EXPORING EQUIVEILLANCE Ian Kerr and Steve Mann 2006 January 1 I. Over and under the Valences of Veillance Surveillance literally means (in French) "to watch from above." Of course, surveillance is about much more than mere observation. As Jim Rule [http://www.sunysb.edu/sociology/faculty/Rule/rule.htm] once defined it, surveillance is "any systematic attention to a person's life aimed at exerting influence over it". Surveillance studies have spawned a number of excellent journals, such as Surveillance & Society [http://www.surveillance- and-society.org/]. Such research has also resulted in noteworthy academic collaborations and networks, such as The Surveillance Project [http://www.queensu.ca/sociology/Surveillance/]. As leaders in the field such as David Lyon [http://www.queensu.ca/sociology/Faculty/Lyon.htm] remind us: Surveillance is not simply about large organizations using sophisticated computer equipment. It is also about how ordinary people - citizens, workers, travelers, and consumers - interact with surveillance. Some comply, others negotiate, and yet others resist. One important form of negotiation and resistance has been a movement known as sousveillance [http://en.wikipedia.org/wiki/Sousveillance]. Coined by Steve Mann [http://idtrail.org/content/view/47/43/], sousveillance stems from the contrasting French words sur, meaning "above", and sous, meaning "below." Sousveillance, a practice that originated with the use of eyetap (electric eyeglasses as described here [http://www.eyetap.org/research/eyetap.html]) and other wearable computing devices, [http://wearcomp.org/] refers both to inverse surveillance, as well as to the recording of an activity from the perspective of a participant in the activity (i.e. personal experience capture). Surveillance connotes a kind of systematic omniscient "eye-in-the-sky" (God's eye view) by authoritarian, though human, eyes and architectures. Conversely, sousveillance involves the recording of an activity by a participant in that activity. Surveillance often requires secrecy and panopticism (Bentham's fancy word [http://cartome.org/panopticon1.htm] used to describe a centralized optical system that ensured total transparency in one direction and zero transparency in the other direction). Conversely, sousveillance seeks to decentralize in order to achieve transparency in every direction. Sousveillance thus seeks invert (reverse) the panopticon. Although it is tempting to see SUR and SOUS as binary, us-versus-them opposites, we are hoping to spend this week thinking instead about equiveillance, [http://stefanospantagis.net/journal/archives/2005/04/equiveillance_a_1.html ] that is, the possibility that these two very different social practices might somehow result in some kind of equilibrium. While Steve [http://idtrail.org/content/view/47/43/] is optimistic that such an equilibrium can be achieved, Ian [http://idtrail.org/content/view/42/43/] expresses more ambi-veillance. Both of us have invited a number of colleagues, professors and students to engage in this dialogue. Below are some of the issues that we will explore this week. II. The Promise of Equiveillance If equiveillance is an achievable state, there will be a balance between surveillance and sousveillance. If achieved, such a balance will result in a better ability to document the world from a diversity of perspectives. From an evidentiary point of view, an equi-veillant state would better preserve the contextual integrity of veillance data. For example, the decentralized capture of personal experience would provide an enriched evidentiary record which could prevent one-sided (surveillance-only) data from being taken out of context. The search for truth and justice has already experienced glimpses of this potential as more and more controversial episodes of public interest are caught-on-tape. [http://www.cbsnews.com/stories/2003/07/17/national/main563855.shtml] It is well known that surveillance can be used to exert power and influence. For better and for worse, both State and private sector surveillance can create tremendous power imbalances. In an equi-veillant world, a better balance would be achieved since, in its best light, sousveillance would act as a kind of ombudsperson: a vehicle through which individuals can exercise complaints and mediate fair settlements more effectively against large and powerful entities. Equiveillance promises a freer society, one which places emphasis on respect and balance of power. With the greater transparency it provides through its decentralized watchful vigilance, power-brokers would be held to greater accountability. Equiveillance might even result in a purer form of democracy, where respect, power and participation are shared and well distributed amongst the demos. III. The Challenge of Equiveillance While the existing literature on equiveillance [http://en.wikipedia.org/wiki/Equiveillance] discusses its promise, less has been written on the practical challenges that equiveillance seekers face. Here are a few. 1. Is Equiveillance Possible? Part of what equiveillance seekers hope to achieve is a balance of informational power. According to Steve [http://idtrail.org/content/view/47/43/] and others, this has a better chance of happening if and when the field of personal cybernetics converges with techniques in personal imaging and cyborglogging [http://en.wikipedia.org/wiki/CyborgLog], creating user-friendly means for individuals to store and archive personal information and personal experience capture. But even if this convergence becomes technically achievable, producible en masse, economically feasible, affordable to all, and mass adopted, what will ensure that the big muscles that the super-powers of surveillance now flex will in any way meet a balance of force? Although it is conceivable that the addition of sousveillance could undermine Foucaultian panopticism's [http://cartome.org/foucault.htm] "visibility and unverifiability", how do we know that the veillances (Sur + Sous) will truly cancel each other out or reach some kind of steady state? What good reason is there to think that these veillances operate like chemical valences? While the balance/equilibrium metaphors are alluring, equiveillance theorists need to be able to explain what would otherwise seem counter- intuitive to most folks who care about privacy and excessive surveillance: i) How does a world that contains more and more information capture devices and greater numbers of information capturers find itself in a state of equilibrium? ii) Since sousveillance and surveillance share a similar potential to do harm, how would the change from the one-sided monopoly on surveillance ensure an outcome of greater balance in informational power, more freedom and deeper respect for and among citizens? 2. Will Equiveillance Respect Fair Information Practice Principles? [http://www.privcom.gc.ca/information/guide_e.asp#005] One of the virtues of equiveillance would be an increased reciprocal transparency in the operations of powerful entities engaged in surveillance. Such reciprocal transparency has become necessary, in part, because surveillance often takes place surreptitiously, i.e., without the knowledge and consent [http://www.privcom.gc.ca/information/guide_e.asp#008] of the people who are being monitored. Consent to the collection, use and disclosure of personal information is central among the fair information practice principles (FIPPs) [http://www.privcom.gc.ca/information/guide_e.asp#005] set out in PIPEDA [http://www.privcom.gc.ca/legislation/02_06_01_01_e.asp], Canada's private sector privacy legislation. Although FIPPs currently apply only to "organizations", in an equiveillant society, one might expect that FIPPs could apply equally to the decentralized masses of individuals enagaged in cyborglogging and other personal experience capture techniques. FIPPs requires much more than a simple consent to the capture of personal data. FIPPs requires significant accountability for collection/use/disclosure in a number of ways. For example, organizations are generally required: to identify the purposes for collection; to narrowly limit the collection to those purposes; to limit the use/disclosure/retention of the information collected; to maintain the accuracy of the information; to provide safeguards; to provide open access to information subjects; and to provide a form of recourse for complaints about improper collections of information. iii) Should sousveillance also be practiced in accord with FIPPs? iv) If it should, then what regulatory/oversight mechanisms would be used to ensure that this is so? (For example, would the current infrastructure of the Office of the Privacy Commissioner of Canada [http://www.privcom.gc.ca/] suffice? Does equiveillance demand that private sector privacy legislation needs to be amended to contemplate and accommodate sousveillance?) 3. If Equiveillance Does Not Respect FIPPs, what is its Moral or Legal Justification? Some equiveillance seekers believe that FIPPs must give way to the goal of achieving greater reciprocal transparency in society, that to have a society within which personal freedoms and justice are equally distributed, greater reciprocal transparency is needed. At the same time, other equiveillance theorists have been careful to distinguish themselves from David Brin [http://www.davidbrin.com/] and others who also see the need (and have the desire) to sacrifice privacy in order to achieve what often amounts to unidirectional transparency. Even if symmetry of transparency is not seen as an overarching goal, obtaining equiveillance might be seen by some to require an abandonment or at least a suspension of FIPPs. Part of the justification for doing so would be that powerful entities engaged in surveillance do not comply with FIPPs and that the only way to destroy the monopoly on surveillance is to "shoot back" [http://wearcam.org/shootingback.html] or "fight fire with fire." v) How can privacy be maintained if FIPPs-values are jettisoned for the sake of symmetry in transparency or the change away from the surveillance-only monopoly? One justification for doing sousveillance in a way that jettisons FIPPs- values might be to understand equiveillance seekers as engaged in morally- minded civil disobedience in the tradition of Henry Thoreau [http://eserver.org/thoreau/civil.html], or Dr. Martin Luther King Jr. [http://www.stanford.edu/group/King/]. This form of sousveillance is a deliberate, open, and peaceful violation of FIPPs. Its purpose is to undermine or resist an unjust, illegitimate and immoral surveillance monopoly. vi) Is sousveillance properly understood as civil disobedience even if it is surreptitious? vii) A hallmark of civil disobedience is the willingness of the civil disobedient to accept the legal consequences. Should equiveillance seekers who breach FIPPs be held to this standard? viii) If Equiveillance does not respect FIPPs, what is its moral or legal justification? IV. Legal Protection of Sousveillance Finally, we consider issues regarding the legal protection of sousveillance in our current, unbalanced surveillance-centric society. If we arrive at the conclusion that equiveillance is in the public interest, how can we protect it against law, policy, and practices that are biased in favour of surveillance-only regimes? For example, we already recognize certain social benefits from fire exits, wheelchair ramps, and the like. Private property owners and governments are not at liberty to create environments that are unsafe, or that discriminate in certain ways. (ix) Should property owners be required to facilitate, permit, or, at the very least, not to impede sousveillance activities? Clearly, some sousveillance activities might result in public safety benefits (e.g., a memory aid or seeing aid worn by the elderly might happen to collect evidence useful to a physician or a jury in determining the cause of a slip-and-fall incident). x) What legal remedies might be provided to deal with those who attempt to obstruct equiveillance? Do information rights extend to those who wish to have a record of their own personal experiences? For example, what remedies are available to a person who is prohibited from capturing personal experiences (eg, "no photographs allowed")? xi) Is requiring a person to turn off recording devices ever akin to "tampering with evidence"? If the result of such an incident is that the surveiller has a record but the sousveiller does not, ought there to be some sort of legal recourse to the sousveiller? Is there a rule of evidence or equity that could support equiveillance in such a situation? Consider, for example, a situation in which entities "A" and "B" would have each recorded their own version of "the truth" (i.e. their own choices of camera angle, etc., when they are interacting with each other), but for the fact that "A" prohibits "B" from recording. In this case, "A" has the only recording, because it has instituted a monopoly on the "recording of fact". Might a reasonable legal remedy to the possible conflict-of-interest inherent in such recording monopoly be to dismiss any such recordings made by "A" as inadmissible evidence in a trial or proceeding against "B"? V. Discussion Time Unlike many of the ID TRAIL MIX [http://www.anonequity.org/weblog/archives/cat_id_trail_mix.php] articles published in this space, the purpose of which is to espouse a particular position or opinion, in this piece, we have tried to describe what equiveillance is and raise some challenging questions for discussion. Our aim is exploration. Rather than providing a typical point-counterpoint debate, we think it will be more interesting to put forward for discussion the most plausible and appealing version of equiveillance theory and to inspire a dialogue that investigates its virtues and vices with the aim of determining the best and most appropriate approaches for confronting the harms flowing from the excessive and monopolistic surveillance society that we currently live in. We view the outcome of the discussion as up-for-grabs, i.e., that any of those involved in the discussion might be convinced to change their views. Part of our hope is that the discussion will help focus on solutions that work. So lets talk!