the preceded discussions concerning today’s security versus human rights debates. In paragraph 1.3, a contemporary understanding of security is given regarding the conceptualization of the European construction and its transformation in recent years through the anti- terror efforts. The last paragraph concludes by summing up the important aspects regarding the concept of security. 1.1 Security as a contested concept Besides the argument that security is of vital importance, it is also legally a human right. The term is frequently used to help raise consciousness of the importance of particular issues, which are then so labelled in the minds of the population at large (Buzan, 1983: 18). Security is also portrayed as an elastic legal concept in EU law. It takes on several shapes, such as ‘international’, ‘internal/external’, ‘national’ or even ‘essentially national’ security, which do not systematically correspond to specific manifestations of sovereignty (Fuster, 2012: 331). Despite the numerous efforts by scholars of security studies and academics to conceptualize 'security' in a coherent and systematic way, no single, generally accepted definition of security has been produced. In this regard, security can be seen as a contested concept, on which no consensus exists, (Baldwin, 1997: 7), but defies the pursuit of an agreed general definition (Buzan, 1983: 10). The ‘concept of security’ refers to different sets of issues, purposes, and values, often closely reflecting conflicting theories in ‘International Relations’. However, in regard to this conceptual vagueness, it is crucial to gain clear understanding of the concept security, otherwise, finding common ground in discussions concerning the security versus privacy nexus will be difficult. Moreover, it is deemed important to look at security from a historical perspective, because these are the foundations of all the aspects regarding security, besides, it shows the foundations of ‘European Liberal thoughts’ on privacy and security, which also reflects the Dutch and British debates in the privacy versus security nexus. This will be discussed in the next paragraph. 1.2 Security in historical perspective Security in present day is still argued to be a contested concept. But in regard to the history of the concept ‘security’, the term also shows ambiguities. Ambiguities, as to numerous significant changes of ‘borders’, counter-concepts, and key tensions, and therefore the meaning of security cannot be held PART TWO - CONCEPTUAL FRAMEWORK
  • Page 16 of 110 as a constant – or just as having a constant core – across centuries. For that reason, the starting point in this part of ‘security in a historical perspective’ is an angle of incidence from Thomas Hobbes (1588- 1679), which was an English philosopher, best known today for his work on political philosophy. Hobbes is relevant because of his 1651 book “Leviathan”, which established the foundations for most of the Western political philosophy from the perspective of ‘social contract theory’. Hobbes also developed some of the fundamentals – which reflects parts of this research – of the earlier-mentioned ‘European liberal thoughts’, namely: the natural equality of all men; the artificial character of the political order, which led to the later distinction between civil society and the state; the view that all legitimate political power must be “representative”; and a liberal interpretation of law leaving people free to do whatever the law does not explicitly forbid (Manent, 1994: 20-38). The Hobbesian, early modern usage of security is the ‘protection against external threats’, and against the break-down of domestic order. But as stated by Weaver (2012), the early modern sense in classical texts has the protection of one individual against another as the core. Only in a secondary sense does the external protection come into the picture (Weaver, 2012: 49). During the 16 th to 18 th Century, the state aimed at specific, detailed regulation and laws to pertaining man’s utmost happiness in life, however, towards the 19 th Century, these regulatory schemes were increasingly seen as limiting freedom (Foucault, 1995: 20), and thus not to be the optimal policy. Moreover, the mid 20 th Century was centred on debates regarding the relationship between freedom and security. Mr de Jouvenel (1947) formulated this in general terms as the ‘battle’ in our society between Libertarians and Securitarians (Jouvenel, 1947: 414). However, important in this regard is the significant amount of authors stating that: “liberty is a precondition for security and/or how security is necessary for liberty” (Conze, 1984: 852). 1.3 Redefining the concept of security in a contemporary design In the late 1980s and 1990s, the concept of security was increasing in popularity and became more dominant. Some argued that the concept of security has become an ‘overdeveloped concept’, “so wide in its scope that it is in danger of being emptied of its meaning” (Garnett, 1996: 12). Hence, security is still at the core of controversies among scholars and policymakers today. Its key innovation, by governments and policy makers, has been to place the individual, or some individuals, at the heart of security considerations and the securitisation processes. Rather than collective security, or the security of the state, it is deemed more important that the security of the individuals is safeguarded. In addition, individuals are assessed and categorised in the light of their perceived dangerousness to other individuals. This results in an increase of state’s powers for safeguarding individuals’ security. As argued by Burgess (2009), the key to understanding security and security threats lies in understanding the systems which links human values to the technologies that put them under threat (p.310). Moreover, globalization has brought significant changes to the present threat landscape. There is a consensus today, among both scholars and practitioners, that a wide range of security threats, both new and traditional, confronts states, individuals and societies. New forms of nationalism, ethnic conflict and civil war, information technology, biological and chemical warfare, resource
  • Page 17 of 110 conflicts, pandemics, mass migrations, transnational terrorism, and environmental dangers, challenges the conventional means of understanding threats and assuring the security of all regions of the world (Burgess, 2009: 312). Altogether, in the current globalized setting, the challenge of maintaining security is no longer limited to traditional foreign policies. Within such an atmosphere, Barry Buzan claims (1983) that “the security of human collectivities is affected by factors belonging to five main sectors: military, political, economic, social and environmental” (p.31). Additionally, nowadays, security threats have become more diverse, less visible and less predictable. In this new formulation of security, attention has turned to the perception of insecurities, security threats, and the term ‘securitization’ (Kirchner, 2005: paragraph 7). The latter signifies a process by which particular issues are ‘taken out of the sphere of every-day politics’ and are defined as security problems. In this respect, security is analysed as the reaction of political actors towards an existing or perceived threat. Hence, securitization is merely a political process and differs from a threat that can be caused by various factors (Kirchner, 2005: paragraph 7). Furthermore, the management of insecurities through innovative technology are increasingly becoming policy priorities for the Western societies. New technologies of control and surveillance, which rely in particular on evolutions in technologies of information and communication, are deemed crucial because they allow agencies to anticipate threats and act proactively instead of being limited to reactive measures. This new emphasis on technological responses to insecurity is justified in governmental arenas through the argument that this drive is rendered necessary by the environment of the earlier-mentioned global threats. However, these new technologies bolster the capacity of security agencies to intrude into the private lives of citizens and non-citizens alike, and create major potentialities of encroachment upon fundamental rights. 1.4 Conclusion This chapter was devoted to describe and define the contested concept of security. Therefore, this chapter concludes by stating the following concise definition regarding the concept of security: security is first and foremost seen as the protection of persons from injury, harm or termination, and secondly, the protection of objects and property from unlawful and unauthorized damage of destruction. Another important aspect to mention regarding the contemporary concept of security is: the growing trend by governments and policy makers to place the individual at the heart of security considerations and securitization processes, resulting in increasing powers of the state. This is due to the fact that providing security and prevention requires risk assessments and the monitoring of dangerous citizens and aliens alike. Moreover, due to the globalization of diverse, less visible, and less predictable security threats, new technologies of control and surveillance are deemed crucial, but could create potentialities of encroachment upon human rights, like the right to privacy, which will be analysed in the next chapter.
  • Page 18 of 110 Chapter 2 Closed Circuit Television This chapter examines today’s ‘surveillance society’ through the lens of current and emerging CCTV technologies. As widely recognized, CCTV surveillance systems may legitimately be deployed for the sake of (national) security and countering terrorism, preventing and detecting crime, protecting property and individuals, and defending public interests. The police are especially permitted to use CCTV systems for carrying out their duties and functions. Private entities may also be permitted to use CCTV cameras, since their use may be considered reasonable to prevent criminal offenses or assist in the lawful arrest of offenders, when carried out in accordance with the law. However, this research solely focuses on CCTV cameras implemented by public organizations in public areas. This chapter analyses the concept of CCTV, by looking at the evolution its technology in paragraph 2.1. Paragraph 2.2 will answer the question what CCTV is in a concise and descriptive manner. Paragraph 2.3 analyses the different types of CCTV. Paragraph 2.4 outlines contemporary criticism regarding the use of CCTV and its argued privacy-invading contents. Last, paragraph 2.5 sums up the important aspects of Closed Circuit Television, and describes a concise and final definition that will be used in this research. 2.1 The evolution of Closed Circuit Television technology The concept of surveillance has in itself existed for hundreds of years (Foucault, 1995: 16), and has been widely employed throughout that time by multiple countries and organisations with varying degrees of success. Its use is regularly and relatively uncontroversial characterised as an necessary part of a democratic society. Moreover, the on-going evolution of CCTV technology has evolved from expensive, fixed cameras connected to videocassette records via cables, which recorded and stored restricted amounts of low-resolution video data, to affordable, wireless ‘pan/tilt/zoom’ CCTV cameras, which can be remotely accessed and controlled, and can record practically unlimited amounts of digital, high resolution video data, transmitted to digital hard drives for storage and analysis (Bullock, 2009: 15-17). Furthermore, it should be noted that during the 21 th Century, CCTV installations are not evolving and implemented in every country in the same velocity and pace. Particularly in the UK, the number of surveillance cameras and the innovation in CCTV cameras has increased dramatically. A common cited figure is a total of 4.2 million cameras across the UK; however, this figure is based on a working paper published in 2002 by the academics Michael McCahill and Clive Norris (CCTV User Group, 2011: 2). Another conducted research in 2011, by the Cheshire Police, puts the figure closer to 1.85 million (Evans, 2012: paragraph 8). Furthermore, the history of CCTV in the United Kingdom can be traced back all the way to 1960, when the Metropolitan To provide clarity about public areas, the next conceptualization will be applied: the concept ‘public area’ is most generally used as: all the places where one comes and goes, meaning the street or roads that are accessible for everyone. However, the remaining public spaces, which are freely accessible, also fall under this concept, for example: airports, malls, business parks, bus or train stations, public parking lots, public buildings, and so on.
  • Page 19 of 110 Police installed two temporary cameras in Trafalgar Square to monitor crowds ahead of the arrival of the Thai Royal Family. The first permanent installation of CCTV in the UK came in the form of a permanent camera at a London Transport train station in 1961, moreover, throughout the 1960s, the overwhelming focus of CCTV cameras was on transport security; cameras were installed at numerous railway stations (Wood, McCahill, & Norris, 2004: 1-2). According to the ‘Surveillance Studies Network’ (an international research centre), during the 1990s approximately 78 percent of UK Home Office’s crime prevention budget was spent on installing CCTV, whilst some £500 million of public money was invested in CCTV in the decade up to 2006 (Ball et al., 2006: 8). Where previously this money might have been spent on street lighting and supporting neighbourhood crime prevention initiatives, it is now used to maintain and expand the network of police and local authority cameras. Moreover, the 9/11 attacks prompted increased security across much of the western world, and the UK was no exception. The Netherlands, however, does not have an extensive history in the use of CCTV cameras like the United Kingdom. The first projects using CCTV cameras in public spaces in the Netherlands date back to 1997 (Flight, Heerwaarden, & van Soomeren, 2003: 1), but, just six years later in January 2003, more than 80 of the country’s 550 municipalities were using CCTV in public places – in entertainment districts, shopping centres, car parks, industrial areas, and public transport (Gras, 2004: 224). With estimations over 200.000 CCTV cameras (DutchNews, 2013: paragraph 1) operational in the Netherlands, and over 1350 surveillance cameras just in Schiphol Airport (Eijkman & Weggemans, 2011: 143), CCTV surveillance is becoming a hot issue in the Netherlands. Contrasting to the amount of cameras in the United Kingdom, and the fast increasing rate of deployed CCTV cameras in the Netherlands, Sweden only has an estimated number of 30.000 CCTV cameras installed, with systems consisting of solely 3.2 cameras on average (Gras, 2004: 224). In addition, the first French cities that started using CCTV cameras were around the 1990s. However, between 2007 and 2010, the French government spent relatively little of their budget, around €72.1 million, to develop CCTV system. Resulting in an additional 5000 cameras in 2009, thereby the total number of ‘street-area’ CCTV cameras reached 27.000 (Germain et al., 2012: 294). 2.2 What is Closed Circuit Television? Closed Circuit Television, or CCTV as it is commonly called, generally refers to all semi permanently installed video equipment primarily used to monitor places or behaviour, usually by the police or other state or public authorities (Bellanova et al., 2012: 24). CCTV is a surveillance system in which a number of cameras are connected through a closed circuit. The cameras are used to monitor and record images of what takes place in specific locations in real time. Cameras may be ‘actively monitored’ in “real time”, where those monitoring the cameras can provide a response to incidents; they may also be ‘passively monitored’, in that they may only record data which can be later referred to if an incident occurs (Bellanova et al., 2012: 25). Moreover, the cameras can be fixed, set to scan an area, or controllers can operate them. Monitors can be watched by those controllers, or can be left unmonitored. The recorded information can be stored and reviewed by those who have access to the recordings at their convenience. The growing use of CCTV cameras in public and private places,
  • Page 20 of 110 increased reliance on the interception of communications by the police and security services, and generally provide notice to the shoppers or other individuals, who are being monitored, that cameras are in operation (House of Lords, 2009: paragraph 19). Besides contributing to the criminal justice system to prevent and detect crime, the cameras also contribute to make citizens feel safer and more secure in public spaces. In this regard, the authors Armitage, Smyth, and Pease (1999) articulated that CCTV as a mechanism is able to prevent crime in numerous ways, for example: “caught in the act”- perpetrators will be detected, and possibly removed or deterred; “you have been framed” – CCTV deters potential offenders who perceive an elevated risk of apprehension; “effective deployment” – CCTV directs security personnel to ambiguous situations, which may head off their translation into crime; “publicity” – CCTV could symbolise efforts to take crime seriously, and the perception of those efforts may both energise law-abiding citizens or deter crime; “time for crime” – CCTV may be perceived as reducing the time available to commit crime, preventing those crimes that require extended time and effort; or for instance, “appeal to the cautious” – cautious people migrate to the areas with CCTV to shop, leave their cars, and so on (p.226-27). Hence, examples of purposes regarding CCTV monitoring and recording of public areas, we can divide, not limited, the following categories: protection of buildings and properties; verification of security alarms; video patrol of public areas; criminal investigation; protection of pedestrians; and ‘special event security’. The ‘first generation’ CCTV cameras are used solely for visual surveillance, however, there is a second generation CCTV en route (already implemented, but not on a wide scale), which can be seen as an operational ‘smart’ surveillance technology with innovative enhancements. Because this research will analyse CCTV in the broadest sense, it will include both generations of CCTV. To analyse CCTV it is important to focus on the on-going potential enhancements, because these enhancements will increasingly be implemented in the future. Klitou (2012: 118) argued that CCTV enhancements to public surveillance cameras could include the following integration: The term “smart” is often used in this research. The reason for this is that (future) prospects of camera surveillance is linked with the notion of ‘smart’ characteristics. Smart surveillance systems are capable of extracting application-specific information from captured information (such as digital images) in order to generate high-level event description that can ultimately be used to make automated or semi-automated decisions. Smart surveillance systems inherently offer a high level of scalability, as they in turn can act as input to other surveillance systems (Vermeulen & Bellanova, 2012: 298). § Automatic License Plate Recognition systems (ALPR) that can track drivers; § Biometric technology, or face-recognition technology, that can be used to rapidly identify individuals; § Intelligent software that recognizes unlawful behaviour, activities, events or certain objects real-time; § Microphones or audio sensors, that can record audio data; loudspeakers that can enable CCTV control room operators to communicate with people; § RFID- (radio frequency identification) readers that can track people in possession of RFID tags; § Software agents that can automatically and purposefully mine (discovering patterns or anomalies) the vast amounts of visual and audio data generated and stored; § Millimetre imaging technology that see through clothes; § Networked sensors that can monitor people’s eye movements, body heat, and so on.
  • Page 21 of 110 2.3 Types of Closed Circuit Television This section takes a closer look towards the deployed CCTV cameras, and outlines the different perspectives and purposes regarding its implementation and deployment. CCTV cameras serve many functions and are used in both public and private settings. Besides public and private, there is also a ‘public-private’ amalgamation, due to the ‘blurring of boundaries’. Another common distinction is CCTV deployment for mass- or targeted surveillance purposes. First, a distinction between public and private use of CCTV is deemed important. However, the distinction between those two settings is becoming increasingly blurred as public services are provided through partnerships and other joint arrangements. Concerning the public sectors and joint arrangements, CCTV surveillance may be used to assist in the provision of social benefits to individuals or groups, and in the identification of people who may be either at risk, or who pose a risk to others if they are not identified and properly ‘treated’. In this regard, many public sector bodies employ outside-firms to manage their databases (House of Lords, 2009: paragraph 55). The private sector surveillance is prevalent in the majority of commercial environments, such as shopping centres, supermarkets, stores, and banks. Surveillance also plays a major role in the workplace, with many employers monitoring the behaviour of employees in order to assess performances. CCTV cameras can be used to watch over warehouses, industrial and business premises that cannot be patrolled easily. Moreover, domestic CCTV surveillance devices can be readily purchased and installed in private residences (House of Lords, 2009: paragraph 59). In regard to the amalgamation, there is increasing ‘co-operation’ between public and private CCTV cameras. Generally, public authorities only permit the use of CCTV cameras focused on public places; however, the involvement of private parties in cameras surveillance in public places is to some extent allowed. In case of co-operation between public authorities and private security companies, the public authorities remain responsible for the surveillance activities in the public area. Second, the two other broad types of surveillances that can be distinguished are: mass surveillance and targeted surveillance. Mass surveillance is also known as ‘passive’. It is not targeted on any particular individual but gathers images and information for possible future use. CCTV is an example of this type of surveillance. Moreover, targeted surveillance is surveillance directed at particular individuals and can involve the use of specific powers by authorised public agencies. Targeted surveillance can be carried out overtly or covertly, and can involve human agents (House of Lords, 2009: paragraph 24). Targeting involves visual surveillance devices that can sense movement, objects, behaviour or persons. Altogether, this research aims solely on the public deployment and use of CCTV in public areas, either through mass- or targeted surveillance, but does not incorporate the private or public-private deployment of surveillance.
  • Page 22 of 110 2.4 Criticisms regarding Closed Circuit Television The implementation of an intensified surveillance by Closed Circuit Television as a generalized mechanism for controlling crime and deviance raises different conflicts in various field of an individual’s life and activities. These conflicts have been overlooked as long as security reasons are becoming more prevalent when balancing opposing interests. From this perspective, the right to privacy continues to be at risk given that societies are preferably more inclined to choose security in the first place. In this regard this research refers to Ulrich Beck, who argued that the border between ‘traditional’ modern society and the ‘risk society’ is defined by a very simple criterion: the phenomenon of a risk society becomes visible where societies are exposed to risks which are no longer covered by any kind of insurance (Beck, 1993: 44). Risk in itself is not a new phenomenon. Beck (1993) argued that for the appropriate understanding of new approaches to surveillance and social control, one should take into account the so-called ‘society of risks’ and its described emphasis on the pervasive and coercive acts of government. In addition, it is commonly held that contemporary capitalist nation- states are ‘surveillance societies’, because surveillance is becoming increasingly normalized (Wood & Webster, 2009: 2). The domestication of security and the globalisation of surveillance would be ‘limited processes’ if their results did not become increasingly ‘normal’, and part of everyday life. In regard to overly intrusive governmental surveillances, Beck does not elude simply to the breakdown of some notion of a ‘welfare state’, but the general failure of modern institutions to cope with the self-imposed consequences of modernizations (Matten, 2004: 379). But it is important, when there is a normalisation of surveillance, to analyse the ethical consequences. For these reasons this paragraph focuses on some of the criticisms that is mentioned in the reviewed literature by a various amount of authors. The most striking criticism regards the argument that CCTV cameras are not effective crime-fighting tools (Welsh & Farrington, 2002: 41; Gill & Sprigs, 2005: 51; Welsh & Farrington, 2008: 41; Armitage, 2002: 14-15), however most of the public is still ‘painfully’ unaware of this fact (Farrier, 2013). Moreover, it is argued by Farrier (2013) that the presence of cameras has substantial negative effects on societies, by increasing fear, decreasing trust and destroying a sense of community. Additionally, other forms of criticisms are expressed and underpinned through arguments that regard CCTV as a ‘security theatre’ or ‘stage-set security’, claiming CCTV as ‘symbols of order’ in the ‘security theatre’. Wood and Webster (2009) argued that CCTV cameras are a visible manifestation of the state’s concern about crime and security, their deployment show that ‘something is being done’ (p.363). Hence, the term ‘surveillance society’ has embedded within it a sense of negativity, it is a very subjective term and conjures up images of a ‘big brother state’, the mass control of citizens, and threats to privacy (Wood & Webster, 2009: 266). However, it is more important to have an objective perspective on the side effects of CCTV. For example, most citizens will pass through CCTV surveyed areas relatively anonymously, unidentified, and ignored. But there are citizens that will attract more attention, indicating suspicious behaviour known to the CCTV operatives, or just seem somehow different than ‘normal’. These individuals can be scrutinized and surveyed more closely, their movements and activities more closely monitored, and information cross-referenced and recoded for future use (Wood & Webster, 2009: 13), while they are innocent of any crime whatsoever.
  • Page 23 of 110 Other criticism or disadvantages mentioned in the literature is that independent assessments have repeatedly revealed that CCTV is extremely limited in its effectiveness regarding preventing and solving crime (Welsh & Farrington, 2002: 42; Gill & Spriggs, 2005: 115), which could result in arguments of inefficient use of public funds (Groombridge, 2008). Moreover, Detective Chief Inspector Mick Neville (Metropolitan Police’s Visual Images Identifications Office) said: “for every 1,000 cameras in London, less than one crime is solved per year”, suggesting that each crime has cost $20,000 to detect (Hope, 2009: paragraph 8). 2.5 Conclusion How should we define the concept of CCTV? For starters, CCTV is a surveillance system in which a number of cameras are connected through a closed circuit; the footage taken by cameras is sent to a television monitor or recorder. The recorded information can be stored and reviewed by those who have access to the recordings. Additionally, the second generation smart CCTV camera is capable of tracking drivers by ALPR systems (Automatic Number Plate Recognition) mounted on these cameras, but also record audio, communicate towards citizens, identify individuals due to face-recognition, suspect individuals by software capable of recognizing unlawful behaviour, or for example monitor people’s eye movements or body heat. Furthermore, a large part of the literature argued that CCTV technologies are important measures for security and crime prevention (e.g. the London Bombings and the Boston Marathon bombings proved rapid identification of the bombers due to the adequate use of CCTV cameras). However, it is also important to recognize that CCTV is criticized due to its privacy-invading content, and its arguable ineffectiveness.
  • Page 24 of 110 Chapter 3 The concept of privacy Security, surveillance, and privacy are intimately connected. While states attempt to increase their ability to defend their citizens from external and internal threats, they also necessarily risk undermining the ability of the individuals within their borders to live free from scrutiny, suspicion, categorisation, and discrimination. The potential impact of surveillance technologies in terms of fundamental human rights has become an established debate in the academic and policy-making field. In particular, most of these discussions are phrased in terms of privacy and data protection (Nissenbaum, 2010). During the last decade, due to innovative information, communication and surveillance technologies, the context of privacy protection has changed drastically (Nissenbaum, 2010). Even though Article 8 of the European Convention for the Protection of Human provides the basis for a general right to respect for privacy and family life, it does not provide an accepted legal definition of privacy. Privacy is a tricky concept to define; therefore, most courts have declined to offer a definition, preferring to judge the right on a case-by-case basis (House of Lords, 2009: paragraph 123). In addition, the rationale of the argument that ‘privacy rights are notoriously difficult to define’, is that these rights often overlap with other substantive rights, such as the right to liberty, and also because there is often dispute over what it is that privacy seeks to protect (Feldman, 1994). In these perspectives, and the necessity to develop a common language regarding the dichotomy in this research, the right to privacy, similar as the concept of security, must be analysed and well defined, which is the purpose of this chapter. 3.1 Privacy as a contested concept A key feature of smart surveillance techniques is that they are used to monitor and control identifiable persons, as they are moving in public places. According to Bellanova et al. (2012) such an individual in ‘transit’ may well expect a lesser degree of privacy, but “does not expect to be deprived in full of his rights and freedoms as also related to his own private sphere and image” (p.102). It is recognised that the specific interests, or values, underpinning privacy are in many ways dependent upon cultural tradition. Therefore, despite many official pronouncements of the position of privacy as a fundamental right, there is less of consensus as to what values are actually protected (Taylor, 2011: 456). Privacy is thus a contested concept, lacking a ‘lucid or consistent meaning and context’, which is due to different formulations, perspectives and ideologies regarding this fundamental right (Wacks, 1993: xi; Fenwick, 2000: 338; O’Brien, 2008: 26). In this paragraph we will analyse and describe some of the formulations and perspectives from multiple authors in order to develop clarity in the ‘competitive and deep-rooted debates between surveillance and privacy in the culture of Western liberal democracies’ (Bloss, 2007: 208). From a historical perspective, privacy-based ideas stretch back to the work of Aristotle and his bifurcation of the private or the family from the political and the public. This public-private divided concept was developed, post-Enlightenment, by the liberal theorists (O’Brien, 2008: 26). Moreover, the English philosopher, John Lock (x1632-1704), argued that in nature, all the world’s goods are common to all, but that property could be acquired and thus become private. Some consider that the core value of privacy is perhaps limited to ‘secrecy’, the withholding of information from others or non-disclosure.
  • Page 25 of 110 Others, however, argued that ‘secrecy’ does not engage with privacy at all, suggesting that individuals are not so interested in non-disclosure of individual information (Taylor, 2011: 456). Additionally, Fenwick (2000: 338) stated the broadly described ‘informational autonomy’ as the central privacy value, which is the right to control the information about the public. Moreover, Lester and Pannick (2004), defined privacy as “the presumption that individuals should have an area of autonomous development, interaction and liberty, a ‘privacy sphere’ with or without interaction with others and free from state intervention and free from excessive unsolicited intervention by other uninvited individuals” (UN Human Rights Council, 2013: 7). Besides this well encompassed definition, others auteurs, for instance, Westin (1967: 7), regards privacy as the control of personal information. He argues that privacy is fundamentally concerned with the ability of ‘individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others’. Similair, but a more philosophical definition of privacy is prominently defined by Parent (1983), who argues that privacy can be defined as the control over information about oneself, more specific, “privacy is the condition of not having undocumented personal knowledge about one, possessed by others. A person’s privacy is diminished exactly to the degree that others possess this kind of knowledge about him” (p.269). He also argues that, when it comes to privacy, ‘knowledge’ can only be understood as facts, and includes such things as details about one’s health, marital and financial status, educational background and sexual orientation. Moreover, “If others manage to obtain sensitive personal knowledge about us, they will by that very fact acquire power over us. Their power could then be used to our disadvantage” (Parent, 1983: 276). In contrast to this emphasis on the control of information, other auteurs, suggest that privacy is best understood in terms of its connection to ideas of personal autonomy, self-determination and human dignity. Privacy in this sense goes well beyond control over information and looks to provide individuals with the means to protect themselves against intrusions that might compromise their independence and represent an insult to their sense of human dignity (Goold & Lazarus, 2007), those goals may be seen ‘as essential to human flourishing’ (Fenwick, 2000: 39). According to Feldman (2002), privacy rights are important because they enable individuals and groups to determine and, to some extent at least, control the boundaries between the necessity of security and the extent in which ‘security’ is obtained, alongside the principle that a person’s home and family life were to be free from intrusion (p.542). In this context, privacy rights deserve protection because they are essential for the maintenance of personal autonomy and the defence of human dignity. Furthermore, more then a century ago, Judge Thomas Cooley (1888) argued for a “right to be let alone”, and that the concept of private life incorporates the classic notion of civil liberties, in which the state should not be permitted to intrude into the private sphere in the absence of strict justification (p.29). The notion of privacy broadens when personal relationships, social relationships and other wider interactions are included. Therefore, within the idea of private life are personal freedoms, personal autonomy, personal integrity and personal relations. Cooper (2007) argued that the wider notion of privacy includes limits on state control of individuals within society, as well as limits on regulation of private conduct and surveillance. These ideas form part of broader notions of the state’s limited role within the private sphere where individual development is concerned.
  • Page 26 of 110 Furthermore, there is a dichotomy in the relevant literature. This dichotomy is related to the earlier-mentioned dilemma that governments constantly have to face: “security or privacy”. At present, security measures are characterized by its emphasis on early intervention, which is understood as pre-emption or anticipatory justice. The underlying justification of pre-emption or anticipatory justice, it to act before the threat materialises, because why wait before something is already happened? However, Blad (2008), Schuilenburg (2009), and Schwitters (2008) have sounded an alarm about the stigmatizing effect of the search for at-risk populations based on certain distinctive characteristics (smart surveillance). In addition, de Graaff (2008) and Boutellier et al. (2005) predicts that the broad approach (constantly watching over the activities of a large population of potential terrorists) will be extended, which means that governments will intervene more and more in personal lives by coercive and intrusive measures, such as the intelligent CCTV cameras. Additionally, Professor Bert-Jaap Koops, Professor of Law and Technology at Tilburg University Institute for Law, Technology and Society, argued that since surveillance was “moving towards a paradigm of preventative measures in which you monitor large groups”, the privacy of individuals was inevitably diminished because the courts are only involved in rare cases of complaints or where “an odd thing happens” (House of Lords, 2009: paragraph 36). The loss of privacy in some cases may be harmless and may be offset by the benefits of surveillance and data collection. In this perspective it is important to mention that any effective counter-terrorism strategy is likely to interfere with privacy rights. It is therefore important to understand the extent to which it is lawful to interfere with these rights. Law-enforcement agencies have at their disposal a comprehensive array of tools and procedures that can be used in counter-terrorism operations. These range from traditional policing methods – such as carrying out a physical search of a suspect – to the use highly sophisticated smart surveillance technologies, such as CCTV, where images are recorded, processed and stored. To be lawful, they must be justified as prescribed by law, be necessary in a democratic society, and be proportionate. 3.2 Conclusion This chapter was devoted to describe and define the contested concept of the fundamental right to privacy, and develop more clarity and a language of reconciliation regarding this concept. Therefore, this chapter concludes by stating a narrow and concrete definition regarding privacy, which this research will use and apply for further research analysis. Privacy is defined by: the condition in which others do not know information about oneself. The amount of privacy that an individual has can therefore be completely measured by how much information about him is known by others. Additionally, the more accessible this information is to others, the less privacy the individual has. Accessibility here can be understood both in terms of ‘active accessibility’ – the ability to find the information if you are specifically looking for it, and ‘passive accessibility’ – when you can be confronted with the information when you are not specifically looking for it, for instance when you are watching the news.
  • Page 27 of 110 Chapter 4 The concept of public accountability mechanisms The merits or defects of particular technologies, as Etzioni (2007: 115) argued, are not inherent to the technologies, but rather, depend on how they are used and above all, on how closely their use is monitored and accounted for by the parties involved. In order to reassure the public and to ensure accountability and oversight, accountability mechanisms should be created to monitor the government’s use of surveillance and related technologies. It is argued by Etzioni (2007: 119) that proper accountability requires multiple layers of oversight, and should not be left solely in the hands of the government. Aucoin and Heintzman (2000) stated that public accountability is important to provide democratic means to monitor and control governmental conduct; for the prevention of concentrations of power; and to enhance the state’s learning capacity and effectiveness (p.49-52). It is argued, that increasing contemporary security concerns seem to justify the use of innovative technology tools, such as CCTV. However, it is also a means for increasing social control by the state. In this regard, and in regard to the statements given by Mathiesen (1997), about the risks of creating panoptic surveillance, the state is obliged to – because of its monopoly on the use force and its duty to protect the rule of law – create proper accountability mechanisms. Additionally, as argued by Eijkman (2012: 1), by reassessing state accountability mechanisms, the impact of technological security measures may be checked and balanced. But what does accountability mean, and in what way should this broad and contested concept be used in this research? In this perspective, the aim of this chapter is to make this concept more amenable to empirical analysis of accountability mechanisms concerning the increase use of CCTV. Thereby, this chapter analyses the fourth ‘contested concept’, which is ‘public accountability’. Moreover this chapter analyses the statement that “accountability is a contested concept” in paragraph 4.1. Paragraph 4.2 explains in a concrete and concise manner what accountability is. Paragraph 4.3 outlines the different types of accountability mechanisms and cites their relevancy. Paragraph 4.4 shortly clarifies why accountability mechanisms are important, and the conclusion covers the definition, which this research claims to be the most useful in the interpretation of accountability mechanisms regarding the necessity of system of checks and balances concerning CCTV and its alleged negative consequences for human rights. 4.1 Accountability as a contested concept Accountability is increasingly used in the political discourse and policy documents because it conveys an image of transparency and trustworthiness. It serves as a conceptual umbrella that covers various distinct concepts, such as transparency, equity, democracy, efficiency, responsiveness, responsibility, and integrity (Mulgan, 2000: 555; Behn, 2001: 3-6). This makes the concept a general term without specified boundaries for mechanism that makes powerful institutions responsive to their ‘accountability forums’, which can be a person, group, or the public at large. Moreover, Bovens (2007a: 450) argued that it is very hard to come up with a general definition of accountability because the standards for what constitutes accountable behaviour differs, depending on role, institutional context, time, place, speaker, and political perspective. Moreover, the evocative powers of accountability make it a very
  • Page 28 of 110 elusive concept, because it can mean different things to different people. Koppel (2005) for that matter distinguishes five different dimensions of accountability, namely: transparency, liability, controllability, responsibility, and responsiveness. So far, no attempt is made to provide a consistent analytical framework for the analysis of this elusive concept of accountability; most authors define the concept in different ways and address very different accountability dilemmas, practices, and potential crisis. Mulgan (2003: 8) argued that the result of ‘disjointed accountability talk’ is that accountability seems to be ‘ever-expanding’. However, for this research and more specifically for the assessment of accountability mechanisms, it is important to develop a concise and concrete definition of the concept. In that perspective this chapter focuses on the work of the following authors, Ackerman (2005), Bovens (2005, 2007a, 2007b, & 2010), Blagescu, de Las Casas, & Lloyd (2005). These authors provide concise definitions and perspectives on social and public accountability. In addition, the authors Blagescu et al. and Bovens established different frameworks for the evaluation and assessment of accountability in the public domain, which will be relevant for the assessment of the Dutch and British accountability mechanism regarding the use of CCTV. Moreover, Ackerman is specialized in Human Rights and Social Accountability; he cites the importance of civil participation in holding governments accountable regarding the respect for human rights. 4.2 What is accountability? Besides living in an “age of technology”, Fisher (2004) argued that we also live in an “age of accountability”. Demands for public officials to account for their decisions transcend level of governance, and are, just as CCTV surveillance, on the rise. Democratic principles confirm that the public at large should have the ability to influence the decisions that affect their lives; however, because people transfer their sovereignty to representatives, they manage government performances through accountability mechanisms (Stie, 2010). But what is accountability? Traditionally, efforts to tackle the challenge of accountability tended to concentrate on improving the “supply-side” of governance, using methods such as political checks and balances, administrative rules and procedures, auditing requirements, and formal law enforcement agencies like courts and the police (Malena et al., 2004: 1). Ackerman (2005: 10) argued that these “top-down” accountability mechanisms have met with only limited success in many countries, and that increased attention has been paid to the “demand side” of good governance, which entails the strengthening of the voice and capacity of citizens to directly demand greater accountability and responsiveness from public officials. In addition, it is important to notice that a fundamental principle of democracy is that citizens have the right to demand accountability and public actors have an ‘obligation’ to account. In order to explain the concept of accountability it is important to start with three concrete and concise definitions of accountability. Ackerman’s definition (2005) of governmental accountability is that it is a “process where representatives of the state, public officials, inform society about their plans and actions and justify them simultaneously, while their actual behaviour and results are subject to sanctions accordingly” (p.10-11). Ackerman (2005) also argued that citizens elect representatives and
  • Page 29 of 110 then supposedly hold them accountable for their behaviour in a following election. It is a form of accountability, which is characterised by its focus on the rule of law and good governance (established from a ‘dynamic equilibrium’ between the various powers of the state), as well as the inclusion of civil society, and ordinary people. Ackerman argued (2005: 8) that the core elements of accountability are therefore information, justification, and sanction. A fully accountable government would approach these tasks in a pro-active manner and do so along all three temporal dimensions in the past, present, and future. Ackerman argues that social accountability easily supports the legal defence of human rights. Once citizens are mobilized in supervising the government, it is a small step for them to start demanding and designing new laws as well as using the existing laws to back up their claims against the state. Citizen’s participation in holding governments to account is far more effective in stimulating a good government, and is a prerequisite for an effective democracy (Ackerman, 2005: 8). Bovens (2007b) defined accountability in a narrow, and passive sense of a social mechanism, “a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct to the forum, the forum can pose questions and pass judgment, and the actor may face consequences” (p.447). The actor can be either an individual or an organisation, like a public institution or an agency. The accountability forum can be a specific person or the public at large. Furthermore, the obligation of the actor can be formal or informal. Public officials often will be under a formal obligation to render account on a regular basis to a specific forum, such as supervisory agencies or the public at large (Bovens, 2007b: 447). Blagescu, de Las Casas, & Lloyd (2005: 1) defined accountability as the processes through which an organisation makes a commitment to respond to, and balance the needs of ‘stakeholders’ or the public in its decision-making processes and activities, and delivers against this commitment. A key part of this definition is the notion of balance. Blagescu et al. (2005) consider this as the key challenge, creating a more balanced relationship, in which the voices of those most affected by an organisation’s activities are not overshadowed by the interest of the most powerful. 4.3 Types of accountability As this paper solely concerns public organisations and its public accountability, it is important to define what ‘public’ is in this matter. In the first place, account is not rendered behind closed doors, but is in principle open to the general public, so it is used in the context of ‘openness’. Secondly, public refers to the matters in the public domain, such as the spending of public funds, or relating this research, the exercise of public authorities and the increase use of CCTV. It should be noticed that it is not limited to public organisations, but can extend to private bodies that exercise public privileges (Scott, 2000: 41). Moreover, important to mention is that public accountability comes in many ‘guises’. All states have some form of mechanism in place to promote or ensure accountability of public servants. Public institutions are frequently required to account for their conduct to various forums in a variety of ways (Bovens, 2005: 13).
  • Page 30 of 110 Regarding to the different accountability types, this research refers to the systems of public accountability that are internal to the state, which are often referred to as “horizontal” mechanism of accountability. These horizontal mechanisms include: political mechanisms, administrative mechanisms, legal mechanisms, and professional mechanisms. These four mechanisms contain aspects such as: representatives rendering account to democratic societies; specific public responsibilities conferred upon authorities; codes of standards for acceptable practices; or the aspect of securing efficiency and effectiveness of governmental conduct (Bovens 2007b: 20). However, vertical accountability is more relevant for this research because it refers, as Bovens (2007b) mentioned it, to the situation where the forum formally wields power over the actor, for example by elections, this is called social accountability. Furthermore, Mc Candless (2001) argued that due to lack of trust in governmental authorities, there is an urge in many western democracies for more direct and explicit accountability relations between public agencies on the one hand, and clients, citizens, and civil society on the other. Bovens (2005: 16) referred to this as social accountability. Other characteristics are the broad range of actions and mechanisms that citizens, communities, civil society organizations, and independent media can use to hold public officials and servants accountable. Mechanisms of social accountability can be initiated and supported by the state, citizens or both, but very often they are demand-driven and operate from the bottom up (Malena, Forster, & Sing, 2004: 3). Two other distinct features concerning the concept of accountability are: accountability as a virtue, and accountability as a mechanism. Blagescu et al. (2005) operationalized accountability as a virtue as followed: “first and foremost accountability is about engaging with, and being responsive to, stakeholders; taking into consideration their needs and views in decision making and providing an explanation as to why they were or were not taken on board. In this way, accountability is less a mechanism of control and more a process for learning. Being accountable is about being open with stakeholders, engaging with them in an on going dialogue and learning from the interaction. Accountability can generate ownership of decisions and projects and enhance the sustainability of activities. Ultimately it provides a pathway to better performance” (p.4-5). In the latter case (accountability as a mechanism), accountability is seen as an institutional relation or arrangement in which an actor can be held to account by a forum (Bovens, 2010: 948). Hence, accountability is a specific social relation or mechanism that involves an obligation to explain and justify particular conduct, which implies the relationship between an actor, the ‘accounter’, and a forum, the account-holder, or ‘accounte’ (Pollit, 2003: 89). Characteristics of this approach are not just the provision of information about performances, but also the possibility for debate, of questions by the forum and answers by the actor, and eventually the judgment of the actor by the forum with possibilities for sanctions. Altogether, both distinct features include elements op importance for this research. Additionally, Koppel (2003: 120) argued that, although an appearance of control and a body of legislation may exist, government-sponsored enterprises have the resources, ability and position to effectively control their own controllers. Besides, according to various scholars, accountability deficits can be found in various public sectors, with one important area of concern, which is the formidable growth in formal powers (Bovens, 2010: 960; Behn, 2001: 76; Mulgan, 2003: 74).
  • Page 31 of 110 4.4 The relevancy of accountability mechanisms Many authors begin their writings with the question: ‘why bother about accountability?’ For this research it is important to answer this question because it provides the foundation regarding the main question. To answer the question “why bother”, it is important to state that governments in western societies face an increasingly critical public, and the exercise of public authority is not taken for granted. Public trust in governments is fragile and a large number of industrialised democracies experience both substantial fluctuations in public trust, and a long term gradual erosion of political support (Bovens, 2010: 954). Accountability is meant to assure public confidence in governments and to bridge the gap between citizens and the state. Additionally, Bovens (2010: 954) stated that accountability mechanisms assure that public organizations remain on the ‘virtuous path’; therefore, accountability mechanisms are important because they contribute to the legitimacy of public governance. It is also argued that social forms of accountability helps in creating checks and balances. Monitoring the ‘executive’ by civil society organisations, such as Statewatch, or in regard to the right to privacy: Privacy First, European Civil Liberties Network, JUSTICE, Liberty, or for instance the British Institute of Human Rights, are increasingly important to provide informal controls on the abuses of executive powers (Bovens, 2010: 955). These informal controls (or accountability mechanisms) serve as a tool to induce ‘reflection and learning’. Moreover, they can be utilized as feedback mechanisms that can make and keep governments, agencies, and individual officials effective in delivering on their promises. Furthermore, accountability mechanisms induce executive agencies to improve its efficiency, effectiveness and general performances, by providing independent feedback about the intended and unintended effects of its policies (Aucoin and Heintzman, 2000; Bovens, 2010). 4.5 Conclusion In the wake of reconciling issues of security with a respect for the fundamental right to privacy, this chapter was devoted to describe and define the contested concept of accountability mechanisms, which are supposed to safeguard privacy and democracy without squandering them, or in other words, keep security and privacy in a proportionate balance. This chapter used a variation of research and multiple documents and authors to compare and analyse different perspectives of public accountability. Foremost the definitions of the authors Ackerman (2005), Bovens (2005, 2007a, 2007b, & 2010), and Blagescu, de Las Casas, & Lloyd (2005) were used, due to their various but concise agreements on the term. Besides the fact that there are extensive and different interpretations and definitions regarding the concept of public accountability, this paragraph defines public accountability mechanisms narrowly as followed: A social mechanism between an actor and a forum, where the actor (the ‘accounter’) has an obligation to pro-actively inform the forum (the account-holder or the society) about their plans and actions, which are based on the rule of law and good governance, and justify them simultaneously. The informed forum can pose questions and pass judgment, and the actor and their plans and actions may face consequences.
  • Page 32 of 110 THEORETICAL FRAMEWORK
  • Page 33 of 110 Chapter 1 Assessment framework This chapter examines and answers the following sub-question: “how should we assess the accountability mechanisms regarding CCTV in the United Kingdom and the Netherlands?” The short answer is, by the establishment of an analysis- and assessment framework. This framework should focus on evaluating accountability mechanisms, and analysing possible inadequacies in the form of accountability deficits in the public domain of CCTV deployment in the Netherlands and the United Kingdom. The accountability deficits can be seen as a lack of accountability arrangements, or as accountability excesses. When the accountability mechanisms, that are used in the selected country case studies, are corresponding, and are in agreement with the ‘CCTV-accountability Assessment Framework’, than this research argues that in this case, the United Kingdom or the Netherlands, are using valid accountability mechanisms reflecting the necessary checks and balances, which concerns the fundamental right to privacy and the prolonging of (national) security. For the development of the framework, it is important to make sure that the general literature and information concerning ‘accountability assessments’, which will be reviewed and analysed, is legitimate, and applicable for the evaluation of specific targeted public domains. However, for an institutionalized and broadly supported ideal as ‘accountability’, there are very few references to be found in the literature that could lead to such an evaluation being performed, let alone a well- encompassed and comprehensive systematic framework regarding accountability assessments that focuses on CCTV surveillance. In addition, there is no ‘one-size-fits-all approach’ regarding the contested concept of accountability. However, there are some common factors to find in the literature that must be taken into consideration in order to increase accountability in an effective and meaningful way. It is these common factors that will result in a well-encompassed framework. The realm of empirical description, evaluating, and assessing accountability mechanisms can be found in the literature of the authors: Mark Bovens, Monica Blagescu, Lucy de Las Casas, and Robert Lloyd. From their perspectives this research creates an amalgamated theory and assessment framework, which eventually results in prescriptive recommendations concerning checks and balances for (future) deployments of CCTV in a proper, and human rights based manner. Regarding the latter, it is deemed important to provide democratic means to monitor and control governmental conduct for the prevention of the development of concentrations of power and its possible abuses. Before stating and creating a well-encompassed framework, it is relevant to outline a theoretical background regarding the work and research of the above-mentioned authors. This is relevant because the theoretical rationale of the work of Blagescu et al. differs from the theoretical rationale of Bovens. PART THREE - THEORETICAL FRAMEWORK
  • Page 34 of 110 1.1 GAP Framework – Global Accountability Project – Blagescu, de Las Casas, and Lloyd Blagescu et al. (2005) established, what they call, a ‘GAP framework’, which provides a baseline for what is important if organizations are to improve their accountability to, what they refer to as, ‘stakeholders’. The GAP framework is meant to complement: legal and regulatory frameworks that exist at national and international levels; sector-wide accountability initiatives and codes of conduct; international norms; and other standards that are already in place. The authors of the GAP framework argued that equal accountability to all groups at all times is impossible, therefore key stakeholders are prioritized by the following factors: ‘influence‘, which is the degree to which the needs and interests of stakeholders, who do not have the power to influence the organization, should be taken into account; ‘representation‘, which encompasses the legitimacies of a representative; and ‘responsibility‘, as in financial, ethical, regulatory, or contractual responsibility (Blagescu et al., 2005: 1-2). The authors also deemed important the degree of ‘commitment’ to accountability. Commitment determines the quality of the mechanisms that are put in place. In addition, there are two concrete ways in which commitment needs to manifest itself, and that is ‘embeddedness’, which refers to the integration of accountability in everything an organization does, and ‘responsiveness’, which refers to the ways organizations show that they consider the needs and views of stakeholders in the decision-making processes, and which provides an explanation as to why they take the decisions as they do (Blagescu et al., 2005: 4). The GAP framework categorizes accountability into four dimensions, namely: transparency, participation, evaluation, and complaint & response mechanisms (see appendix three for more information). The authors argue that to be accountable, an organization needs to integrate all four dimensions into its policies, procedures, and practices, at all levels and stages of the decision-making- and implementation procedures. The four dimensions entail: a) Transparency regards to the accessibility and to providing periodic information to the stakeholders. It also regards to transparent organizational procedures, structures, activities and processes: the extent to which it provides information on what it is doing, where and how this takes place, and how it is performing. This constitutes and enables the public in general to identify if organizations are operating properly, inside judicial regulatory schemes, and if they are conforming to crucial standards. Furthermore, Blagescu et al. (2005) argue that “transparency is not a ‘one-way flow of information’, but an on-going dialogue between stakeholders and organizations” (p.2); b) Participation regards to organizations taking account of its stakeholders by enabling them to have a ‘say’ in decision-making activities and processes that affects them. Blagescu et al. stated (2005: 2) that if organizations want to be accountable, they need to understand the needs and interests of key stakeholders, what is best achieved through engagement and a participatory approach to decision-making. Therefore organizations should develop mechanism that enables those stakeholders to participate regarding the decisions affecting them; these organizations should commit to enable stakeholders’ input into the broader organizational policies and strategies.
  • Page 35 of 110 c) Evaluation refers to the processes through which an organization, with involvement from key stakeholders, monitors and reviews its progress and results against goals and objectives; feeds learning from this back into the organization on an on-going basis; and reports on the process. The relationship between evaluation and accountability centres on learning. The evaluation process and the results that emerge from it can inform on-going activities and future decision-making, providing the information that will allow an organization to improve performances, making it more accountable. d) Complaint & response mechanisms refers to mechanisms through which an organization enables stakeholders to address complaints against its decisions and actions, and through which it ensures that these complaints are properly reviewed and acted upon. It can be seen as a means of last resort for stakeholders to hold the organization to account (Blagescu et al., 2005: 2-3). 1.2 Public Accountability Framework – Bovens Bovens (2005) stated in his research, regarding the establishment of a framework for the analysis and assessment of accountability arrangements in the public domain, the question: “what is not accountability” (p.10). Here, obvious differences occur in accountability aspects between the researchers. The first difference is that the work of Blagescu et al. (2005) is focused on ‘retrospective accountability’, thus where actors are to account to a forum after a fact. Bovens argued that the line between ‘retrospective accounting’ and ‘proactive policymaking’ could be thin in practice. Accountability according to Bovens is not just about control; it is also about prevention. Lupia (2003: 35), in Bovens’ regard, argued that some equate accountability with controllability, and Bovens complements this statement with the argument that accountability mechanisms are indeed important ways of controlling the conduct of public organizations (Bovens, 2005: 11). Additionally, Mulgan (2003: 19) stated in this regard that ‘control’ is broader than accountability, which could evolve in very proactive means of directing conduct, and in addition, these controls do not operate through procedures in which actors are to explain and justify their conduct to forums. Moreover, ‘transparency’, which is often used as a synonym for accountability, is argued by Bovens (2005), not enough to constitute accountability. Organizational transparency and freedom of information are often seen as very important aspects of accountability, because they may provide forums with the necessary information (Bovens, 2005: 11). This is, according to Elisabeth Fisher (2004: 504) because it only sees to the element of ‘publicness’ in public accountability; to the disclosure of information; and the accessibility of the debates to the general public. Bovens (2005: 11) also argued that responsiveness and participation should be distinguished from accountability, because accountability is in nature retrospective. Responsiveness to the needs and preferences of accountability forums, and the participation of accountability forums in policy processes, may be very important to enhance the political legitimacy, but they do not constitute accountability, due to lacking elements of justification, judgment, and sanctions.
  • Page 36 of 110 The methods of Bovens for assessing accountability are divided into two levels. The one is focused on procedural or internal adequacy of a particular accountability mechanism, focusing on the principle of good accountability. The second is more focused on the external effects of the accountability processes. The literature concerning public accountability shows the recurrence of three answers regarding the earlier mentioned relevancy of accountability. These answers reflect the relevancy for providing democratic means to monitor and control governmental conduct, preventing concentrations of power, and to enhance the learning capacity and effectiveness. Bovens transformed those answers in three separate theoretical perspectives for the assessment of accountability mechanisms, namely: the democratic perspective (possibilities for actors with democratic legitimacy to control policies or organisations), the constitutional perspective (prevention of corruption and abuse of power) and the cybernetic perspective (enhancing the learning capacity) (Bovens, 2007b: 462-463). The democratic perspective regards the fact that public accountability is an essential condition for the democratic process, as it provides the people’s representation and the voters with the information needed of judging the propriety and effectiveness of the conduct of the government. The central question to the democratic perspective is whether the accountability mechanisms creates possibilities open to voter, parliament or other representative bodies to control the executive power (Bovens, 2005: 25) The main concern of the constitutional perspective is that of preventing the tyranny of absolute rulers, elected leaders or that of a ‘privatized’ executive power. The remedy, as mentioned before, is a ‘dynamic equilibrium’ between the various powers of the state (Fisher, 2004: 506-507). The purpose of the cybernetic perspective lies more in maintaining and strengthening the learning capacity of the public administration (Aucoin and Heintzman, 2000: 52-54). The crucial aspect in this perspective is the question of the extent to which political systems are capable of dealing adequately with changes in (future) environments. This is crucial for the future developments of CCTV technologies and the argued outdated laws and policies that will govern the deployment of CCTV. 1.3 CAF – CCTV-accountability Assessment Framework The framework used in this research is based on the mind-set, perspectives, theories, and definitions of the relevant reviewed literature from the authors Mark Bovens, Monica Blagescu, Lucy de Las Casas and Robert Lloyd. However, the existence of these various perspectives, mind-sets and above all the elusive concept of accountability make the establishment of this framework a somewhat equivocal exercise. This is due to that accountability mechanisms may score well on one perspective, but not on others, and as Blagescu et al. (2005) mentioned, “each of the dimensions are necessary for accountability, while alone none are sufficient. Meaningful accountability only results when all four are effective” (p.3). For example, judicial review of laws and regulations may be considered as an adequate form of public accountability from Bovens’ constitutional perspective, and at the same time as an inappropriate one from a democratic perspective. Moreover, Bovens categorizes his framework in the three before mentioned perspectives: democratic, constitutional, and the learning perspective. Blagescu et al. on the other hand categorizes their framework in four levels, namely: participation, transparency, evaluation, and complaint investigation.
  • Page 37 of 110 This section further clarifies the perspectives and mind-sets of both ‘sets’ of researchers; according to Blagescu et al. (2005), a public organization is accountable when: According to Bovens, a public organization is accountable when: The framework established for this research uses aspects of these two frameworks in an amalgamated way that reflects the public accountability mechanism concerning the development and deployment of CCTV and the future implementation of ‘smart’ CCTV technologies on a wide scale in the Netherlands and the United Kingdom (see: Table 1). The relevant perspectives for this ‘amalgamated framework’ reflects the following accountability aspects: transparency; participation of society; evaluation; complaints; conflict of interests; ethical conduct; abuse of power; human rights; efficiency and effectiveness; and the cybernetic or learning perspective. The framework makes use of the terms accountability ‘forums’ and ‘actors’, actors being the public organizations that deploys/deployed CCTV cameras and that are responsible for theirs propriety and the proper use of these technologies. Accountability forums refer to the individual or group of individuals that are confronted with CCTV technologies. The table on the next page describes the key aspects of both the research results of the researchers, and indicates the relevant amalgamated mechanisms of both frameworks in the ‘CCTV-accountability Assessment Framework’. The operationalization and further definition of the framework is described in the ‘methodology and approach’ (part 4, paragraph 1.6). a) It is transparent in both its activities and decision-making processes, engaging in on-going dialogue with key stakeholders over the information on which they need to make informed decision; b) It engages with key stakeholders in its decision-making processes related to policies and practices; c) It evaluates performance, policies and practice in consultation with its key stakeholders. It learns from and reports on the outputs of these evaluations; d) If an organization manages to do this, it will increase its accountability to key stakeholders. However, if it fails, it has channels through which stakeholders can voice their grievances and receive appropriate response (Blagescu et al., 2005: 5). a) It offers actors with democratic legitimacy possibilities to control administration, policy and organization; b) Accountability forums are able to contribute to the prevention of corruption and the abuse of powers; c) Accountability mechanisms stimulate administrative bodies and officials to achieve a higher awareness of the environment, increase self-reflection and induce the ability to change (Bovens, 2007b: 28-30).
  • Page 38 of 110 GAP Framework M. Blagescu, L. de Las Casas, and R. Lloyd Public Accountability Framework M. Bovens CCTV-accountability Assessment Framework Transparency dimension a) Consultation processes with A.F. b) General information disclosure with A.F. c) Transparent organisational procedures d) Accounting for how A.F.’s needs and views are reflected in decisions e) Commitment to accountability Democratic perspective a) Democratic control b) A.F.’s monitoring capabilities c) A.F.’s evaluative capabilities d) A.F.’s adjustment capabilities to governmental conduct e) A.F.’s adequate information position Democratic dimension a) Transparency mechanism b) Information mechanism c) Responsibilisation mechanism d) Participation mechanism Participation dimension a) Enabling A.F. to play an active role in the decision- making procedures b) Considering needs and views of A.F. in the decision- making process Constitutional perspective a) Checks and balances b) System of sanctions and incentives c) A.F.’s capabilities to engage in account giving Constitutional dimension a) Complaint & response mechanism b) Punitive or remuneration mechanism Evaluation dimension a) Monitoring and reviewing capabilities b) Reporting procedures c) Embeddedness d) System of sanctions and incentives to ensure staff compliance with procedures Cybernetic perspective a) Improvement and learning b) Increase internal-reflection c) Inducing abilities for change d) Supervision e) Institutionalisation and dissemination of lessons learned Cybernetic dimension a) Educational mechanism b) Evaluation mechanism Complaint & Response dimension a) Responsiveness to A.F. concerns and needs. b) Responsibilisation processes c) Willingness to adjust policies d) Accounting for decisions A.F. = Accountability Forum TABLE 1.
  • Page 39 of 110 METHODOLOGY & APPROACH
  • Page 40 of 110 Chapter 1 Operationalization 1.1 Type of research, methodology, and approach For this research a multi-disciplinary approach is used, with the aim of combining several different topics, including: human rights, privacy, accountability, security, CCTV surveillance, efficiency and effectiveness, political and social sciences, evaluation studies, and so on. This study is aimed to analyse and assess the accountability mechanisms that public authorities in the Netherlands and the United Kingdom use for the deployment of the first and second-generation CCTV cameras. Second- generation CCTV cameras consist of innovative (future) enhancements, which are described in part 2.2.2. Because this contemporary, real-life study emphasizes detailed contextual analysis of a (limited) number of conditions and variables, namely the increase use of CCTV technologies, the arguable decrease of the right to privacy, the necessity for proper governmental accountability mechanisms, and the four contested variables, it is deemed necessary to make use of comparative case studies. Hence, the selected country case studies are the Netherlands and the UK, the rationale for this selection is explained in the next paragraph. The results of this research will be achieved by extensive literature review and exploratory fieldwork in the Netherlands and the United Kingdom. The fieldwork involves real life experiences in the United Kingdom and comprehensive interviews with an expert from the Netherlands in areas surrounding the deployment and use of CCTV. After collecting raw fieldwork data on professional expertise about the deployment and use of CCTV technologies and its much-needed accountability content, evaluation and analysis of the outcomes is important to address the initial purpose of the study. To strengthen the research findings, recommendations, and the final conclusions, it is deemed important to conduct crosschecks of facts and possible discrepancies in the abstract concepts. Moreover, because this research consists of multiple contested variables, it is crucial to examine multiple documents, journals, books, surveys, scholarly articles, dissertations, treaties, laws, guides of action, regulations or policies, conference proceedings, and other existing literature in a critical manner. Further, this case study generates a large amount of data from multiple sources, therefore a systematic organization of data and literature is important to prevent becoming overwhelmed by it and losing sight of the original purpose. After collecting multiple sources from the literature review, it is relevant to sort data in a way that ‘converging lines of inquiry’ is possible for uncovering patterns. This is especially relevant for collecting data on current aspects of the used accountability mechanisms in the selected country case studies. Data, which is necessary for the explication of these different variables, will be gathered through analysing and assessing the content of literature. The fundamental challenge to causal inferences stems from the fact that factual observations cannot be compared to counterfactual observations, therefore, causal inferences requires a unit of analysis, which is in this case: CCTV’s accountability mechanisms of public authorities compared in the UK and the Netherlands. In regard to its external validity, the intended domain of generalization lies in the elaboration on governmental accountability mechanisms and its necessity to include checks and balances concerning privacy and security. Because the recommendations will be more general, it PART FOUR - METHODOLOGY & APPROACH
  • Page 41 of 110 should be usable for other cases concerning security measures/technologies in, for example, the European Union. The rationale is that when governmental authorities choose to implement smart CCTV technologies (on a large scale), they must oblige to comply with expectations of public accountability mechanisms for the public at large. These mechanisms are then assessed through the earlier described ‘CCTV-accountability Assessment Framework’ or ‘CAF’, because legitimate and proper control by accountability mechanisms helps to ensure that improving security does not lead to the creation of a surveillance society. In this perspective, this research argues that when the accountability mechanisms, that are used in the selected country case studies, are corresponding and are in agreement with the ‘CAF’, than we can argue that the selected country case studies are using valid accountability mechanisms reflecting the necessary checks and balances, which concerns the fundamental right to privacy and the prolonging of (national) security. The framework is described in the last paragraph of this chapter. 1.2 Rationale behind the selection of cases It is argued that surveillance is becoming increasingly normalised across the EU, and that surveillance is altering the landscape of privacy and security. This normalisation is identified as a product of the ‘globalisation of surveillance’ and the ‘domestication of security’ (Wood & Webster, 2009: 259). In this notion and in regard to the prevention of the erosion of individual’s privacy, the European Convention on Human Rights sets out a minimum statement of rights to be protected in each signatory state, and provides a mechanism to allow individuals to enforce it against the state where the state has infringed their rights under the ‘Convention’, and domestic law has failed to provide a remedy. However, despite European common ground regarding the ECHR, each country has an amount of sovereignty, and can still uphold their interpretation of using CCTV accountably. Currently, accessing and comparing the ways in which surveillance is held accountable around multiple countries is an arduous and time-consuming process, which often leads to unclear, unreliable, or incomplete results. For that reason, comparing, analysing, and assessing two countries, in how they implement and deploy CCTV surveillance in an accountable manner, could lead to more efficient results. This way, creating common ground for a proportionate framework of checks and balances is possible. But, analysing all EU countries is not an effective or efficient manner for creating adequate results regarding the research objectives. For that reason, the selected country case studies are the United Kingdom and the Netherlands, because they have certain similarities (colonial past, EU membership, participation in the Iraq- and Afghanistan wars), but they also differ significantly if you look at past experiences with, for example, terrorism. Another important reason for comparing these two countries is that it is argued in scientific journals and scholarly literature that the Netherlands is slowly turning into a surveillance society, similar as the UK (Vedder et al., 2007: 5). The UK, from this perspective, and as argued by Wood and Webster (2009), is seen as the “bad example”, due to the processes of normalisation of surveillance, which have gone much further in the UK than elsewhere (Wood & Webster, 2009: 270). In addition, Wood and Webster (2009) argued that the UK is currently considered a ‘model’ to be aspired to by security professionals, the ‘threat of a bad example’ to other
  • Page 42 of 110 EU member states is real. Their article posited the UK as a ‘bad example’ in several regards, and claims that “it is a ‘threat’ to the constitutional, legal, and everyday concepts of liberty understood elsewhere in Europe” (Wood & Webster, 2009: 270). Moreover, the UK already has millions of public space CCTV cameras deployed and operating, and the UK’s former Information Commissioner (IC), Richard Thomas, is well known for often declaring that the UK is “sleepwalking into a surveillance society” (House of Lords, 2009: paragraph 2). This is mostly due to the fact that CCTV’s regulation in the UK came after that a great deal of the CCTV systems had been installed (Gras, 2004: 217). Privacy International, a watchdog on surveillance and privacy, gave for their 2007 International Privacy Ranking (Privacy International, 2007) the UK a final sore of 1.4 respectively (out of a score range of 1-5, with 1 indicating a surveillance society and 5 indicating a society where privacy is ideally upheld), along with China, Russia and Singapore. In regard to the Netherlands; the Dutch civil society begun only recently to express some concerns about their government’s (technology-driven governance) surveillance strategies and its effect on the right to privacy and personal data protection (Eijkman, 2012a: 42). Moreover, ordinary citizens are likewise becoming increasingly aware of the potential dangers due to creative public manifestations such as the ‘Privacybarometer’, or the annual ‘Big Brother Awards’. In addition, the Netherlands was classified by Privacy International with a score of 2.1, meaning, “systematic failures to uphold safeguards”. So it is fair to say that the Dutch privacy protection is deteriorating. Vedder (2007) argued that the Netherlands, which since the 1980s has protected privacy quite rigidly, is slowly turning into a surveillance society, the surveillance society that is based upon the United Kingdom. Vedder (2007) conducted his research because of the rapid alterations within the security sector, which did not evoke any public debate. In addition, he asked the question whether the balance between security and privacy, in the Netherlands, is not disappeared (Eijkman, 2012: 43). Hence, the focus on these two countries also allows for a broader audience. Furthermore, analysing and assessing these countries creates foundations for a constructive, comprehensive, and general employable framework of checks and balances in regard to (smart) surveillance and human rights. 1.3 Main sources of information For a valid, objective and a comprehensive approach, this research is founded upon academic journals, laws, international human right criteria, treaties, debates, media articles, policy documents, and analysis of public polls in which there is a central discourse, namely: civil societies in the EU fear that they are slowly turning into surveillance societies, due to an increase in surveillance technologies. Given the media attention and public concern regarding privacy implications of camera surveillance, the lack of analysis of privacy in studies of surveillance is, to say the least, surprising. Moreover, it is fair to say that most literature lack in comprehensively elaboration on the side-effects of CCTV technologies, especially in a ‘future perspective’. The most significant lack in literature, which comprises the foundation of this research, is the missing elaboration on the lack of governmental accountability mechanisms regarding the implementation and deployment of smart CCTV surveillance and its arguable threats or consequences for the right to privacy. This resulted in these necessary
  • Page 43 of 110 country case accountability-comparisons, which in the end lead in a well-encompassed framework concerning checks and balances. This research is based on areas that lack clarity, and aims to overcome this shortcoming by looking at governmental accountability mechanisms utilized in the operation of CCTV surveillance. In regard to the main sources of information, this research deemed it important to mention the relevant, and most used and reviewed literature for the establishment of a valid, objective, and academic answer to the analysis and assessment of accountability mechanisms in the United Kingdom and the Netherlands. In regard to the UK, the 2009 report of the British House of Lords (UK parliament); the 2007 National CCTV Strategy; the 2006 report on the UK Surveillance Society; the 2008 Thomas-Walport report; and the 2013 Surveillance Camera Code of Practice are deemed relevant for providing solid and legitimate information. In the Netherlands the relevant literature, reports and evaluations are generally focusing on the broader aspect of data surveillance and data security, and mostly refer to the Dutch ‘eGovernment’. For instance, an important report about the Dutch eGovernemnt is from the authors: Prins, Broeders, Griffioen, Keizer, and Keymolen (2011), which analyses governmental bodies charged with reviewing ICT-related aspects, including camera surveillance. Another important research document is of Nouwt, de Vries, and van der Burgt (2005), who discuss the current state of privacy and CCTV in the Netherlands, and the rules governing CCTV in public places. For the theoretical background and development of the ‘CCTV-accountability Assessment Framework’ – to assess whether the selected country case studies perform and use adequate and proper accountability mechanisms when deploying and operating CCTV surveillance systems – the work and literature of M. Bovens (2005, 2007a, 2007b, & 2010); J. Ackerman (2005); and M. Blagescu, L. de Las Casas, and R. Lloyd (2005), are deemed important. In general, this research uses academic journals, which covers information and discussions from a political, judicial, and public perspective, about the increasing use of smart surveillance. These journals elaborate on: the reasons for this particular increase (the prevention of terrorism and other serious crimes); the dilemma’s in accountability and civil privacy-rights (Eijkman, 2012a; Vermeulen & Bellanova, 2012); alienate citizens; and reduce opportunities for effective co-operation between the state and the public (Eijkman & Weggemans, 2011; Eijkman & Weggemans, 2013). These articles have in common that accountability needs to be reassessed and the impact of technological security measures must be checked and balanced in regard to security and human rights.
  • Page 44 of 110 1.4 Research questions In this thesis the following research question will be answered: To what extent do the accountability mechanisms in the Netherlands and the United Kingdom safeguard the compatibility between security and the right to privacy regarding the increasing use of CCTV technologies in public areas, by public authorities? This research question will be answered according to three sub questions, which will, in its turn, be answered in different parts across this research. The research questions are as followed: 1. How should we assess the accountability mechanisms regarding CCTV in the UK and the Netherlands? 2. To what extent are the accountability mechanisms in the United Kingdom, concerning the implementation of CCTV, adequately provided? 3. To what extent are the accountability mechanisms in the Netherlands, concerning the implementation of CCTV, adequately provided? In the conclusion, the main question will be answered in a well-encompassed and concise manner. But before that, there will be an assessment of CCTV’s accountability mechanisms used in the Netherlands and the United Kingdom, according to the established ‘CCTV-accountability Assessment Framework’. The ‘CAF’ is an amalgamated framework of Bovens’ ‘Public Accountability Framework’, and the ‘GAP-Framework’ of Blagescu, de Las Casas, and Lloyd. The operationalization and definition of the ‘CAF’ is explained in paragraph 1.6 of this chapter. 1.5 Issues and areas not substantially addressed Due to the limited scope of the research, this dissertation specifically does not attempt to address all the specific and different kinds of CCTV cameras, the different purposes, and the variety of ways they are being operated, but seeks redress in analysing and assessing the deployment and use of CCTV surveillance systems in a general and broad approach, from a public perspective regarding the two selected country case studies. This research neither aims to substantially compare the Dutch and British legal approaches to proper and subsidiary processes of CCTV operations. The rationale here is that the United Kingdom has a substantial lead regarding the deployment of CCTV. In addition, this research does not include discussions and debates over social developments and implications surrounding the increasing use of CCTV, however, it is part of this research’s rationale, and in some regard part of the research objective to find more reconciliation between the ‘privacy advocates’ and ‘security advocates’. Furthermore, this research does not aim to analyse the widely debated issues regarding the effectiveness or efficiency of CCTV cameras. In addition, it also does not examine and describe the technological aspects of CCTV systems, it merely focuses on the ways in which governmental authorities apply accountability mechanisms while deploying CCTV cameras, and how the public at large or accountability forums are able to hold the government accountable when their privacy is compromised by deployed governmental surveillance.
  • Page 45 of 110 1.6 Assessment framework This paragraph outlines a further definition of the established amalgamated framework, which will be used for assessing the current accountability mechanisms in the Netherland and the United Kingdom. Furthermore, this paragraph includes a critical, but well-encompassed operationalization of the standards and criteria, which are deemed crucial for conducting the case-assessments of CCTV’s accountability mechanisms in a thorough manner. The assessments of the two selected country case studies are categorized in three parts: the democratic dimension, the constitutional dimension, and the cybernetic dimension. The dimensions are subdivided in different ‘sub-mechanisms’, eight in total, which provides a guideline for answering the (eleven) assessments-questions to examine whether the selected country case study provides the particular accountability element in its ‘accountability- regime’. Per dimension is described how, or how not, ‘elements’ contribute to the country case’s ‘strategy for accountable CCTV deployment’. As mentioned before, this framework utilises the terms accountability ‘forums’ and ‘actors’, actors being the public organizations that deploys CCTV cameras, and that are responsible for its propriety. Accountability forums refer to the individual or group of individuals that are confronted with CCTV technologies. 1.6.1 Operationalization SECTION 1. Democratic dimension Focus: democratic legitimatised persons being able to control agencies and those holding public office, which is an essential condition for the democratic process, as it provides the people’s representation, and the voters with the information needed for judging the propriety and effectiveness of governmental conduct. The four mechanisms relevant for this dimension are the transparency and information mechanisms, the responsibilisation mechanism, and the participation mechanism. TRANSPARENCY MECHANISM The transparency mechanism should enable accountability forums to identify the performances regarding efficiency and effectiveness of the ‘CCTV organization’, and in addition, enable the ‘forum’ to identify if the organization is operating inside the law and whether it is conforming to relevant standards. Furthermore, the common thread holding most definitions of transparency together is the notion that information and openness about processes must be disclosed to be transparent. It is proposed by Schnackenberg (2009: 2) that transparency reflects the level of ‘disclosure’, ‘accuracy’, and ‘clarity’ in representations (Schnackenberg, 2009: 14). Furthermore, the strategy of ‘being transparent’ is identified by Schnackenberg (2009) as the link between the systemic character of the accountability actor, and the level of transparency in their ‘representations’. Hence, this research focuses on comprising a system of interconnected, standardized forms of accountability, including obligations to inform, public debates, and inquiries.
  • Page 46 of 110 Moreover, transparency has historically been measured along two primary dimensions: one that considers the appropriateness of controllable factors in sending and sharing information, and another that considers the duality and complexity of relationships between the accountability actor and forum. Hence, splitting the measurement questionnaire regarding transparency into two parts is necessary in order to account for the measuring adequately. OPERATIONALIZATION – The accountability actor provides sufficient transparency when: ! Account is not rendered discretely behind closed doors, but is in principle open to the general public and those under surveillance; ! The policy on transparency is developed in consultation with accountability forums; ! The accountability actor is ‘open’/transparent, about it’s surveillance activities; the actor provides details on what it is doing, where and how this takes place, and how it is performing and for what purpose. Moreover, the results of inspections, assessments, and benchmarks are put on the Internet; ! The public in general has the possibility to participate and thereby has access to debates and hearings, regarding the implementation and operation of CCTV surveillance; ! The actor respond adequately to the requests for information (or personal data request) from forums, in order to enable them to engage in decisions that affect them; ! The information is based on recognition of four corresponding validity claims: comprehensibility, truth, truthfulness, and rightness (Habermas, 1998: 23); ! The actor provides the forum with information for judging the propriety and effectiveness of the conduct of agencies deploying CCTV surveillances, thereby developing control over the executive power; ! The actor informs the forum about its conduct, through providing various sorts of data about performances of tasks, outcomes, or for example procedures. Particularly in case of failures, incidents, accusations, mismanagement, or alleged abuses; the actor should provide explanations and justifications; ! Arrangements are in place to restrict disclosure of images in a way consistent with the purpose for establishing the system. Furthermore, those that may handle requests for disclosure have clear guidance on the circumstances in which it is appropriate to make a disclosure and when it is not; ! Information on the organization’s transparency policy is provided in a clear and easily understandable manner to the accountability forum in appropriate forms and through appropriate media. Besides, contact details are provided.
  • Page 47 of 110 Transparency part 1: From the perspective of the organizational openness mechanism 1. To what extent does the accountability mechanism provide clear and meaningful descriptions towards accountability forums on how decisions are made at the operational, policy, and strategic level regarding the incentives, deployment, and the use of CCTV? 2. To what extent does the accountability mechanism provide details of the organization’s specific ‘surveillance operations’ towards accountability forums? For each activity this should include a description of the activity, where it is taking place, when it is taking place, its effectiveness, and its negative or positive consequences for ethical and environmental aspects? Transparency part 2: From the perspective of the information mechanism 1. To what extent does the accountability mechanism provide accountability forums with information regarding the rationale of the incentives, deployment and the use of CCTV in a clear and easily understandable manner in appropriate forms and through appropriate media? And in addition, are contact details for relevant persons in the organization provided? 2. To what extent does the accountability mechanism provide information towards accountability forums regarding policies or documented incentives that reflect the commitment to accountability when implementing CCTV? – For example, policies regarding transparency, participation, evaluation, or complaints regarding the incentives, deployment and use of CCTV? a. To what extent does the accountability mechanism provide a clear statement on issues of confidentiality, which states what information it regards as confidential, and why? b. To what extent does the accountability mechanism provide clear descriptions of information disclosure processes and the processes that guarantees to which the organization can be held to account?
  • Page 48 of 110 RESPONSIBILISATION MECHANISM Cornwall et al. (2003: 3) stated that accountability is not just about responding to others but also about “taking responsibility” for oneself. Therefore, accountability has both an external dimension in terms of “an obligation to meet prescribed standards of behaviour (Chisolm, 1995: 141), and an internal one motivated by “felt responsibility” as expressed through individual action and organization mission (Ebrahim, 2010: 3). The responsibilisation mechanism provides accountability actors and forum with control mechanisms for (established) responsibility arrangements concerning: oversight and implementation; checks and balances; and accountability aspects. Responsibilisation in accountability mechanisms has two types of duties: the responsibility to undertake proportionate and adequate actions, and the responsibility to account for those actions. OPERATIONALIZATION – The accountability actor provides sufficient responsibilisation when: ! There is enough clarity of roles and responsibilities for all that are concerned with CCTV. Hence, clear boundaries must indicate who is responsible to whom, and for what; ! Responsibility for oversight and implementation of the various policies regarding CCTV are assigned to the actors to ensure that policy objectives are reflected in goals and activities at all levels of the organization; ! The actor complies with the ‘regulatory responsibility’ towards the state, in order to comply with certain regulations; ! The actor complies with the ‘contractual or legal responsibility’ towards other organizations or partners; ! The actor complies with ‘ethical or moral responsibility’ towards accountability actors, either because they are directly or indirectly affected by the consequences of decisions, actions, or processes relating to public CCTV surveillance; ! The actor complies with ‘financial responsibility’ towards: ‘donors’, taxpayers, or accountability forums, to ensure their money, ‘tax-money’, are used in the agreed way, resulting in effective and efficient outcomes; ! Appropriate action is undertaken when responsibilities, Memoranda of Understanding, or codes of practices and regulations, are not fulfilled or respected; ! An appeal process exists that allows accountability forums to appeal when they feel they have wrongly been denied access to information (complaint & response mechanism). From the perspective of the responsibilisation mechanism 1. To what extent does the accountability mechanism provide details and clarity of the authorities that are responsible for the use of CCTV, and provide accountability actors and forum with control mechanism for (established) responsibility arrangements concerning oversight and implementation, regarding checks and balances and accountability aspects towards accountability forums?
  • Page 49 of 110 a. How is the responsibility for oversight and implementation arranged, regarding the relevant policies that concern the incentives, deployment and the use of CCTV arranged? b. And how are these responsibilities for policies cascaded throughout the organization of CCTV, to ensure that policy objectives are reflected in goals and activities at all levels of the organization? PARTICIPATION MECHANISM The participation mechanism enables accountability forums to play an active role in decision-making processes and activities, which affects them. This research argues that there is a ‘high degree of participation’ when accountability forums identify their own problems, make all key decisions on goals and means, and mobilise to carry out their own plans (Cronin & O’ Regan, 2002: 24). These ‘abilities to action’ may require engagement at the operational, policy, and strategic level. Moreover, the participation mechanism also entails enabling accountability forums’ input into the broader organizational policies and strategies. In this perspective, Bovens (2005) refers to the “semantic connection between accountability and answerability” (p.8). OPERATIONALIZATION – The accountability actor provides sufficient possibilities to participate when: ! Forums are empowered for better involvement and more participation in CCTV’s policy processes, and thereby possibilities to identify and question the full range of the forums’ needs, values and interests are created; ! Questions regarding CCTV surveillance and its regulatory schemes, asked by accountability forums, are properly and adequately answered by the actor; ! There are possibilities for the forum to interrogate the actor and to question the adequacy of the information regarding the legitimacy of its conduct; ! The actor provides a full and wide variety of information, details, and knowledge to the accountability forum in order to manifest their participation effective and ! Policies stipulate that each participation process has clear terms of reference, such as: o Who decides which forum is involved; o What influences the decision on which the forum will be prioritized over others, and how are the decisions made, and through what processes? From the perspective of the participation mechanism 1. To what extent does the accountability mechanism stimulate the role of accountability forums’ engagement and participatory processes in the decision-making procedures regarding CCTV surveillance? i. To ensure that accountability forums will be represented and that their interests are taken into account.
  • Page 50 of 110 SECTION 2. Constitutional dimension Focus: prevention of corruption and abuse of powers. The remedy against an overbearing, improper or corrupt government is the organization or a dynamic equilibrium between the various powers of the state. The mechanisms relevant for this dimension are the complaint & response mechanism and the punitive & remuneration mechanism. COMPLAINT & RESPONSE MECHANISM The complaint & response mechanism is a means of last resort for accountability forums to hold a CCTV organization to account; besides, CCTV organizations become more aware of issues that require a response. Complaint & response mechanisms provide the accountability forum with possibilities to address complaints against decisions and actions made by, in this case, public agencies. Additionally, these mechanisms ensure that complaints are properly reviewed and acted upon. Complaints could for example refer to conflicts of interest, human rights or other ethical conduct. Moreover, an accountable organization should implement a well-designed, reliable procedure for addressing problems like mismanagement and concerns such as misuse of the surveillance techniques. The complaint & response mechanism should include formal procedures to ensure that the rights of individuals, related to surveillance and privacy, are respected. OPERATIONALIZATION – The accountability actor provides adequate and effective possibilities for submitting complaints and responses when: ! The accountability forum is capable, and told that it is their right, to pass judgement regarding the conduct of the actor. Hence, there are appeal processes in a standard form for accountability forums to seek and receive response for grievances and alleged harm, which are explained to the forum in detail; ! Relevant staff at all level of the organization are trained in how to respond to an information request or a complaint in general, and statistics on complaints and responses are retained; ! The ‘investigation staff’ has the appropriate skills and knowledge to investigate complaints and provide; ! The decision on acceptance or rejection of a complaint is transparent. Moreover, similar complaints receive a similar response. From the perspective of the complaint & response mechanism 1. To what extent is the accountability forum able to submit complaints when they feel they have wrongly been treated, their privacy has been violated by CCTV, or been denied access to information of CCTV images? a. Is the decision on acceptance or rejection of a complaint transparent, and is the decision and the reasons for making the decision clearly communicated to the complainant? b. To what extent does the accountability mechanism provide processes and responsibilities for assessing complaints cases, identifying its causes, drawing lessons from these, and feeding this back into the appropriate part of the organization?
  • Page 51 of 110 PUNITIVE & REMUNERATION MECHANISM Cronin and O’ Regan (2002: 11) stated that accountability may lack legitimacy unless sanctions or rewards for (non) compliance are available. The punitive & remuneration mechanism provides accountability actors or forums with systems of incentives and sanction to ensure that CCTV personnel comply with certain policies regarding checks and balances and accountability aspects. However, imposing remedies of sanctions through scrutiny of national agencies, cannot always impose sanction in the case of default (Bovens, 2005: 8-9). For example, investigations of an ombudsman, or from an audit commissions, can scrutinize agencies, expose mismanagement or abuses, and suggest improvements, but they cannot enforce them. (Bovens, 2005: 9). OPERATIONALIZATION – The accountability actor provides adequate systems of incentives and sanctions when: ! Evaluations or performance assessments reward success, or punish failures for non- compliances with formalized sanctions as fines; disciplinary measures; civil remedies; or the revocation of funds or additional conditions on funding; ! Approving or denouncing a policy, or publicly condemning the behaviour of an official or an agency, like rendering account through television or the media, are also effective punitive or remuneration mechanisms. From the perspective of punitive & remuneration mechanism 1. To what extent does the accountability mechanism provide a system of incentives and sanctions to ensure that CCTV personnel act in compliance with policies regarding the incentives, deployment, and the use of CCTV, and how does the mechanism discourage corruption, negligence and recklessness of the personnel? a. Are the available sanctions for mismanagement and corruption/power abuse strong enough to have preventive effects? 2. To what extent does the accountability forum have enough analytical powers to reveal corruption or mismanagement regarding the implementation and deployment of CCTV? a. To what extent does the accountability forum have incentives to engage in proactive and alert account holding?
  • Page 52 of 110 SECTION 3. Cybernetic dimension Focus: intelligence of democracy: enhancing the learning capacity of the public administration. At the heart of this dimension is the question of the extent to which political systems are capable of dealing adequately with changes in environment and with feedback about their own functioning. Moreover, learning seeks to improve actions through better knowledge and understanding (Fiol & Lyles, 1985: 803). EDUCATIONAL MECHANISMS Refers to the extent in which organization train, in advance, employees or particular agents in accountability aspects, related policies, or other related and relevant elements for the proper and adequate use of CCTV. OPERATIONALIZATION – The accountability actor provides an adequate learning stimulus when: ! ‘Adaptive learning mechanisms’ are provided, in which actors create regular opportunities for critical reflection and analysis in order to make progress towards achieving their missions; ! Supportive learning environments are established, where the staff are given time for reflection, and given possibilities to discuss the psychological safety issues, mistakes, or express disagreements; ! Supportive leadership reinforces learning by encouraging dialogue and debate, and where resources for reflection are sufficiently provided; ! CCTV employees are trained in advance about the aspects of accountability, communication of rules, policies and procedures, which should be done as part of the induction and on-going professional training, and development of all CCTV operatives; ! CCTV employees receive advice and guidance on relevant quality management and occupational competency standards; ! System operators and other CCTV staff whom manage, use, or process the results of a surveillance camera system have the necessary skills and knowledge. Moreover, licensing is an important part of adequate educational mechanisms. Licensing is dependent upon evidence that an individual is fit and proper to fulfil the role effectively and safely with these right skills and knowledge. Therefore, CCTV personnel should be obliged to qualify for the necessary requirements in order to pertain and deserve a certification. From the perspective of the educational mechanism 1. To what extent are relevant staff of the CCTV organization trained in the accountability aspects concerning the proper deployment and use of CCTV cameras, regarding the perspectives of, for example: transparency; participation of society; evaluation; complaints; conflict of interests; ethical conduct; abuse of power; human rights; efficiency and effectiveness; or the cybernetic or learning perspective?
  • Page 53 of 110 EVALUATION MECHANISMS Another widely used set of tools for facilitating accountability includes various kinds of evaluation, including performance and impact assessment. Evaluation mechanisms refer to thorough investigative processes where an organization monitors and reviews its progresses and results against goals and objectives, with the involvement from key accountability forums. These processes enhance the learning capacity of organizations, which is crucial for possible changes in (future) environments, substantially. OPERATIONALIZATION – The accountability actor has adequate evaluative mechanisms when: ! Effective review and audit mechanisms ensure legal requirements, regarding compliances with the policies and standards in practice; ! CCTV operators should review the continued use of a surveillance camera system on a regular basis, to ensure it remains necessary, proportionate and effective in meeting its stated purpose for deployment. Additionally, the operator should assess whether the location of the cameras remains justified, and if alternative interventions with less risk of invading individual privacy are possible; ! Accessible and readily measurable indicators are present, which may cost time and distort staff motivation and behaviour; ! ‘Learning’ is the priority, and therefore the emphasis focuses on the process and the creation of space to make sure that experiences and knowledge are properly discussed, as mentioned in the learning mechanism; ! Analyses are derived from continuous improvement cycles to satisfy accountability requirements. From the perspective of the evaluation mechanism 1. To what extent does the accountability mechanism provide evaluations on specific surveillance activities, policies, or processes regarding the deployment and use of CCTV cameras in public areas, on a regular basis? ! Policies regarding the perspectives of, for example: transparency; participation of society; evaluation; complaints; conflict of interests; ethical conduct; abuse of power; human rights; efficiency and effectiveness; or the cybernetic or learning perspective? b. To what extent does the accountability mechanism stimulate internal (assessing the quality of particular accountability processes) and external reflection (assessing the consequences of accountability processes), and the ensuing learning conduct in governmental organizations? c. Are the evaluations made in consultation with stakeholders/accountability forums? d. To what extent are evaluation reports made available to describe the process, objectives, participants, methodologies, and approaches, results, conclusions, and actions to be taken?
  • Page 54 of 110 e. To what extent does the accountability mechanism provide annual evaluation reports detailing the impact of CCTV environmentally; its effectiveness and efficiency; and to what extent do they provide the impact reports on detailing the social and ethical consequences? i. To what extent does the accountability mechanisms allow for the adjustment of CCTV conduct or aligned governmental actions in the direction desired by the actors with democratic legitimacy? ii. Are procedures available for redress when alleged violations of civil rights are perceived? If so, how will the public be informed of these redress procedures?
  • Page 55 of 110 ANALYSIS & ASSESSMENT
  • Page 56 of 110 The assessment in this research focuses on the established “CCTV-accountability Assessment Framework” or “CAF”, where multiple questions in different categories cover the content of assessing whether British and Dutch governmental authorities deploy and use CCTV in an ‘accountable’ manner. Therefore, eleven comprehensive and well-encompassing questions are used as a guideline. As mentioned before, whenever governmental agencies deploy CCTV cameras in a legitimate and proper manner by the control of legit accountability mechanisms, it can help to ensure that efforts to improve security do not lead to the creation of a surveillance society, and CCTV systems are more likely to gather public support. Both the Dutch as the British assessment are categorized in three parts: the democratic dimension (section 1), the constitutional dimension (section 2), and the cybernetic dimension (section 3). The dimensions are subdivided in different ‘sub-mechanisms’, eight in total, which provides a guideline for answering the (eleven) assessments-questions to examine whether the selected country case study provides the particular accountability element in its ‘accountability-regime’. Per dimension is described how, or how not, ‘elements’ contribute to the country case’s ‘strategy for accountable CCTV deployment’. Chapter 1 Accountability mechanisms in the United Kingdom This chapter’s aim is to analyse and assess the accountability mechanisms used for the proper implementation and deployment of CCTV cameras within a country where privacy is an essential pre- requisite to the exercise of individual freedom, the United Kingdom. It has been argued before, that the increase of (smart) CCTV technologies has the potential to erode the fundamental right to privacy and thereby the constitutional foundations of the UK, on which democracy and good governance have traditionally been based. For these reasons, this chapter answers the following sub question: “to what extent are the accountability mechanisms in the United Kingdom, concerning the implementation of CCTV, adequately provided?” At present, there is little restriction on the use of public area CCTV cameras in the UK. This is because the provisions of the UK ‘Regulation of Investigatory Powers Act’ (RIPA) do not apply to CCTV technologies unless they are being used for pre-planned surveillance operations. Also, the “Data Protection Act” (DPA), which regulates the handling, storage and processing of CCTV’s images and information, does not place any restrictions on where such cameras can be installed in public areas or under what circumstances, when no recording is made. This results in that public authorities are free to implement and deploy CCTV cameras for unrecorded surveillance in public places without prior approval from the state. Therefore, both highly acclaimed British human right organisations, Liberty, and JUSTICE, expressed serious concerns about the fact that CCTV remains largely unregulated. Liberty argued that the DPA was needed to reflect changes in the technology of visual surveillance, and to regulate better use of CCTV cameras for the protection of human rights from overly intrusive CCTV operations, and thus not only for providing a framework of CCTV regulation. PART FIVE - ANALYSIS & ASSESSMENTS
  • Page 57 of 110 Additionally, JUSTICE stated that existing privacy safeguards, such as the DPA or RIPA, are not capable of providing effective protection for privacy (House of Lords, 2009: paragraph 214-215). Moreover, an additional challenge for analysing and assessing UK’s accountability mechanisms is that there is no general consensus in its validity and proportionality. To illustrate: the UK Ministry of Justice (MOJ) argued that the current legal framework is “responsive and robust enough to meet both current and future needs”. Additionally, while acknowledging that the pace of technological change presented challenges to the UK government, Mr McNulty, former Minister of Security, Counter-terrorism, Crime and Policing (2002-2009), expressed his belief that the fundamentals of the regulatory system were “sound”, and that the boundaries between acceptable and unacceptable surveillance were “very, very, clear” (House of Lords, 2009: paragraph 119). Contrasting to the statements above, Dr David Murakami Wood, who is a representative of the highly acclaimed ‘Surveillance Studies Network’ (SNN), argued that: “an incremental approach to the development of regulations and safeguards could not keep pace with the speed of technological change and that, unless a greater effort was made to harmonise the various parts of the present legal framework, the government would be poorly placed to respond effectively to future developments in the field of surveillance” (House of Lords, 2009: paragraph 120). Additionally, the House of Lords stated in a report, that “more” should be done to ensure that the HRA acts as a sufficient brake on intrusive surveillance practices. “The government should provide clear and publicly available guidance as to the legal meaning of necessity and proportionality towards the public at large, and must establish a complaint procedure to create more public accountability” (House of Lords, 2009: paragraph 133). To sum up, literature showed that the constitution of the UK is constantly evolving, and that it is embodied in a set of laws, rules and practices that create the basic institutions of the state, its related parts, and the powers of those institutions. Furthermore, regulation regarding surveillance is covered by statutory rules, common law decisions, codes of practices, and guidelines issued by regulatory authorities and by public or private organizations. Moreover, According to section 48(2) of the 2000 Regulation of Investigatory Powers Act, ‘surveillance’ is described as: The monitoring, observing or listening to persons, their movements, their conversations or their other activities or communications; the recording of anything monitored, observed or listened to in the course of surveillance; and surveillance by or with the assistance of a surveillance device. Thereby, this chapter focuses on seven sources concerning domestic regulation, guidelines, and authorities, which covers enough information to validly assess UK’s accountability mechanisms by the elements of the “CCTV- accountability Assessment Framework”. The seven sources are: ! The Human Rights Act 1998 (HRA); ! The Data Protection Act 1998 (DPA); ! The Regulation of Investigatory Powers Act 2000 (RIPA); ! The Protection of Freedoms Act 2012 (2012 Act); ! The Surveillance Camera Code of Practice 2013 (Code of Practice or Code); ! The National CCTV Oversight body 2009; ! The five relevant responsibility/accountability commissioners.
  • Page 58 of 110 1.1 SECTION 1: Democratic dimension TRANSPARENCY MECHANISM (part 1) From the perspective of the organizational ‘openness’ mechanism Related to assessment question 1: In a representative, parliamentary democracy, the public opinion in policy decisions is important. However, the public opinion is dependent on the extent of individual understanding or experience of the issues involved. In regard to the increase in CCTV cameras, it is argued to be difficult to overcome the lack of knowledge about the methods, the unintended consequences, or the rationale of the increase in deploying CCTV surveillance. If trust in the relationship between citizens and the state is to be maintained, public understanding of surveillance, and the way in which personal data are processed must involve organizational meaningful descriptions on how decisions are made, starting at an early stage in the governmental policy proposals. Altogether, the provision of information is the first step in transparency, and is also a key mechanism of accountability. Therefore it is important that organizations are open about personal information, surveillance plans, practices, and about the ways in which the public can be more effectively involved in understanding and shaping them. In regard to providing accountability forums with enough information about CCTV’s decision procedures, this research refers to the Regulatory of Investigatory Powers Act 2000 (RIPA), which sets out the circumstances under which public authorities can engage in various types of surveillance activities. RIPA provides a framework for the authorization and review of the activities performed by the Office of Surveillance Commissioners and the Intelligence Services Commissioner, which is accessible for the public at large. However the human right organization Liberty expressed concerns about the systems that approve both direct and intrusive surveillance operations is insufficiently robust, and independent due to their self-authorizing powers (e.g. interception powers only require the authority of a minister). Professor Feldman (House of Lords, 2009: paragraph 161) complemented this statement, by ‘questioning’ the wisdom of allowing intelligence services to be able to authorize their own surveillance activities in the absence of checks and balances. Furthermore, in June 2013, the UK Secretary of State issued, under Section 30 of the 2012 Protection of Freedoms Act, the development of a Code of Practice for surveillance camera systems. The Code of Practice (see appendix one for more information) provides guidance on the appropriate and effective use of surveillance camera systems for the relevant authorities that operate, and are concerned with CCTV surveillance, in England and Wales. These authorities must have regard to the ‘Code’ when exercising any functions to which the Code of Practice relates (Home Office, 2013: 7). ‘Direct surveillance’, according to RIPA, is when surveillance comprises covert observation or monitoring by whatever means; it is for the purpose of a specific operation; and it will likely obtain private information about any person, not just the subject of the operation. Surveillance is intrusive when it is covert and carried out on residential properties, with or without the involvement of an individual (House of Lords, 2009: paragraph 152).
  • Page 59 of 110 Other CCTV operators or users of surveillance camera systems in general are encouraged to adopt the Code of Practice voluntarily. In regard to the information mechanisms and governmental accountability on CCTV’s decisions, section three of the Code of Practice states that: “People in public places should normally be made aware whenever they are being monitored by a surveillance camera system, who is undertaking the activity and the purpose for which that information is to be used” (Home Office, 2013: 13). Furthermore, the Code of Practice states that a good practice of proactive publication of information about the stated purpose of a surveillance system includes: considering the publication of information on the procedures and safeguards in place; the impact assessments undertaken; performance statistics; and other management information, like performed reviews or audits. Moreover, proportionate consultation and engagement with the public will be an important part of assessing whether there is a legitimate aim and a pressing need, and whether the ‘system’ itself is a proportionate response (Home Office, 2013: 13). Related to assessment question 2: In regard to providing details of specific surveillance operations to accountability forums, this research refers to the Data Protection Act (DPA). The DPA established a system of notifications, which is designed to ensure that individuals are able to find out who is processing personal information, and for what purpose. This system requires all organizations that are engaged in surveillance or in the handling of personal information, to notify the Information Commissioner’s Office (ICO), and provide details of the type of processing being undertaken. Through these measures the information is: fairly and lawfully processed for limited purposes; adequate, relevant and not excessive; accurate and up to date; not kept longer than necessary; secure and not transferred to other countries without adequate protection. This information is then published in the register of data controllers, and is available for public inspection; thereby accountability forums know the details of the organization’s specific surveillance operations. Moreover, according to the DPA, the Information Commissioner has the power to: undertake assessments to check whether organizations are complying with DPA’s standards and criteria; serve information notices, requiring organizations to provide the ICO with specified information within a certain time period; serve enforcement notices, and “stop now” orders where there has been a breach of certain standards, criteria, or laws; prosecute those who commit criminal offences under the DPA; conduct audits to assess whether organizations that process personal data follow good practices; and the IC reports to the UK Parliament on issues of concern. (DPA, 1998, Part V).
  • Page 60 of 110 TRANSPARENCY MECHANISM (part 2) From the perspective of the information mechanism Related to assessment question 1: The UK-regulation of CCTV aims to retain public confidence in that proper consideration is given to the necessity and proportionality of utilizing ‘overt’ surveillance camera systems in public places. Where these camera systems are used, the public needs to be confident they are effective in meeting a stated purpose and that there are adequate safeguards in place regarding the use and processing of the information collected. Therefore, and in regard to providing accountability forums with information concerning the rationale of incentives, deployment and use of CCTV in a clear and easily understandable manner, this research refers to the Surveillance Camera Commissioner (SCC), which provides advice and information to the public, and CCTV system operators about the effective, appropriate, proportionate, and transparent use of surveillance camera systems (Home Office, 2013: 11). The SCC also considers how best to make that information available by easily understandable manners, and in appropriate forms, through appropriate media. Moreover, the SCC ensures individuals and communities to have confidence that “camera systems are deployed to support them, rather than spy on them” (Home Office, 2013: 3). Therefore, the SCC needs to ensure that the public is better informed about surveillance camera systems, and in addition, is able to engage with system operators, and hold them to account when their action interfere with the right to privacy. Moreover, to support the practical application of ‘guiding principles’ for a system operator, the SCC provides information and advice on appropriate and approved operational and technical standards for various aspects of surveillance camera systems and on appropriate and approved occupational and competency standards for persons using these systems or processing images and information obtained by these systems (Home Office, 2012b). The Code of Practice is a result of public criticism, and concerns the improper use of CCTV cameras, the lack of accountability, and the insufficient transparency content. The purpose of the Code is mainly to provide a framework for operators and users of CCTV systems, so that there is proportionality and transparency when they operate the surveillance systems. The Code provides guidance on the appropriate and effective use of surveillance cameras by governmental authorities, which must regard the Code when exercising any functions to which the Code relates (Home Office, 2013). The Code of Practice also denotes that the use of surveillance camera systems must always be for a specified purpose, which is in pursuit of a legitimate aim and necessary to meet an identified pressing need. Additionally, it denotes the relevancy that there must be as much transparency in the use of CCTV surveillance as possible, including a contact point for access to information, which is mainly provided at governmental websites.
  • Page 61 of 110 Related to assessment question 2: In regard to providing accountability forums with policies or documented incentives that reflect the commitment to accountability concerning the use of CCTV, this research refers to different regulatory schemes that are developed to provide, inter alia, transparency in the accountability processes of governmental authorities. Although CCTV is subjected to controls of the DPA, RIPA, and the Human Rights Act (HRA), it is the ‘2012 Protection of Freedoms Act’ that developed a well encompassed and thoroughly defined constraint regarding the ways CCTV should operate. It includes guidance on the purpose for which a CCTV scheme can be used; information on how and when disclosure is allowed; and it sets standards and criteria on how people should operate a CCTV system. Through these measures, the UK is marking the next step of the government’s legislative program to safeguard civil liberties and reduce the burden of government’s intrusion into the lives of individuals. Moreover, before the establishment of the HRA, individuals were able to appeal at the European Court of Human Rights (ECtHR) if they felt that their right to privacy under Article 8 of the European Convention on Human Rights has been infringed, however, this right could not be pleaded in UK’s domestic courts. The introduction of the HRA was meant to change this fact. The HRA incorporated Article 8 – “the general right to respect for private and family life” - resulting in that if a public body is engaged in any form of interference with an individual’s privacy due to surveillance, they must be able to demonstrate that the surveillance is: authorised by law; proportionate to the purpose in question; necessary; and conducted in accordance with one of the legitimate aims set out in Article 8 of the ECHR. Moreover, Dr Eric Metcalfe, former Human Rights director for JUSTICE (2003-2011), argued that: “Article 8 provided a basis for the development of a right to privacy in the UK and that it has the potential to transform the ways in which surveillance and privacy are handled” (House of Lords, 2009: paragraph 127). The Protection of Freedoms Act, or ‘2012 Act’ was introduced into the House of Commons on 11 February 2011, and passed into the House of Lords on 12 October 2011. The Bill gained royal assent on 1 May 2012, becoming the ‘Protection of Freedoms Act 2012’. The 2012 Act’s main establishment is the referral that the Secretary of State must prepare a Code of Practice covering guidance about surveillance camera systems. Article 8 of the European Convention for the Protection of Human Rights, declares that: § Everyone has the right to respect for his private and family life, his home and his correspondence; § There shall be no interference by a public authority with the exercise of this right, except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others (ECtHR, 2010: 10).
  • Page 62 of 110 However, although the HRA is against unlawful and overly intrusive surveillance, it is not readily accessible or comprehensible to a larger part of the public. Critical organizations, like JUSTICE, argued that there has been a tendency on the part of the UK government to see Article 8 of the ECHR as providing a minimum standard that must be attained rather than as a foundation for the development of better regulation (House of Lords, 2009: paragraph 133). Moreover, interferences with the rights of Article 8 is permissible when it is in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. According to Mr Bert-Jaap Koops, professor of Law and Technology at Tilburg University: “in practice governments can interpret these limitations freely, without having to point to any empirical evidence about the need for such limitation” (House of Lords, 2009: paragraph 128). Altogether, Professor Feldman (House of Lords, 2009: paragraph 139) stated that any of the surveillance activities taken under the authorization of the government/ministers should be open to parliamentary scrutiny, because constitutional requirements ensure that ministers are accountable to parliament. Therefore, besides all the regulatory schemes, the commissioners also contribute to more accountability as it comes to deploying CCTV cameras. Additionally, one of the principles of the Code of Practice supplements Professor Feldman’s argument, by subscribing that clear rules, policies, and procedures must be in place before a surveillance camera system will be used, and these procedures must be communicated to all who need to comply with them (Home Office, 2013: 10). RESPONSIBILISATION MECHANISM From the perspective of the responsibilisation mechanism Related to assessment question 1: In regard to providing details about the authorities that have responsibilities regarding the use of CCTV, this research can refer to the Surveillance Camera Code of Practice 2013, and the five publicly known ‘commissioners’, which are: the Information Commissioner (IC); the Surveillance Camera Commissioner (SCC); and the three RIPA- commissioners. The Code of Practice states that there must be a clear responsibility strategy, and that accountability should be present for all surveillance camera system’s activities, including images and information collected, held and used (Home Office, 2013: 15). Section 3.4.1 in the Code of Practice states that it is a good practice to have one designated individual responsible for the development and operation of a particular surveillance camera system, and for ensuring there is appropriate consultation and transparency over its purpose (Home Office, 2013: 15). In addition, the Code of Practice argues in section 4.5.2 that a surveillance system operator is encouraged to follow a quality management system for controlling and improving their key processes. When this is done through certification against a quality management standard, it can provide a robust operating environment with the benefit of reassurances for the public that the system is operated responsibly. However, no public information is available about how responsibilities are cascaded throughout the different layers of the CCTV organization (Home Office, 2013: 16).
  • Page 63 of 110 In regard to the responsible commissioners of CCTV surveillance, the IC is responsible for promoting and enforcing the DPA. He promotes the protection of personal information by increasing public awareness and by providing guidance to individuals and organizations; he also takes remedial action when the DPA is breached. A prominent and effective review of the IC is the Thomas-Walport Review Report, by Richard Thomas and Mark Walport (2008). The Thomas-Walport Review identified inadequacies in the powers of the IC to enforce the DPA, and identified a need to improve, inter alia, decision-making procedures about surveillance and data sharing; leadership; accountability; awareness; and to use technology better to protect privacy. The Surveillance Camera Commissioner will advise system operators on compliance and adoption of the twelve guiding principles of the Code of Practice, and in order to fulfil these functions effectively, the commissioner must work closely with other regulators including the Information Commissioner and the Chief Surveillance Commissioner (Home Office, 2013: 22). The SCC should also provide advice and information to the public and system operators about the effective, appropriate, proportionate, and transparent use of surveillance camera systems. Additionally, there are three commissioners with responsibilities regarding oversight duties under RIPA: the Chief Surveillance Commissioner (CSC), the Interception of Communication Commissioner (ICC), and the Intelligences Services Commissioner (ISC). This structure is argued to be ineffective and inappropriate because the commissioners “adopt different methodologies, have different styles, and do not co-ordinate their inspection activities” (House of Lords, 2009: paragraph 247). The re-appointed CSC, Sir Christopher Rose, leads the Office of Surveillance Commissioners (OSC) that provides oversight in, inter alia, the conduct of covert surveillance. In regard to their responsibilities in, e.g., monitoring and control, Mr Rose argued that his office inspects law enforcement agencies every year, while public authorities are inspected only “every two years or three years” (House of Lords, 2009: paragraph 253). The ICC, sir Antony May (appointed since January 2013), contributes to governmental accountability by issuing warrants for the interception of communications, and ensures that they are compliant with RIPA. In addition the ICC issues the adequacy of arrangements made by the Secretary of State for the handling and protection of intercepted material. The ISC provides independent judicial oversight of the conduct of security services and a number of other public authorities. The ISC keeps under review the issue of warrants by the Secretary of State authorizing surveillances and interferences with property.
  • Page 64 of 110 PARTICIPATION MECHANISM From the perspective of the participation mechanism Related to assessment question 1: In regard to the possibilities for accountability forums to engage in participatory processes for CCTV related decisions, this research refers to the DPA, the House of Lords, the Council for Science and Technology, and the Thomas-Walport review. For starters, the DPA, as mentioned earlier, requires the organization engaged in surveillance to notify the ICO, and provide details of their surveillance operation. Subsequently, the information will be published for public inspection. Thereby giving the public a chance to participate in the procedures around CCTV surveillance. However, besides consultation and informing the public about deployed CCTV cameras, the public at large does not have a lot of opportunities for pro-actively engaging in the decision making processes of CCTV deployment. Therefore, the Thomas-Walport review recommended six “good-practices” for organizations to increase transparency, most involving clearer and better information for the public (House of Lords, 2009: paragraph 434). Additionally, the Council for Science and Technology (CST), which advises the UK’s Prime Minister on ‘science and technology issues’, argued strongly for the promotion of better public understanding of information processes and more public participation with the UK government. CST’s 2005 report “better use of personal information: opportunities and risks” recommended to develop dialogues with the public and accountability forums, on the full range of benefits and risks regarding CCTV surveillance (House of Lords, 2009: paragraph 441). Furthermore, in December 2009, former policing Minster, David Hanson, announced the establishment of a National CCTV Oversight body, which appointed an interim CCTV Regulator who was responsible for raising awareness, defining standards and established means to deal with complaints from the public about CCTV, over a 12 months period. The installation of the Oversight body and the designation of a CCTV regulator are the first steps towards the UK’s Code of Practice, established in 2013. Besides raising public awareness and understanding of how CCTV operates and benefits in tackling crime and in providing public protection, it also promotes to engage with the public and private sector in determining the need and potential content of any regulatory framework.
  • Page 65 of 110 1.2 SECTION 2: Constitutional dimension COMPLAINT & RESPONSE MECHANISM From the perspective of the complaint & response mechanism Related to assessment question 1: In regard to the procedures of complaints and response mechanisms, this research refers to the Code of Practice 2013, the National CCTV Oversight body, and the Investigatory Powers Tribunal (IPT). The National CCTV Oversight body established and promoted, besides national standards for the installation and use of CCTV in public places: public awareness about the complaints processes; criteria for complaints to relevant agencies; and how to deal with complaints relating to technical standards. The Code of Practice covers, in section 3.3.7, guidelines regarding the fact that a system operator should have an effective procedure for handling concerns and complaints from individuals and organization about the use of surveillance camera systems. It also states that information about complaints procedures should be made available to the public in an easy understandable manner. Moreover, it states that where a complaint is made and the complainant is not satisfied with the response, an internal review mechanism should be in place where a non-involved person handles the initial complaint. Complains must be handled in a timely fashion and complainants should be given an indication of how long a complaint-procedure may take (Home Office, 2013: 14). Section 3.3.8 states that once a complaint has been conducted, information should be provided to the complainant about any regulatory bodies who may have jurisdiction in that case, such as the Information Commissioner or the Investigatory Powers Tribunal (Home Office, 2013: 14). Additionally, section 3.3.10 states that when governmental authorities are committed to greater transparency, a system operator should publish annually, statistic information about the number and nature of complaints received, and how these have been resolved (Home Office, 2013: 14). Furthermore, charged with handling complaints against organizations, including the UK intelligence services over their use of powers (regulated by the RIPA), is the Investigatory Powers Tribunal. The IPT also has jurisdiction over individual complaints concerning the storage and use of information by intelligences services (House of Lords, 2009: paragraph 258). However, Nick Gargan, Bristol’s Chief Constable, expressed concern about the fact that “very few people” know about the IPT and that this represents a “missed opportunity” to demonstrate the transparency of the ‘RIPA-regime’, and to provide visible means of redress for those who feel they have been wrongly treated (House of Lords, 2009: paragraph 258). Besides the IPT and the Code of Practice, this research also refers to the National CCTV Oversight body, which has the important task of raising public awareness about the complaints processes; the criteria for complaints to the relevant agencies; and dealing with complaints relating to technical standards
  • Page 66 of 110 PUNITIVE OR REMUNERATION MECHANISM From the perspective of punitive or remuneration mechanism Related to assessment question 1: In regard to the sanction or remuneration systems for when CCTV’s personnel are or are not working in compliance with policies, this research refers to a report of the House of Lords 2009, and the Code of Practice 2013. The UK government is fully supportive of the use of surveillance cameras in a public place whenever that use is: in pursuit of a legitimate aim; necessary to meet a pressing need; proportionate; effective; and complying with any relevant obligations. Where these systems are used appropriately, they are valuable tools, which contribute to public safety and security and in protecting both people and property, however, when improper use dominates, it will affect the fundamental right to privacy, therefore repercussions must be applied. The House of Lords (2009) argued that the Code of Practice must “establish standards for setting out how organizations involved in sharing personal information should handle and protect the data under their control”, and “apply these standards to all those involved in data sharing, who should adhere to it as a matter of good practice and consider it as an authoritative interpretation of the relevant data protection principles.” While breaches of the Code would not be against the law, it “should have suitable authority, and be sanctionable in the sense that the Information Commissioner and the courts should be entitled to take non-compliance into account when deciding whether controllers have complied with the data protection principles” (House of Lords, 2009: paragraph 227). However, regarding to these punitive or remuneration systems, the Code of Practice, does not refer or mention actions when breaches of the law, or the Code of Practice occur. Moreover, according to the House of Lords, the IC lacks the power to punish individuals or organizations for breaching the provisions of, for example, the Data Protection Act. Moreover, according to Dr C. Pounder: “The Information Commissioner is not a powerful regulator. Because the IC cannot audit compliance with the DPA without permission; the IC cannot ‘name and shame’ transgressors following an assessment without permission; and the IC cannot fine data controllers that breach principle of data protection” (House of Lords, 2009: paragraph 239). In addition, the Information Commissioner’s Office argued that, “there are also limitations to the sanction that may be imposed where data protection principles are breached. Whilst the IC has the power to issue enforcement notices, these are remedial in effect and do not impose any element of punishment for wrong doing … a more effective sanction is needed where there are flagrant far reaching breaches of the law. This is particularly true where significant security breaches occur because of the negligence or recklessness of the data controller” (House of Lords, 2009: paragraph 240).
  • Page 67 of 110 Related to assessment question 2: In regard to the analytical powers of the accountability forum for revealing corruption or mismanagement, this research solely refers to their possibility to file in complaints towards public institutions and authorities that processes these complaints. However, in democratic perspective, the public at large can also criticize public authorities, and the way in which they deploy CCTV cameras, through the media. However, there are no specific regulations or guidelines about how the accountability forum or individuals can engage in proactive and alert ‘account holding’. Besides, due to the assignment of the Surveillance Camera Commissioner, and the creation of the ‘new’ Code of Practice, the public will receive more power to challenge the use of surveillance cameras by public authorities. Moreover, the SCC, Mr Rennison, represents the interests of the public, through ensuring that the police and local authorities use surveillance camera systems responsibly and, as mentioned in previous paragraphs, follow the Code of Practice as agreed upon by the British Parliament. Mr Rennison has, as argued by the Minister for ‘Criminal Information’, Lord Taylor of Holbeach, “the experience and authority to hold the police and local authorities to account; empowering the public to shine a light on those who operate camera systems in public places; and challenging them to show the use of these systems is justified, proportionate, and effective” (Home Office, 2012c).
  • Page 68 of 110 1.3 SECTION 3: Cybernetic dimension EDUCATIONAL MECHANISM From the perspective of the educational mechanism Related to assessment question 1: In regard to training and educating CCTV’s personnel about the relevant accountability aspects concerning the proper deployment and use of CCTV cameras, this research refers to the House of Lords, the Thomas-Walport Review Report, the DPA and the RIPA, the Code of Practice, and the Security Industry Authority. Section 4.5.3 of the Code of Practice, which states the following: “it is good practice that the communication of rules, policies and procedures should be done as part of the induction and on-going professional training and development of al system users. This should maximise the likelihood of compliance by ensuring system users are competent, have relevant skills and training on the operational, technical and privacy considerations and fully understand the policies and procedures” (Home Office, 2013: 16). It is a requirement of the DPA that organizations ensure the reliability of staff that have access to personnel data; including images and information obtained by surveillance camera systems” (Home Office, 2012b). Moreover, the House of Lords argued that training CCTV personnel, and helping them better to understand the meaning of ‘necessity and proportionality’ in the context of the RIPA, appears to be a crucial element in helping to safeguard the citizen against excessive surveillance. They also argue that inadequate and inconsistent training in organizations permitted to engage in surveillance is likely to have detrimental effects on public trust, and could lead to concerns about the possibility of the government infringing on people’s legitimate expectation of privacy (House of Lords, 2009: paragraph 319). Furthermore, there were concerns in the UK about whether British governmental agencies understand how the principles of necessity and proportionality operate in the context of privacy and its limitations, which are set out in Article 8(2). This is crucial because the state must be able to show that it is acting lawfully and for a legitimate aim, and that the interference is necessary and proportionate. Additionally, the Security Industry Authority (SIA) is charged with the important task of licensing individuals who operate CCTV systems. ‘SIA-licensing’ is dependent upon evidence that an individual is fit and proper to fulfil the role, and evidence of their ability to fulfil a role effectively and safely with the right skills and knowledge. Even where there is no statutory licensing requirement, it is good practice for a system operator to ensure that all staff that either, manage or use a surveillance camera system, or use or process the images and information obtained by virtue of such systems have the necessary skills and knowledge. The Thomas-Walport Review also identified the fact that training and awareness for using CCTV technology is crucial for better protecting privacy.
  • Page 69 of 110 EVALUATION MECHANISM From the perspective of the evaluation mechanism Related to assessment question 1: In regard to accountability mechanisms that should provide evaluation of relevant policies and processes on a regular basis (with or without consultation from accountability forums); this research can argue that there are many studies in the UK that examine and analyse in detail the issues faced in ensuring effective and proportionate operation of CCTV systems. Does CCTV reduce crime? Does CCTV reduce the fear of crime? Does CCTV help in catching and prosecuting offenders? Does CCTV displace crime? Altogether, plenty of these studies in the UK put the effectiveness of CCTV surveillance in perspective; this is most commonly due to that there is much debate about the effectiveness of CCTV to prevent crime, and on the wisdom of spending such large amounts of money on CCTV. Besides evaluation studies on the effectiveness and efficiency of CCTV, there are also plenty of evaluations on the perceptions of the accountability forum regarding crime, and their concerns about proposed installation of cameras. For example, British evaluations on social and ethical consequences indicate that people would feel safer with the installation of CCTV cameras. However, other evidence indicates that people do not feel any safer once CCTV cameras are fully operational (Greenhalgh, 2003). The 2009 report of the House of Lords states that: “an important element in maintaining an evidence-based and cumulative view of the surveillance landscape is the evaluation of whether legislation already enacted is operating as intended” (House of Lords, 2009: paragraph 377). The Code of Practice states that: “there should be effective review and audit mechanisms to ensure legal requirements, policies, and standards are complied with in practice, and regular reports should be published” (Home Office, 2013: 19). This way, publicly available reviews or reports contribute to more transparency regarding the use and consequences of CCTV. Moreover, in paragraph 4.10.1 of the Code is stated that system operators should review the continued use of a surveillance camera systems on a regular basis, at least annually, to ensure it remains necessary, proportionate, and effective in meeting its stated purpose for deployment (Home Office, 2013: 19). In this regard, a system operator could consider undertaking an evaluation to enable comparison with alternative interventions with less risk of invading individual privacy. Paragraph 4.10.2 states that the operator should assess whether the location of cameras remains justified in meeting the stated purpose, and whether there is a case for removal or relocation (Home Office, 2013: 19). Furthermore, the House of Lords recommends that the Chief Surveillance Commissioner and the Interception of Communication Commissioner should introduce more flexibility to their inspection regimes, so that they can promptly investigate cases where there is widespread concern that powers under the RIPA have been used disproportionately or unnecessarily, and that they seek appropriate advice from the Information Commissioner (House of Lords, 2009: paragraph 257).
  • Page 70 of 110 Additionally, the UK government uses councils for evaluations, for instance, the earlier- mentioned Council for Science and Technology. The CST assessed the quality of particular accountability processes, as it has identified deficiencies in the way government engages with the general public’s concerns over policy developments involving the use of science and technology. They have pressed the British government to adopt certain proposals which include the early identification of emerging issues, ministerial engagement with, and commitment to: public dialogue, governance arrangements for dialogue, allocation of resources, and evaluation and learning processes (CST, 2005). Furthermore, the Thomas-Walport evaluation report is also a good example of evaluating and reviewing the consequences of implementing surveillance on a wide scale. It focuses on the balance between the right of an individual’s privacy, and the necessity for the state to hold personal information about its citizens. In addition, these types of evaluation reports gives recommendations, and indicates the limits in which governmental authorities are allowed to hold personal images or information. They cannot postulate the government to adopt the recommendations and demanded adjustments of CCTV’s conduct, but they can exert substantial pressure for significant changes.
  • Page 71 of 110 Chapter 2 Accountability mechanisms in the Netherlands This chapter’s aim is to analyse and assess the accountability mechanisms used for proper implementation and deployment of CCTV cameras in the Netherlands. Many people in the Netherlands feel that their country is turning into a so-called ‘surveillance society’, that there is too little political accountability, and that a meaningful dialogue with the executive is missing (Eijkman, 2012a). Similair to the United Kingdom, multiple authors argued that the increase of (smart) CCTV technologies have the potential to erode the fundamental right to privacy and thereby the constitutional foundations of the Netherlands on which democracy and good governance have traditionally been based. This chapter discusses the current state of CCTV in the Netherlands and its ‘vernacular’ regulations, meaning that Dutch regulations are operating at several levels simultaneously. In this regard, this chapter answers the following sub question: “To what extent are the accountability mechanisms in the Netherlands, concerning the implementation of CCTV, adequately provided?” The Dutch government already concluded in 1997, in a policy memorandum on camera surveillance, that the relevant treaties and the Dutch Constitution are “not well-defined concepts”, especially in regard to video surveillance (Nouwt et al., 2005: 117). Up till today there are no specific and well-encompassed guides of action for the implementation and use of CCTV cameras on a national level, like the UK (the Surveillance Camera Code of Practice (2013); the CCTV Code of Practice (2008); the National CCTV Strategy (2007); or the House of Lords, 2008/2009 report: Surveillance, state and citizens; and so on), in the Netherlands, and there is no comprehensive and concise report regarding governmental accountability mechanisms for the deployment and use of CCTV. However, the Netherlands has specific binding legislation for the deployment and use of CCTV by public authorities in public areas, which the UK does not have. The UK preferably uses ‘codes of practices’, which are not binding but provide guidance on the appropriate and effective use of surveillance camera systems by relevant authorities in England and Wales, who must have regard to the code when exercising any functions to which the code relates (Home Office, 2013). In the Netherlands the relevant literature, reports, and evaluations are generally focusing on the broader aspect of data surveillance and data security, and mostly refer to the Dutch ‘eGovernment’. For instance, an important report about eGovernment is from the authors: Prins, Broeders, Griffioen, Keizer, and Keymolen (2011), which analyses governmental bodies charged with reviewing ICT- related aspects, including camera surveillance. They also look closely at the responsibility that these organizations have in relation to government’s digitization projects and programs, and how they perceive their role and how they actually fulfil it. In addition, Prins et al. (2011) state that the various actors that have been assigned, play a role as critical observers of the eGovernment, making them vital to necessary systems of ‘checks and balances’. Regarding these ‘various actors’, one exceptional but often neglected supervisory body, is ‘the citizen, who also monitors the development of the Dutch government, its actions, and the way in which it responds to technological innovations. Moreover, Prins et al. (2011) argue that recent technologies has dramatically altered the nature of ‘citizen supervision’, and that there are definite assumptions in Dutch eGovernment relating to the role of citizens: what they need to be vigilant about, how much vigilance is required, what they can object to
  • Page 72 of 110 and how (Prins et al., 2011). In regard to analysing and assessing the accountability mechanisms of surveillance in the Netherlands, or in other words, looking at the ways and manners in which public authorities can be hold accountable, by accountability forums, requires extensive and comprehensive research. This research will use eight sources, which should provide well-encompassed evidence and information on Dutch accountability mechanisms, to be validly assessed by the dimensions of the CCTV-accountability Assessment Framework. In this regard, this chapter focuses on the relevant articles, documents, laws, and governmental authorities, which guides and regulates the proper and subsidiary use of CCTV surveillance technologies. Hence, the eight sources are based on legal documents, and the relevant, legally authorized public agencies and organizations in the field of surveillance. The used sources are as followed: ! The Dutch Constitution – Article 10, 12 and 13; ! The Personal Data Protection Act 2000 (PDPA); ! The Municipality Act – Article 151c 2006; ! The Dutch Data Protection Authority (Dutch DPA); ! The Role of the Police; ! The Office of the National Ombudsman; ! The Netherlands Court of Audit; ! The Council of State.
  • Page 73 of 110 2.1 SECTION 1: Democratic dimension TRANSPARENCY MECHANISM (part 1) From the perspective of the transparency mechanism Related to assessment question 1: In regard to providing accountability forums with information about decision procedures when implementing CCTV, we can see that due to increasing capabilities of innovative technologies as CCTV surveillance, a growing urge for more clarity and knowledge about the proper use of CCTV schemes is becoming prevalent. The Dutch have more or less accepted the phenomenon and nowadays almost every self-respecting town has at least one camera watching over it citizens (Nouwt et al., 2005: 115). Although less omnipresent than in the UK, in Dutch municipalities CCTV surveillance is thus constantly increasing. However, different laws apply to camera surveillance depending on the context in which it is used and the person or organization that is responsible. In this regard the Dutch government implemented in 2006 an additional law focusing specifically towards surveillance in public areas, this additional Article in the Municipality Act, Article 151c, elaborates more specifically on the necessity, proportionality, and accountability aspects of privacy standards regarding CCTV in Dutch public places. As a general privacy norm, it must make sure that there is a clear defined and concrete described set of goals for the collection and processing of personal data. Article 151c of the Municipalities Act provides this set of goals. In addition, the 2009 guidebook for surveillance (CCV, 2009) states operational requirements for deploying and using CCTV surveillances. These operational requirements consist of obligatory questions that need to be answered when deploying CCTV, for example: where does CCTV operate? What will it monitor (what kind of events)? Who will it monitor? When will it operate (24/7)? How are the images monitored? The Dutch Data Protection Authority (Dutch DPA) stated in their 2011 annual report, that the Dutch DPA’s attention in the public sector focused mainly on reliable government. They stated that it is very important that citizens have confidence in the performance of public institutions. This means, however, that citizens who entrust personal data to the government, whether they are obliged to do so or otherwise, can rely on the fact that the government also supervises the carful handling of these data and secures it sufficiently. It is essential in this context to ensure as much openness as possible and provide a sufficient information provision. The most striking innovative modifications relating to current legislation on camera surveillance are the lengthening of the retention period of images, and expanding the possibilities to use images for crime investigation and prosecution. Moreover, camera surveillance for public order does not longer fall under the Personal Data Protection Act, but under the Police Data Act. This results in the fact that surveillance images are now considered as police files, which are necessary for executing daily police operations, and in addition the police is no longer required to ask municipalities to provide images (Schreijenberg & Homburg, 2011: 24).
  • Page 74 of 110 According to the Article 151c of the Municipalities Act, the city council can authorize the mayor to decide upon camera surveillance in public areas for purposes of public order for a specified period of time (Municipality Act, 2006: paragraph 1). Regarding decision making procedures, they mayor is responsible for maintaining public order, and for that reason, also decides, in consultation with the public prosecutor, the period in which CCTV cameras will be used and under what circumstances. The necessity for camera surveillance is related with the criteria of proportionality and subsidiarity, resulting in mandatory periodic evaluations for assessing possible achievements of the CCTV objectives, and whether further continuation of the surveillance is necessary. Furthermore, Nouwt et al. (2006: 122) argued that small minorities of the larger part of the population have serious objections for reason of principle against camera surveillance in public places. According to the researchers, the reason why people seemed to accept the use of camera surveillance in public places was ‘twofold’. In general there already seemed to be some support for taking such measures, and the acceptance of camera surveillance was also considered to be a ‘reward’ for careful policymaking (Dutch DPA, 2011: 2). Related to assessment question 2: In regard to providing details of specific surveillance operations to accountability forums, we can refer to Dutch legal history, where the Dutch Supreme Court judged in 1987 that, ‘if video images are recorded without the consent or knowledge of the persons involved, an invasion of privacy will be more readily accepted than in cases where consent was given or where there was knowledge of the camera surveillance’. This is especially the case if the cameras are hidden (Nouwt et al., 2005: 118). However, lots have changed in recent years, Dutch authorities are now obliged to notify clearly where and when camera surveillance is used (Municipality Act, 2006: paragraph 4). Otherwise camera surveillance is, in most cases, punishable. Other legislation in this regard is also applicable to camera surveillance depending on the context in which camera surveillance is applied. The Personal Data Protection Act (PDPA) stated that secret camera surveillance (e.g., without informing the public) in public places is punishable. The Dutch Penal Code (in Dutch: Wetboek van Strafrecht) modified Article 441b in January 2004, which argued that the secret use of technical equipment to take pictures in a public place has become punishable. The Data Protection Authority, or in Dutch: College Bescherming Persoonsgegevens, is a corollary of the European Privacy Directive. The Dutch DPA needs to fulfil its tasks of overseeing the lawful use of personal data, advising on legislation, dealing with complaints, conducting official enquiries, or for instance imposing sanctions, completely independently, and in accordance with the Personal Data Protection Act (Dutch DPA, 2011: 1). The Dutch DPA’s functions have remained largely the same since the implementation of the PDPA, although it has been given new powers of enforcement, it can now apply administrative measures and impose fines for non-compliance. Because the Dutch Personal Data Protection Act, and the British Data Protection Act are corollaries of the European Privacy Directive, they have numbers of similarities. The most important rules for recording and using personal data have been set forth in the Personal Data Protection Act. This Act was unanimously adopted by the Dutch Lower House on 23 November 1999, and accepted by the Dutch Upper House on 3 July 2000. The act came into force on 1 September 2001, bringing Dutch law in line with the European Union Data Protection Directive of 1995, which required Member States to protect people’s fundamental rights and freedoms, and in particular their right to privacy. The PDPA replaced the Registration of Personal Data Act, in Dutch Wet persoonsregistraties (WPR), of 1988. The WPR focused on the protection of personal data in data collections, but did not specifically regulate the distribution of data and the way in which data was obtained (Nouwt et al., 2005).
  • Page 75 of 110 However, Dutch accountability mechanisms do not provide specific literature or information that explains obligations regarding descriptions of particular surveillance activities concerning when the surveillance is operational or when it is not, and does not provide accountability forums with reports or information about negative or positive consequences for ethical and environmental aspects. However, an inventory study, carried out in 2000 among nine Dutch municipalities, showed that stakeholders argued to find it important, in order for support to be given to the measures, to inform accountability forums regularly about any major and minor successful results (Dijk and Soomeren, 2000: 6). In regard to the effectiveness of camera surveillance, the municipality Act stated that the mayor is mandatory to send a report on the effectiveness and proportionality of CCTV surveillance to the city council. In this regard the use of a surveillance camera system must also take into account its effect on individuals and their fundamental right to privacy, with regular reviews to ensure that the use of CCTV surveillance remains justified. Additionally, the main task of the Netherlands Court of Audit, in Dutch: Algemene Rekenkamer, is investigating whether the government spends public funds and conducts policy as intended. Besides, the Court of Audit checks whether the intended improvements in policy effectiveness and efficiency have actually been achieved. The Court can be very critical towards governmental implementation of innovative technologies, like smart CCTV technologies, because they believe that the government does not pay sufficient attention to innovative technologies and its need for proper management (Prins et al., 2011: 168). The President of the Netherlands Court of Audit, Saskia Stuiveling, said in an interview that: “the Dutch government must leave behind its traditional linear approach to creation, use, management, and archiving, and start regarding these as simultaneous processes in which all information, regardless of its purpose (operational process, institutional memory, cultural heritage, accountability, legal claims, evidence) is considered of equal value and viewed as a coherent whole” (Prins et al., 2011: 169). This means that the bureaucracy will have to function more as an open system to provide enough transparency, which will reflect more commitment to accountability.
  • Page 76 of 110 TRANSPARENCY (part 2) From the perspective of the information mechanism Related to assessment question 1: In regard to providing accountability forums with information concerning the rationale of incentives, deployment, and use of CCTV in a clear and easily understandable manner, we can refer to observations made by Nouwt and de Vries, who are researchers at the Tilburg Institute for Law, technology and Society, and van der Burgt, who is a practising lawyer at ‘Dohmen advocaten’. They argued that an important factor contributing to the social and political acceptance of video surveillance is that, in general, it seems to have a positive effect on crime rates and it seems to boost people’s sense of security. So incentives for deploying cameras, derived from their study, are for example: violence in late-night outlets; destruction and vandalism; trouble caused by youths; bicycle thefts and house burglaries; car theft; drug nuisance; or pick-pocketing (Nouwt et al., 2005). Related to assessment question 2: In regard to providing accountability forums with policies or documented incentives that reflect the commitment to accountability concerning the use of CCTV, this research can refer to the results of the Dutch government-appointed ‘Commission for Constitutional Rights in the Digital Age’, presented to make existing constitutional rights more technology-independent (see appendix two for the relevant existing constitutional rights). According to this proposal, Article 10 of the Dutch constitution is expanded to include the right of persons to be informed about the origin of data recorded about them, and the right to correct data; Article 13 is made more technology-neutral and would give the right to confidential communications (Privacy International, 2011). Other cases which contemplates measures of commitment to accountability when implementing CCTV is the publicly known Personal Data Protection Act, which drafted rules for the legitimate application of camera surveillance, such as: ! Explain in a procedure or protocol how a data subject can have access to his personal data, and how his other ‘data subject rights’ are dealt with; ! Secret camera surveillance, or to say, without informing the public, in public places is punishable; ! The fact that camera surveillance is used in a specific area or location should be clearly notified. Otherwise, camera surveillance is, in most cases, punishable; ! Formulate arguments as to why the legitimate interest of the organization or the public interest for camera surveillance outweighs the interest of the data subject’s privacy; ! Camera surveillance should be used selectively. No more data should be stored than is strictly necessary. In addition, the publicly known Article 151c of the Municipality Act, which allows the mayor to decide to use camera surveillance in a public place for a certain period when this is deemed necessary for the prevention of disorder. This Article covers the criteria for the lawfulness and accountability commitments when using CCTV surveillance technologies in public areas, for example:
  • Page 77 of 110 ! The use of a surveillance camera system must always be for a specified purpose, which is in pursuit of a legitimate aim and necessary to meet an identified pressing need. Article 151c stated that the primary function of municipal camera surveillance is an ‘alerting objective’ for the prevention of criminal offences and maintaining public order. Another objective is criminal investigation and prosecution of vandalism or bicycle theft, by the retention of images; ! Pictures may be stored and processed for maintaining public order. The maximum retention in this case is four weeks. The extension of this period is only acceptable when there is a specific reason for the purpose of criminal investigation or prosecution (Article 9, PDPA); ! The cameras may only focus on public places and must have a ‘static’ form. The concept “static” means: permanent and fixed cameras. However, surveillance could be dynamic, or to say, the cameras are able to zoom, pan, or tilt. Additionally, the presence of the cameras must be obvious to everyone in the specific public place. Another element reflecting the commitment to accountability is a statement of the chairman of the Dutch DPA, Jacob Kohnstamm, saying: “necessity, data minimisation, purpose limitation, security and transparency form together the decisive elements for the purpose of protecting privacy. In order to do justice to these elements in a manner that inspires confidence, related activities in the development and marketing of new products, services or legislation such as ‘privacy by design’, ‘privacy impact assessments’, and accountability will have to be prescribed, mandatorily or otherwise in new regulation” (Dutch DPA, 2010: 2). Although the Dutch government today discloses far more information than it ever did in the past, the ‘processes of transparency’ only produces information products that have already been ‘processed’: reality has already been converted into information, like policies (Prins, 2011: 174). More radical are the ‘open data’ initiatives such as those in the UK, which the Netherlands is cautiously beginning to emulate. These initiatives provide raw government data, rather than government information, so that the citizens can actually study the choices that government makes base on the data available to it. Additionally, the Dutch government published most of the relevant information, documents, and regulations concerning the deployment and use of CCTV surveillance on the Internet, which is therefore also publicly available. Moreover, through the enrichment and broadening of general information on the Dutch DPA website, citizens are encouraged and helped to resolve their problems themselves and also, where necessary, to take action themselves. This is due to the commitment of the Dutch DPA to place more emphasis on the use of supervisory investigations for the enforcement of statutory rules in its work. Priority is given to dealing with serious violations of a structural nature, with an adverse impact on large groups of citizens (Dutch DPA, 2007: 71). However, the Dutch DPA will not deal with individual cases. Neither can private or public organization use governmental websites, like “www.mijnprivacy.nl” to request advice (Prins et al., 2011: 167). The Dutch Data Protection Authority does not interact with individual data-processors or citizens, for example in the form of user or advisory boards or consultation rounds, despite being urged to do so. This contrasts with, for example, the United Kingdom’s data protection authority, which does consult with individual parties in this way (Prins et al., 2011: 167).
  • Page 78 of 110 RESPONSIBILISATION MECHANISM From the perspective of the responsibilisation mechanism Related to assessment question 1: In regard to responsibilisation, the municipal council is primarily responsible for public order and the security and surveillance measures in public areas. For that reason the council is assigned to make the final decision for deploying CCTV cameras for the purpose of monitoring public areas. Because CCTV surveillance can intrude and intervene on individual privacy rights, the decision to deploy CCTV cameras must include the crucial democratic safeguards, or in other words the checks and balances (Schreijenberg et al., 2009). Moreover, before deciding whether to implement CCTV cameras in public areas, the municipal council and the mayor should consult Article 151c of the Municipality Act, which describes these democratic safeguards. Another important authority in this regard is the Dutch DPA, which argued in their annual report (2006), that the Dutch DPA continues in its efforts to strike a proper balance between the interests of security, control, and utility, and to guarantee as far as possible the protection of the private life of individuals, which can come under pressure from those ‘interests’ (Dutch DPA, 2006: 85). They also state in their publicly available reports that it has a duty to act as a ‘privacy watchdog’. Moreover, monitoring compliances is one of the most important tasks that the Dutch DPA has, especially “where there is any threat that this basic privacy right might be overlooked in the interests of security and criminal investigations” (Dutch DPA, 2006: 85). Their responsibilities also include: keeping a check on compliance with the Personal Data Protection Act; providing information and advice; and by consulting with social parties, the Dutch DPA adopts a proactive stance in order to persuade citizens, the government, and companies, of the necessity of handling personal data with care. Moreover, all of the public surveillance needs to be notified by the Data Protection Authority. Camera surveillance for the protection of people, buildings, territories, goods, or production processes is in general exempted from the notification duty if it complies with the conditions of Article 38 of the ‘Exemption Decree’. The exemption exists only when no other personal data are being processed than the video recordings of the buildings, the territories, and the persons or goods concerned. This is established under the care of the controller, where no other personal data are being processed than those related to the time, date, and place of the video recordings (Nouwt et al., 2005). In addition, one of the criteria mentioned by the Dutch DPA is that there must be clear responsibility systems for all surveillance camera system activities, including images and information collected, held, and used. In addition, besides the fact that the municipal council can authorize the concerned mayor for deciding whether to deploy CCTV cameras on public areas for maintaining public order, they can also limit this authorization, depending on the quantity of discretion they want to grant the mayor. Furthermore, the council has the ability to assign and classify certain areas as ‘public areas’ whereupon the mayor has the right to deploy CCTV surveillance conform Article 151c of the Municipality Act. Moreover, the mayor is responsible for the municipal camera surveillance, and decides which of the public areas, and for which period, surveillance will take place (depending on the granted discretionary power from the council). The mayor also discusses the surveillance periods with direct monitoring with the public prosecutor.
  • Page 79 of 110 PARTICIPATION MECHANISM From the perspective of the participation mechanism Related to assessment question 1: In regard to the possibilities for accountability forums to engage in participatory processes so that their interests are taken into account, this research argues that Dutch citizens are often insufficiently aware of these possibilities. Moreover, citizens are also painfully unaware of the possible consequences of the collection and use of their personal data and images. The Dutch DPA argues (2012) that it is often a big shock – also for those who say they have nothing to hide – when it turns out that the information provided in good confidence is lost, or makes it impossible to live your live unmonitored without any justification. In order to gain optimum benefit from the positive sides and combat the negative sides as effectively as possible, it is necessary, now more then ever, to strengthen the position of citizens (Dutch DPA, 2011). In general, questions of increased opportunities to engage and participate for Dutch citizens in decision making procedures regarding CCTV deployments often stay indistinct, especially when more parties have been involved in the processing of the captured surveillance images. A partial rationale is, as stated before, that the Dutch DPA (just like most public authorities) does not deal with individual cases and will not interact with individual citizens in the form of: user or advisory boards, or through adequate consultation rounds (Prins et al., 2011). Another rationale is the high costs of strengthening the position of citizens, and the expensive ‘support’ for enabling them to participate in CCTV’s decision-making procedures. Moreover, according to Besselink and Wittersholt (2013) – besides the increase in questions from citizens, the increase in citizens’ support, and the ways to manage the high expectations from citizens – that the Netherlands is dealing with huge budget cuts caused by the economic crisis, which challenges the tasks of controlling the costs of CCTV, and maintaining current budgets (p.199-200). Additionally, Gras (2004) argued that in contrast to the United Kingdom, the Netherlands, similar to Germany, France, and Sweden, laid claim to rather more stringent regulatory regimes for policy related issues concerning the deployment of CCTV.
  • Page 80 of 110 2.2 SECTION 2: Constitutional dimension COMPLAINT & RESPONSE MECHANISM From the perspective of the complaint & response mechanism Related to assessment question 1: In regard to the procedures of complaints and response mechanisms, this research refers to the Dutch Data Protection Authority and the National Ombudsman. Alex Brenninkmeijer, the current National Ombudsman and his office of about 170 employees monitors the development and innovations of CCTV technologies. It does so by assessing the appropriateness of action taken by governmental authorities, either on its own initiative or in response to a complaint. In addition, unlike the Dutch DPA, the Office of the National Ombudsman will consider individual complaints by private citizens. Various annual reports show that the Ombudsman dealt with a wide variety of complaints. The Ombudsman judges appropriateness with the criteria of the fundamental rights, the appropriateness of the action in terms of legal substance (proportionality, equality, and legal certainty), its formal appropriateness (reasons given, fair play), and the standards of due care applied (professionalism, provision of information, administrative accuracy) (Prins et al., 2011). It is not compulsory for an administrative body to act on the National Ombudsman’s assessment, because the National Ombudsman’s decisions, recommendations and reports are not legally enforceable. However, the Ombudsman has extensive investigative powers. Furthermore, the Dutch DPA does not consider individual complaints, but does mediate and handle complaints at the request of an interested party. In this case, the Dutch DPA can mediate in disputes regarding exercising fundamental human rights. In addition, complaints about unsuitable surveillance can be made to the local council, and by civil writings to a court (Gras, 2004: 224). Altogether, there are not many possibilities for citizens to file in complaints; a partial rationale the fact that people in the Netherlands seem to accept camera surveillance in public places. According to Nouwt, de Vries, and van der Burgt (2005): “a small minority of citizens have serious objections of ‘reasons of principle’ against camera surveillance in public places” (p.122), this is due to the positive effect on crime rates, and it seems to boost people’s sense of security.
  • Page 81 of 110 PUNITIVE & REMUNERATION MECHANISM From the perspective of punitive & remuneration mechanism Related to assessment question 1: In regard to the sanction or remuneration systems for when CCTV’s personnel are, or are not working in compliance with the relevant policies, this research refers to the Data Protection Authority, which can impose a fine when public organizations fail to notify camera surveillance, or fail to notify in an accurate or comprehensive manner. The Dutch DPA argued in an annual report that: “although the right to protection of privacy is a constitutional right, this does not make it an absolute right. This right entails handling personal data with proper respect and care” (Dutch DPA, 2003: 76). This means that interests will require constant balancing against other interests. This weighing up of interests is ultimately reviewed in Dutch parliament, and is usually translated into guarantees for citizens (Dutch DPA, 2003: 76). In 2003 the Dutch DPA performed the first random check on the compliance with the PDPA. A total of 50 investigations were carried out in the context of this initial check. At the end of the year the random checks resulted in the first penalties for a municipality and two companies. Another example of valid punishing public agencies, is when authorities do not notify changes in the policy or camera surveillance on time. Thus, the Data Protection Authority can also enforce an administrative order or impose a penalty when other provisions of the PDPA are violated. A democratic balancing of interests should result in the careful, systematic governmental processing of citizens personal data. Jacob Kohnstamm, chairman of the Dutch DPA, stated in 2010 that, a supervisor, such as the Dutch DPA, “should have sharp teeth so that it needs to use them as little as possible”, meaning, power which should have a deterrent effect. Related to assessment question 2: In regard to the analytical powers of the accountability forum for revealing corruption or mismanagement, this research refers to the complaint mechanisms at the national Ombudsman, and the Dutch Data Protection Authority. However, similar to the United Kingdom, or in any democratic society, the public at large can always try to criticize public authorities, and the way in which they deploy CCTV cameras, through public scrutiny via, for example, the media. The media can play a critical role in promoting proper accountability. In many countries, independent media is increasingly informing civilians; monitoring government performances; and exposing misdeeds. Especially on a local-level, media provide an important means where the public in general can voice their opinions and discusses issues of concern.
  • Page 82 of 110 2.3 SECTION 3: Cybernetic dimension EDUCATIONAL MECHANISMS From the perspective of the educational mechanism Related to assessment question 1: In regard to training and educating CCTV personnel about the relevant accountability aspects concerning the proper deployment and use of CCTV cameras, this research refers to the 2009 guidelines concerning camera surveillance (CCV, 2009), which shortly refers to the relevancy of educated and well-trained CCTV personnel. The 2009 report also reflects the relevancy for technical, judicial and organisational skill-requirements for the entire surveillance process. Representatives could originate from the municipality, the police, or from the public prosecution services. Altogether there is not much information available regarding the training and educational requirements of CCTV operatives. EVALUATION MECHANISMS From the perspective of the evaluation mechanism Related to assessment question 1: In regard to accountability mechanisms that should provide adequate evaluations of relevant policies and processes on a regular basis (with or without consultation with accountability forums), this research refers to the Council of State, the Data Protection Board, the Dutch Court of Audit, and Article 151c of the Municipality Act. The necessity for camera surveillance is related with the criteria of proportionality and subsidiarity, resulting in mandatory periodic evaluations for assessing possible achievements of the CCTV objectives, and whether further continuation of the surveillance is necessary. The Data Protection Board has a duty to supervise CCTV surveillance and has ‘inspection powers’. In order to consolidate these regulations, the Dutch government drew up laws specific to CCTV surveillance and has expressly forbidden the secret use of CCTV surveillance in public places (Offens, 2001). The Court of Audit checks whether the intended improvements in policy effectiveness and efficiency have actually been achieved. It is up to the government and/or Parliament to attach consequences to the Court’s conclusions and to judge them in political terms. The Council of State advises on legislation and as an advisory body, it also evaluates the construction of the Dutch eGovernment. In addition to analysing the legal substance of legislation proposing the use of technology or information for a particular purpose, the Council of State also analyses the policy-related aspects and assesses the quality of the proposed legislation on technical grounds (Raad van State, 2010). The Council often assesses the legal and technical quality of bills relating to innovative technologies with a view to necessity and proportionality, the fundamental rights involved, the European Convention on Human Rights, and the Dutch Personal Data Protection Act. However, the Council of State is limited due to the tools at its disposal for both its technical assessment and policy-related analysis. It must adhere to the applicable statutory regime (the PDPA) that provides the framework assessments, and the individual policy context of the ‘Bill’. That means that it is almost impossible for the Council, when evaluating the matter, to foresee and scrutinize the
  • Page 83 of 110 broader context in which the system is to function, for example the consequences that CCTV technologies have for fundamental rights of citizens, or the (possible) lack in accountability deficits. Additionally, as mentioned earlier, the municipality Act states that at least on month after the surveillance period of a particular surveillance system, the mayor is obliged to send a report on the effectiveness of the cameras, and its affect on individuals and their privacy, to the city council. Furthermore, the Dutch government stated during the enforcement of the ‘Act: Camera Surveillance in Public Areas (2006)’, that this type of surveillance would be evaluated every year. In this regard the Dutch government is informed on a yearly basis about the developments regarding the increase and efficiency of CCTV in the public areas of municipalities. Moreover, the organization ‘Regioplan’ was assigned to evaluate camera surveillance in Dutch societies for a five-year period (2006-2010) and developed reports with the most relevant findings to the Dutch government. However, this research argues that - although Closed Circuit Television surveillances are rapidly increasing – policy evaluations as well as public debate are limited. Despite some reports that have been published by public authorities, the public and political debate, and its much-needed evaluations have not blossomed. The reports that did evaluate CCTV were often characterized by a narrow focus on the costs and the effectiveness of the surveillance measures instead of addressing the consequences for the fundamental right to privacy.
  • Page 84 of 110 CONCLUSION
  • Page 85 of 110 The thesis has been dedicated to analyse and assess particular accountability mechanisms in the United Kingdom and the Netherlands. Accountability mechanisms which should govern the deployment and use of Closed Circuit Television surveillances in a ‘checked and balanced’ manner, which concerns the fundamental right to privacy and the prolonging of (national) security. Therefore, the following research question is addressed: To what extent do the accountability mechanisms in the Netherlands and the United Kingdom safeguard the compatibility between security and the right to privacy, regarding the increasing use of CCTV technologies in public areas, by public authorities? United Kingdom The conclusion regarding the United Kingdom is partly based upon statements made by two leading authors in surveillance studies, Wood and Webster (2009). They labelled the UK as a “bad example”, due to the processes of normalisation regarding UK’s deployment and use of CCTV surveillances. In addition, they stated that the UK “is a ‘threat’ to the constitutional, legal and everyday concepts of liberty understood elsewhere in Europe” (Wood & Webster, 2009: 270), which is also argued a cause of lacking in proper accountability mechanisms. However, this thesis proved otherwise. Besides the UK’s ‘love affair’ with surveillance cameras, which resulted in implementing CCTV surveillance on a massive scale, CCTV surveillance in the UK is regulated (regulated as in focusing on accountability mechanisms, the fundamental right to privacy, and the prolonging of security) quite properly due to increasing governmental concerns for human rights compliances; the sophistication, computerisation, and standardisation of CCTV systems; and a reassessment of the costs associated with the provision of systems and new strategies, policies, and code of practices to secure on-going support of the public in general. This thesis assessed the most relevant documents, regulatory schemes, and authorities, which are selected through an extensive literature review. Theses sources are compelled to regulate and control the deployment and use of public area CCTV systems, by public authorities, both for the UK and the Netherlands. Especially the United Kingdom, with a long history of regulating CCTV, enacted, only recently, new ways of controlling the use of CCTV surveillance, with special focus on human rights and the prolonging of (national) security in an adequate and properly founded manner. For example, the Protection of Freedoms Act, and the Surveillance Code of Practice were enacted in 2012 and 2013. A new Surveillance Camera Commissioner was also enforced in 2013, which supports, guides, advises, and reviews the deployment and use of CCTV cameras. This commissioner also provides advice and information to the public about effective, appropriate, proportionate, and transparent use of surveillance camera systems. Another relevant aspect is that the UK is seen as an exceptional example; it is seen as the most important ‘country case study’ for research and elucidation about surveillance, security, or human rights. Resulting in that no other country in the world that has such a substantial amount of evaluation and research reports concerning domestic CCTV surveillance technologies, than the UK. PART SIX - CONCLUSION
  • Page 86 of 110 It becomes clear that the ‘problem’ is dependent on the discourse that ‘we’ decide what and when there is enough regulation, guiding, and privacy safeguarding. The ‘threat’ of subjective ideas about prohibited privacy-intrusion might still continue, resulting in on-going debates about insufficient privacy safeguarding, however, this research argues that the coherent form of regulation and ‘accountability procedures’ in the UK might not be as one maybe expects. The Netherlands To what extent do the accountability mechanisms in the Netherlands safeguard the compatibility between the right to privacy and the prolonging of security, regarding the increase deployment of CCTV? The starting point for answering this question regarding the Netherlands are the particular arguments made by Vedder et al. (2007), who argued that the Dutch civil society fears that their country, which since the 1980’s has protected privacy quit rigidly, is slowly turning into a surveillance society. Vedder et al. (2007) conducted their research because of the rapid alterations within the Dutch security sector, which did not evoke any public debate or concern. They asked the question whether the balance between security and privacy has not been disappeared. From this point of view, this thesis analysed the most relevant documents and authorities that are compelled to regulate and control CCTV’s deployment and use in public areas by public authorities. The conclusion that can be made is that the Dutch government, in regard to their accountability mechanism of the deployment and use of CCTV, is not overly concerned, and therefore not overly considerate about accountability mechanisms. It can be argued that this results from the fact that CCTV technologies is relatively a new phenomenon in the Netherlands, however, important to mention is that although it is new, it is a substantially increasing affair. Therefore, this research concludes that the justification for deploying ‘CCTV camera measures’ in the Netherlands is modest. Furthermore, in regard to concluding this thesis, ethical questions are continuously being raised regarding human rights compliances, and the eroding relationship between public authorities and citizens, this is due to the increasing contemporary security concerns that seem to justify the implementation of a broad spectrum of security measures like CCTV surveillances. These concerns could partly be addressed by focusing on ‘checks and balances’, which reflects the mechanisms whereby public authorities are held accountable for their laws, regulations, policies, and actions. Moreover, substantial amounts of literature warn for the creation of panoptic surveillance societies if efforts to establish proper accountability mechanisms are omitted, and in addition, some scientific related sources about surveillance and privacy argue that state accountability should be reconsidered. However, after reviewing well over a hundred documents, the counter argument can be made that almost no effort was taken to analyse, assess, or improve the current mechanisms by which governmental authorities can be held accountable in the United Kingdom and in the Netherlands.
  • Page 87 of 110 Although accountability mechanisms cannot completely guarantee privacy, it can at least provide the circumstances and environment in which privacy stands a much better chance in the modern world. In this regard this thesis developed general but well-encompassing recommendations – which are described in the next chapter – to prevent further erosion of privacy and accommodates the prolonging of security in an adequate manner. Nonetheless, the dire reality is that the diminishment of privacy, or the serious threats to privacy poses challenges through the increasing development, deployment, and use of Closed Circuit Television. Hence, it can be argued that safeguarding privacy is probably an issue too big for just having comprehensive, and well-encompassing accountability mechanisms. But as Klitou (2012) argued, “taking no action is not an option” (p.348), as society is faced with increasing threats to privacy posed by the evermore advancement and deployments of CCTV technologies. Therefore the best we can hope for, and strive to achieve for now, is at least to defend privacy and liberty for the foreseeable part of the 21 st Century.
  • Page 88 of 110 RECOMMENDATIONS
  • Page 89 of 110 The previous part concluded, besides the continuous raised concerns regarding the erosion of privacy and the challenges for safeguarding these fundamental human rights, that the UK’s regulatory schemes of their vast amount of CCTV cameras are increasingly deployed and operated in adequate manners of propriety. However, there are some conspicuous realistic remarks of authors stating that the incremental approach of the development of these regulatory schemes cannot keep pace with the speed of technological change (House of Lords, 2009: paragraph 120), which could eventually lead to ineffective and inefficient responses to future developments in the field of surveillance. Moreover, the conclusion also stated that the Dutch government is not overly considerate about proper and well- encompassing accountability mechanisms concerning CCTV’s deployment. Therefore, these recommendations attempt to find a language of reconciliation and common ground for debate in this matter. Besides, the described recommendations should be seen as a logical line of reasoning in the light of the ‘preface-mentioned’ words of the UK Member of Parliament, Vernon Coacker (House of Lords, 2009): “respect for human rights is a core principle, with respect to all of the work that we do in this area. We have to cherish the right to privacy. That is fundamental to all of us and needs to be protected. The government has always been clear that where surveillance impacts privacy that should only be done where it is both necessary and proportionate. It is about where we draw the line, and how we have the correct balance between these things, which is absolutely essential. However, its not always easy to do that” (paragraph 263). Hence, this part covers general recommendations regarding a more proportionate, ‘checked and balanced’ deployment and use of public area Closed Circuit Television schemes by governmental authorities, to prevent the erosion of privacy and to establish better controllable and thorough accountability mechanisms. These recommendations, or best practices, do not take a position on the costs or benefits of CCTV, but rather provides a list of considerations that a public authority could address as part of their decision-making, planning, developments, or deployments, regarding the arguable ‘intrusive’ surveillance technologies. In addition, the list of considerations consists of improvements reflecting the important elements that this research discussed during the conceptualization, operationalization, analysis, and assessment of the accountability mechanisms. Moreover, the described recommendations are based on a various amount of reports regarding best practices, evaluations, recommendations, and scholarly studies that analysed and examined the impact of Closed Circuit Television systems in multiple countries across the world. The recommendations will not follow the same line of the eight ‘sub-accountability’ mechanisms as provided in the CCTV-accountability Assessment Framework, but reflects some more acclaimed dimensions of accountability (transparency, participation, sanctions, complaints, and evaluations), and three important international criteria (see introduction: page 12) that specifically focuses on operating CCTV (purpose specification, data minimization, and integrity) in a proper ‘checked and balanced’ manner. PART SEVEN - RECOMMENDATIONS
  • Page 90 of 110 A) Transparency Public authorities should use CCTV in public areas as ‘transparent as possible’, and provide information to the public regarding their use of CCTV cameras. Bringing information and findings into the public sphere and generating public debate around them is a key element enhancing accountability. Information takes on new significance and impact when made accessible to the public at large, serving both to inform and to create an impetus for action. CCTV policies should govern the collection, use, and the disclosure of footage. Important to notice, the secret use of CCTV technologies should be punished. Moreover, the principle of necessity and proportionality should be publicly described, and the application of these principles to surveillance should be consistent across the different public organizations that develop CCTV’s regulatory schemes, deploy and use CCTV cameras. Where possible, involve the public at large in the decision- making procedures, or at least involve the citizens that are directly affected by CCTV. Furthermore public authorities should give the accountability forum ‘a notice’ when considering CCTV cameras, and in addition provide an opportunity to respond, by for instance ‘voter referendum’. The process of deploying CCTV surveillance should include an assessment of how the system will likely impact privacy, and should address responsibilities and authorization. Hence, a policy should be available for defining: the mission of the system; how the cameras are used; the rules of operation; and the privacy protections that have been provided. Additionally, the government should bring together relevant research councils, polling organizations, and government research and statistics bodies to examine ways of improving the independent gathering of public opinion on a range of issues related to the deployment of CCTV surveillance. B) Participation and Complaint & Response Public authorities should use CCTV in public areas in consideration with the public, and involve the public to the greatest extent possible in its decision to deploy CCTV cameras. Moreover, the government should undertake an analysis of public consultation, and should explore opportunities for applying versions of legitimate citizens’ perspectives. Besides, public authorities should help citizens to understand ‘privacy’ and its related implications. Furthermore, CCTV cameras should be notified through appropriate signage in areas where they are deployed, and the public authority should provide information mechanisms for appropriate access and redress regarding the use of camera footage. Public authorities should improve designs of the ‘information charter’, and monitor the public response to it. A policy that CCTV operators have found useful in this respect is permitting individuals to inspect at any reasonable time, the agency’s camera monitoring operations centre; thereby establishing well- encompassed transparency and oversight as possible.
  • Page 91 of 110 Concerning possible complaints from the public at large and organizations, the adequate response and effective procedure for handling concerns and complaints about the use of Closed Circuit Television is deemed important. The rationale is that filing in complaints if the more readily available option for public participation and governmental redress regarding CCTV’s argued controversial policy and decision-making procedures. Therefore, complaints must be handled appropriately and in a timely fashion, and the response must be the result of a thoughtful analysis, where the complainant fully understands the objectives. C) Evaluation and sanctions Public authorities that use CCTV in public areas should be fully accountable for complying with the mechanisms regarding the deployment and use of CCTV surveillance. They should, besides providing training to all employees, evaluate the actual use of the CCTV system to demonstrate compliance with the mechanisms and principles described here, and in the CCTV-accountability Assessment Framework. Auditors should have more flexibility to their inspection regimes and should be able to carry out inspections without consent of the public sector organisations. To be fully accountable, the CCTV-operating organization should provide adequate judicial oversight at all times when CCTV is operational. Moreover, establishing a control log that documents the names and hours of personnel working each shift is advisable. This enables tracking of abusive use of CCTV assets back to the individual who violated a policy. Moreover, manufacturers, policy-makers, or operators should be held accountable and liable for failing in providing adequate and verifiable privacy and security safeguarding measures. Thereby, thorough and adequate defined consequences for misuse or abuses of the system is recommended, and all ‘users’ should receive training to prevent these consequences. Hence, fines are to be welcomed on data controllers that deliberately or recklessly breach data protection principles, rules, or guidelines. Conduct periodic evaluation of the system to ensure that all policies are adhered. Compensation should be available to those subject to unlawful surveillance by the police, intelligence services, or other public bodies. While privacy protection cannot necessarily be measured or quantified in the traditional sense, a privacy compliance evaluation or audit should be conducted after the CCTV camera are deployed. Moreover, the legislation must be gradually implemented and enforced according to feasible objectives; also, they should be monitored subsequently and after a certain period of time evaluated on its effectiveness. The evaluation could serve to re-examine any residue privacy threats or risks and determine or verify the quality and adequacy of the solutions in meeting certain objectives and principles of privacy and relevant laws. A certification scheme may be effective in verifying that a Closed Circuit Television system has been deployed adequately in terms of privacy protection. The certifying progress should be independent, external, mandatory, and supervised by a governmental certification body in conjunction with accredited private certification bodies.
  • Page 92 of 110 D) Purpose specification Public authorities that use CCTV in public areas should articulate the purposes for which CCTV is intended. Define the current strategy and what role CCTV can play in that strategy, in addition, evaluate whether there are less privacy-intrusive alternative means of addressing the stated purposes. Public organizations should be required to consult advisory agencies, which are involved in surveillance or data processing powers. Moreover, explicating whether a legal authorization for deploying CCTV is present, and whether the deployed CCTV system is capable of effectively achieving its purpose without intruding in privacy matters, is deemed crucial. Additionally, making the information available for public scrutiny is also an important part of enhancing accountability. Moreover, powers, roles, and responsibilities should make its existence more widely known to the general public E) Data minimization Public authorities should use CCTV in public areas solely for the purposes specified in the ‘notice’ given to the public. Disclosing camera footage outside the public organization should only be pursuant to a written policy and for a valid safety or law enforcement purpose. In addition, public authorities should use CCTV in public areas to the extent relevant; necessary to accomplish the specified purposes; and should be time, geographically, and technically limited to accomplish only the system’s stated goals. Furthermore, solely retaining camera footage for as long as is necessary to fulfil the specified purposes is mandatory, and data must be disposed in accordance with a specified disposition schedule to minimize its negative impact on privacy and other constitutional rights and values. F) Integrity principle As surveillance is potentially a threat to privacy, this research recommends that before public (or private) sector organizations adopt or deploy any new surveillance systems, they should first consider the likely effect on individual privacy. Furthermore, public authorities that use CCTV in public areas should, to the extend practical, ensure that the camera footage are accurate, relevant, timely, and complete, within the context of its use. In addition, they should safeguard and authenticate the stored camera against risks, such as loss, unauthorized access or use, destruction, or for instance modification. They should provide procedures to identify if footage should be retained as evidence, to be scheduled for regularly reviewing, or for the routine removal of data that does not have to be retained. Another relevant aspect is proper training to maintain data for those who have access to the CCTV system. Training should be provided for all levels of system operators, and governments should devote more resources to train individuals exercising statutory surveillance powers, with a view to improving the standard practice and respect for privacy. Moreover, an oversight of system operators to ensure compliance with policies and good practices may act as another layer of security. Besides, public organizations involved in surveillance should be aware on how the rights contained in Article 8 of the European Convention on Human Rights are to be implemented.
  • Page 93 of 110 REFERENCES
  • Page 94 of 110 Books ! Buzan, B. (1983). People, States and Fear: An agenda for international security studies in the post-Cold War era. Second edition. Hemel Hempstead: Harvester Wheatsheaf. ! Feldman, D. (2002). Civil Liberties and Human Rights in England and Wales. Cambridge: Oxford University Press. ! Foucault, M. (1991). The Foucault effect: studies in Governmentality. Chicago: the university of Chicago Press. ! Garfinkel, S. (2000). Database Nation: the death of privacy in the 21 st Century. Sebastopol, California: O’Reilly. ! Goold, B.J., & Lazarus, L. (2007). Security and human rights. Portland: Hart Publishing. ! Hofmann, H.C.H., Rowe, G.C., & Türk, A. H. (2011). Administrative Law and Policy of the EU. Cambridge: Oxford University Press. ! Klitou, D. (2012). Privacy Invading Technologies: Safeguarding privacy, liberty and security in the 21 st Century. Leiden: Leiden University. ! Schwitters, R.J.S. (2008). Recht en samenleving in verandering. Een inleiding in de rechtssociologie. “Law and society in transition. An introduction in the sociology of law”. Deventer: Kluwer. ! Whitaker, R. (2000). The end of privacy: How total surveillance is becoming a reality. New York: The New Press. Interviews: Multiple interviews and discussions with: ! Mr Carolus Janssen o Chief inspector, The Hague Police Department o Chief CCTV, The Hague Police Department Magazines ! Schuilenburg, M. (2009). De securitization van de samenleving: Over de relatie tussen veiligheidszorg, bestuur en quasistrafrecht. “The securitization of society: regarding the relationship between safety, management, and quasi law”. In: Krisis. Magazine about actual philosophy, No.3, pp. 6-23. Retrieved from: http://www.marcschuilenburg.nl/_downloads/the%20securitization%20of%20society.pdf. News articles ! Dutchnews. (March 27, 2013). Big Brother in Holland: 200.000 security cameras are watching you. Dutch News BV: paragraph 1. Retrieved from: http://www.dutchnews.nl/news/archives/2013/03/big_brother_in_holland_200000.php. ! Evans, I. (February 22, 2012). Report: London no safer for all its CCTV cameras. The Christian Science Monitor: paragraph 8. Retrieved from: http://www.csmonitor.com/World/Europe/2012/0222/Report-London-no-safer-for-all-its-CCTV- cameras. ! Hope, C. (August 25, 2009). 1000 CCTV cameras to solve just one crime: Metropolitan police admits. The UK Telegraph: paragraph 5 and 16. Retrieved from: http://www.telegraph.co.uk/news/uknews/crime/6082530/1000-CCTV-cameras-to-solve-just- one-crime-Met-Police-admits.html. Home Office. (September 13, 2012c). Surveillance camera commissioner appointed. Press release. Retrieved from: https://www.gov.uk/government/news/surveillance-camera- commissioner-appointed PART EIGHT - REFERENCES
  • Page 95 of 110 ! Hope, C. (January 5, 2010). Number of crimes caught on CCTV falls by 70 per cent: Metropolitan police admits. The UK Telegraph: paragraph 8. Retrieved from: http://www.telegraph.co.uk/news/uknews/crime/6867008/Number-of-crimes-caught-on-CCTV- falls-by-70-per-cent-Metropolitan-Police-admits.html Published papers ! 9/11 Commission. (2004). The 9/11 Commission Report. Official Government Edition ! Ackerman, J.M. (2005). Social Accountability for the Public Sector: A Conceptual Discussion. Washington: The World Bank, No.82, 1-52. ! Armitage, R. (2002). To CCTV or not to CCTV: A review of current research into the effectiveness of CCTV systems in reducing crime. London: Nacro, 1-8. ! Armitage, R., Smyth, G. & Pease, K. (1999). Burnley CCTV evaluation. Crime Prevention Studies, Vol. 10, 225-249. ! Aucoin, P. and Heintzman, R. (2000). The Dialectics of Accountability for Performance in Public Management Reform. In: Bovens, M. (2005). Public accountability: A framework for the analysis and assessment of accountability arrangements in the public domain. Utrecht: University of Utrecht, 1-36. ! Baldwin, D. (1997). The concept of security. Review of international studies, Vol. 3, 5-26. ! Beck, U. (1992). Risk Society: Towards a New Modernity. In: Wood, D.M. and Webster, C.W.R. (2009). Living in surveillance societies: the normalisation of surveillance in Europe and the threat of a bad example. Journal of Contemporary European Research, 259-273. ! Beck, U. (1993). The invention of politic. In: Matten, D. (2004). The impact of the risk-society: Thesis on environmental politics and management in a globalized economy – principles, proficiency, and perspectives. Journal of Risk Research, 377-398. ! Behn, R. D. (2001). Rethinking Democratic Accountability. In: Bovens, M. (2010). Two concepts of accountability: Accountability as a virtue and as a mechanism. West European Politics, 946-967. ! Bellanova, R.; Vermeulen, M.; Gutwirth, S.; Finn, R.; McCarthy, P.; Wright, D.; Wadhwa, K.; Hallinan, D.;Friedewald, M.; Langheinrich, M.; Coroama, V.; Jeandesboz, J.; Bigo, D.; Frost, M; and Venier, S. (2012). Smart Surveillance – State of the Art. SAPIENT, 1-228. ! Besselink, A., & Wittersholt, N. (2013). Zoom on the cities: How they use CCTV and how they protect fundamental rights and liberties. The City of Rotterdam (Netherlands). In: European Forum for Urban Security. (2010). Citizens, Cities and Video Surveillance: towards a democratic and responsible use of CCTV. Montreuil: STIPA. ! Blad, J. (2008). Strafrechtelijke Rechtshandhaving. “Criminal Law”. In: Riezen, van, B. & Roex, K. (2012). Counter-terrorism in the Netherlands and the United Kingdom: comparative literature review study. Social Cosmos, 97-110. ! Blagescu, M; de Las Casas, L; Lloyd, R. (2005). Pathways to Accountability: The Global Accountability Framework. London: One World Trust. ! Bloss, W. (2007). Escalating U.S. police surveillance after 9/11: An examination of causes and effects. Surveillance and Society, 208-228. ! Boutellier, H.; Ippel, P.; Nieborg, S.; and Kruis, L. (2005). ‘Veiligheid gegarandeerd’ en ‘privacy gered’: Twee voorstelbare toekomstbeelden in Nederland anno 2030. “Safety guaranteed and privacy saved: Two conceivable future scenarios in the Netherlands anno 2030”. Utrecht: Verwey-Jonker instituut, 1-46. ! Bovens, M. (2005). Public accountability: A framework for the analysis and assessment of accountability arrangements in the public domain. Utrecht: University of Utrecht, 1-36. ! Bovens, M. (2007a). New Forms of Accountability and EU Governance. Comparative European Politics, 104-120. Oxford: Blackwell Publishing.
  • Page 96 of 110 ! Bovens, M. (2007b). Analysing and Assessing Accountability: A Conceptual Framework. European Law Journal, vol. 13, no. 4, 447-468. ! Bovens, M. (2010). Two concepts of accountability: Accountability as a virtue and as a mechanism. West European Politics, 946-967. ! Bullock, M.L. (2009). The evolution of surveillance technology beyond the panopticon. California: University of California Santa Cruz, 1-48. ! Burgess, J.P. (2009). There is no European Security, Only European Securities. Journal of the Nordic International Studies Association, Vol. 44, 309-328. ! CCV [Centrum Criminaliteitspreventie Veiligheid]. (2009). Handreiking Cameratoezicht. “Guidelines camera surveillance”. ! CCTV User Group. (2010). An independent public opinion survey on the use and value of CCTV in public areas. Research International, 1-25. ! CCTV User Group. (2011). 4.2 million cameras? CCTV Image: official publication of the CCTV user group, No. 42, 1-4. ! Chisolm, L.B. (1995). Accountability of non-profit organizations and those who control them: The legal framework. Non-profit management and leadership. In: Ebrahim, A. (2010). The many faces of non-profit accountability. Working Paper: Harvard Business School, 1-33. ! Conze, W. (1984). Sicherheit, Schutz. In: Weaver, O. (2012). A conceptual history for international relations. Version 6, 1-62. ! Cooley, T. (1888). A Treatise on the Law of Torts. 2nd edition. Chicago, Callaghan & Co. In: O’Brien, M. (2008). Law, privacy and information technology: A sleepwalk through the surveillance society? Bristol: School of Law, University of the West of England, Vol. 17, No.1, 25-35. ! Cooper, J. (2007). Countering terrorism, protecting human rights, a manual. Poland: OSCE Office for Democratic Institutions and Human Rights. ! Cornwall, A.H. (2000). Introduction: accountability through participation: developing workable partnership models in the health sector. IDS Bulletin. In: Ebrahim, A. (2010). The many faces of non-profit accountability. Working Paper: Harvard Business School, 1-33. ! Cronin, D. & O’ Regan, J. (2002). Accountability in Development Aid: Meeting Responsibilities, Measuring Performance. 1-113. ! CST [Council for Science and Technology]. (2005). Policy through dialogue. Government response. ! Dijk, van, P.; and Soomeren, van, B. (2000). Focus op veiligheid: lessen en ervaringen van negen Nederlandse gemeenten. “Focus on safety: lessons and experiences of nine Dutch municipalities. Amsterdam: Eysink Smeets & Etman, 1-96. ! Dutch DPA. (2003). Annual report. Retrieved from: http://www.dutchdpa.nl/Pages/en_ind_publ_jv.aspx ! Dutch DPA. (2006). Annual report. Retrieved from: http://www.dutchdpa.nl/Pages/en_ind_publ_jv.aspx ! Dutch DPA. (2007). Annual report. Retrieved from: http://www.dutchdpa.nl/Pages/en_ind_publ_jv.aspx ! Dutch DPA. (2010). Annual report. Retrieved from: http://www.dutchdpa.nl/Pages/en_ind_publ_jv.aspx ! Dutch DPA. (2011). Annual report. Retrieved from: http://www.dutchdpa.nl/Pages/en_ind_publ_jv.aspx ! Dutch DPA. (2012). Annual report. Retrieved from: http://www.dutchdpa.nl/Pages/en_ind_publ_jv.aspx ! Ebrahim, A. (2010). The many faces of non-profit accountability. Working Paper. Cambridge: Harvard Business School, 1-33.
  • Page 97 of 110 ! Eijkman, Q. (2011). Police Technology and Human Rights: A quest for accountability. The Hague: Centre for Terrorism and Counterterrorism. ! Eijkman, Q. (2012a). Mobilizing for privacy: civil society advocacy against surveillance in the Netherlands. The Hague: Centre for Terrorism and Counterterrorism, 42-49. ! Eijkman, Q. (2012b). Counter terrorism, technology and transparency: reconsidering state accountability? The Hague: Centre for Terrorism and Counterterrorism, 1-10. ! Eijkman, Q. & Weggemans, D. (2011). Visual surveillance and the prevention of terrorism: what about the checks and balances? International review of Law Computer en Technology, Vol.25, No.2, 143-150. ! Eijkman, Q. & Weggemans, D. (2013). Open source intelligence and privacy dilemmas: is it time to reassess state accountability? Security and Human Rights, No.4, 285-296. ! Elchardus, M. and Smits, W. (2002). Anatomie en oorzaak van het wantrouwen. “Anatomy and causes of distrust”. In: Bovens, M. (2005). Public accountability: A framework for the analysis and assessment of accountability arrangements in the public domain. Utrecht: University of Utrecht, 1-36. ! Etzioni, A. (2007). Are new technologies the enemy of privacy? Dordrecht: Springer Science and Business media B.V., 115-119. ! European Court of Human Rights [ECtHR]. (2010). European Convention on Human Rights: as amended by Protocols Nos. 11 and 14. Strasbourg: Council of Europe. ! European Union. (2008). Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European union. Official Journal of the European Union, C115. ! Feldman, D. (1994). Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty. Current Legal Problems, 41-71. ! Fenwick, H. (2000). New Labour, Freedom and the Human Rights Act. Monographs. Harlow: Longman. ! Fenwick, H. (2011). Counter-Terror Strategies, Human Rights and the Role of Technologies. International Review of Law Computers and Technology, Vol. 25, Issue 3, 107-115. ! Farrier, C. (2013). Civil liberties and CCTV Camera surveillance. Landmark court decision in Australia. Global Research. Retrieved from: http://www.globalresearch.ca/civil-liberties-and- cctv-camera-surveillance-landmark-court-case-in-australia/5334423 ! Fiol, C.M., & Lyles, M.A. (1985). Organizational Learning. In: Ebrahim, A. (2010). The many faces of non-profit accountability. Working Paper: Harvard Business School, 1-33. ! Fisher, E. (2004). The European Union in the Age of Accountability. Cambridge: Oxford Journal of Legal Studies, Vol. 24, No.4, 495-515. ! Flight, S., Heerwaarden, Y. & van Soomeren, P. (2003). Does CCTV displace crime? An evaluation of the evidence and a case study from Amsterdam. Gill, M., & Spiggs, A. (2005). Assessing the Impacts of CCTV. Home Office Research Study 292. London: Home Office, 1- 160. ! Foucault, M. (1995). Discipline & Punish: the birth of the prison. Part three: Panopticism. New York: Vintage Books, 195-228. ! Fuster, G.G. (2012). Security and the future of personal data protection in the European Union. Security and Human Rights, Vol. 23, No.4, 331-342. ! Fuster, G.G., Gutwirth, S., Székely, I. & Uszkiewicz, E. (2013). Discussion paper on legal approaches to security, privacy and personal data protection. Discussion paper. ! Garnett, J.C. (1996). European security after the Cold War. In: COT [Institute for Safety, Security and Crisis Management]. (2007). Notions of security: shifting concepts and perspectives. European Commission under the Sixth Framework Programme, 1-85. ! Germain, S., Douillet, A., & Dumoulin, L. (2012). The legitimization of CCTV as a policy tool. Oxford University Press, 394-308.
  • Page 98 of 110 ! Gill, M., & Spiggs, A. (2005). Assessing the Impacts of CCTV. Home Office Research Study 292. London: Home Office, 1-160. ! Graaff, de, B. (2008) Hoe breed? Contraterrorisme- en radicaliseringsbeleid onder de loep. “How broad? Contra terrorism and radicalization management under scrutiny”. In: Donselaar, J., & Rodrigues, P.R. (2008). Monitor racism & extremism. Pallas Publications, No. 8, 1-305. ! Gras, L.M. (2004). The legal regulation of CCTV in Europe. Surveillance & Society, 216-229. ! Greenhalgh, S. (2003). Literature review on issues of privacy and surveillance affecting social behaviour. Written for the Office of the Information and Privacy Commissioner. ! Groombridge, N. (2008). Stars of CCTV? How the Home Office Wasted Millions – A Radical Treasury / Audit Commission View. Surveillance & Society. In: Wood, D.M. and Webster, C.W.R. (2009). Living in surveillance societies: the normalisation of surveillance in Europe and the threat of a bad example. Journal of Contemporary European Research, 259-273. ! Habermas, J. (1998). On the pragmatics of communication. Cambridge, MA, MIT Press. In: Schnackenberg, A. (2009). Measuring transparency: Towards a greater understanding of systematic transparency and accountability. Cleveland: Department of Organizational Behaviour, 1-55. ! Holtzman, D.H. (2006). Privacy Lost: how technology is endangering your privacy. Reviewed by: C. Sveum (2006). Privacy Lost: how technology is endangering your privacy. Syraccuse Science and Technolgoy Law Reporter, 1-17. ! Home Office. (2012a). The protection of Freedoms Act 2012. United Kingdom government. ! Home Office. (2012b). Surveillance Camera Code of Practice pursuant to Section 29 of the Protection of Freedoms Act 2012. ! Home Office. (2013). Surveillance Camera Code of Practice. Presented to Parliament pursuant to section 30 of the Protection of Freedoms Act 2012. ! House of Lords. (2009). Surveillance: Citizens and the State. 2 nd report of session 2008-2009. London: The Stationery Office Limited, vol. 1, 1-131. ! Jouvenel, B, de. (1947). Du pouvoir: histoire naturelle de sa croissance. “Power: the history of its growth”. In: Weaver, O. (2012). A conceptual history for international relations. Version 6, 1- 62. ! JUSTICE. (2007). A British bill of rights. Informing the debate. The report of the Justice constitution commission. ! Kirchner, E. (2005). Security threats, institutional response and governance. Texas: University of Essex ! Klein, A. (2012). Avoiding panopticon. Reconsidering privacy violations by government. MSc master thesis. ! Koppell, J.G.S. (2005). Pathologies of Accountability: ICANN and the Challenge of ‘‘Multiple Accountabilities Disorder’’. Public Administration Review, Vol. 65, No.1, 94-108. ! Kraft-Kasack, C. (2008). Transnational Parliamentary Assemblies: a remedy for the democratic deficit on international governance? West European Politics, Vol. 31, Issue 3, 534-557. ! Lupia, A. (2003). Delegation and it perils. In delegation and accountability in parliamentary democracies. In: Bergman, T., Muller, W.C., & Strom, K. (eds.) Delegation and Accountability in West European Parliamentary Democracies. Oxford: Oxford University Press, 33-54. ! Malena, C., Forster, R., & Singh, J. (2004). The role of civil society in holding Government accountable: A perspective from the World Bank on the concept and emerging practice of “social accountability”. World Bank, No. 76, 1-17. ! Manent, P. (1994). An Intellectual History of Liberalism. Weaver, O. (2012). A conceptual history for international relations. Version 6, 1-62 ! Mathiesen, T. (1997). The Viewer Society: Michel Foucault’s ‘Panopticon’ revisited. Theoretical Criminology, 215-234.
  • Page 99 of 110 ! Matten, D. (2004). The impact of the risk-society: Thesis on environmental politics and management in a globalized economy – principles, proficiency, and perspectives. Journal of Risk Research, 377-398. ! McCahill, M. and Norris, C.A. (2002). CCTV in Britain. Working paper No. 3. Centre for criminology and criminal justice. Berlin: Centre for Technology and Society, 1-66. ! Mc Candless, H. E. (2001). A Citizen’s Guide to Public Accountability: Changing the Relationship between Citizens and Authorities. Bovens, M. (2005). Public accountability: A framework for the analysis and assessment of accountability arrangements in the public domain. Utrecht: University of Utrecht, 1-36. ! Mulgan, R. (2000). ‘‘Accountability’’: An Ever Expanding Concept? Public Administration, Vol. 78, No.3, 555-573. ! Mulgan, R. (2003). Holding Power to Account: Accountability in Modern Democracies. In: Bovens, M. (2010). Two concepts of accountability: Accountability as a virtue and as a mechanism. West European Politics, 946-967. ! Nissenbaum, H. (2010). Privacy in context: technology, policy and the integrity of social life. In: Sanyong, H. (2011). Book review: Privacy in context: technology, policy and the integrity of social life. Journal of Information Policy: Stanford: University Press, 149-151. ! Nouwt, S., Vries, de, B., Burgt, van der D. (2005). Reasonable expectation of privacy: Camera surveillance in the Netherlands. The Hague: ITeR, 115-137. ! O’Brien, M. (2008). Law, privacy and information technology: A sleepwalk through the surveillance society? Bristol: School of Law, University of the West of England, vol. 17, no.1, 25-35. ! Parent, William. (1983). Privacy, Morality, and the Law. Philosophy & Public Affairs, 269-288. ! Politt, C. (2003). The essential public manager. In: Bovens, M. (2010). Two concepts of accountability: Accountability as a virtue and as a mechanism. West European Politics, 946- 967. ! Prins, C., Broeders, D., Griffioen, H., Keizer, A. & Keymolen, E. (2011). iGovernment. “eGovernment”. Amsterdam: Amsterdam University Press. ! Privacy International. (2007). Surveillance Monitor 2007: International country rankings. ! Privacy International. (2011). Dutch Legal Framework: constitutional privacy and data protection framework. ! Raad van State. (2010). Jaarverslag over 2009. “Year report of 2009”. Waddinxveen: Drukkerij van Tilburg, 1-282. ! Riezen, van, B. & Roex, K. (2012). Counter-terrorism in the Netherlands and the United Kingdom: comparative literature review study. Social Cosmos, 97-110. ! Schnackenberg, J. (2009). Measuring transparency: Towards a greater understanding of systematic transparence and accountability. Cleveland: Department of Organizational Behaviour, 1-55. ! Schreijenberg, A.; Koffijberg, J.; and Dekkers, S. (2009). Evaluatie cameratoezicht op openbare plaatsen. “Evaluation camerasurveillance in public areas”. Amsterdam: Ministry of Foreign Affairs and Kingdom relations, 1-92. ! Schreijenberg, A.; Homburg, G.H.J. (2011). Steeds meer beeld: evaluatie vijf jaar cameratoezicht op openbare plaatsen. “More surveillance: evaluation on five years of camera surveillance in public areas”. Amsterdam: Ministry of Foreign Affairs and Kingdom Relations, 1- 31. ! Scott, C. (2000). Accountability in the Regulatory State. Journal of Law and Society, Vol. 27, Issue, 1, 38-60. ! Spinello, R. (1997). The End of Privacy. The New Republican, Vol. 176, 9-13.
  • Page 100 of 110 ! Stie, A.E. (2010). Decision-making void of democratic qualities? An evaluation of the EU’s second pillar decision-making procedure. In: Vanhoonackers, S., Dijkstra, H., & Maurer, H. (2010). Understanding the role of bureaucracy in the European security and defence policy. European Integration online Papers, Issue 1, Vol. 14, 1-24. ! Taylor, N. (2011). A conceptual legal framework for privacy, accountability and transparency in visual surveillance systems. Surveillance & society, 455-470 ! Thomas, M., & Walport, M. (2008). Data sharing review report. UK, 1-75. ! UN Human Rights Council. (2009). Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. Human Rights Council, 1-20. ! UN Human Rights Council. (2013). Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, Frank La Rue. Human Rights Council, 1-23. ! Vedder, A., Wees, L., Koops, van der, B. J., & Hert, P. (2007). Van Privacyparadijs tot Controlestaat? Misdaad- en terreurbestrijding in Nederland aan het begin van de 21ste eeuw. “From privacy paradise to control state. Combating crime and terror in The Netherlands in the beginning of the 21st Century.” The Hague: Rathenau Institute, 1-90. ! Vermeulen, B., & Bellanova, R. (2012). European smart surveillance: what’s at stake for data protection, privacy and non-discrimination. Security and Human Rights. Security and Human Rights, no. 4, 297-311. ! Venice Commission. (2007). Opinion: On Video Surveillance in Public Places by Public Authorities and the Protection of Human Rights. Council of Europe, No.404, 1-16. ! Wacks, R. (1993). Privacy. New York: NYU. ! Weaver, O. (2012). A conceptual history for international relations. Version 6, 1-62. ! Welsh, B.C., & Farrington, D.P. (2002). Crime prevention effects of closed circuit television: a systematic review. Home Office Research Study. ! Welsh, B.C., & Farrington, D.P. (2008). Effects of Closed Circuit Television Surveillance in Reducing Crime. European Crime Prevention Network. ! Westin, Alan. (1967). Privacy and Freedom. In: Bennet, C.J. (2011). In defence of privacy: the concept and the regime. Surviellance & Society, 485-496. ! Wood, D.M., & Ball, K. (2006). A report on the Surveillance Society. Surveillance Studies Network. Public Discussion Document, 1-98. ! Wood, D.M., & Webster, C.W.R. (2009). Living in surveillance societies: the normalisation of surveillance in Europe and the threat of a bad example. Journal of Contemporary European Research, 259-273. ! Wood, D.M., McCahill, M., & Norris, C. (2004). The growth of CCTV: a global perspective on the international diffusion of video surveillance in publicly accessible space. Surveillance & Society, 110-135. Videos: ! Du bist terrorist: http://www.youtube.com/watch?v=SGD2q2vewzQ ! Panopticon: http://www.youtube.com/watch?v=zrxXlzc2Cuw ! Privacy matters: http://www.youtube.com/watch?v=W6eGiEe9rPg&feature=share ! I’m an internet company, I’m the government: http://vimeo.com/81672428 ! Privacy generations: http://www.youtube.com/watch?v=hsnr_4ccceY ! Big Brother Award 2013: https://www.bigbrotherawards.nl/2013/09/eerste-videos-van-de- bba2013-online/
  • Page 101 of 110 APPENDIX
  • Page 102 of 110 APPENDIX 1: Surveillance Camera Code of Practice APPENDIX 2: Dutch Constitutional rights (relevant to CCTV and privacy) APPENDIX 3: GAP Framework (Blagescu et al., 2005) APPENDIX 4: Article 151C Municipality Act (in Dutch) APPENDIX 5: Interview PART NINE - APPENDIX
  • Page 103 of 110 APPENDIX 1 Surveillance Camera Code of Practice The UK government is fully supportive of the use of surveillance cameras in a public place whenever that use is: in pursuit of a legitimate aim; necessary to meet a pressing need; proportionate; effective; and, complaint with any relevant obligations. Where these systems are used appropriately, they are valuable tools, which contribute to public safety and security and in protecting both people and property, however, when improper use dominates, it will affect the fundamental right to privacy. Therefore, a Code of Practice for surveillance camera systems was issued by the UK Secretary of State under Section 30 of the 2012 Protection of Freedoms Act, in June 2013, which stated the Secretary of State must lay before Parliament: a) a Code of Practice prepared under section 29, b) a draft of an order providing for the code to come into force. The 2012 Act stated that such a code must contain guidance about: a) the development or use of surveillance camera systems, b) the use or processing of images or other information obtained by virtue of such systems. The purpose of the Code of Practice is: “ensuring that individuals and wider communities have confidence that surveillance cameras are deployed to protect and support them, rather than spy on them”. Such a code may, in particular, include provision about: a) Considerations as to whether to use surveillance camera systems; b) Types of systems or apparatus; c) Technical standards for systems or apparatus; d) Locations for systems or apparatus; e) The publication of information about systems or apparatus; f) Standards applicable to persons using or maintaining systems or apparatus; g) Standards applicable to persons using or processing information obtained by virtue of systems; h) Access to, or disclosure of, information so obtained; i) Procedures for complaints or consultation. The 2013 surveillance camera Code of Practice provides guidance on the appropriate and effective use of surveillance camera systems by relevant authorities 1 in England and Wales, who must have regard to the code when exercising any functions to which the code relates (UK government - Code of Practice, 2013). Other operators and users of surveillance camera systems, in the UK, are encouraged to adopt the code voluntarily. This Code of Practice could be seen as a result of public criticism and concerns about the improper use of CCTV cameras, its lack of accountability                                                                                                                 1 “Relevant authorities” are defined (by section 33 of the 2012 act) as: a local authority within the meaning of the Local Government Act 1972; the Greater London Authority; the Common Council of the City of London in its capacity as a local authority; the Sub-Treasurer of the Inner Temple or the Under-Treasurer of the Middle Temple, in their capacity as a local authority; the Council of the Isles of Scilly; a parish meeting constituted under section 13 of the Local Government Act 1972; a police and crime commissioner; the Mayor’s Office for Policing and Crime; the Common Council of the City of London in its capacity as a police authority; any chief officer of a police force in England and Wales; any person specified or described by the Secretary of State in an order made by statuary instrument (Protection of Freedoms Act, 2012).
  • Page 104 of 110 mechanisms, and the insufficient transparency content. To add, JUSTICE argued that the before mentioned, existing privacy safeguards (e.g. HRA, DPA or RIPA), are not capable of providing sufficient and effective protection for the fundamental right to privacy. Moreover, one of the basic causes of public criticism and concerns is regarding RIPA, these concerns are prevalent in sustained independent surveillance activities of intelligence services – being able to authorize their own surveillance activities in the absence of checks and balances. The Code of Practice is seen as the first significant step in the on-going process of delivering the government’s commitment to the ‘further regulation of CCTV’. It denotes that the legitimacy of this type of policing is in the eyes of the public based upon a general consensus of support that follows from transparency about their powers, demonstrating integrity in exercising those powers and their accountability for doing so. The guiding principles of the code denotes that technological advances can provide greater opportunity to safeguard privacy, when used appropriately. However, in general, any increase in the capability of surveillance camera system technologies also has the potential to increase the likelihood of intrusion into an individuals’ privacy. Therefore the code signifies that the decision to use any surveillance camera technology must be consistent with a legitimate aim and a pressing need, and be clearly articulated and documented. The purpose of the code is mainly to provide a type of framework for operators and users of surveillance cameras systems, like CCTV, so that there is proportionality and transparency in their use of surveillance, and that systems are effective and efficient by providing images, which are fit for purpose. The code has been developed to address concerns over the potential for abuse or misuse of surveillance by the sate in public places, with the activities of local authorities and the police the initial focus or regulation. In addition it considers that the future deployment or continued deployment of surveillance systems that observe public places should be appropriate. The Code of Practice indicates that the starting point for a system operator in achieving the most appropriate balance between public protection and individual privacy is to adopt a single set of guiding principles that are applicable to all surveillance camera systems in public places. Following these guiding principles allows a system operator to establish a clear rationale for any over surveillance camera deployment in public places, to run any such system effectively, helps ensure compliance with other legal duties and to maximise the likelihood of achieving surveillance by consent (UK government – Code of Practice, 2013). The guiding principles, issued June 2013, encourage surveillance system operators to adopt 12 guiding principles: 1. Use of a surveillance camera system must always be for a specified purpose which is in pursuit of a legitimate aim and necessary to meet an identified pressing need; 2. The use of a surveillance camera system must take into account its effect on individuals and their privacy, with regular reviews to ensure its use remains justified; 3. There must be as much transparency in the use of a surveillance camera system as possible, including a published contact point for access to information and complaints; 4. There must be clear responsibility and accountability for all surveillance camera system activities including images and information collected, held and used;  
  • Page 105 of 110 5. Clear rules, policies and procedures must be in place before a surveillance camera system is used, and these must be communicated to all who need to comply with them; 6. No more images and information should be stored than that which is strictly required for the stated purpose of a surveillance camera system, and such images and information should be deleted once their purposes have been discharged; 7. Access to retained images and information should be restricted and there must be clearly defined rules on who can gain access and for what purpose such access is granted; the disclosure of images and information should only take place when it is necessary for such a purpose or for law enforcement purposes; 8. Surveillance camera system operators should consider any approved operational, technical and competency standards relevant to a system and its purpose and work to meet and maintain those standards; 9. Surveillance camera system images and information should be subject to appropriate security measures to safeguard against unauthorised access and use; 10. There should be effective review and audit mechanisms to ensure legal requirements, policies and standards are complied with in practice, and regular reports should be published; 11. When the use of a surveillance camera system is in pursuit of a legitimate aim, and there is a pressing need for its use, it should then be used in the most effective way to support public safety and law enforcement with the aim of processing images and information of evidential value; 12. Any information used to support a surveillance camera system, which compares against a reference database for matching purposes should be accurate and kept up to date.
  • Page 106 of 110 APPENDIX 2 Dutch Constitutional rights (relevant to CCTV & privacy) Article 10 states: a) Everyone shall have the right to respect for his privacy, without prejudice to restrictions laid down by, or pursuant to, Act of Parliament; b) Rules to protect privacy shall be laid down by Act of Parliament in connection with the recording and dissemination of personal data; c) Rules concerning the rights of persons to be informed of data recorded concerning them, of the use that is made thereof, and to have such data corrected shall be laid down by Act of Parliament. Article 12 states: a) Entry into a home against the will of the occupant shall be permitted only in the cases laid down by, or pursuant to, Act of Parliament, by those designated for this purpose by, or pursuant to, Act of Parliament; b) Prior identification and notice of purpose shall be required in order to enter a home under the preceding paragraph, subject to the exceptions prescribed by Act of Parliament. A written report of the entry shall be issued to the occupant. Article 13 states: a) The privacy of correspondence shall not be violated, except in the cases laid down by Act of Parliament or by order of the courts; b) The privacy of the telephone and telegraph shall not be violated, except in the cases laid down by Act of Parliament, by or with the authorization of those designated for this purpose by Act of Parliament (Rijksoverheid, 2008).
  • Page 107 of 110 APPENDIX 3 GAP Framework (Blagescu et al., 2005) FIG.  1  
  • Page 108 of 110 APPENDIX 4 Article 151C Municipality Act (in Dutch) 1. De raad kan bij verordening de burgemeester de bevoegdheid verlenen om, indien dat in het belang van de handhaving van de openbare orde noodzakelijk is, te besluiten tot plaatsing van vaste camera’s voor een bepaalde duur ten behoeve van het toezicht op een openbare plaats als bedoeld in artikel 1 van de Wet openbare manifestaties en andere bij verordening aan te wijzen plaatsen die voor een ieder toegankelijk zijn. De burgemeester bepaalt de duur van de plaatsing en wijst de openbare plaats of plaatsen aan, met inachtneming van hetgeen daaromtrent in de verordening is bepaald. 2. De burgemeester stelt, na overleg met de officier van justitie in het overleg, bedoeld in artikel 14 van de Politiewet 1993, de periode vast waarin in het belang van de handhaving van de openbare orde daadwerkelijk gebruik van de camera’s plaatsvindt en de met de camera’s gemaakte beelden in elk geval rechtstreeks worden bekeken. 3. De burgemeester bedient zich bij de uitvoering van het in het eerste lid bedoelde besluit van de onder zijn gezag staande politie. 4. De aanwezigheid van camera’s als bedoeld in het eerste lid is op duidelijke wijze kenbaar voor een ieder die de desbetreffende openbare plaats betreedt. 5. Met de camera’s worden uitsluitend beelden gemaakt van een openbare plaats als bedoeld in artikel 1 van de Wet openbare manifestaties en andere bij verordening aan te wijzen plaatsen die voor een ieder toegankelijk zijn. 6. De met de camera’s gemaakte beelden mogen in het belang van de handhaving van de openbare orde worden vastgelegd en gedurende ten hoogste vier weken worden bewaard. 7. De vastgelegde beelden, bedoeld in het zesde lid, vormen een tijdelijk register in de zin van de Wet politieregisters. Met inachtneming van artikel 13, zevende lid, van de Wet politieregisters kunnen uit dat register gegevens worden verstrekt ten behoeve van de opsporing van een gepleegd strafbaar feit. 8. Bij of krachtens algemene maatregel van bestuur worden met het oog op de goede uitvoering van het toezicht, bedoeld in het eerste lid, regels gesteld omtrent: a. De vaste camera’s en andere technische hulpmiddelen benodigd voor het toezicht, bedoeld in het eerste lid, en de wijze waarop deze hulpmiddelen worden aangebracht; b. De personen belast met of anderszins direct betrokken bij de uitvoering van het toezicht; en c. De ruimten waarin de waarneming of verwerking van door het toezicht vastgelegde beelden plaatsvindt.
  • Page 109 of 110 APPENDIX 5 Interview Mr Carolus Janssen Chief inspector, The Hague Police Department Chief CCTV, The Hague Police Department Background information Hypothesis: If public organisations increase the use of innovative, CCTV surveillance technologies without the necessary checks and balances, it will enlarge the perceived invasion on the fundamental right to privacy. Research question: To what extent do the accountability mechanisms in the Netherlands and the United Kingdom safeguard the compatibility between security and the right to privacy, regarding the increasing use of CCTV technologies in public areas, by public authorities, now and in the near future? Sub-questions: 1. How should we assess the accountability mechanisms regarding CCTV in the UK and the Netherlands? 2. To what extent are the accountability mechanisms in the United Kingdom, concerning the implementation of CCTV, adequately provided? 3. To what extent are the accountability mechanisms in the Netherlands, concerning the implementation of CCTV, adequately provided? Part three – Conclusion & recommendations: " Assessment and comparison of the accountability mechanisms used in the Netherlands and the United Kingdom " Recommendation framework of checks and balances Research objectives: • Analysing the accountability mechanisms, regarding the use of CCTV, in the Netherlands and the United Kingdom; • Evaluating and assessing the accountability mechanisms through an amalgamated theory of Bovens and Ackerman; • Developing a recommendation-framework of checks and balances, which will reflect the accountability mechanisms that coincides the necessity of upholding national security, with a human right-based perspective. • To define an approach for striking a balance between privacy, on the one hand, and security, on the other.
  • Page 110 of 110 Guideline: 1. Hoe opereert CCTV binnen Nederland? a. Systeemtechnisch; b. Beleidsmatig. 2. Wat voor rol speelt CCTV binnen Nederland? a. Nationale veiligheid of criminele praktijken? 3. Zijn er regulerende processen e.d. vanuit de Europese Unie die het implementeren van CCTV beïnvloedt? 4. Wie is er verantwoordelijk voor het behoorlijk gebruik van CCTV in Nederland? 5. Wat is er afgelopen jaren veranderd met betrekking tot de in gebruik name van CCTV? a. M.b.t. het systeem; b. M.b.t. regulerende processen; c. M.b.t. het beleidsproces. 6. Wat is het toekomstperspectief van CCTV implementatie? a. M.b.t. het systeem (innovatieve verbeteringen); b. M.b.t. regulerende processen; c. M.b.t. het beleidsproces. 7. Waar liggen de verantwoordingen m.b.t. CCTV? 8. Heeft de burger enigszins inspraak/invloed m.b.t. het gebruik van CCTV in zijn of haar omgeving? 9. Hoe transparant is het gebruik van CCTV? 10. Hoe worden eventuele schendingen tot privacy beoordeeld? a. Komt dit voor? b. Hoe vaak? 11. Wordt er rekening gehouden met internationale convenanten/ human right artikelen? 12. Hoe wordt er omgegaan met kritiek vanuit organisaties of de maatschappij? 13. Hoe wordt de balans gemaakt tussen veiligheid en privacy? 14. Heeft u gedetailleerde informatie betreffende de huidige accountability mechanismen m.b.t. CCTV? 15. Wat is uw mening betreffende het gebruik van CCTV a. Met betrekking tot veiligheid/ efficiënt? b. Met betrekking tot privacy/ schendend? c. Vindt u dat er momenteel een balans is tussen deze twee?