24 - The Future of Automated Privacy Enforcement

Summary

The contours of privacy law oft en evolve in response to excessive or inappropriate government surveillance Since the 1765 proto-privacy decision of Entick v Carrington addressing unwarranted searches of documents and private property by the English executive, judges have continued to advance or produce new privacy protecting limitations on law enforcement However, the manner in which privacy law might respond to the 2013 Edward Snowden revelations regarding the startling surveillance capabilities of various nation states is somewhat uncertain The goal of this chapter is therefore to evaluate certain proposals as to how privacy law might react to contemporary law enforcement surveillance techniques In particular, this chapter explores ideas around automated privacy enforcement and the articulation of individual protections from profiling into the telecommunications infrastructure.

While remaining broadly supportive of proposals involving automation and informatics, and believing strongly in the need to reconsider the media of legal transmission and relations in the contemporary technological environment, this chapter questions the achievability of automated privacy solutions to law enforcement surveillance both technically and politically In particular, the possibility of creating systems that could be deployed at web-scale, and of developing automated approaches capable of achieving an acceptable balance between effectively constraining inappropriate surveillance and completely forbidding those law enforcement practices – a seemingly untenable political position – remain unclear Rather than acquiescing to the overwhelming difficulty of the task however, the chapter outlines some paths of further inquiry that might assist in directing future research in the area.

CHARACTERISING CONTEMPORARY LAW ENFORCEMENT SURVEILLANCE

Although there are multiple forms of high-technology surveillance used in law enforcement and security, this chapter focuses on automated profiling technologies It is worth briefly explaining some basic features of those surveillance exercises in order to better understand suggestions as to how they might be constrained by law While law enforcement (and indeed law itself) are taken to have always been information technologies, it is argued here that the technologies of law enforcement are becoming increasingly automated Law enforcement surveillance, especially as performed in ‘high’ or political policing that focuses on calculating criminal propensity and pre-empting future conduct, increasingly operates through the collection (or interception), retention and algorithmic processing of information stored across multiple databases.