The problem isn’t surveillance in itself, which can and does have helpful sides, but whether or not it is done with respect for human rights, and what recourse exists for abuse and prevention of it.
Surveillance, at its simplest, is an act of observing someone or something, usually within social spaces; where surveillance happens outdoors (in natural environments), it tends to have to do with zoological and other research, as well as, very modernly, in connection to wildlife crime. As a rule, surveillance can utilise either individuals conducting observation physically, or technology… or a mix of both. Surveillance is a socio-cultural phenomenon: what we consider to be surveillance and how we act about it has to do with not only our perception of our social and cultural spaces, but also our self within it.
With technological advances, the act of surveillance is becoming simpler and simpler. That, in itself, causes us to introspect — how do we feel about surveillance as a fact in our environment? What do we know about it and who do we feel is doing it, and why? What impact does it have, or we perceive it might have, on human rights… our own or those of others, and do we feel this impact to be harmful or not, legitimate or otherwise?
Surveillance, in particular when conducted through technology, has its pros and cons, as well as defenders and critics. There are several downsides to the debates that ensue: knowledge of what is taking place and how, as well as understanding of technology, may be poor; impact on one’s rights and those of others may be under- or overrated, or totally ignored; we draw from collective popular data such as stories, films, and, more modernly, misinformation online to make decisions; and we forget that technology used may have critics and champions in the competitors and producers who may be anxious to displace or offer their product on the market.
Nor is this debate solely public, or solely academic; academics are people too, and our biases, fears, and blind spots can be equally productive or counter-productive to those of others.
For the purpose of this article, we will look at surveillance as an act of observing, with or without technology, that is either licit or illicit. This is not a perfect definition — licitness merely means legal acceptability within a space, rather than ethical and moral acceptability; considering surveillance licit means that we are accepting that in a space, specific observations are allowed to take place, regardless of whether or not they favour human rights or endanger them. Illicit surveillance, on the other hand, is going to be defined as surveillance that is not legally allowed to take place in a specific space — which, again, may not mean it is positive or negative in its essence.
This division is crucial. Licitness and illicitness can and do play a role not only in the debates on surveillance and technology, but in many other debates, including those on crime, criminality, criminalization, and the associated human rights — and often, we accept or question according to what our space and socio-cultural behaviours within it teach us is to be considered licit rather than an objective assessment of especially positive or harmful effects of a practice or behaviour.
This gives us a definition of what surveillance is, in broad terms. Let’s look at how we imagine it, as imaginings form a noticeable impact on our perceptions.
At its core, this is a problem of all licit authoritarian surveillance, where human rights are at best secondary to a list of controlling actions, and some illicit surveillance (e.g. nonconsensual pornography and related extortion) where victim rights are not firmly established. That said, it is necessary — and lacking from discussions — that the problem isn’t surveillance in itself, which can and does have helpful sides, but whether or not it is done with respect for human rights, and what recourse exists for abuse and prevention of it.
In popular culture, the pool where our human perceptions of ourselves and our space most often collide, surveillance features in either positive or negative ways; who has not, for instance, seen or read material that presents surveillance from law enforcement or international espionage perspectives, fighting crime and preventing terrorism? The bugged phone, the car parked in front of a home or office, more modernly surveillance of online activities and the like are staples of fiction we create for ourselves in these contexts, and they do, to some extent, reflect reality.
Negative perceptions, often in dystopian or dystopian leaning fiction, are arguably more common, or at least more visible, eliciting stronger emotion; in those cases, surveillance is either done by a licit source in an illicit manner or for questionable reasons that make the act less than licit (e.g. Terminator franchise or Minority Report), by an illicit or even unknown source (e.g. Michael Crichton’s book The Sphere), by an entirely licit source that is also illicit on the side (e.g. Space Odyssey 2001 or The Bourne Identity franchise).
Reasons depend on the story plot : from otherworldly forces, be it demons or aliens, essentially surveilling and stalking a victim for their own purposes, to police and government agents or authoritarian governments engaging in legally accepted but ethically questionable actions, the “crooked cops” and government agents who are involved in illicit acts on the side and are abusing their power and access to surveillance, to the dystopian idea of constant surveillance, everywhere, per se, and the psycho-social impacts this might have (e.g. George Orwell’s 1984), surveillance of this kind taps into our primal fears of being watched, stalked and probably killed (cf. Kerr, 2015).
Notably, whether we feel more or less at ease with surveillance can intersect with where we take our information from; for minorities that already experience or have historically experienced being at odds with their space, the negative perception may be far more realistic sounding than for majorities in good standing, who have never had a reason to think their human rights may be endangered.
This is where technology plays a huge role, too — because it offers us a far less limited, 24-hour access, and because it may not be limited by things like four walls, but penetrates into private space with utmost ease, it can feel like there can be no reprieve from it insofar as it exists. An officer of the law, crooked or otherwise, will need to sleep at some point; they will need to take care of their bodily needs; they may lose us in traffic, or be called off in the right moment; they cannot see through walls. Bugged phones do nothing if we use an alternative communication device. And these perceptions and realizations play a role not only in what we portray in fiction, but also in real life, and in our thinking.
But with technology, those limitations can be gone. Consider the molka epidemic in South Korea, the necessity for athletes of the Paris 2024 Olympics to wear specific clothing that prevents the Japanese-started “under-clothing”photography, cybercrime involving any available cameras and, ultimately, the recent “trend” in using freely available FRT technology to doxx random people for fun. These are just some examples; the invasion can mean our body, too; genetically testing to figure out who belongs to a minority or whether one’s background is “pure” has been observed both in Tibet, by China, and in White Supremacist groups.
It needs to be noted here that, while we consider surveillance to be an act of outside observation, this kind of testing can be considered a form of advanced surveillance and self-surveillance with the goal of establishing a specific group and group identity. Technology, therefore, can enable anyone to see, hear and discover anything they want, from jealous exes stalking someone as a part of tech-enhanced domestic violence, to self-policing in the context of harmful ideologies, to licit human rights harming government actions, to invasions of body within and outside.
And, whether it is licit or not, it can be hard for the victims to become aware of this happening, and even if they are, they may not be able to do anything about it[i].
Fearing technology and surveillance as a combination, therefore, does make some sense. But it is not the whole story either.
It is beyond the scope of this article to go into extensive details of all these topics; each of them could be at least a chapter, if not an entire book in itself. That said, there are some very clear patterns involved in determining licitness and illicitness of surveillance and their intersection with human rights if we look at who is surveilled and why.
On one side of licit surveillance is surveillance that aims to create safety. This surveillance can be elective, chosen by a person, such as baby or pet cameras or home security, even fitness trackers, or socially and culturally accepted, such as cameras in public, which, in liberal democratic contexts, aim to protect from things that can negatively affect us all — violence, dangers (e.g. fire), accidental disappearance (e.g. a lost child or mentally disabled adult). Such surveillance is a part of social agreement of sorts : the public consents to partial observation by a governing body to be and feel safer; the private person decides to use it in order to experience a benefit (e.g. safety, insight into fitness). A part of this social contract is the understanding, written or unspoken, that this power will not be abused by any party involved.
On the other side of licit surveillance is private or governmental abuse. Surveillance can be used to spy on dissidents, or help criminalize human rights, in particular where minority groups are not given full rights; in domestic context, domestic staff, but also family members, can become virtual hostages in their own home or workplace due to abuse of surveillance, which becomes a tool of micromanaging and stalking. The reason both are still to be considered licit is that the technology and act of surveilling are legal, either in the full context, for instance, where human rights or minority rights are not respected, or partially, where the act of surveillance is legally accepted but abuse is not, or there may be a legal loophole an abuser might utilize.
On the illicit side, the law does not support the action and/or technology at all. In other words, this is surveillance with no legal backing; however, its questionable legality can be dismissed in cases where corruption or human rights abuse play a part; in the latter, they may also not be noticed due to victims’ silence (consider contesting any surveillance as a minority with no rights).
Criminalization especially is an active concern, even with licit use. FRT, for instance, has been known to create false positives, leading to temporary arrests of innocent victims; firm belief in the power and infallibility of technology also can and does bias investigators. While surveillance certainly plays a huge part in solving and preventing crime, including organized crime and terrorism, the possibility of misuse, bad use or abuse looms large even over those applications, chiefly because training rarely, if ever, involves cautioning users about downsides and accuracy. Innovators, too, are often loath to be clear on those in their eagerness to sell.
Surveillance happens in private and public places, for various reasons. Considering the problems of abuse, as well as human rights abuses, private and public become a matter of debate: surveillance is seen as a tool that can and could (and often does) enable invasions into privacy, be it in the anonymity of a crowd as an unoffending citizen or even at home. Especially in LGBT+ contexts, there is precedent for this debate – with criminalization and relatively recent decriminalization, as well as recriminalization of same-sex identities (e.g. Russia) and sexual context, domestic space has been used to argue that the state has no right to invade what others cannot see.
There are two problems with this — one, it creates a much-used context for domestic abuses to be considered a private matter, too, and two, remanding minority identity to solely domestic context is a poor application of tolerance, if it is tolerance at all. All it means is that there may be some space where a person may truly be themselves — outside of it, they remain criminalized, which also opens doors for this right to be stripped away at will.
At its core, this is a problem of all licit authoritarian surveillance, where human rights are at best secondary to a list of controlling actions, and some illicit surveillance (e.g. nonconsensual pornography and related extortion) where victim rights are not firmly established.
That said, it is necessary — and lacking from discussions — that the problem isn’t surveillance in itself, which can and does have helpful sides, but whether or not it is done with respect for human rights, and what recourse exists for abuse and prevention of it.
When it comes to illicit surveillance, the main problem is prevention and spread. Tackling those is a long game that needs to be played by multilateral players, focusing on various abusive contexts (e.g. revenge pornography and its place on online markets), criminal and organized criminal space (e.g. illicit pornography in connection to illicit surveillance materials; spying, stalking and threats online and offline by criminal actors, etc.). It is necessary to understand that there are no simple fixes for this side of the problem.
In the case of licit surveillance, the key are human rights. Global society must recognize all human rights count; it must fight authoritarian contexts, where no appeal, no local or global social or other contract will be enough to prevent surveillance and its consequences. Above all, the innovators must be held accountable on both counts — licit, where they are willing to enable abuse through the provision of their innovations, and illicit, where freely available material, such as FRT used to doxx, is present and easily accessible.
In conclusion, our debates on surveillance must become far more informed about actual technological challenges, as well as factual dangers (e.g. abuse of human rights in authoritarian contexts) vs imagined dangers we tell ourselves about through fiction. Doubtlessly, imagined dangers live in potentia… or at least some do. But while it makes sense to focus on that context, there are many very real contexts that we need to focus on first… as they are already taking place.
Notes:
[i] This, of course, does not apply to self-policing among extremists; their actions can be considered elective, but it needs to be also considered that this could, in extremist contexts, be utilised licitly or illicitly against someone who did not consent to a genetic checkup.
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