Although we may no longer be able to limit the amount or scope of information about us that is collected, privacy still has a role in regulating how it is used, and in diminishing the negative consequences that can occur.
Surveillance has become alarmingly commonplace. CCTV cameras, mobile phones, aerial drones, webcams, automated number plate recognition, facial recognition and other biometric measures, DNA databases, radio frequency identification (RFID) chips in transport tickets and credit cards, and government data-mining programs—these all represent a type of governance that relies on information obtained from citizens. This flow of data enables efficient administration, but the price of these services is providing institutions with our personal information. Often, in contexts like law enforcement, security and intelligence, that information is collected without consent to build comprehensive files and dossiers on citizens. The recent revelations of profound data monitoring by the US National Security Agency though its PRISM speak to profound capacity for such surveillance practices. But communications interception in an old idea, and in Britain, as early as 1657, mail opening was legitimised through a proclamation that the state post office was “the best means to discover and prevent any dangerous designs against the Commonwealth”.1Joseph Hemmeon, The History of the British Post Office (1912).
However, because electronic communication leaves lasting traces, governments are now able to access archives of telecommunications (internet, mobile phone, email and so on) information through mandatory data retention regimes. These surveillance laws require communications providers to retain their clients’ data for a prescribed period and operate on a dubious distinction between telecommunications ‘content’ and telecommunications ‘traffic data’ — the latter of which can generally be accessed without judicial oversight (warranting).
Privacy, both as a legal regime and the political concept behind the rule of law (the idea that governmental power should be limited and not arbitrary), is the primary idea deployed to protect us from these surveillance practices. A good example of privacy informing liberal political theory can be seen in the work of constitutional theorist Thomas Erskine May, who wrote in 1863:
Next to importance to personal freedom is immunity from suspicions and jealous observation. Men may be without restraints on their liberty; they may pass to and fro at please: but if their steps are tracked by spies and informers, their words noted down for crimination, their associates watched as conspirators—who shall say that they are free?2Thomas Erskine May, A Constitutional History of England (1863)
Although theories of liberalism demand the curtailing of governmental intrusion into private life, it is arguable that Western governments have changed so significantly that surveillance has become an important reference point for our experience of modernity. A new movement in scholarship has therefore emerged arguing that ‘privacy’ is too individualistic a mechanism for dealing with the grand-scale social transformations of ‘surveillance society’.
However, it now seems almost banal to decry the imposition of monitoring in our lives, or lament a world interconnected increasingly through mediated representation. To discuss the death of privacy in this context is a simplification, or even a misunderstanding of what these legal constructs can offer. Privacy is an old concept (going back to Roman law, wherein the citizen was understood as antecedent to the state) but in the last 40 years privacy laws have increasingly addressed government surveillance in an attempt to circumscribe its more pernicious effects.
The problems produced by surveillance have been thoroughly discussed in previous scholarship. These authors often elaborate or extend Michel Foucault’s observations on the panopticon prison, particularly the use of visibility as a mechanism of disciplinary power and self-subjugation. In this way surveillance is linked to privacy’s concern for defending individuality and personhood against a normative state apparatus. However, there are specific issues, more closely associated with the relationship between surveillance and ‘the archive’, that speak directly to the state of surveillance in contemporary life and the capacity of privacy law to deal with those harms.
Although mail interception began in the seventeenth century, it was not until the development of photography in the nineteenth century that governments possessed the most potent means to make visible (and ‘manage’) vagrants, criminals and other ‘degenerates’.
Although photography developed throughout the nineteenth century as a medium of bourgeois self-identity, it also served a repressive function based on its ‘objective’ character. As Peter Hamilton and Roger Hargreaves argue in their book The Beautiful and the Damned (2001):
We see a counterpart to the social portraiture of leading (and less exalted) figures of the age in the anthropological, medical, and judicial portraits designed to record, classify and control subject races, degenerate bodies and deviant individuals.
The belief that images were a source of knowledge endowed photography with an instrumental character perfect for criminal identification and the administration of justice. To that end, mugshots of Belgian prisoners have been dated as far back as 1843, only a few years after the invention of the daguerreotype process, and the idea that surveillance cameras would sweep city streets was postulated as early as 1869. 3‘The Legal Purposes of Photography’ (1869) 13 Solicitors’ Journal & Reporter 425, 425
Identifiable criminal images prevented individuals unknown to officials from representing that they were first time offenders, enabling judges to accord ‘proper’ treatment. The success of that photographic application was evident in Britain’s passing of the Habitual Criminals Act in 1869, which in the Victorian tradition of categorisation and class division established a photographic register of ‘dangerous classes’. However, that generated problems of rapidly growing photographic registers with no way to effectively search them. French police official Alphonse Bertillon eventually resolved that issue by using specific ‘signaletic’ measurements of the adult body which could be used to describe, and classify, photographic subjects through text.4Alphonse Bertillon, La Photographie Judiciare (1890). It was the first system in which images and their subjects were reduced to data for the sake of identification, allowing retrieval of images systematically filed away. But in addition to provoking systematic indexes of criminals for identification, police photography had other potent effects.
In The Burden of Representation (1988), John Tagg argues there was a symbiotic development of photography and national police forces. He says in order for policing to be effective it required “an instrument of permanent, exhaustive, omnipresent surveillance, capable of making all visible”. To that end, photography’s deployment as an instrument of power became a way of knowing criminals and criminality—not simply individual offenders, but the groups that comprised the criminal classes. That belief led to eugenicist photographic projects that attempted to identify a criminal mean or type. Francis Galton’s composite portraits5Francis Galton, ‘Composite Portraits, Made by Combining Those of Many Different Persons into a Single Resultant Figure’ (1879) 3 Journal of the Anthropological Institute of Great Britain 132; Galton obtained a library of criminal identification images and began rephotographing those portraits on a single exposure in an effort to expose a criminal biotype. and Cesare Lambroso’s criminal skulls6A founding practitioner of criminal anthropology, Lambroso was desperate to identify the difference between criminals and the insane, and repeated Galton’s technique in his famous analysis of criminal skulls. In his text, L’Uomo Deliquente (1878), 18 skulls were combined to expose the essential (atavistic) cranial features of the delinquent. are powerful examples.
Two distinct consequences therefore arise from the practice of police photography. First, images enter police databases where they are systematised, individuated and identified; images become associated with actual human beings represented in bureaucratic filing systems. Second, the subject becomes defined as a member of the subnormal classes, produced as a criminally suspect object of knowledge, and inscribed in a hierarchical system of social relations described by Alan Sekula as ‘the Archive’. This bureaucratic complex established the terrain of ‘the other’, and defined “both the generalised look—the typology—and the contingent instance of deviance and social pathology.”7Allan Sekula, ‘The Body and the Archive’ (1986) 39 October 3, 42. To be photographed by police meant being interpreted, and even constructed, as criminal.
It is interesting that privacy jurisprudence has now begun to embrace the risk of stigmatisation associated with police photography as directly related to private life. To that end, there has been a recent string of European Court of Human Rights cases that have prohibited photo and video surveillance practices because of the prejudices attendant on the complainant’s image being stored in a police file.
However, the creation of (and problems from) the archive only began with image making. Although photography at first seemed a technology of unrivalled documentary capacity, it was not long until its limitations were realised. For instance, Michael Roth has argued the absence of temporality in photography requires framing devices to provide context and meaning.8Michael Roth, ‘Photographic Ambivalence and Historical Consciousness’ (2009) 48 History and Theory 82. Throughout the twentieth century, one such framing device was the archive and its associated individual files and dossiers.
The Archive as Witness
Richard Allestree (1619–1681) wrote in The Government of the Tongue (1675):
Though we think our words vanish with the breath that utters them, yet they become records in God’s court, and are laid up in the archives as witnesses either for us or against us.
The quote above, used in the definition of ‘archive’ in the first English language dictionary of 1755, alerts us to two significant archival effects. First, archives embrace more than merely images, but also all the words we utter, and now more than words too. In the contemporary environment, every communicative action, document, and transactional detail we produce is aggregated into profiles and accessible to certain institutions. The result is a reproduction of the subject in the archive—the creation of a ‘digital double’ or ‘data image’. Although the virtualised subject is a popular topic in contemporary theory, it was a condition that began with the indexicality of the image, and increased through the addition of other data and information in dossiers.
The second effect to be drawn from Allestree’s quote is the connection of archives to records in “God’s court”, which can easily be transfigured as the judgment of the state. In fact, in Archive Fever (1998) Derrida describes how the word ‘archive’ derives from the Greek arkhe—the place where power originates—as well as the arkheion, the home or address of the superior magistrates (the archons) who applied the law through their right to interpret documents. The archive thus calls law into being. With the idea that modern states are established under the rule of law, we can therefore understand the archive as constitutive of both the citizen and the state.
Cornelia Vismann has argued, however, that the maintenance of government archives interrupts the processes through which citizens define themselves as subjects. For instance, she says the transformation of an individual into an object to be classified in a file is necessarily inimical to the way subjects produce themselves—by establishing a feedback with their own actions. Vismann argues that files consequently become “the medium instrumentally involved in the differentiation processes that pit the state against society and administration against citizenry… The state compiles records, society demands their disclosure.”9Cornelia Vismann, Files: Law and Media Technology (2008)
In response, the past 40 years have seen the development of legal regimes specifically addressing the increasing amount of information in institutional databases. These data protection (information privacy) laws generally provide a right of ‘access’ to data subjects — an idea representing a new project of ‘self-correction’ for the subjects of state power.
Unfortunately, these laws have limited application to files generated and held by intelligence, security or law enforcement agencies. Exemptions for those agencies are based on the belief that disclosing the mere existence of an investigation will cause the investigation to be undermined. However, the problems of police files are even more complex because they include a disturbing dimension of subjective assessment. Police files routinely contain speculation on subjects’ behaviour, disposition and criminality. That means that as well as collecting images and data, police files also include a great deal of opinion and subjective depiction.
Thus when it comes to law enforcement files — the category of databases least protected by data protection regimes — an additional harm emerges beyond the risk of stigmatisation: the risk that information in the file will be badly read. In other words, incorrect interpretations about file subjects can be inferred from data that may be inaccurate, inadequate, out of context or date, or mere conjecture. So data subjects therefore risk generating not only a ‘data double’ (a mediated resemblance) but also a ‘triple’—an institutionally distorted dissemblance. Paradoxically, the solution to such distortions may not be a reduction in the scope of surveillance, but rather ensuring that institutions obtain a fuller or more complete picture of their subject.
Preventing stigmatisation and providing rights of access, accuracy and correction are becoming more important for how contemporary privacy law is understood and applied. Although we may no longer be able to limit the amount or scope of information about us that is collected, privacy still has a role in regulating how it is used, and in diminishing the negative consequences that can occur. Arguing that ‘privacy is dead’ is not particularly helpful at all.
Jake Goldenfein is a PhD candidate at the Centre for Media and Communications Law at Melbourne Law School, the University of Melbourne.