AdTech and BodyCams

'Adtech and Children’s Data Rights' by Lisa Archbold, Damian Clifford, Moira Paterson, Megan Richardson and Normann Witzleb in (2021) 44(3) UNSW Law Journal comments 

 The advertising technology industry, known as ‘adtech’, is a complicated network of organisations and individuals that collect, aggregate and deal with large amounts of personal data. As children engage with digital networks for many aspects of their lives, they are increasingly exposed to adtech practices. Depending on their age, children may have less knowledge of the commercial digital environment and less maturity in their decision-making processes than adults have. Their limited resilience in the face of adtech’s onslaught offers a particularly stark illustration of why it is problematic to look to ‘consent’ as the exclusive or predominant mechanism to control the use of consumer data in the digital ecosystem. This article examines the problems arising from adtech’s data practices and makes recommendations on how to strengthen the agency and control exercised by children and protect their best interests in the context of adtech.

'‘Every Move You Make … Every Word You Say’: Regulating Police Body Worn Cameras' by Robyn Blewer and Ron Behlau in the same journal comments 

The death of Minneapolis man, George Floyd, at the hands (or, knee) of a police officer in May 2020 appears to have set a nation, indeed the world, alight with outrage at ongoing, systemic racism and brutality by police officers. Body worn camera (‘BWC’) footage from officers attending this incident provides strong evidence of the circumstances of Mr Floyd’s death. In this article, we draw on criminological research and analyses of legislation in Australia and a number of international jurisdictions, to argue there is a need for improved regulation of BWCs. Despite incurring the substantial cost of deploying this technology, governments are relinquishing control of it to law enforcement agencies who, in turn, draft policies that maximise police discretion and protection while minimising the consequences of non-compliance. For governments to realise their objectives for BWCs, we argue there is a need for greater regulation to ensure BWCs are utilised effectively.

Wearables

'Wearable Sensor Technology and Potential Uses Within Law Enforcement: Identifying High-Priority Needs to Improve Officer Safety, Health, and Wellness Using Wearable Sensor Technology' by Sean E. Goodison, Jeremy D. Barnum, Michael J. D. Vermeer, Dulani Woods, Siara I. Sitar, Shoshana R. Shelton and Brian A. Jackson (RAND, 2020) asks 

How do WSTs intersect with law enforcement interests, both for the individual officer and the agency? What are the specific challenges that WST presents for data privacy, ownership, and the public? What are the salient issues associated with WST, and what are specific ways to address them? Many wearable sensor technology (WST) devices on the market enable individuals and organizations to track and monitor personal health metrics in real time. These devices are worn by the user and contain sensors to capture various biomarkers. Although these technologies are not yet sufficiently developed for law enforcement purposes overall, WSTs continue to advance rapidly and offer the potential to equip law enforcement officers and agencies with data to improve officer safety, health, and wellness. 

The report  reflects a workshop by RAND  and the Police Executive Research Forum for the US National Institute of Justice on the current state of WST and how it might be applied by law enforcement organizations. Workshop participants discussed possible issues with acceptance of WST among members of law enforcement; new policies that will be necessary if and when WST is introduced in a law enforcement setting; and what data are gathered, how these data are collected, and how they are interpreted and used. 

 RAND's key findings are that 

•  Current WSTs are not sufficiently developed for law enforcement purposes overall 
• Commercial devices, although inexpensive and portable, lack the accuracy and precision needed to inform and support decisionmaking. 
• WSTs used in medical settings, although capable of excellent accuracy and precision with high-quality data, are cost-prohibitive for wide distribution and are not portable. 
• The short-term focus should be on preparing for a time when technology will be more applicable to law enforcement roles The key is to obtain buy-in among law enforcement officers now — not for current technology, but for devices developed in the future and possible downstream effects on the field as WSTs are deployed to support officer safety and wellness, workforce retention, liability, and other issues. 
• The intersection between WST and law enforcement is currently defined by uncertainty The applicability of WST to law enforcement will be proportionate to how well the technology can reliably inform decisions about an officer's daily activities. 
• Devices need to seamlessly integrate with the technology that law enforcement already carries, measures need to be valid and reliable, interpretation of the data needs to be clear, and policies need to be in place for managing and monitoring the data. 
• Now is the time for law enforcement to participate in the process of developing WSTs Law enforcement specifications for WSTs might not match the commercial industry standard, so law enforcement needs to talk to — and be heard by — WST manufacturers. 

The consequent recommendations are

• Officers should be educated about the multiple uses and purposes of WST. 
• Pilot testing should be conducted, and feedback should be collected on experiences. Outcome measures should be identified early in the process. 
• Policies and processes for when and why data may be shared should be developed and implemented. 
• A sequenced or phased approach should be developed for taking validated technology to the field for scaled evaluations. 
• Individual baselines should be established to account for differences among individuals. 
• The state of the research should be monitored, and law enforcement and public expectations should be managed. 
• A set of best practices should be defined for consumer wearable devices. 
• Data should be encrypted at each layer, and end-to-end encryption should be employed. 
• Guidance and education about how to interpret data and metrics should be developed for WST users.

Bodycams

'Making the Body Electric: The Politics of Body-Worn Cameras and Facial Recognition in the United States' by Jacon Hood in (2020) 18(2) Surveillance and Society 157 comments 

This paper explores the rapid deployment of police body-worn cameras (BWCs) and the subsequent push for the integration of biometric technologies (i.e., facial recognition) into these devices. To understand the political dangers of these technologies, I outline the concept of “making the body electric” to provide a critical language for cultural practices of identifying, augmenting, and fixing the body through technological means. Further, I argue how these practices reinforce normative understandings of the body and its political functionality, specifically with BWCs and facial recognition. I then analyze the rise of BWCs in a cultural moment of high-profile police violence against unarmed people of color in the United States. In addition to examining the ethics of BWCs, I examine the politics of facial recognition and the dangers that this form of biometric surveillance pose for marginalized groups, arguing against the interface of these two technologies. The pairing of BWCs with facial recognition presentsa number of sociopolitical dangers that reinforce the privilege of perspective granted to police in visual understandings of law enforcement activity. It is the goal of this paper to advance critical discussion of BWCs and biometric surveillance as mechanisms for leveraging political power and racial marginalization.

Hood states 

On December 15, 2017,an Austin Police Department (APD) officer opened fire on a stabbing suspect outside of a Central Austin apartment complex. The entire incident was recorded by the officer’s body-worn camera (BWC). Two days later, in an unrelated incident, another APD officer fired at a suspect who, while walking toward the officer, refused to drop a knife. This event was also recorded by the officer’s BWC. Almost immediately, APD began analyzing the BWC footage in order to garner an “objective” viewpoint. Interim Police Chief Brian Manley said that “it was fortunate that our officers that were involved had the body-worn camera because they really did provide a view that we would not have had otherwise,” because prior to the deployment of BWCs in Austin, Texas, he would have had to “just try to put together the best assessment of what had happened” (Wilson 2017). 

 

BWCs have become the technological norm for police departments across the United States, employed with the goal of obtaining a similar third-party perspective as in the incidents in Austin (Sousa, Miethe, and Sakiyama 2015). Police BWCs emerged amid a cultural panic over police violence towards people of color (largely unarmed black people), promising to reduce police misconduct and foster transparency. Yet the growth of interest in these devices has been met with worry regarding their privacy implications as well as overly optimistic hopes that they will reduce police misconduct and improve officer-community relations (Nielsen 2016; Phillips 2016; Thomas 2017; Fan 2018). Accompanying this are evolving efforts to integrate biometric technologies, such as facial recognition software, into existing BWC practices (Harwell 2018; van Schelle 2018). Beyond the legal concerns about these advancements are the normative concerns about using the body as the target of policing. If we consider the history of the physical body as a site of domination for marginalized groups, then practices of making these bodies more visible becomes all the more perilous. The central danger becomes the potential for this new model of policing to (re)define which people’s bodies are codified as authorized and unauthorized in terms of criminality. If the proposed duty of police is to investigate, solve, and prevent crime, then the target of policing practice is the “criminal” as defined by their socio-legal transgression(s). Policing becomes more dangerous when individuals are broken down and reinterpreted in terms of the information provided by their body, instead of as agential social beings. 

 

The first section of this article lays out the guiding theoretical framework of “making the body electric” to describe cultural practices of entangling technology with the body. Drawing upon ideas from Simone Browne(2010, 2015), Bryan Pfaffenberger(1992), and Michel Foucault(1975, 1976, 1978), I propose this theory to address the various ways that connecting the physical body with technology contorts social power, particularly around race. The second section of this article describes the development and employment of BWC devices and the subsequent push for integration of biometric capabilities. This section reviews the major literature on the devices’ ability to decrease police misconduct, foster department transparency, and arouse public support for their use.In the third section,I build my analysis of the sociopolitical consequences of BWC and biometric technologies, with special attention toward facial recognition analysis, usingthe lens of making the body electric. This paper merges empirical and theoretical work on BWCs with emerging conceptual, discursive, and technical work on facial recognition to outline the dangers of what may occur if these technologies collide

Heckling, Chilling and Evidence

'Recording as Heckling' by Scott Skinner- Thompson in (2019) 108 Georgetown Law Journal comments 

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy. 

This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public, while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and also serve as direct expressive resistance to surveillance regimes. 

As this Article explains, once the First Amendment values of both the right to privacy and the right to record are systematically understood, existing doctrine—including the concept of the “heckler’s veto”—can help restore balance between these sometimes competing forms of “speech,” permitting citizen recording of police as well as allowing government regulation of certain recordings that breach the privacy shields of other citizens. 

Just as a heckler’s suppression of another’s free speech justifies government regulation of the heckler’s speech, so too when recording (a form of speech) infringes on and pierces reasonable efforts to maintain privacy (also a form of expression), then the government may limit the ability to record. The heckling framework underscores that liberated and vibrant public space is contingent on a balance between the ability to gather information and maintain privacy in public, while also providing a doctrinally-grounded path for adjudicating those interests.

In Australia the Canberra Times reports that the Australian Federal Police appear to be continuing the practice of chilling legitimate observation by the public through claims that recording is illegal or, more subtly, seizing recordings as 'evidence'. Such seizure should be unnecessary if we have systematic recording by officers and preservation of that evidence, through for example bodycams.

The CT states that an officer

adopted a heavy-handed approach to seizing evidence after an onlooker used his mobile phone to film a public arrest in the city on Thursday. The incident on Barry Drive shows a man attempting to evade police on his bicycle. He is caught by several officers, tackled to the ground, and handcuffed. 

The onlooker filmed the arrest of a man on Barry Drive. Then police approached him.  It appears to be a textbook albeit clumsy arrest until one of the officers sees the person filming and tells him to stop filming and back away. The person filming complied and turned to go away but the Traffic Operations officer then chased after him, seized the phone, and according to the new victim in this incident's online comments, would not return it until he could record the person's details and get him to send any recorded footage to police. 

Legal advice provided to The Canberra Times says that while police have the power to seize evidence, the more pressing issue in this case was whether the police "genuinely had grounds to suspect the footage could be important evidence in court". On the face of the limited public footage shown on social media, the evidence would appear to be to the contrary. 

The ACT Law Society goes on to suggest that the person was well within their rights to film the incident. The more likely reason the phone footage was seized was that "[the police] were more concerned about PR given it was a less than glamorous arrest". ACT Police media are continually requesting via their media interactions that anyone holding CCTV or dash cam footage to assist in their investigations. 

Police released a statement on Friday about the incident in which they identified the offender as in breach of his bail conditions. "The man was placed under arrest, and was subsequently charged with breach of bail, fail to appear, possess knife without reasonable excuse, and unlawful possession of stolen property," police said. "The video was provided to police. "As this matter is now before the courts, we are unable to comment further. However, in general terms police have the power to seize footage from members of the public as evidence."

One response is that having a power is not identical with an obligation to use that power.

My experience on campus several years ago, ironically as I was walking to give a privacy lecture, was being told by a uniformed AFP officer that it was illegal to film that officer - irrespective of circumstances - and that if I chose to do so I could be arrested. Possibly the thin blue line needs some more education.

The 'needed for evidence' seizure of devices poses challenges for advocates of sousveillance.

One perspective is provided in 'Context, visibility, and control: Police work and the contested objectivity of bystander video' by Bryce Clayton Newell in (2019) 21(1) New Media and Society, which

examines how police officers understand and perceive the impact of bystander video on their work. Drawing from primarily qualitative data collected within two police departments in the Pacific Northwest, I describe how officers’ concerns about objectivity, documentation, and transparency all manifest as parts of a broader politics of information within policing that has been amplified in recent years by the affordances of new media platforms and increasingly affordable surveillance-enabling technologies. Officers’ primary concerns stem from their perceived inability to control the context of what is recorded, edited, and disseminated to broad audiences online through popular platforms such as YouTube.com, as well as the unwanted visibility (and accountability) that such online dissemination generates. I argue that understanding the effects of this `new visibility’ on policing, and the role played by new media in this process, has become vitally important to our tasks of organizing, understanding, and overseeing the police.

'Points of View: Arrestees’ Perspectives on Police Body-Worn Cameras and their Perceived Impact on Police–Citizen Interactions' by Emmeline Taylor and Murray Lee in (2019) The British Journal of Criminology comments

Entirely absent from debates about the desirability and potential impacts of police body-worn cameras (BWCs) are the views of a significant group on the other side of the lens—individuals who have recently experienced arrest by a police officer. In a bid to redress this significant gap, this article reports findings from the first study to examine arrestee views and experiences of police BWCs. Data from interviews with 907 police detainees reveal that they are largely in favour of officers wearing cameras, believing that they can provide greater accountability and improve the behaviour of both law enforcement officers and members of the public. Importantly, however, this support is contingent on a number of operational and procedural policies regulating the use of BWCs.

The authors argue

 ‘Release the tapes. Release the tapes’ chants a throng of protesters in North Carolina, USA following the fatal shooting of Keith L. Scott by police in September 2016. Amid mounting pressure, the police released segments of two videos; one from a police dash-cam and the other from a police officer’s body-worn camera (BWC). Although neither recording provided conclusive evidence about the events that unfolded, or crucially whether Scott was indeed carrying a gun as had been claimed by the officer that shot him dead, the controversy highlights the degree to which audio-visual technologies have come to play a politically laden role in policing internationally, and importantly, symbolically represent notions of fairness, legitimacy, transparency and accountability. Despite such high-profile examples emphasizing their fallibility, recent years have seen billions of public monies invested in police BWCs internationally. A lack of evidence demonstrating effectiveness, or an understanding of how they operate in practice, has certainly not hampered their rapid adoption. Rather, an evidential desert has enabled police BWCs to be ascribed many ‘mythical properties’ (Palmer 2016). Elevated to ‘best practice’ from multiple sources including the American Civil Liberties Union (ACLU 2015) and the International Association of Chiefs of Police (IACP 2014), their costly adoption has proceeded on an exiguous evidence base. Although not unusual for police technologies to be heavily invested in without sufficient understanding of their effectiveness (Lum et al. 2019; Taylor 2010), the lack of awareness regarding how the public view and understand the police use of BWCs runs the risk of them inadvertently negatively impacting on perceptions of procedural justice and police legitimacy. 

Since the publication of a 2015 literature review that refrained ‘from drawing any definitive conclusions about BWC’ due to the scarcity of research (Lum et al. 2015: 11), Lum et al. (2019) report a five-fold increase in empirical studies. In addition to a modest catalogue of randomized control trials (RCTs) that typically use officer behaviour (e.g. use of force) and citizen behaviour (e.g. resisting arrest and citizen complaints) as proxy measures for assessing impact (see, e.g. Jennings et al. 2014; Ariel et al. 2016a; Braga et al. 2018), several studies have sought to gain insight into the views and experiences of police officers (Jennings et al. 2014; Katz et al. 2014; Roy 2014; Gaub et al. 2016; Goetschel and Peha 2017; Headley et al. 2017; Sandhu 2017); law enforcement leadership (Smykla et al. 2016; Sandhu 2017), and public attitudes toward police BWCs (Ellis et al. 2015; Maskaly et al. 2017; White, Gaub and Todak 2017). Yet, remarkably, entirely absent in debates about the desirability and potential impacts of BWC thus far are the views of an important group on the other side of the lens—i.e. arrestees. It is this literature on the perceptions of police BWCs that this study contributes a vital and unique dataset. By understanding the views of arrestees, we can begin to see how they might animate their encounters with camera-wearing officers and influence their perceived understanding of any subsequent involvement with criminal justice procedures. 

The article is organized into five sections. First, an overview of developments in the use of audio-visual surveillance technologies in policing is provided before looking at the emergence of police BWCs specifically. The second section offers a précised overview of empirical research, focusing on the impact that BWCs have been found to have on the behaviour of police officers and citizens. Adding a vital international perspective, an overview of developments in Australia, the site of this study, is provided in the third section.1 This is followed by details of the methodology before the article turns, in the fifth section, to the findings. The study elicited a large amount of data and this article focuses specifically on four thematic domains not elsewhere reported: police use of force; arrestee aggression and violence; procedural justice; and, the operation of the cameras. By shifting the focus to those individuals on the other side of the lens, the analysis offers essential insights into the nuanced ways that police arrestees interpret and respond to police wearable cameras. This is of global significance if police legitimacy is to be maintained in the era of ‘new visibility’ (Goldsmith 2010). The sixth and final section discusses the implications for the ongoing operation of police BWCs and avenues for future research.

Another perspective is offered in 'Eyes and Apps on the Streets: From Surveillance to Sousveillance Using Smartphones' by Vania Ceccato in (2019) 44(1) Criminal Justice Review, which

explores the concept of surveillance by assessing the nature of data gathered by users of a smartphone-based tool (app) developed in Sweden to assist citizens in reporting incidents in public spaces. This article first illustrates spatial and temporal patterns of records gathered over 9 months in Stockholm County using Geographic Information Systems (GIS) to exemplify the process of sousveillance via app. Then, the experiences of user group members, collected using an app-based survey, are analyzed. Findings show that the incident reporting app is more often used to report an incident and less often to prevent it. Preexistent social networks in neighborhoods are fundamental for widespread adoption of the app, often used as a tool in Neighborhood Watch schemes in high-crime areas. Although the potentialities of using app data are open, these results call for more in-depth evaluations of smartphone data for safety interventions.

Ceccato comments

Since Jacobs’s seminal work, The Death and Life of Great American Cities in 1961, we have heard the powerful key concept of “eyes on the street” countless times. Jacobs (1961) wrote that in order for a street to be a safe place, “there must be eyes upon the street, eyes belonging to those we might call the natural proprietors of the street” (p. 35). But the era of smartphones and location-based services (LBS) has changed the way that the individuals interact with a city. Now, “eyes” are complemented by “apps,” giving expression to new ways of depicting what happens in public space and perhaps redefining the role of guardians in surveillance. Compared with the traditional eyes on the street, the new exercise of social control invites a number of senses other than sight, such as touch and sound. An incident that happens on the street is still local (attached to a physical place with a pair of coordinates) but can now be seen by faraway eyes, literally by the whole world. Jacobs’ sense of “natural proprietors of the street” acquires a different meaning, as those who set a record on the (m)app are not only local residents but also visitors or transients, perhaps with no attachment to the area. With networks of smartphone app users, the process of sousveillance (Mann, 2004, p. 620), from French for “to watch from below,” seems to be more appropriate than surveillance (“to watch from above”). “Sousveillance describes the present state of modern technological societies where anybody may take photos or videos of any person or event, and then diffuse the information freely all over the world” (Ganascia, 2010, p. 489). This article calls for a reconceptualization of the term surveillance in the context of crowdsourced data (as sousveillance) gathered by LBS apps. 

The aim of this article is to explore the concept of surveillance and related terms by evaluating the nature of the data captured by users of an incident-reporting app,1 which was developed to support crime-prevention initiatives across Sweden. The aim is achieved by first characterizing this type of crowdsourced data as a result of the processes of sousveillance with an LBS app. Nine months of reports (app entries) in Stockholm County are assessed using geographic information systems (GIS) in relation to other indicators of safety and area characteristics. Also, the experiences of app users are analyzed via a survey. Then, by looking at the nature of the app-based data and the characteristics of the app users, we reflect upon some ideas that are taken for granted and traditionally characterize the process of surveillance. 

A reason to choose Stockholm, the capital of Sweden, as a case study is the availability of app-based data coming from smartphones (the app is an award-winning, free digital tool) that promote sousveillance through an online “Neighborhood Watch” scheme (NWS) and support local emergency services. Moreover, another reason for this choice is the degree of media penetration in the country, which is one of the highest in the world (Fox, 2013). According to The Internet Foundation in Sweden, as many as 77% of the population has a smartphone, 62% uses the Internet on their smartphone on a daily basis, and 57% navigates with help of a GPS in the smartphone. In 2015, over 95% in the 8–55 age-group were using the Internet, and this percentage is increasing within all age groups (Internetstiftelsen i Sverige, 2016). 

This article is structured as follows. It first reviews the literature in guardianship and surveillance and indicates how they may be affected by new technological developments, for example, LBS apps. We identify the current knowledge gaps in the international literature and use the Stockholm case study to contribute to filling some of these gaps. Note, however, that the Stockholm study presented here is based on a small sample data set, which means that some of the conclusions are driven by an exploratory analysis of the data rather than by rigorous, confirmatory hypotheses testing. Instead of claiming generality of the results, this analysis provides examples that are illustrative for the field. This article ends with a discussion of relevant topics to be pursued in future research and some of the technical, legal, and ethical challenges that lie ahead when using smartphone data.

Flaxton Report on corruption in Qld Prisons

The Queensland Crime and Corruption Commission's Taskforce Flaxton: An examination of corruption risks and corruption in Queensland prisons report comments

In March 2018, the Crime and Corruption Commission (CCC) commenced Taskforce Flaxton in response to the corruption risks inherent in the custodial environment, the complex model used to deliver custodial services in Queensland, the 2017 Machinery of Government changes that established Queensland Corrective Services as a stand-alone agency, increases in the number of allegations made to the CCC about corrupt conduct involving staff working in Queensland prisons and the outcomes of a number of CCC investigations that identified possible systemic issues. 

Taskforce Flaxton sought to examine:

• corruption and risks of corruption in QCS facilities (including 14 prisons (two managed under private contracts), and work camps) 

• features of the legislative, policy and operational environment that may enable corrupt conduct to occur or are vulnerable to corrupt conduct 

• reforms to better prevent, detect and deal with corrupt conduct within QCS facilities.

The CCC found that unique features of the prison environment create corruption risk. Specifically:

• Prison overcrowding is negatively affecting the way prisons operate and increasing corruption risk. The CCC is of the view that alleviating prison overcrowding is essential to reducing corruption risk and corruption in Queensland prisons. 

• The complexity and diversity of the Queensland prisoner population influences prison dynamics and the range and nature of services offered. Further, prisoners with special needs are more dependent on services and correctional staff, and at risk of being exploited as a result of corrupt conduct.

 The CCC is of the view that more needs to be done to improve prisoner health, in particular.

• The inherently closed nature of prisons can facilitate and perpetuate corruption. Greater investment in surveillance technology, improved public reporting and an enhanced independent inspection function will facilitate transparency and accountability. 

• The relationships between custodial correctional officers and prisoners that are necessary to maintain order in a prison create significant corruption risk. 

• Privately operated prisons create challenges for the State in ensuring prisoners detained in these facilities are treated humanely and have appropriate access to programs and services.

The CCC also identified a number of corruption risks that were particularly evident. These included failure to report corruption, inappropriate relationships, excessive use of force, misuse of authority, introduction of contraband and misuse of information. 

An effective anti-corruption framework is necessary to mitigate the unique features of the prison environment that create corruption risk and the specific corruption risks that manifest in prisons. In the CCC’s view, the existing framework operating in Queensland is not effectively preventing, detecting or dealing with corruption risk or corruption in prisons. 

This report proposes an anti-corruption framework that, if effectively implemented, will improve safety and security, integrity and impartiality, accountability and transparency, and performance. To deliver improvements in these areas, and ultimately reduce corruption risk, the CCC proposes that QCS must improve its strategy and performance, implement more robust anti-corruption measures, and improve its internal oversight. In addition, the CCC proposes enhancements to external oversight mechanisms.

The Commission makes the following recommendations

Recommendation 1 

That QCS: (a) develop a comprehensive measurement strategy to assess the performance of its anticorruption strategy (b) incorporate anti-corruption performance reporting into appropriate governance committees to ensure appropriate oversight (c) publicly report anti-corruption performance outcomes. 

Recommendation 2 

That QCS revise the way it measures the performance of prisons. The performance framework should: (a) use consistent performance standards and a consistent performance measurement approach across all Queensland prisons (b) include all appropriate cost, input, output, and outcome key performance indicators (including integrity measures and data quality measures) (c) include strategies to improve data availability and data quality (d) provide greater public access to performance indicators and performance reports. 

Recommendation 3 

That QCS review its risk management framework to improve the identification, management and oversight of corruption risk. 

Recommendation 4  

That QCS review its organisational structure to: (a) support the delivery of its ten year strategy (b) provide greater role and function clarity (including span of control, reporting lines, delegations and authorisations, employee performance management) (c) be sufficiently agile to accommodate future changes in the agency’s strategy (d) improve standards, drive performance and deliver efficiencies (e) promote internal communication. 

Recommendation 5 

That, at a minimum, the following functions be centrally controlled and services delivered in line with Service Level Standards: (a) human resources, including the QCS Academy, workforce planning and talent management and rostering (b) finance, including contract management and procurement (c) information technology and digital services (d) facilities and assets (e) ethical standards (f) intelligence. 

Recommendation 6 

That: (a) QCS establish an organisational-wide cultural change program to assess current culture, create a shared vision of the ideal culture, develop and implement initiatives to support cultural change, and monitor and report on the implementation of initiatives and cultural change (b) the organisational-wide cultural change program be monitored by the QCS Board of Management to ensure alignment of culture, strategic intent and performance priorities, and to ensure the program is adequately resourced. 

Recommendation 7 

That: (a) QCS, as contract manager on behalf of the State of Queensland, and private prison providers agree and implement a universal set of culture indicators (b) each prison measure culture on an annual basis and publicly release these findings. 

Recommendation 8 

That QCS: (a) commission an independent capability review to assess the agency’s capability to efficiently and effectively deliver its strategic intent (b) develop strategies to address capability gaps (particularly human resources, information and communication technology, operational performance reporting and ethical standards) (c) monitor strategy development, implementation and outcomes at the QCS Board of Management. 

Recommendation 9 

That QCS: (a) establish a centralised function responsible for policy and practice management throughout the agency to promote performance standards and consistency (b) review Custodial Operations Practice Directives and local instructions to improve clarity and consistency. 

Recommendation 10 

That: (a) Queensland Health implement the recommendations of the Offender Health Services Review Final Report (b) QCS support the implementation of the recommendations of the Offender Health Services Review Final Report (c) QCS and Queensland Health jointly identify aspects of the QCS operating model (systems, policies and practices) that undermine the delivery of prisoner health services and QCS, where feasible, change systems, policies or practices to facilitate better prisoner health outcomes. 

Recommendation 11 

That QCS develop an agency-specific Code of Practice to complement the Code of Conduct. 

Recommendation 12 

That QCS: (a) include QCS values in human resource policy and practice (including recruitment and selection and performance management) (b) review recruitment and selection policy and practice to ensure they are meritorious and transparent (c) strengthen pre-employment screening, vetting and probity processes. 

Recommendation 13 

That QCS develop and implement a formal first year correctional officer graduate program to minimise early exposure to higher-risk environments and provide greater support, training and oversight during initial operational placement. 

Recommendation 14 

That QCS review mandatory refresher training to include training that responds to the needs of the prisoner cohort and targets high-risk corruption areas. 

Recommendation 15 

That QCS develop a staff rotation policy to reduce corruption risk, promote professional development and enhance performance. 

Recommendation 16 

That QCS: (a) establish overtime policies and procedures to reduce opportunities for manipulation (b) review the staffing model in prisons to provide greater flexibility, reduce the need for overtime and support the recommendations proposed in this report (c) establish performance standards for overtime and include overtime as a key performance indicator for prison performance. 

Recommendation 17 

That QCS: (a) implement an agency-wide, electronic system to record conflicts of interest and management action n (b) develop and implement a declarable association policy. 

Recommendation 18 

That the Corrective Services Act 2006 be amended to permit an appropriate QCS delegate to direct a person (other than a prisoner) at or entering a prison to submit to a prescribed alcohol/drug test. 

Recommendation 19 

That QCS develop an integrity testing regime to identify and strengthen deficient systems and processes, and support the investigation of people suspected of engaging in corrupt conduct. 

Recommendation 20 

That the Corrective Services Act 2006 be amended to grant broader powers to search staff working in prisons. 

Recommendation 21 

That QCS establish a dedicated human source unit and review its human source management policy and process to comply with contemporary practice standards. 

Recommendation 22 

That QCS review property and exhibit management policies and practices to decrease corruption risk, improve evidentiary value and align with modern standards. 

Recommendation 23 

That QCS: (a) review closed circuit television coverage to reduce high-risk blind spots (b) replace outdated closed circuit television technology to ensure all cameras have the ability to record video footage. 

Recommendation 24 

That QCS: (a) increase the number of body worn cameras used in Queensland prisons (b) revise the body worn camera policy to clearly state when activation is mandatory. 

Recommendation 25 

That QCS increase video conference capacity in prisons to reduce the need to transport prisoners to court and health services. 

Recommendation 26 ( 

That QCS implement an electronic mail process to decrease the volume of mail entering prisons via the postal service. 

Recommendation 27 

That QCS: (a) replace the Integrated Offender Management System with a system that meets recognised information management and security standards (b) in the interim, and with priority, implement “remediation strategies” to reduce the risk that prisoner information can be inappropriately accessed and released (c) identify information management as a strategic risk. 

Recommendation 28 

That QCS: (a) establish an agency-specific Public Interest Disclosure policy and process (b) review the processes and supports available to witnesses and disclosers who are employees (c) improve complaint management processes (consistent with the recommendations made by the Queensland Ombudsman in 2016). 

Recommendation 29 

That QCS review prisoner complaint processes to: (a) improve prisoner understanding of complaint processes (b) increase prisoner confidence in the process (with specific objectives of providing confidentiality and reducing the fear of reprisal) (c) provide greater consistency across prisons. 

Recommendation 30 

That QCS: (a) broaden the remit of the Ethical Standards Unit to provide the following functions: prevention and early intervention, professional standards, integrity policy framework, complaints management, investigation, discipline system, witness support, critical incidents, covert operations, and risk management (b) review the resources, capabilities, systems and processes required to deliver this broader remit (c) implement a staffing model that reduces the risk that staff working in the Ethical Standards Unit will be captured by those who seek to influence the proper delivery of its functions (d) review the discipline process to improve timeliness and provide greater consistency for decisions (e) establish a discipline unit, reporting to the QCS Commissioner and independent from the Ethical Standards Unit, to deal with discipline matters and develop sanction matrices. 

Recommendation 31 (p. 46) That QCS: (a) establish, within the Ethical Standards Unit, dedicated intelligence staff to focus on staff corruption and integrity (b) align methodologies, systems and processes used to support the intelligence function with contemporary practice standards (c) centralise the intelligence function (see also Recommendation 5(f)) (d) review policies, systems and processes to appropriately secure intelligence information (e) review the intelligence establishment and rostering model to provide an increased level of service to prisons 

Recommendation 32 

That QCS and Queensland Police Service (QPS) collaboratively review the service delivery model used to investigate criminal offences in prisons. The revised model should: (a) adequately describe the role and function of the Corrective Services Investigation Unit to assist in performance reporting and review (b) ensure that only appropriate incidents are referred to the QPS for investigation (c) ensure that matters are assessed, investigated and resolved in a timely manner (d) maximise information sharing between QPS and QCS (e) reduce corruption risk for QPS investigators working in prisons (f) facilitate the use of innovative investigative methods.  

Recommendation 33 

The CCC recommends: (a) the establishment of a properly resourced Independent Inspectorate of Prisons (b) the development of nationally consistent inspection standards, cycles, methods and reporting templates (c) inspection reports be made publicly available.

Privacy Infrastructure

'Building Privacy into the Infrastructure: Towards a New Identity Management Architecture' (University of Miami Legal Studies Research Paper No. 16-26) by Michael Froomkin argues

We are at risk of becoming digitally transparent to both government and the private sector. As it is increasingly obvious that US law is not going to prevent the destruction of personal privacy, we urgently need better privacy tools, baked into the way we do transactions. A partial, but significant, privacy enhancement would be a new Identity Management Architecture (IMA) enabling multiple privacy-protective transaction-empowered digital personae per user. Each persona (or ‘nym if you prefer) would have the ability to communicate, and at least a limited ability to transact, in a manner that would not be linkable, or least very difficult to link, to the real identity of the user. By using a variety of personae for online transactions, reading, and communication, users would defeat — or at least vastly reduce the effectiveness — of commercial and perhaps also governmental profiling. 

The problem is that an IMA that enables privacy enhanced personae is most unlikely to reach wide acceptance unless it is designed in a manner that makes it easy to use. It will not receive US governmental acceptance unless it also reduces the extent to which the personae can be used to break laws and evade contractual obligations. This paper thus discusses the legal and political considerations that might inform a requirements document for such an IMA with special reference to US law and likely US government reaction. It includes a survey of laws that parties engaging in or enabling anonymous or pseudonymous transactions should consider, and concludes with discussion of several critical design decisions including transnational credentials, the possibility of identity escrow for transactional personae, and speculation as to how personae might fare in the marketplace. 

The timeliness of this proposal is demonstrated by David Chaum’s recent announcement of new privacy protocol, PrivaTegrity, that contains most of the features needed to engineer a privacy-enhanced IMA that might be acceptable to law enforcement. The need for some action, whether based on PrivaTegrity or otherwise, is very great — so critical that it may time to accept the previously unthinkable, and accept some form of identity escrow as part of the IMA.

'Privacy, Public Disclosure, Police Body Cameras: Policy Splits' by Mary Fan in (2016) 68 Alabama Law Review comments

When you call the police for help — or someone calls the police on you — do you bear the risk that your worst moments will be posted on YouTube for public viewing? Police officers enter some of the most intimate incidences of our lives — after an assault, when we are drunk and disorderly, when someone we love dies in an accident, when we are distraught, enraged, fighting, and more. As police officers around the nation begin wearing body cameras in response to calls for greater transparency, communities are wrestling with how to balance privacy with public disclosure. 

This article sheds light on the balances being struck in state laws and in the body camera policies of police departments serving the 100 largest cities in the nation. The evaluation illuminates two emerging areas of concern — the enactment of blanket or overbroad exemptions of body camera footage from public disclosure, and silence on victim and witness protection in many policies. The article offers two proposals to address the challenges. First, the article argues for legal safe harbors to foster the development of new redaction technologies to automate the removal of private details rather than exempting body camera video from disclosure. Blanket or broad exemptions from public disclosure destroys the incentive to use technological innovations to reconcile the important values of transparency and privacy and disables much of the promised benefits of the body camera revolution. Second, the article argues for giving victims and witnesses control over whether officers may record them, rather than putting the burden on victims and witnesses to request that recording cease. This approach better protects against the perverse unintended consequence of deterring victims from help-seeking and witnesses from coming forward, and reduces the risk of inflicting further privacy harms from justice-seeking.

US BodyCams

'Justice Visualized: Courts and the Body Camera Revolution' by Mary D. Fan in (2016-17) 50 UC Davis Law Review (forthcoming) comments

 What really happened? For centuries, courts have been magisterially blind, cloistered far away from the contested events that they adjudicate, relying primarily on testimony to get the story – or competing stories. Whether oral or written, this testimony is profoundly human, with all the passions, partisanship and imperfections of human perception. Now a revolution is coming. Across the nation, police departments are deploying body cameras. Much of the current focus is on how body cameras will impact policing and public opinion. Yet there is another important audience for body camera footage – the courts that forge constitutional criminal procedure, the primary conduct rules for police. This article explores what the coming power to replay a wider array of police enforcement actions than ever before means for judicial review and criminal procedure law. The body camera revolution means an evidentiary revolution for courts, transforming the traditional reliance on reports and testimony and filling in gaps in a domain where defendants are often silent. 

The article envisions a future where much of the main staple events of criminal procedure law will be recorded. Analyzing body camera policies from departments across the nation reveals that this future is unfolding now. The article proposes rules of judicial review to cultivate regular use of the audiovisual record in criminal procedure cases and discourage gaps and omissions due to selective recording. The article also offers rules of restraint against the seductive power of video to seem to depict the unmediated truth. Camera perspective can subtly shape judgments. Personal worldviews impact image interpretation. And there is often a difference between the legally relevant truth and the depiction captured on video. Care must be taken therefore to apply the proper perceptual yardsticks and reserve interpretive questions for the appropriate fact-finders.

Copcams

From a David Brooks op ed in the NY Times regarding 'cop cams' -

Cop-cams chip away at that. The cameras will undermine communal bonds. Putting a camera on someone is a sign that you don’t trust him, or he doesn’t trust you. When a police officer is wearing a camera, the contact between an officer and a civilian is less likely to be like intimate friendship and more likely to be oppositional and transactional. Putting a camera on an officer means she is less likely to cut you some slack, less likely to not write that ticket, or to bend the regulations a little as a sign of mutual care. 

Putting a camera on the police officer means that authority resides less in the wisdom and integrity of the officer and more in the videotape. During a trial, if a crime isn’t captured on the tape, it will be presumed to never have happened. 

Cop-cams will insult families. It’s worth pointing out that less than 20 percent of police calls involve felonies, and less than 1 percent of police-citizen contacts involve police use of force. Most of the time cops are mediating disputes, helping those in distress, dealing with the mentally ill or going into some home where someone is having a meltdown. When a police officer comes into your home wearing a camera, he’s trampling on the privacy that makes a home a home. He’s recording people on what could be the worst day of their lives, and inhibiting their ability to lean on the officer for care and support. 

Cop-cams insult individual dignity because the embarrassing things recorded by them will inevitably get swapped around. The videos of the naked crime victim, the berserk drunk, the screaming maniac will inevitably get posted online — as they are already. With each leak, culture gets a little coarser. The rules designed to keep the videos out of public view will inevitably be eroded and bent.

BodyCams and other visibility

Three items on body cams and a defence by Microsoft apologists ...

'Moral Panics and Body Cameras' by Howard M. Wasserman in (2015) Washington University Law Review (Forthcoming) states that

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing the body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.

'Visibility is a Trap: Body Cameras and the Panopticon of Police Power' by Eric Anthamatten claims that

One of the responses to the recent grand jury non-indictment in the death of Michael Brown was a call to equip police officers with cameras, the idea being that somehow this “third eye” will allow us to “see” the truth in a more objective way. If only we had a camera, we would know better what happened between Officer Darren Wilson and Michael Brown on that street. The human eye is not reliable, so we need a machine eye that is by its very nature disinterested and objective. The discussion of justice become not about systems and institutions of power, but conversations about vision, whether or not it is legal to film the police, whether or not it is a violation of our rights to have the police film us. If we can just police the police, watch the watchers, perhaps the asymmetry of power would be balanced or negated, and justice will somehow obtain. ...

For Foucault, the Panopticon became a symbol for “disciplinary society,” one that “called for multiple separations, individualizing distributions, an organization in depth of surveillance and control, an intensification and a ramification of power.” Power did not operate (only) by repression and overt force, but through these more subtle (and now, not so subtle) fragmentations that tear apart and recreate subjectivity and personhood, shape this “collection of separated individualities,” atomize and vaporize, a power that makes those “elementary particles” more manageable and docile. Disciplined bodies become “the object of information, never a subject of communication.”

“The Panopticon is a privileged place for the experiments on men,” “a kind of laboratory of power.”

On December 1st, amidst the varying levels of response to the non-indictment of Officer Wilson, President Obama requested $236 million to invest in body cameras and police training in order to restore trust in policing (nevermind that “trust” involves not having to watch someone at every moment). Two days later, a Staten Island grand jury decided not to indict Officer Daniel Pantaleo in the death of Eric Garner, an event that was caught on camera. Many, both liberal and conservative, clearly “saw” an injustice and an abuse power. Others saw Garner resist which, in their minds, justified the response by Pantaleo. Immediately, the “solution” of increasing cameras became problematic, if not farcical — even the visual evidence was not enough to indict, belying and underlying systemic problem that shapes the way we “see.”

But it is not simply a question of interpretation and how one “judges” the events, something that inevitably occurs in and through the double-interpretation of perception via any medium (text, photograph, video). Such a solution is a fetishization of sight that evades the underlying problem, a problem that not only has to do with race and class, but also the very structures, technologies and deployments of power in modern society ...

While Foucault provides a compelling analysis of the relationship between surveillance, discipline, and the deployment of power, what he’s articulating is something that is experienced daily by people of color in the United States, namely the experience of constantly being watched while moving through public space, of being always marked by skin color, manner of dress, or physical comportment, what W.E.B. Dubois calls a “double-consciousness.” It is the experience of not only being a “suspicious” body, but of being disciplined, controlled, and already indicted in and through those surveilling eyes. It is the expiring of being incarcerated, unfree.

“The Panopticon ... must be understood as a generalizable model of functioning; a way of defining power relations in terms of the everyday life of men.” Yes, we all live in a Panopticon. But it is not only the Panopticon of Bentham or Orwell, a central tower from which the gaze operates. Rather, it is the Panopticon of Kafka, one that is everywhere precisely because there is no centralization, where we, the surveilled, are also the surveillers, we the watched are also the watchers. “Consequently, it does not matter who exercises power. Any individual, taken almost at random, can operate the machine: in the absence of the director, his family, his friends, his visitors, even his servants.”

Such surveillance has become normalized and distributed, into our own pockets, onto our own bodies. It is not a great leap to imagine the police outfitted with, alongside their peppery spray and pistols, glasses that record everything, or perhaps even cameras embedded into their own eyes. Is this the image of justice and freedom? Will this protect the citizenry and help to reduce racism, classism, and abuses of power?

Perhaps surveillance will help both police officers and citizens feel more secure because they feel they will be accountable to some disinterested third party or to the “court” of public judgment. There is some recent evidence that use of force declines when body cameras are present. But, as Foucault emphasizes, surveillance is yet another refinement of power and control, a technology, however well-intentioned, that continues to atomize our bodies in time and space as a way of examining, fragmenting, and controlling those bodies. There is no justice “behind” the way we realize it through our technologies and systems. These cameras, then, do not become the tool of justice, but a catalyst for surveillance, discipline, and punishment. The camera replaces the gun — the violence and control over a body is no less totalizing.

“Broken windows” leads to broken windows. The “riot” is, at some level, an expression of exclusion from property and meaningful participation and recognition in the life of society. Many see it as a breaking in, but it is in fact a breaking out of the “dungeon” of surveillance and control perpetuated by modern biopower. This is something that bodies that are not under siege do not and perhaps cannot understand. From the safety of their own “Panopticon,” behind the glass of the television, in the comfort of their living room chair, they watch these “animals” and only see “thugs,” “hoodlums,” “criminals,” a “prison riot,” not to mention other choice labels by which they “see” these bodies.

This is precisely the point: poor communities where most of the bodies are brown experience “public” and “free” space as surveilled space, controlled space, a space where their bodies are not their own but perpetually disciplined, fragmented, and examined by the various modes of power. Are more eyes the answer?

Visibility is a trap

'Are You Recording This?: Enforcement of Police Videotaping' by  Martina Kitzmueller in (2014) 47(1) Connecticut Law Review comments

Increasing numbers of police departments equip officers with dashboard or body cameras. Advances in technology have made it easy for police to create and preserve videos of their citizen encounters. Videos can be important pieces of evidence; they may also serve to document police misconduct or protect officers from false allegations. Yet too often, videos are lost, destroyed, or never made, often depriving criminal defendants of the only objective evidence in a case. When this happens, there is not always a consequence to the prosecution. This Essay explores this problem of enforcement by examining how different states are compelling law enforcement to make and preserve videos through a combination of legislation and judicial intervention.

'Do-Not-Track and the Economics of Third-Party Advertising' (Boston University School of Management Research Paper No. 2505643) by Ceren Budak, Sharad Goel, Justin M. Rao and Georgios Zervas argues that

 Retailers regularly target users with online ads based on their web browsing activity, benefiting both the retailers, who can better reach potential customers, and content providers, who can increase ad revenue by displaying more effective ads. The effectiveness of such ads relies on third-party brokers that maintain detailed user information, prompting legislation such as do-not-track that would limit or ban the practice. We gauge the economic costs of such privacy policies by analyzing the anonymized web browsing histories of 14 million individuals. We find that only 3% of retail sessions are currently initiated by ads capable of incorporating third-party information, a number that holds across market segments, for online-only retailers, and under permissive click-attribution assumptions. Third-party capable advertising is shown by 12% of content providers, accounting for 32% of their page views; this reliance is concentrated in online publishing (e.g., news outlets) where the rate is 91%. We estimate that most of the top 10,000 content providers could generate comparable revenue by switching to a “freemium” model, in which loyal site visitors are charged $2 (or less) per month. We conclude that do-not-track legislation would impact, but not fundamentally fracture, the Internet economy.

Opacity Rights

'Through the looking GLASS: Google GlassTM, privacy, and opacity, with an Israeli law twist' by Arye Schreiber in (2014) 4(1) International Data Privacy Law comments that

 Google GlassTM and other wearable computers pose considerable challenges to existing privacy paradigms and laws. This article examines Glass and its implications for privacy from an Israeli law perspective. The article focuses on privacy of third parties vis-à-vis the Glass user, rather than on the privacy of the user vis-à-vis others or the state. 

Privacy law concerning visual privacy — taking and publishing pictures of others — needs to meet the wearable computing challenge. As wearable computers become ubiquitous, ‘reasonable expectations of privacy’ will change. The law will likewise need to accommodate a new reality in which an inconsequential passing glance becomes a recording saved for posterity, and possibly shared with the world in real-time. The author suggests that there are good grounds for recognizing a Right to Opacity — a right not to be subjected to constant surveillance and photography. 

Eavesdropping law will need to evolve in order to contend with new paradigms of intercepting conversation, including lip-reading and speech-to-text technology. These and other technologies that Glass will feature do not currently fall neatly within eavesdropping and privacy law definitions. 

Regulators and lawmakers around the world have responded inconsistently to Glass, apparently reflecting some fear, confusion, and suspicion. To the extent that regulators and legislators want some sort of consultative or veto rights over new products with privacy implications, that needs to be debated and legislated.

'Privacy in Public: “Google Glass” and “Creepshots”' by Subhajit Basu at BILETA last month considers -

two interrelated issues that we will be confronting since the invention of “Google Glass”. First, the development of a particular technology that is inevitable and sometimes autonomous and, second, potential victims of that innovation. I argue that the expansion of a technology like “Google Glass”, in particular the use of this technology for taking “creepshots”, blurs the line between what is considered public and private. “Creepshots” are covertly taken sexually indicative photographs, mostly of women, which are posted online without consent. In fact, it is the lack of consent that is the crucial component for a photograph to be classified as a “creep shot”. 

Vint Cerf argues that “Google Glass” provides ‘an opportunity to experiment with what happens when you allow a computer to become part of your sensory environment. It sees and hears what you see and hear and it can apply its power and the power of the Internet to make use of information in context.’ In any case a simple act of taking photographs of an individual in a public street (which can be done with a wink while using “Google Glass”) will not by itself engage Article 8(1) of ECHR unless there are aggravating factors. 

It is a trite law to state that the conception of “privacy in public” is amorphous and it is based on a traditional understanding of “reasonable expectation” of privacy. However, the nature of the exposure due to “Google Glass” not only invades an individual’s expectation of privacy, but it also calls into question the traditional definition of privacy and interpretation of that definition. Nevertheless, question also arises as to whether the law protects the “sexualisation” of a female body or part of a body taken out of context. This article further analyses the various challenges for protecting “privacy in public” because of innovations like “Google Glass” and will map out future theoretical directions.