Surveillance

'The Metal Eye: Ethical Regulation of the State’s Use of Surveillance Technology and Artificial Intelligence to Observe Humans in Confinement' by Jennifer A. Brobst in Californian Western Law Review (Forthcoming) comments

This article addresses the dual interests of privacy and the need for social interaction as a right of personal autonomy in choosing the balance between them. This is a right in need of protection in the face of new technology, including artificial intelligence, which has enabled constant state surveillance of individuals. Those most at risk of a deprivation of this right -- persons in state institutional confinement, including those in prisons, nursing homes, or involuntarily committed in mental institutions -- provide an important context for examining this potential infringement, because there is a particularly strong concurrent state interest to surveil to maintain order and security. The historical development of common law and federal constitutional protections of the rights of persons in confinement is examined next to the emergence of state constitutional amendments guaranteeing a right of privacy. In addition, mental health research has added to the policy development in this area, as seen in research regarding the impact of solitary confinement.

Brobst argues

Law, humanity, and human nature reflect a mastery of negotiation between the individual’s need for both a private and a social life. Since its founding, state and federal government and their legal structures in the United States have been designed by and for humans to thrive as individuals in society, which, in turn, benefits government and society.  For example, the State Constitution of Louisiana provides that the purpose of government is to protect the individual, which will protect “the good of the whole” of society:

All government, of right, originates with the people, is founded on their will alone, and is instituted to protect the rights of the individual and for the good of the whole. Its only legitimate ends are to secure justice for all, preserve peace, protect the rights, and promote the happiness and general welfare of the people.

Similarly, Patrick Henry spoke eloquently at the Convention of Virginia in 1788 of the need for a bill of rights and checks on federal government, asserting that “the power of a people in a free government is supposed to be paramount to the existing power.”  

As inventors continue to design technology to supplant human interaction or constantly monitor human behavior, the role of the state in protecting individual rights to autonomy in navigating privacy and social interaction requires a close examination.  Fortunately, in the United States, a hard-fought legal respect for the rights of the individual in a free society remains a steady, rational force, capable of moderating intrusive surveillance through the common law, as well as state and federal constitutional jurisprudence. 

In a mature society, the process of drawing the lines of privacy against state intrusion should look first to those who have the least power and social capital – persons confined by the state, such as prison inmates and those who are involuntarily committed. As the Supreme Court has repeatedly affirmed: “[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid, society may not simply lock away offenders and let the state of nature take its course.”  Protected by common law and constitutionally-based duties of care to ensure a secure and safe environment, this population without much political power or voice is owed much by the State. Nevertheless, in a technological age of surveillance, the State has much greater opportunity to infringe on the rights of confined persons than it has on persons at liberty in the public sphere, thereby testing the bounds of basic individual rights. If those in state institutions—the most vulnerable or dangerous of us all, and arguably most in need of monitoring and observation—have a right to autonomy with respect to privacy and social interaction, then so do we all. 

If it were technologically possible, would the United States lawfully permit a residential facility – a prison, immigration detention center, mental hospital, or nursing home – to be run solely by remote technology, using artificial intelligence (AI) to subject confined persons to constant surveillance or completely replace human interaction with machine-based interaction? Can technology enhance the quality of human experience in confined settings or is reliance on such technology merely an expedient, harmful substitute for human supervision and social interaction? 

These questions are not dystopian or utopian speculation. In South Korea, the world’s first autonomous robotic prison guards, with AI capabilities that include use of surveillance technology and facial recognition software designed to assess a prisoner’s mental state, are being tested in facilities.  In Australia, the Technological Incarceration Project has tested a relatively inexpensive home detention system with constant AI presence that monitors verbal and facial cues and delivers a shock if the monitored person appears to be about to commit a violation. The European Union INDECT research project “for the security of citizens” is conducting a feasibility design for a constant surveillance system for automatic threat detection in public spaces, compliant with current national and international privacy laws:

The value that will be added by deployment of INDECT research outcomes is that existing systems would operate with less human intervention, which will lower the level of subjective assessment and the number of human mistakes. This means less staff will be required for supervision of surveillance activities (e.g.[,] monitoring of CCTV camera networks). This will result . . . in less opportunities for illegitimate use of such information, or for human error to result in violations of the rights of the individual. There will also be economic benefits, in terms of the reduced staffing requirements. Police officers could be freed up to carry out frontline policing tasks.

Surveillance in these contexts is linked to public security concerns, which must be moderated by civil liberties. In the realm of national security, the AI international arms race continues to place pressure on democratic nations to undermine their values and recognition of civil rights. Autonomous, untetheredAI technology that would be implemented to kill without human decision or control is already possible, although the Department of Defense under both Presidents Obama and Trump has restricted their military applications. The United Nations also continues to debate the need to restrict such weapons.  In the public-private sphere, technology companies, such as Google, have faced pressure to opt out of continuing to contribute their AI research to military purposes. Google’s contract with the U.S. Department of Defense reportedly “worked extensively to develop machine learning algorithms for the Pentagon, with the goal of creating a sophisticated system that could surveil entire cities.” 

In the United States, state and federal departments of correction and mental health facilities increasingly incorporate and rely on security technology to maintain order and ensure the safety of confined prisoners and patients. Prison guards use aerial drones to supervise and record the activities of prisoners. Psychiatrists conduct telehealth assessment and diagnosis of prisoners in multiple facilities from a single office computer. AI video alert systems monitor the hallways at night outside bedrooms in mental health facilities to identify potential physical assaults or self-harm. Several states statutorily authorize constant video surveillance of nursing home residents’ rooms, with their consent or that of their guardians.  Many of these measures cut costs by reducing the need for human staffing. 

For the public at large, privacy interests are embodied in common law and statutory law, with additional protections found in the shifting penumbra of constitutional rights. Those subject to state confinement also have constitutional and statutory privacy rights, as well as common law parens patriae protections, all requiring consideration of legitimate governmental interests. Rapidly changing technologies offer greater facility and breadth of surveillance, while the biology of the human species, with its essential mental and physical needs, remains relatively static, evolving gradually. The pressures of technological change place a toll on humanity’s well-being, particularly when the balance of personal and governmental interests does not sufficiently respect the realities of what level of autonomy our species inherently needs to thrive. 

Autonomy in navigating both privacy and social interaction are essential to human well-being and the fulfillment of human potential. As Justice Douglas observed, “[p]rivacy involves the choice of the individual to disclose or to reveal what he believes, what he thinks, what he possesses.” Privacy and social interaction mutually reinforce each other, allowing a person to safely choose and resist social interactions. As psychological research demonstrates, humans despair from too much of either: from loneliness and isolation, and from lack of privacy and difficulty in creating a self-identity. 

Surveillance technology, including AI applications, presents new opportunities to undermine humanity’s basic need for autonomy, human social interaction, and privacy. It is not a disruptive technology, a technology which inadvertently happens to cause social disruption, but rather it is a technology designed to disrupt. From a cynical perspective, commercial and governmental interests seek to convince the public that loss of privacy is inevitable because technology too easily invades our privacy or because this invasion is needed to protect society from unseen attacks. They do so to financially profit from the sale and development of security technology or to better monitor and control individual behavior for political purposes. 

This is nothing new. When restricting state use of eavesdropping devices on the public to detect crime in Berger v. State of New York in 1967, the Supreme Court implied that profit motives foster technological innovation in spying: “Since 1940 eavesdropping has become a big business. Manufacturing concerns offer complete detection systems which automatically record voices under almost any conditions by remote control.” More recently, sociologist Barry Glassner noted just prior to the 9/11 terrorist attacks: “The short answer to why Americans harbor so many misbegotten fears is that immense power and money await those who tap into our moral insecurities and supply us with symbolic substitutes.” According to Glassner, symbolic substitutes are the bogeymen of commercial and media alarm, manipulating anecdotal incidents and statistically unsupported risks to further powerful interests at the expense of societal interests. Surveillance technology manufacturers admit as much: “Every unfortunate event we hear about, whether it’s cyber-related or just flat out terrorism, these are drivers for our business. It’s unfortunate that they are and that they happen, but they do drive this industry and this market.” 

If the technology industry can create invasive and intrusive technology, it can certainly craft technology with better privacy protections if properly motivated. In the 1800s, when privacy of written communications was not practically assured, public approval for the innovations of envelopes and locks on mail bags compelled Congress to enact statutory protections for the privacy of the postal service. Such efforts resulted in paper mail receiving greater legal privacy protections today than digital information. Technological innovation and legal privacy protections can be and have been compatible. For this to occur, however, the American legal system must fulfill its obligation to enforce existing protections of the autonomy rights of individuals in the face of commercial and governmental interests intent on overreaching. 

To illuminate how existing legal tenets identify and enforce privacy rights, it is critical to examine the contexts where individual privacy rights are already most suppressed under American law: the arena of persons in civil and criminal state confinement. The use of technology to constantly monitor humans in confinement without their consent presupposes a legitimate purpose of public health and safety pursuant to state police power and other common law doctrines. More constant monitoring is arguably warranted based on the lesser right to autonomy and privacy of persons who are subject to court-ordered confinement for the protection of themselves or others, but is facing a reexamination in the courts. 

This article begins by introducing in Section I the legal recognition of the basic human need for autonomy in navigating privacy and social interactions, including its origins in natural law, adoption in international human rights, and emerging statutory and regulatory frameworks in the United States. Section II examines how and to what degree the courts have recognized the essential human and societal need for individual privacy and social interaction, with a focus on common law doctrines, as well as state and federal constitutional protections of the autonomy rights of persons in state confinement. Section III outlines the comparative state interests when infringing on the individual autonomy rights of confined persons in prisons and medical settings, including identification of interests common to all institutional settings. Finally, Section IV addresses the need for courts to realign the balance of these interests in light of emerging psychological research which reveals the continued importance of individual privacy with respect to technological innovation facilitating constant surveillance.