On Constant Surveillance and Privacy, why Quantity Matters

The US Courts of Appeals’ ruling in Maynard v United States amends and reinstates to certainty the right for privacy in public places. Around two years ago I said that “the problem with ongoing photographing in the public domain is a different problem than the random photography that Google performs when it maps our state, it is the moment where photography becomes surveillance, an harassing act. Photography becomes surveillance when it is ongoing, when the use of the photo is for purposes other than displaying it and where the quality of the photo is too good to be only used for demonstration“. My opinion was rejected by the state and step through step it began installing surveillance cameras in municipalities, and even insisted that businesses convey information to the authorities, including their video feed, even from businesses who didn’t want to, like information about crowds in bars and pubs. Today, following the court’s decision in Maynard, it seems that all this intrusive apparatus may be quashed, or at least repeal any evidence gained by it.

Material which was obtained through invasion of privacy will be disqualified from being submitted as evidence in court, without the consent of the person harmed, apart from where the court allowed, for special reasons which will be listed to use the material; or if the infringer, which was a part of the process, had a defense or exemption under this act (clause 32 of the Israeli Privacy Protection Act)

In the case of Maynard, we are inspecting the appeal of his co-conspirator, Jone. (EFF has a brief on the ruling). Jones’ case was quite simple: the police suspected that Jones and Maynard were involved in drug dealing and installed a GPS Tracker without a warrant. The police used the information to follow Jones’ steps during a month and learn his routes. In the court, Jones raised the constitutional claim that this was an invasion of his privacy and therefore the charges against him should be rejected; the court rejected Jones’ claim and said that when a person is in public places, traveling where any person can see him, a GPS tracker does not infringe on his right for privacy, as he does not have a reasonable expectation of privacy.

The court’s claim explains how the right for privacy is a delicate one when it comes to digital privacy where the quantity becomes quality. The court of Appeals explained that in Jones’ case: “A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ―disconnected and anonymous

Indeed, a reasonable person does not believe that when he is out in the public he will be followed on all times, the reasonable person believes that he will be exposed to photography in random acts (C 6023/07 Afriat v. Yedioth) but not constant ones, or to photographs where he is in the background, or smiling to the cameraCA 1055/09 Shertzer v. Samira), the reasonable person believes that he can tell a photographer he does not wish for him to publish his picture, and may be entitled to so do (RCA 6902/02 Tzadik v. Libak) but may not always be allowed to revoke his consent to use his photos. The reasonable person does not believe that an elaborate web of cameras will track him at any moment and prevent him from even breaching the most minor acts, or being subject to constant surveillance. Therefore, the Maynard decision explains how a single act, which is not infringing by itself, may be come one when repeated.

From the same reasons exactly, the CCTVs in municipalities are infringing on everyone’s privacy. When the discourse began, I was too formalistic and claimed that the rationale to oppose them is the lack of authority of municipalities to enforce the law; I was wrong. Even if they had the authority, they would still violate my privacy.

[Originally in Hebrew]

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