Classroom FRT

'Cameras in the Classroom: Facial Recognition Technology in Schools' (2020) by Claire Galligan, Hannah Rosenfeld, Molly Kleinman and Shobita Parthasarathy 2020 comments 

 Facial recognition (FR) technology was long considered science fiction, but it is now part of everyday life for people all over the world. FR systems identify or verify an individual’s identity based on a digitized image alone, and are commonly used for identity verification, security, and surveillance in a variety of settings including law enforcement, commerce, and transportation. Schools have also begun to use it to track students and visitors for a range of uses, from automating attendance to school security. FR can be used to identify people in photos, videos, and in real time, and is usually framed as more efficient and accurate than other forms of identity verification. However, a growing body of evidence suggests that it will erode individual privacy and disproportionately burden people of color, women, people with disabilities, and trans and gender non-conforming people. In this report, we focus on the use of FR in schools because it is not yet widespread and because it will impact particularly vulnerable populations. We analyze FR’s implications using an analogical case comparison method. Through an iterative process, we developed historical case studies of similar technologies, and analyzed their social, economic, and political impacts, and the moral questions that they raised. This method enables us to anticipate the consequences of using FR in schools; our analysis reveals that FR will likely have five types of implications: exacerbating racism, normalizing surveillance and eroding privacy, narrowing the definition of the “acceptable” student, commodifying data, and institutionalizing inaccuracy. Because FR is automated, it will extend these effects to more students than any manual system could. On the basis of this analysis, we strongly recommend that use of FR be banned in schools. However, we have offered some recommendations for its development, deployment, and regulation if schools proceed to use the technology.

Surveillance

'Big brother: the effects of surveillance on fundamental aspects of social vision' by Kiley Seymour, Jarrod McNicoll and Roger Koenig-Robert in (2024) 1 Neuroscience of Consciousness argues 

Despite the dramatic rise of surveillance in our societies, only limited research has examined its effects on humans. While most research has focused on voluntary behaviour, no study has examined the effects of surveillance on more fundamental and automatic aspects of human perceptual awareness and cognition. Here, we show that being watched on CCTV markedly impacts a hardwired and involuntary function of human sensory perception—the ability to consciously detect faces. Using the method of continuous flash suppression (CFS), we show that when people are surveilled (N = 24), they are quicker than controls (N = 30) to detect faces. An independent control experiment (N = 42) ruled out an explanation based on demand characteristics and social desirability biases. These findings show that being watched impacts not only consciously controlled behaviours but also unconscious, involuntary visual processing. Our results have implications concerning the impacts of surveillance on basic human cognition as well as public mental health. .. 

In recent years, we have seen an exponential increase in human surveillance. We now live in a world with closed-circuit television (CCTV) in public spaces, trackable mobile devices, and the monitoring of our activities through artificially intelligent technology and the ‘Internet of Things’ (the interconnected system of our devices and sensors collecting and sharing data through the internet). Data on what we do, what we say, and where we go can be monitored and made available to third parties (Zuboff 2015, Cecez-Kecmanovic 2019). With the advent of emerging neurotechnology, even our mental privacy is at risk (Farahany 2023). Despite this proliferation of surveillance technology, there is limited research on its effects on human psychology, including fundamental capacities like the basic perceptual processing of our sensory environment. 

Literature available on the topic of human surveillance and being watched suggests that it elicits changes in overt behaviour. For instance, a large body of evidence on ‘audience effects’ suggests people act in a more prosocial manner when they believe they are being watched. When people think their behaviour is monitored, they are more giving (Hoffman et al. 1996, Haley and Fessler 2005, Pfeiffer and Nowak 2006, Rigdon et al. 2009, Powell et al. 2012, Nettle et al. 2013, Bateson et al. 2015), more likely to share (Baillon et al. 2013, Oda et al. 2015), and less likely to steal, cheat, litter, or direct their gaze to provocative images (Tourangeau and Yan 2007, Zhong et al. 2010, Risko and Kingstone 2011, Francey et al. 2012, Nettle et al. 2012, Nasiopoulos et al. 2015). It is argued that these behavioural changes act to uphold the reputation of the individual and protect from negative social consequences (Izuma 2012, Nettle et al. 2013, Conty et al. 2016). 

In addition to the changes in social behaviour, a feeling of being watched commonly invokes discomfort in people (Panagopoulos and Van Der Linden 2017) and increases vigilance, self-consciousness, and the fight-or-flight response (e.g. an increase in heart rate and skin conductance) (Kleinke and Pohlen 1971, Nichols and Champness 1971, Gale et al. 1975, Putz 1975, Reddy 2003, Conty et al. 2010b, Helminen et al. 2011, Baltazar et al. 2014). It has also been shown that surveillance in the workplace induces negative effects on productivity (Gagné and Deci 2005), likely due to impacts on attention and working memory (Senju and Hasegawa 2005, Conty et al. 2010a, Risko and Kingstone 2011, Wang and Apperly 2017, Colombatto et al. 2019). Interestingly, it seems to be an implied social presence rather than a true presence of the observer that is important here, with simple photos of watching eyes or a mere belief that someone is watching eliciting the behavioural changes (Putz 1975, Haley and Fessler 2005, Bateson et al. 2006, Burnham and Hare 2007, Rigdon et al. 2009, van Rompay et al. 2009, Risko and Kingstone 2011, Lawson 2015, Nasiopoulos et al. 2015, Colombatto et al. 2019). 

While the effects of surveillance on social behaviour are well-documented, it is unclear how being watched impacts more fundamental capacities not subject to explicit, overt, and conscious control of the individual. For instance, being able to rapidly detect when someone or something is looking at you is a profound and hardwired human faculty requiring specialized neural mechanisms that operate largely outside of conscious control (Brothers 1990, Perrett and Emery 1994, Baron-Cohen 1995, Emery 2000, Calder et al. 2007, Hietanen et al. 2008, Senju and Johnson 2009, Bayliss et al. 2011, Burra et al. 2013, Carlin and Calder 2013). In fact, this heightened sensitivity to another’s gaze is thought to underlie a feeling of being watched that can be experienced in the absence of any surveillance and commonly reported in the population (Freeman et al. 2005, Taylor et al. 2009, Bebbington et al. 2013, Harper and Timmons 2021). Given the adaptive significance, we hypothesize that these mechanisms are further engaged when one knows they are being watched. Indeed, evidence from clinical research suggests that patients with schizophrenia who experience persecutory delusions (i.e. erroneous beliefs about being watched) show increased perceptual sensitivity to the self-directed gaze of others (Rosse et al. 1994, Hooker and Park 2005, Tso et al. 2012, Langdon et al. 2017). 

In the current study, we test whether being watched influences perceptual processing of the sensory environment, namely the processing of eye gaze. Specifically, we ask whether being monitored makes the visual system more sensitive to this essential visual and social cue. Using a technique known as breaking continuous flash suppression or b-CFS (Tsuchiya and Koch 2005), we temporarily suppressed photographs of faces from visual awareness. The time the face takes to break through the suppressive mask and become visible to the participant is typically treated as an index of its salience. In previous experiments using b-CFS, it has been shown that the visual system prioritizes the detection of faces with direct gaze over faces with averted gaze, suggesting visual cues used to discriminate eye gaze direction are preconsciously processed by the visual system (Stein et al. 2011, Yokoyama et al. 2013, Seymour et al. 2016). In the current study, we examined whether being watched influenced the speed at which these gaze signals reach conscious awareness by means of a detection task (i.e. stimulus on the left or right). We hypothesized that if being surveilled facilitates basic sensory processing of eye gaze, then participants who had evidence of being monitored during the task (i.e. experiencing the presence of CCTV) would detect self-directed gaze signals faster than participants who did not.

Biometrics and automated facial recognition

The media summary for R (Bridges) v CC South Wales [2020] EWCA Civ 1058 states

This appeal concerns the lawfulness of the use of automated facial recognition technology (“AFR”) in a pilot project by the South Wales Police Force (“SWP”). AFR is a new technology used to assess whether two facial images depict the same person. The specific type of AFR at issue, known as AFR Locate, works by extracting faces captured in a live feed from a camera and automatically comparing them to faces on a watchlist. If no match is detected, the software will automatically delete the facial image captured from the live feed. If a match is detected, the technology produces an alert and the person responsible for the technology, usually a police officer, will review the images to determine whether to make an intervention. 

SWP deployed AFR Locate on about 50 occasions between May 2017 and April 2019 at a variety of public events. These deployments were overt, rather than secret. The watchlists used in deployments included persons wanted on warrants, persons who had escaped from custody, persons suspected of having committed crimes, persons who may be in need of protection, vulnerable persons, persons of possible interest to SWP for intelligence purposes, and persons whose presence at a particular event causes particular concern. To date SWP watchlists have comprised between 400-800 people, and the maximum capacity for a watchlist is 2,000 images. AFR Locate is capable of scanning 50 faces per second. Over the 50 deployments undertaken in 2017 and 2018, it is estimated that around 500,000 faces may have been scanned. The overwhelming majority of faces scanned will be of persons not on a watchlist, and therefore will be automatically deleted. 

The Appellant, Edward Bridges, is a civil liberties campaigner who lives in Cardiff. He has been supported by Liberty, the civil liberties membership organisation. Mr Bridges was in the vicinity of two deployments of AFR Locate by SWP in Cardiff, first on 21 December 2017 on Queen Street in Cardiff city centre and second on 27 March 2018 at the Defence Procurement, Research, Technology and Exportability Exhibition held at the Motorpoint Arena in Cardiff. 

Mr Bridges was not included on an SWP watchlist in its deployments of AFR, but contends that given his proximity to the cameras, his image was recorded by the AFR system, even if deleted almost immediately after. SWP did not contest this. Mr Bridges brought a claim for judicial review on the basis that AFR was not compatible with the right to respect for private life under Article 8 of the European Convention on Human Rights, data protection legislation, and the Public Sector Equality Duty (“PSED”) under section 149 of the Equality Act 2010. 

On 4 September 2019 the Divisional Court (“DC”) dismissed Mr Bridges’s claim for judicial review on all grounds. They found that although the right to privacy under Article 8 of the Convention was engaged, the interference with rights was in accordance with law and proportionate. The DC dismissed both data protection claims, brought under the Data Protection Act 1998 and Data Protection Act 2018 (“DPA 2018”). Finally, Mr Bridges argued that SWP breached the PSED by not considering the possibility that AFR Locate might produce results that were indirectly discriminatory on the grounds of sex and/or race because it produces a higher rate of positive matches for female faces and/or for black and minority ethnic faces. The DC held that the PSED was not breached because there was no suggestion in April 2017 when the AFR Locate trial commenced that the software might operate in a way that was indirectly discriminatory. 

Mr Bridges appealed on five grounds. The decision of the Court of Appeal was unanimous. 

The appeal succeeded on Ground 1, that the DC erred in concluding that SWP’s interference with Mr Bridges’s Article 8(1) rights was “in accordance with the law” for the purposes of Article 8(2). The Court held that although the legal framework comprised primary legislation (DPA 2018), secondary legislation (The Surveillance Camera Code of Practice), and local policies promulgated by SWP, there was no clear guidance on where AFR Locate could be used and who could be put on a watchlist. The Court held that this was too broad a discretion to afford to the police officers to meet the standard required by Article 8(2). 

The appeal failed on Ground 2, that the DC erred in determining that SWP’s use of AFR was a proportionate interference with Article 8 rights under Article 8(2). The Court held that the DC had correctly conducted a weighing exercise with one side being the actual and anticipated benefits of AFR Locate and the other side being the impact of AFR deployment on Mr Bridges. The benefits were potentially great, and the impact on Mr Bridges was minor, and so the use of AFR was proportionate under Article 8(2). 

The appeal succeeded on Ground 3, that the DC was wrong to hold that SWP provided an adequate “data protection impact assessment” (“DPIA”) as required by section 64 of the DPA 2018. The Court found that, as the DPIA was written on the basis that Article 8 was not infringed, the DPIA was deficient. 

The appeal failed on Ground 4, that the DC was wrong to not reach a conclusion as to whether SWP had in place an “appropriate policy document” within the meaning of section 42 DPA 2018. The Court held that the DC was right to not reach a conclusion on this point because it did not need to be decided. The two specific deployments of AFR Locate which were the basis of Mr Bridges’s claim occurred before the DPA 2018 came into force. 

The appeal succeeded on Ground 5, that the DC was wrong to hold that SWP complied with the PSED. The Court held that the purpose of the PSED was to ensure that public authorities give thought to whether a policy will have a discriminatory potential impact. SWP erred by not taking reasonable steps to make enquiries about whether the AFR Locate software had bias on racial or sex grounds. The Court did note, however, that there was no clear evidence that AFR Locate software was in fact biased on the grounds of race and/or sex. 

The Court has granted a declaration to reflect the points on which the appeal succeeded. 

SWP have confirmed that they do not seek to appeal against this judgment.

Ink

'A tattoo is not a face. Ethical aspects of tattoo-based biometrics' by Fabio Bacchini and Ludovica Lorusso in (2018) 16(2) Journal of Information, Communication and Ethics in Society 110-122 comments

This study aims to explore the ethical and social issues of tattoo recognition technology (TRT) and tattoo similarity detection technology (TSDT), which are expected to be increasingly used by state and local police departments and law enforcement agencies. 

The authors argue

Biometrics is the science that aims at measuring and analysing a person’s unique characteristics, both physical and behavioural, for identification and verification purposes. Biometric technologies are used for identification or recognition to determine who the person is, through one-to-many comparison, and for verification or authentication to determine whether the person is who she claims to be, through one-to-one comparison (Mordini and Petrini, 2007). This comparison is made between a “live” digital image of a piece of the body (face, eyes and fingers) and an image of the same piece of the body previously recorded and archived into databases. This previously recorded body information can be retrieved all the time we aim to identify one person or verify her identity. Among the wide-ranging applications of biometric technologies for people verification and identification are the improvement of security against criminal acts and terrorist attacks and forensic uses such as the identification of the perpetrator of an offence. Traditional biometric technologies for people verification and identification include face recognition, gait recognition, fingerprint recognition and iris recognition (Li and Jain, 2011; Jain, Flynn and Ross, 2008; Tistarelli et al., 2009). Recently, so-called soft biometric traits, such as scars, marks and tattoos, are being increasingly used to complement primary biometric identification systems (Lee et al., 2008; Heflin et al., 2012).

Tattoo recognition technology (TRT) is one of the emerging fields in biometrics. In fact, the spread of tattooing in Western countries since the 1990s has been particularly impressive. Many studies report that the incidence of tattooing among respondents in North America and Europe is approximately 20 to 25 per cent (Laumann and Derick, 2006; Swami et al., 2016; Tate and Shelton, 2008); as this percentage is rapidly increasing, it is easy to understand why biometrics is looking at tattoos as a new frontier for identifying people – or at least for integrating their identification. Recurring to tattoo recognition is particularly useful in criminal identification, for instance, when a primary biometric trait such as face or fingerprint is not available.

Of course, not all tattoos are visible (all the time); Dillingh et al. (2016) calculate that 29 per cent of the tattooed population has at least one “subjectively visible tattoo” (i.e. a tattoo that is reported as “normally visible to everyone” by the subject), and 12 per cent has at least one “objectively visible tattoo” (i.e. a tattoo placed on the face, head, neck or hands – meaning that the tattoo is visible even when the individual is wearing a suit and not just when she/he wears a T-shirt and/or shorts).

Most TRT systems developed so far use a keyword-based tattoo image matching (e.g. the ANSI/NIST-ITL1-2011 standard), which is actually highly inefficient due to limitation of the available vocabulary, frequent need of multiple keywords to label a single tattoo image and subjectivity of classification. Recently, alternative retrieval systems were created that extract key-points from tattoo images and use an unsupervised ensemble ranking algorithm to measure the visual similarity between two tattoo images (e.g. tattoo-ID system developed by Jain et al., 2007, 2009; Lee et al., 2008, 2012; Manger, 2012). Some scholars are even starting to develop automatic tattoo sketch to image matching methods, which are particularly useful in cases in which the tattoo image of a suspect is not available, but a sketch of the tattoo can be drawn based on the verbal description provided by an eyewitness or the victim (Han and Jain, 2013).

In this paper, we explore the ethical and social issues of TRT. We want to understand whether TRT deserves special ethical attention in comparison with face recognition and other standard biometric technologies. Although in biometric literature it is customary to introduce tattoo-based biometrics as just another application of biometrics that apparently does not exhibit new specific ethical worries, we believe that the nature of tattoos is such that the opposite presupposition should be advanced before inquiry. In fact, tattoos are meaningful objects, and are capable to reveal much information about us, our identities and our beliefs and affiliations. We will show that tattoos are even more ethically sensitive than faces and that tattoos’ uses for criminal identification or criminal prevention should be carefully monitored in advance, in all their ethical aspects.

Along with TRT, we also examine tattoo similarity detection technology (TSDT), which is aimed at identifying similarity-based classes of tattoos and consequently classes of tattooed individuals supposed to share similar psychological, ideological, cultural, social, religious as well as behavioural properties. After reporting how in particular FBI and the National Institute of Standards and Technology in USA are involved in developing TSDT, we argue that TSDT raises red flags for advocates of civil rights, for instance, because it threatens, in multiple ways, the liberties protected by the First Amendment to the USA Constitution. We remark that TSDT classifies as very high risk for privacy, civil liberty and civil rights according to the criterion for a biometric technology implementation’s ethical risk degree assessment recently proposed by Garvie et al. (2016); and we claim that TSDT also represents a possible factor negatively affecting the health of the people knowing or suspecting to be subjected to a special surveillance in virtue of their tattoos.

The major ethical concern raised by TSDT is perhaps its relying on premises very similar to those founding racist thoughts. We stress that TSDT presupposes the usefulness of human classification based on visible features for prediction of attitudes and behaviours as well as for criminal prevention – an idea that we can find to ground many forms of racism.

Not only does TSDT constitute the unacceptable negative discrimination of tattooed as opposed to un-tattooed people, and of individuals having visible as opposed to those having invisible tattoos, it exhibits what we call indirect negative discrimination against certain demographic groups that are found more frequently tattooed than others and, consequently, are overrepresented in tattoos databases, thus being affected by disproportionately higher risk to be found as a match for a given suspect. We believe it is important to cast light on these indirect forms of negative discrimination that would otherwise easily remain undetected.

Facial Observation and Emotion Scanning

'The Inconsentability of Facial Surveillance' by Evan Selinger and Woodrow Hartzog in (2019) 66 Loyola Law Review 101 comments

 Governments and companies often use consent to justify the use of facial recognition technologies for surveillance. Many proposals for regulating facial recognition technology incorporate consent rules as a way to protect those faces that are being tagged and tracked. But consent is a broken regulatory mechanism for facial surveillance. The individual risks of facial surveillance are impossibly opaque, and our collective autonomy and obscurity interests aren’t captured or served by individual decisions. 

In this article, we argue that facial recognition technologies have a massive and likely fatal consent problem. We reconstruct some of Nancy Kim’s fundamental claims in Consentability: Consent and Its Limits, emphasizing how her consentability framework grants foundational priority to individual and social autonomy, integrates empirical insights into cognitive limitations that significantly impact the quality of human decision-making when granting consent, and identifies social, psychological, and legal impediments that allow the pace and negative consequences of innovation to outstrip the protections of legal regulation. 

We also expand upon Kim’s analysis by arguing that valid consent cannot be given for face surveillance. Even if valid individual consent to face surveillance was possible, permission for such surveillance is in irresolvable conflict with our collective autonomy and obscurity interests. Additionally, there is good reason to be skeptical of consent as the justification for any use of facial recognition technology, including facial characterization, verification, and identification.

'Emotional Expressions Reconsidered: Challenges to Inferring Emotion From Human Facial Movements' by Lisa Feldman Barrett, Ralph Adolphs, Stacy Marsella, Aleix M. Martinez and Seth D Pollak in (2019) 20(1) Psychological Science in the Public Interest comments 

It is commonly assumed that a person’s emotional state can be readily inferred from his or her facial movements, typically called emotional expressions or facial expressions. This assumption influences legal judgments, policy decisions, national security protocols, and educational practices; guides the diagnosis and treatment of psychiatric illness, as well as the development of commercial applications; and pervades everyday social interactions as well as research in other scientific fields such as artificial intelligence, neuroscience, and computer vision. In this article, we survey examples of this widespread assumption, which we refer to as the common view, and we then examine the scientific evidence that tests this view, focusing on the six most popular emotion categories used by consumers of emotion research: anger, disgust, fear, happiness, sadness, and surprise. The available scientific evidence suggests that people do sometimes smile when happy, frown when sad, scowl when angry, and so on, as proposed by the common view, more than what would be expected by chance. Yet how people communicate anger, disgust, fear, happiness, sadness, and surprise varies substantially across cultures, situations, and even across people within a single situation. Furthermore, similar configurations of facial movements variably express instances of more than one emotion category. In fact, a given configuration of facial movements, such as a scowl, often communicates something other than an emotional state. Scientists agree that facial movements convey a range of information and are important for social communication, emotional or otherwise. But our review suggests an urgent need for research that examines how people actually move their faces to express emotions and other social information in the variety of contexts that make up everyday life, as well as careful study of the mechanisms by which people perceive instances of emotion in one another. We make specific research recommendations that will yield a more valid picture of how people move their faces to express emotions and how they infer emotional meaning from facial movements in situations of everyday life. This research is crucial to provide consumers of emotion research with the translational information they require.

The authors argue 

Faces are a ubiquitous part of everyday life for humans. People greet each other with smiles or nods. They have face-to-face conversations on a daily basis, whether in person or via computers. They capture faces with smartphones and tablets, exchanging photos of themselves and of each other on Instagram, Snapchat, and other social-media platforms. The ability to perceive faces is one of the first capacities to emerge after birth: An infant begins to perceive faces within the first few days of life, equipped with a preference for face-like arrangements that allows the brain to wire itself, with experience, to become expert at perceiving faces (Arcaro, Schade, Vincent, Ponce, & Livingstone, 2017; Cassia, Turati, & Simion, 2004; Gandhi, Singh, Swami, Ganesh, & Sinhaet, 2017; Grossmann, 2015; L. B. Smith, Jayaraman, Clerkin, & Yu, 2018; Turati, 2004; but see Young and Burton, 2018, for a more qualified claim). Faces offer a rich, salient source of information for navigating the social world: They play a role in deciding whom to love, whom to trust, whom to help, and who is found guilty of a crime (Todorov, 2017; Zebrowitz, 1997, 2017; Zhang, Chen, & Yang, 2018). 

Beginning with the ancient Greeks (Aristotle, in the 4th century BCE) and Romans (Cicero), various cultures have viewed the human face as a window on the mind. But to what extent can a raised eyebrow, a curled lip, or a narrowed eye reveal what someone is thinking or feeling, allowing a perceiver’s brain to guess what that someone will do next? The answers to these questions have major consequences for human outcomes as they unfold in the living room, the classroom, the courtroom, and even on the battlefield. They also powerfully shape the direction of research in a broad array of scientific fields, from basic neuroscience to psychiatry. 

Understanding what facial movements might reveal about a person’s emotions is made more urgent by the fact that many people believe they already know. Specific configurations of facial-muscle movements appear as if they summarily broadcast or display a person’s emotions, which is why they are routinely referred to as emotional expressions and facial expressions. A simple Google search for the phrase “emotional facial expressions” (see Box 1 in the Supplemental Material available online) reveals the ubiquity with which, at least in certain parts of the world, people believe that certain emotion categories are reliably signaled or revealed by certain facial-muscle movement configurations—a set of beliefs we refer to as the common view (also called the classical view; L. F. Barrett, 2017b). Likewise, many cultural products testify to the common view. Here are several examples:

• Technology companies are investing tremendous resources to figure out how to objectively “read” emotions in people by detecting their presumed facial expressions, such as scowling faces, frowning faces, and smiling faces, in an automated fashion. Several companies claim to have already done it (e.g., Affectiva.com, 2018; Microsoft Azure, 2018). For example, Microsoft’s Emotion API promises to take video images of a person’s face to detect what that individual is feeling. Microsoft’s website states that its software “integrates emotion recognition, returning the confidence across a set of emotions . . . such as anger, contempt, disgust, fear, happiness, neutral, sadness, and surprise. These emotions are understood to be cross-culturally and universally communicated with particular facial expressions” (screen 3). 

• Countless electronic messages are annotated with emojis or emoticons that are schematized versions of the proposed facial expressions for various emotion categories (Emojipedia.org, 2019). 

• Putative emotional expressions are taught to preschool children by displaying scowling faces, frowning faces, smiling faces, and so on, in posters (e.g., use “feeling chart for children” in a Google image search), games (e.g., Miniland emotion games; Miniland Group, 2019), books (e.g., Cain, 2000; T. Parr, 2005), and episodes of Sesame Street (among many examples, see Morenoff, 2014; Pliskin, 2015; Valentine & Lehmann, 2015). 

• Television shows (e.g., Lie to Me; Baum & Grazer, 2009), movies (e.g., Inside Out; Docter, Del Carmen, LeFauve, Cooley, and Lassetter, 2015), and documentaries (e.g., The Human Face, produced by the British Broadcasting Company; Cleese, Erskine, & Stewart, 2001) customarily depict certain facial configurations as universal expressions of emotions. 

• Magazine and newspaper articles routinely feature stories in kind: facial configurations depicting a scowl are referred to as “expressions of anger,” facial configurations depicting a smile are referred to as “expressions of happiness,” facial configurations depicting a frown are referred to as “expressions of sadness,” and so on.  

• Agents of the U.S. Federal Bureau of Investigation (FBI) and the Transportation Security Administration (TSA) were trained to detect emotions and other intentions using these facial configurations, with the goal of identifying and thwarting terrorists (R. Heilig, special agent with the FBI, personal communication, December 15, 2014; L. F. Barrett, 2017c). 

• The facial configurations that supposedly diagnose emotional states also figure prominently in the diagnosis and treatment of psychiatric disorders. One of the most widely used tasks in autism research, the Reading the Mind in the Eyes Test, asks test takers to match photos of the upper (eye) region of a posed facial configuration with specific mental state words, including emotion words (Baron-Cohen, Wheelwright, Hill, Raste, & Plumb, 2001). Treatment plans for people living with autism and other brain disorders often include learning to recognize these facial configurations as emotional expressions (Baron-Cohen, Golan, Wheelwright, & Hill, 2004; Kouo & Egel, 2016). This training does not generalize well to real-world skills, however (Berggren et al., 2018; Kouo & Egel, 2016). 

• “Reading” the emotions of a defendant — in the words of Supreme Court Justice Anthony Kennedy, to “know the heart and mind of the offender” (Riggins v. Nevada, 1992, p. 142) — is one pillar of a fair trial in the U.S. legal system and in many legal systems in the Western world. Legal actors such as jurors and judges routinely rely on facial movements to determine the guilt and remorse of a defendant (e.g., Bandes, 2014; Zebrowitz, 1997). For example, defendants who are perceived as untrustworthy receive harsher sentences than they otherwise would (J. P. Wilson & Rule, 2015, 2016), and such perceptions are more likely when a person appears to be angry (i.e., the person’s facial structure looks similar to the hypothesized facial expression of anger, which is a scowl; Todorov, 2017).

An incorrect inference about defendants’ emotional state can cost them their children, their freedom, or even their lives (for recent examples, see L. F. Barrett, 2017b, beginning on page 183). 

But can a person’s emotional state be reasonably inferred from that person’s facial movements? In this article, we offer a systematic review of the evidence, testing the common view that instances of an emotion category are signaled with a distinctive configuration of facial movements that has enough reliability and specificity to serve as a diagnostic marker of those instances. We focus our review on evidence pertaining to six emotion categories that have received the lion’s share of attention in scientific research—anger, disgust, fear, happiness, sadness, and surprise—and that, correspondingly, are the focus of the common view (as evidenced by our Google search, summarized in Box 1 in the Supplemental Material). Our conclusions apply, however, to all emotion categories that have thus far been scientifically studied. We open the article with a brief discussion of its scope, approach, and intended audience. We then summarize evidence on how people actually move their faces during episodes of emotion, referred to as studies of expression production, following which we examine evidence on which emotions are actually inferred from looking at facial movements, referred to as studies of emotion perception. We identify three key shortcomings in the scientific research that have contributed to a general misunderstanding about how emotions are expressed and perceived in facial movements and that limit the translation of this scientific evidence for other uses:

• Limited reliability (i.e., instances of the same emotion category are neither reliably expressed through nor perceived from a common set of facial movements). 

• Lack of specificity (i.e., there is no unique mapping between a configuration of facial movements and instances of an emotion category). 

• Limited generalizability (i.e., the effects of context and culture have not been sufficiently documented and accounted for). 

We then discuss our conclusions, followed by proposals for consumers on how they might use the existing scientific literature. We also provide recommendations for future research on emotion production and perception with consumers of that research in mind. We have included additional detail on some topics of import or interest in the Supplemental Material.

Sidewalk panopticism

'Urbanism Under Google: Lessons from Sidewalk Toronto' by Ellen P. Goodman and Julia Powles in Fordham Law Review, Forthcoming) comments 

 Cities around the world are rapidly adopting digital technologies, data analytics, and the trappings of “smart” infrastructure. No company is more ambitious about exploring data flows and seeking to dominate networks of information than Google. In October 2017, Google affiliate Sidewalk Labs embarked on its first prototype smart city in Toronto, Canada, planning a new kind of data-driven urban environment: “the world’s first neighborhood built from the internet up.” Although the vision is for an urban district foregrounding progressive ideals of inclusivity, for the crucial first 18 months of the venture, many of the most consequential features of the project were hidden from view and unavailable for serious scrutiny. The players defied public accountability on questions about data collection and surveillance, governance, privacy, competition, and procurement. Even more basic questions about the use of public space went unanswered: privatized services, land ownership, infrastructure deployment and, in all cases, the question of who is in control. What was hidden in this first stage, and what was revealed, suggest that the imagined smart city may be incompatible with democratic processes, sustained public governance, and the public interest. 

This article analyzes the Sidewalk project in Toronto as it took shape in its first phase, prior to the release of the Master Innovation and Development Plan, exploring three major governance challenges posed by the imagined “city of the future”: privatization, platformization, and domination. The significance of this case study applies well beyond Toronto. Google and related companies are modeling future business growth embedded in cities and using projects like the one in Toronto as test beds. What happens in Toronto is designed to be replicated. We conclude with some lessons, highlighting the precarity of civic stewardship and public accountability when cities are confronted with tantalizing visions of privatized urban innovation.

Dirani, Open Justice, Privacy and Abhorrent Material

With the recent Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth) in mind it is useful to note R v Dirani (No 33) [2019] NSWSC 288, where the New South Wales Supreme Court refused the media application for access to relevant trial exhibits for the purpose of publication and broadcasting of the contents of the trial exhibits following the delivery of verdict.

The Court determined that the interests of the administration of justice were served by the adoption of cautious and conservative approach where media sought access to electronic evidence tendered in a terrorism trial.

Johnson J states

On 11 March 2019, the jury retired to consider its verdict in the trial of the Accused, Mustafa Dirani, upon an indictment charging conspiracy to do acts in preparation for a terrorist act with an alternative count of knowingly taking part in the supply of a firearm.

Whilst the jury was deliberating, applications were made by media interests for access to trial exhibits to permit publication and broadcasting of their contents following the delivery of verdict. On 12 March 2019, I heard submissions from the Crown and Senior Counsel for the Accused and made a number of rulings and provisional rulings on the media applications: R v Dirani (No. 32) [2019] NSWSC 275.  

As the judgment in R v Dirani (No. 32) made clear, it was open to media interests to appear to press an application for access to exhibits which I had indicated provisionally would be refused.  

On 13 and 14 March 2019, Mr Sibtain of counsel appeared for Channel 9, Channel 10 and the Australian Broadcasting Corporation. He pressed an application for access to Exhibits E, F and AJ, which was opposed by the Crown and Senior Counsel for the Accused.  

Access was sought as well to other exhibits with that application not being opposed by the parties. Access was granted to these other exhibits. Immediately prior to the delivery of a verdict by the jury on 14 March 2019, I made an order refusing the media application for access to Exhibits E, F and AJ and stated that I would publish my reasons for this ruling at a later date. 

This judgment contains my reasons for that ruling. I note that the jury returned a verdict of guilty to the first count on the indictment, an offence of conspiracy to do acts in preparation for a terrorist act contrary to ss.11.5(1) and 101.6(1) Criminal Code (Cth).

In referring to the exhibits the judgment states

Exhibit E is a chart entitled “Membership in ‘The Bricks’ WhatsApp Group and Association Links”. The document identifies by way of names, photographs and dates of birth, Raban Alou, Milad Atai and the Accused. In addition, Exhibit E identifies by name, photograph and date of birth nine other persons who were members of the “The Bricks” WhatsApp group. Various lines and words appear on the chart suggesting associations between persons including some contentious areas.  

Exhibit E was tendered as an exhibit early in the trial to introduce the names of a number of persons to the jury to allow an understanding of the detailed documentary and oral evidence which was to follow. At all times, the Crown made clear that the persons identified in Exhibit E (apart from Raban Alou, Milad Atai and the Accused) were not said to be criminally involved in the conspiracy charge against the Accused. This aspect was reinforced during the trial through detailed cross-examination by Senior Counsel for the Accused of the case officer, Detective Sergeant Mardi Forsyth.  

Exhibit F is a disk containing a compilation of CCTV footage of events from about 3.48 pm on 2 October 2015 depicting Farhad Mohammad at various locations inside the Parramatta Mosque until 4.09 pm, with him then departing the Mosque and walking in the streets of Parramatta towards the New South Wales Police Headquarters in Charles Street, Parramatta where the murder of Curtis Cheng took place. Exhibit F ends with footage of Farhad Mohammad before he reached the vicinity of the New South Wales Police Headquarters, so that the terrorist act itself is not depicted.  

The footage in Exhibit F inside the Parramatta Mosque depicts other people, as well, who (apart from Raban Alou) were incidentally and innocently in the Mosque at that time for purposes quite unrelated to the planned terrorist attack.  

Exhibit AJ is a USB stick comprising a CCTV compilation of events at various locations and times in the period 29 September 2015 to 2 October 2015. Exhibit AJ depicts events involving a number of persons including the Accused, Raban Alou, Farhad Mohammad and his 20-year old sister, Shadi Mohammad.  

As noted in R v Dirani (No. 32) at [17], the Crown prepared a USB stick (MFI 68) which contains only the surveillance footage of the movements of the Accused, Raban Alou and Talal Alameddine from the time the Accused and Raban Alou left the Parramatta Mosque in separate vehicles at about 1.26 pm on 2 October 2015 and then travelled to Jones Park, Mays Hill where a meeting took place between Raban Alou and Talal Alameddine. Thereafter, the men travelled in their vehicles in convoy to Warwick Road, Merrylands, where Raban Alou and Talal Alameddine stood together talking on the footpath for some minutes with the Accused sitting nearby in his vehicle. Talal Alameddine then walked to his home in the next street whilst the Accused and Raban Alou drove in their separate vehicles to Merrylands Oval car park where they waited for some time for the arrival of Talal Alameddine, who travelled to that location on a bicycle. After a further discussion between Raban Alou and Talal Alameddine, with the Accused being in the vicinity nearby, Talal Alameddine departed on his bicycle. Then the Accused and Raban Alou travelled in their separate vehicles to a location in Lane Street, Wentworthville where they remained for some time. MFI 68 concludes at a point when the Accused departed that location in his vehicle at about 2.42 pm.  

The footage extracted in MFI 68 was of considerable importance as evidence in the trial. The media were granted access to MFI 68 (including access for copying) with the consent of the parties in the trial.  

The balance of Exhibit AJ (other than MFI 68) contains surveillance and CCTV footage at different locations in the period 29 September to 2 October 2015. This includes footage of Farhad Mohammad (and others) at different times inside and outside the Parramatta Mosque, and Shadi Mohammad with Farhad Mohammad on occasions before her departure from Australia on 1 October 2015 to travel to the Middle East.  

Exhibit AJ also contains extensive footage of other persons inside the Parramatta Mosque for innocent purposes associated with prayer and religious devotion with these persons being entirely unconnected to any plan to commit a terrorist act. Footage also includes a large number of persons who emerged from the Parramatta Mosque after the prayer service in the early afternoon of Friday, 2 October 2015 with those persons standing in Marsden Street talking amongst themselves before dispersing. Although Raban Alou and the Accused were present in Marsden Street after the prayer service, the other persons depicted in the footage were not criminally involved in these events.

In a statement of some Relevant Principles Johnson J comments

The principle of open justice is a fundamental axiom of the Australian legal system and it is appropriate to have regard to the principle when determining applications for access to exhibits: John Fairfax Publications Pty Limited v Ryde Local Court (2005) 62 NSWLR 512; [2005] NSWCA 101 (“Fairfax v Ryde Local Court”) at 525 [60]. Neither the media, nor the public at large, have a right of access to court documents. The open justice principle is a principle and not a freestanding right. There is no common law right to obtain access to a document on the court record: Fairfax v Ryde Local Court at 521 [29]-[31].

There is a public interest in facilitating fair and accurate reporting of proceedings in court: Fairfax v Ryde Local Court at 523 [47]. The entitlement of the media to report on court proceedings is a corollary of the right of access to the court by members of the public, and nothing should be done to discourage fair and accurate reporting of proceedings: John Fairfax Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at 353 [20]; Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at 321 [33]. It has been said that the media are “the eyes and ears of the general public”, not all of whom can attend court proceedings: Attorney General v Guardian Newspapers (No. 2) [1990] 1 AC 109 at 183. An application for media access to exhibits should proceed on the prima facie assumption that a fair and accurate report of the trial will occur: R (Cth) v Elomar and Ors (No. 3) [2008] NSWSC 1443 at [24].

In Registrar of the Supreme Court (NT) v Nationwide News Pty Limited [2018] NTSC 22, Grant CJ said at [21] (footnote omitted): “The requirement that proceedings be held in open court does not oblige the court to provide access to exhibits and court records. A proceeding is properly conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable. An open court does not necessarily become ‘closed’ because there is no right to access exhibits or court records, or because a request by a member of the public or media for access to exhibits or court records is refused.” I agree with this general statement of Grant CJ which accords with authority.

It is appropriate to refer to s.314 Criminal Procedure Act 1986 which states: “314 Media access to court documents (1) On application to the registrar, a media representative is entitled to inspect any document relating to criminal proceedings, at any time from when the proceedings commence until the expiry of 2 working days after they are finally disposed of, for the purpose of compiling a fair report of the proceedings for publication. (2) The documents that a media representative is entitled to inspect under this section are copies of the indictment, court attendance notice or other document commencing the proceedings, witnesses’ statements tendered as evidence, brief of evidence, police fact sheet (in the case of a guilty plea), transcripts of evidence and any record of a conviction or an order. (3) The registrar is not required to make documents available for inspection if the documents are not in the possession or control of the registrar. (4) The registrar must not make documents available for inspection if: (a) the proceedings are subject to an order prohibiting their publication or a suppression order, or (b) the documents are prohibited from being published or disclosed by or under any other Act or law. (4A) This section does not limit the operation of any other Act or law under which a person may be permitted to inspect documents relating to criminal proceedings.”

It has been said in a number of decisions that s.314 has no application to circumstances where the media seek access to electronic and photographic exhibits in a criminal trial. In R (Cth) v Elomar and Ors (No. 3), Whealy J said at [10]: “... I do not consider that s 314 of the Criminal Procedure Act has any bearing on the existence and extent of my power as trial judge to permit the media to have access to the exhibits in question. Section 314 is a relatively confined power conferring jurisdiction on the Registrar to allow access to the media to documentary material in his or her possession. The section says nothing as to the extent of the Court's power to allow access in an appropriate case to exhibits of all kind that may be in its possession or control during the trial.”

In R v Gatt (No. 5) [2018] NSWSC 447, Schmidt J held at [5] that s.314(2) did not extend to an application for CCTV footage which was an exhibit at a trial. In R v Abdallah (No. 3) [2015] NSWSC 121, Adamson J noted (at [14]) the joint submission of the parties that s.314(2) did not apply to an application by the media for access to CCTV footage and an audio recording which were exhibits at the trial. In R v Brewer (No. 1) [2015] NSWSC 1471, Bellew J at [8] noted that neither party in that case submitted that CCTV footage fell outside the terms of s.314(2).

With respect to s.314, I agree with what Whealy J said in R (Cth) v Elomar and Ors (No. 3) and Schmidt J in R v Gatt (No. 5). Section 314 Criminal Procedure Act 1986 is directed at a different scenario. It does not apply to an application by the media for access to exhibits made to the trial or sentencing Judge during or after the criminal proceedings at which the Judge has presided, in particular where the application relates to video, audio or other electronic exhibits. Apart from the text of the section itself, there is nothing in the legislative history of s.314 which supports a construction that the provision applies to media applications such as those being considered in this judgment.

The applications made by the media representatives in the present case sought access to trial exhibits by way of applications made for the purpose of Practice Note SC Gen 2, “Supreme Court - Access to Court Files”. Paragraphs 6 and 7 of Practice Note SC Gen 2 state: “6. Access to material in any proceedings is restricted to parties, except with the leave of the Court. 7. Access will normally be granted to non-parties in respect of: * pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential; * documents that record what was said or done in open court; * material that was admitted into evidence; and * information that would have been heard or seen by any person present in open court, unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.”

Reference has been made to this Practice Note in a number of decisions where access is sought by the media to exhibits tendered in criminal trials in the Supreme Court: R v Xu (No. 1) (2005) 152 A Crim R 17; [2005] NSWSC 73 at 20-21 [17]- [23]; R v Sam (No. 5) [2009] NSWSC 543 at [4]; R v Sam (No. 16) (2009) 196 A Crim R 138; [2009] NSWSC 544 at 140 [5]; R v Abdallah (No. 3) at [14]; R v Brewer (No. 1) at [9]; R v Wran [2016] NSWSC 1026 at [8], [17] and R v Gatt (No. 5) at [5].

Where, as in the present case, the media applications for access are made to the Judge who is (or has) presided at the trial or sentencing hearing, it should be kept in mind that the Judge has control of the proceedings. Further, as Grant CJ observed in Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [25], the Judge “will have read or otherwise viewed the exhibits adduced during the proceedings and be familiar with the forensic and public interest considerations involved” with these features to be applied in determining any media application.

Where application is made by the media to the trial or sentencing Judge, whether under Practice Note SC Gen 2 or otherwise, the Court will exercise a discretion in determining whether access will be granted. The exercise of discretion will take into account all relevant considerations, including the principles referred to at [36]-[38] above, together with other features which bear upon the particular exhibit in the case at hand. Courts have recognised and emphasised the existence of such a discretion, in particular where the media seek access to video, audio or photographic exhibits for the purpose of copying and subsequent publication and broadcast: R v Xu (No. 1) at 20-24 [18]-[43]; R v Benbrika and Ors (No. 26) [2008] VSC 452 at [4]- [8]; R v Sam (No. 5) at [6]; R v Sam (No. 16) at 141 [12]; Registrar of the Supreme Court (NT) v Nationwide News Pty Limited at [29] and R v Gatt (No. 5) at [6]. Further, the exercise of discretion to be undertaken is not a narrow process. The media application in this case is not merely to inspect or view the exhibits so that a written description of their contents can be published as part of a fair and accurate report of the evidence in the trial: cf R v Abdallah (No. 3) at [19]. The application is to copy the exhibits for the purpose of electronic publication and broadcasting. There are additional factors to be considered on such an application.

Where application is made for access under Practice Note SC Gen 2, it is appropriate to keep in mind the statements of Hoeben J (as his Honour then was) in HIH Insurance Limited (In Liquidation) v General Re Insurance Australia Limited [2006] NSWSC 128 (“HIH Insurance”) at [10] and [13]: “10 Both the applicants and the respondents base their submissions on Practice Note SC Gen 2 as though the practice note was a rule of court. This, it seems to me, misunderstands the function of a practice note. Practice notes are issued with the authority of the court, by the Rule Committee, usually under the signature of the Chief Justice. Practice notes are clearly important in influencing the practice and procedures of the court, but they are not rules of court. In my opinion, their principal function is to provide guidance to the Profession as to how the broad discretion conferred on the court in relation to access to court files is exercised. ... 13 As indicated, the practice note offers authoritative guidance as to how the discretion which resides in the Court would ordinarily be exercised. In formulating the Practice Note no doubt regard was had to the underlying principles and distinctions made in the case law which has developed over recent years in Australia. It is by recourse to those underlying principles that the Practice Note provides guidance though without preordaining the outcome. The context and circumstances in which the application is made will also significantly influence the way in which the Court exercises the discretion.”

Significantly, Hoeben J stated at [21]-[22] with respect to documents which had been used in open court: “21 As a start point I do not accept the proposition put forward by the applicants that the principle of open justice requires that access be granted unless there are exceptional circumstances why it should not be granted. This matter was considered in John Fairfax Publications Pty Limited v Ryde Local Court [2005] NSWCA 101; (2005) 62 NSWLR 512 at [29] where Spigelman CJ said: ‘Neither the claimant, nor the public at large, have a right of access to court documents. The ‘principle of open justice’ is a principle, it is not a freestanding right. It does not create some form of freedom of information Act applicable to courts. As a principle, it is of significance in guiding the court in determining a range of matters including, relevantly, when an application for access should be granted pursuant to an express or implied power to grant access. However, it remains a principle and not a right.’ In that judgment the Court noted that there was no common law right to obtain access to a document filed in proceedings and held as part of a court record. 

To the extent that the Practice Note provides guidance on this issue, it does not assist the applicants in the absence of the applicants putting forward a proper reason for why they should have access to the documents sought at this time.”

In R v Abdallah (No. 3) at [15], Adamson J posed the task of the Court on the media application for access in the following way: “As the material sought was played in open court, access ought be granted unless I consider that the material, or portions of it, should be kept confidential.”

In R v Xu (No. 1) at 21 [23], [26], Kirby J appears to have approached the application for media access upon the basis that there was a prima facie right of media access to exhibits unless “wholly exceptional circumstances” exist. There are difficulties with this approach. The authorities to which his Honour referred in support of this proposition deal with applications to close the Court, not media applications for access to exhibits: R v LMW [1999] NSWSC 1111, applying David Syme & Co Limited v General Motors - Holden’s Limited (1984) 2 NSWLR 294 at 310.

In my view, there is no foundation for adding a “wholly exceptional circumstances” gloss to the discretionary exercise required where an access application is made under Practice Note SC Gen 2 or the general law. In HIH Insurance at [21] (see [52] above), Hoeben J rejected the existence of an “exceptional circumstances” test in determination of an access application made under the Practice Note. The approach of Adamson J in R v Abdallah (No. 3) (at [53] above) accords with this approach. It will be observed that the only reference to “exceptional circumstances” in Practice Note SC Gen 2 (at [46] above) appears in paragraph 7 concerning material not otherwise referred to in the paragraph. That “exceptional circumstances” test has nothing to do with the present application.

To the extent that my conclusion with respect to R v Xu (No. 1) involves a departure from the approach taken by Kirby J, I have had regard to the rule of comity referred to in Segal v Waverley Council (2005) 64 NSWLR 177; [2005] NSWCA 310 at 193 [57] and express the view respectfully that Kirby J was wrong in introducing a “wholly exceptional circumstances” test. To the extent that the exercise of discretion in a media application for access to trial exhibits raises broader questions concerning the administration of justice, it should be kept in mind that the concept of the administration of justice is a multifaceted one: Rinehart v Welker at 323 [39]. Where a media application for access to electronic exhibits is made whilst the jury trial is still on foot, there are additional factors to be taken into account in favour of refusal of the application until after verdict: R v Sam (No. 5) at [19]-[29]. After a verdict is returned, or in sentencing proceedings, these additional factors which applied during a jury trial will fall away.

Many factors may bear upon the exercise of discretion in a particular case, including: (a) the grief and distress which may result for the family of victims of violent crimes, including the fact that constant repetition of images can be quite traumatising for the immediate families of victims and also the community: R v Abdallah (No. 3) at [24]; R v Hemming [2015] VSC 351 at [33]; R v Brewer (No. 1) at [16]; R v Gatt (No. 5) at [11]; (b) the fact that murders and other serious crimes are not “entertainment” and ought not be the subject of repeated electronic reporting unless there are proper reasons unconnected with “entertainment”: R v Hemming at [33]; (c) the privacy of persons not said to be involved criminally in the events in question: R v Benbrika and Ors (No. 26) at [7]; R v Jovanovic (2014) 285 FLR 108; [2014] ACTSC 98 at 115 [42]- [43]; R v Abdallah (No. 3) at [23]; (d) the fact that, even when published electronically by the media as part of a fair and accurate report of criminal proceedings, visual and audio evidence so captured will be let loose and available on the Internet or other social media platforms for replay and rebroadcasting with no realistic prospect of control or recall given the lack of current controls on further use of electronic material: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at 71-73 [71]- [80]; R v Abdallah (No. 3) at [21].

Concern about capture and further broadcasting of visual evidence on the Internet or other electronic platforms for criminal purposes is especially relevant in the area of terrorism offences. The proponents of violent jihad have demonstrated a capacity for sophisticated electronic propaganda to promote their cause, whether in the name of al-Qaeda, Islamic State or another prescribed terrorist organisation. As will be seen, the praise of so-called martyrs who have died in the commission of a terrorist act is exemplified by the evidence in this case concerning Farhad Mohammad. The murder of Curtis Cheng by Farhad Mohammad was the first case where the commission of a terrorist act in Australia in the name of violent jihad has caused the death of a person: R v Alou (No. 4) (2018) 330 FLR 402; [2018] NSWSC 221 at 404 [7].

The media access applications in R (Cth) v Elomar and Ors (No. 3) and R v Benbrika and Ors (No. 26) arose in the context of terrorism trials. However, those trials (fortunately) did not involve completed terrorist acts which had caused death, injury or destruction of property. There is an additional feature arising in the present case which must be considered in the context of this application.

The Court's reasons for Decision Refusing Access to Exhibits E, F and AJ are stated thus -

The importance of the open justice principle is to be emphasised together with recognition of the significant role of the media in informing the public as to what has happened in a criminal trial. The trial Judge has a discretion to release exhibits with that discretion to be exercised in the particular circumstances of the case. I was satisfied that there is a risk that Exhibit E (if reproduced in the media) may be viewed simplistically, and in a misleading fashion, if it was taken (wrongly) that all the persons identified on the chart were in some way involved in criminal activity associated with the trial of the Accused.

The potential for Exhibit E to be misunderstood and to convey a misleading impression lay at the forefront of issues to be considered on the application by the media for access to it for publication. This was particularly so as journalists had been present in Court on few occasions during the trial. The media would not have acquired an understanding of the role of Exhibit E which would have occurred if journalists had been present regularly during the trial.

The Court was taken by Mr Sibtain to the decision of Whealy J in R (Cth) v Elomar and Ors (No. 3) where his Honour granted access during a criminal trial to photographs of weapons which had been tendered at the trial. I note that the media has already had access to the photograph of the firearm used to murder Curtis Cheng which is contained in Exhibit J. With respect to Exhibits F and AJ, the privacy of persons who may be innocently and incidentally depicted in photographic evidence in a criminal trial is a relevant factor to be taken into account on such an application: R v Benbrika and Ors (No. 26) at [7]; R v Abdallah (No. 3) at [23].

It is necessary to keep in mind the vivid and permanent nature of video evidence which is capable of being broadcast and rebroadcast and further dissemination via the Internet and other electronic platforms. Once footage of this type is broadcast, it is not presently possible to control or recall. The material is available generally to not only responsible media outlets, but others who may seek to use or misuse it for their own sinister purposes.

This is a matter of particular significance where evidence arises in a terrorism case and where material such as that contained in Exhibits F and AJ includes CCTV footage taken in private religious premises where persons are gathered for the purpose of prayer and religious devotion. The capacity to misuse material of this type for the purpose of fanning prejudice is not farfetched in contemporary society and is an important factor to bear in mind in the exercise of discretion as to whether access to electronic exhibits ought be granted.

As noted earlier (at [60]), the circumstances giving rise to the murder of Curtis Cheng on 2 October 2015 constituted the first lethal attack in Australia by supporters of a prescribed terrorist organisation. Other prosecutions, including those in R v Benbrika and Ors (No. 26) and R (Cth) v Elomar and Ors (No. 3) involved proceedings for conspiracy to do acts in preparation for a terrorist act. Those trials did not involve a terrorist killing or circumstances where the terrorist killer was himself killed as occurred in the present case. 

Here, there is a capacity for the killer, Farhad Mohammad, to be praised and described as a martyr by those supportive of Islamic State and other extremist jihadist groups. This is illustrated by Exhibit L in the trial, the Islamic State publication “Dabiq”, released on 18 November 2015 which, in the course of praising “the martyred ‘lone’ knights of the Khilafah who struck out against the kafir and apostate enemies near them” then stated: “Amongst these brave knights of tawhid and jihad was fifteen-year old Farhad Khalil Mohammad Jabar, who on ‘2 October 2015’ struck the crusaders of Australia and killed one of their personnel.”

Elsewhere in the trial evidence, Raban Alou expressed delight in a recorded conversation with his wife, Sharna Perger, on 3 October 2015, describing Farhad Mohammad as “a soldier” and “a martyr” who had been “killed in the path of Allah” (Exhibit P). In other intercepted telephone conversations on 4 October 2015, Raban Alou referred to Farhad Mohammad as “a lion” who “will be in Paradise” (Exhibit P). It is not difficult to see how video evidence of Farhad Mohammad could be deployed in promotional propaganda by advocates of violent jihad.

Although the geographical boundaries of Islamic State have now been eliminated, it is widely known that supporters of Islamic State (and related terrorist groups) continue to operate in various parts of the world including the Philippines and elsewhere. Their propaganda machine, with videos broadcast on electronic platforms (some of which were adduced in evidence at the trial), is likely to continue to operate so that the praising of those who have died in the cause of Islamic State, characterised as martyrs, is likely to recur. Reference was made earlier (at [71]) to the publication in “Dabiq” in November 2015 which lauded the criminal acts of Farhad Mohammad in this way.

By reference to the six submissions advanced on behalf of the Crown and joined in by Senior Counsel for the Accused, I express the following conclusions.

I accept that the protection of privacy of persons who happened to be present in locations depicted in evidence, but who are not said to be involved criminally in the events in question, is a legitimate factor to take into account in determining whether to grant access to video footage in evidence.

It is the case that CCTV footage has become increasingly a form of evidence tendered in criminal trials. At times, CCTV footage depicts persons in public or private places, including persons not said to be criminally involved in the events which are the subject of the trial. In many cases, the use of pixelation or blurring of the faces of persons may be sufficient to protect those persons from unjustified linkage with criminal acts.

In this case, however, CCTV footage depicts persons in a private place of worship within the Parramatta Mosque and in a public street outside the Parramatta Mosque. I do not think that the use of pixelation or blurring of faces will serve to de-identify persons who are at those locations innocently for the purpose of attending a prayer meeting, and then standing in the street thereafter engaged in civil conversation. There are features of the persons which would allow identification even if their faces were obscured.

Further, the fact that CCTV footage depicts these persons in their place of worship provides an additional feature to be taken into account in the exercise of discretion.

The depiction of CCTV footage of persons worshipping in the Parramatta Mosque on the afternoon of 2 October 2015 adds nothing to the process of fair and accurate reporting of the evidence in the trial. There is no impediment to a written description of these events being reported by the media. Further, there is a significant overlap between concerns raised in the Crown’s first submission, and the third submission which raises legitimate concerns that the broadcasting of this footage may encourage both voyeurism and sensationalism concerning persons present in the Parramatta Mosque on that occasion. The Crown’s fourth submission overlaps with this as well, in that there is a concern that broadcasting of this material will make the footage available for irresponsible Internet access by persons with strong anti-Muslim beliefs.

The submission made by Mr Tedeschi QC picks up this theme as well (see [35] above) in that the broadcasting of this material and thus its consequential availability for Internet dissemination, may be used by persons interested in magnifying strong anti-Muslim feelings.

Although my ruling was made on 14 March 2019, it is impossible to disregard the terrible events which occurred the next day in Christchurch where many people were murdered in mosques at which they were present for peaceful religious purposes by way of Friday prayers. What is already in the public arena about that atrocity fortifies the concern that extremist anti-Muslim groups could use for criminal purposes, electronic evidence arising from a terrorism trial.

I am satisfied that these features constitute powerful reasons for refusing the media access to Exhibits F and AJ at this trial.

The Crown’s fifth submission raised a further significant issue. The broadcasting of images contained in Exhibits F and AJ may serve to magnify the grief and distress already being experienced by the family of Curtis Cheng. The capacity for repeated playing of images of persons and events on the afternoon of 2 October 2015 undoubtedly would have this adverse and damaging effect.

Further, the remaining members of the family of Farhad Mohammad may suffer grief and distress as well from the ongoing and open-ended broadcasting, no doubt repeated on electronic platforms, of Farhad Mohammad and even Shadi Mohammad as contained in Exhibits F and AJ. These factors operate as well against a grant of access to the media to these exhibits.

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.

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.