D4.5 Surveillance the moral presumption of innocence.pdf
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FP7-‐SEC-‐2011-‐284725
SURVEILLE
Surveillance: Ethical Issues, Legal Limitations, and Efficiency
Collaborative Project
SURVEILLE Deliverable 4.5: Surveillance, the moral presumption of innocence, the right to
be free from criminal stigmatisation and trust
Due date of deliverable: 30.09.2013
Actual submission date: 30.09.2013
Start date of project: 1.2.2012
Duration: 39 months
SURVEILLE Work Package number and lead: WP04 Prof. Martin Scheinin (EUI)
Author: Katerina Hadjimatheou (UW)
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Table of Contents
1. Introduction
2. The presumption of innocence as the right to be free from stigmatisation
2.1 The harms of stigmatisation
2.2 Justifying the harms of stigmatisation
2.2.1 Surveillance, stigmatisation, and profiling
2.2.2 Surveillance, stigmatisation, and pre-‐suspects
3. The presumption of innocence and trust
3.1 Surveillance and the right to be trusted
3.2 Trust, preventive surveillance, and the burden of proof
3.3 The impact of surveillance on trust as a social good
4. Conclusion
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Executive Summary
1. Surveillance stigmatises people as criminal when it marks people out as potentially
having failed to uphold or being thought likely to fail to uphold the criminal law.
2. The harms of being stigmatised as criminally suspicious include: humiliation;
alienation from wider community; mistrust of and reduced willingness to cooperate
with surveilling authorities; reduced security for society as a result of this reduced
willingness to cooperate; increased risk of exposure to greater risks of discrimination
and social exclusion by others; reduced equality, social cohesion, and policing
legitimacy as a result of the former costs; and an increased risk of exposure to future
measures of suspicion by police.
3. The most stigmatising surveillance practices are those that: single people out most
visibly for scrutiny, imply the strongest suspicion of criminality, connect criminality to
salient traits (e.g. ethnic appearance) and apply a stigmatic label that is difficult to
remove or that adheres to a person over a long period of time.
4. The criminal stigmatisation caused by surveillance is disproportionate when it is
more stigmatising or applies a stigmatic label for longer than is necessary to the aims
of the investigation.
5. The right to be free from criminal stigmatisation is violated when surveillance
practices impose a stigmatic label on individuals that is impervious to evidence of
innocence.
6. Neither the use of profiling nor the creation of pools of pre-‐suspects conflicts in
principle with the right to be free from stigmatisation, though some actual examples
of these techniques may conflict with it in practice, if they are applied
disproportionately.
7. The content of both formal and informal lists of pre-‐suspects should be responsive to
evidence of innocence and of guilt. Individuals should be given opportunities to
provide such evidence, wherever this is consistent with national security and the
pursuit of ongoing investigations. In many cases it is appropriate to consider a lack of
further evidence of guilt tantamount to evidence of innocence once a
predetermined period of time has elapsed.
8. Surveillance does not impinge upon the right to be trusted if evidence is
proportionate to the suspicion inflicted
or
if it can be justified most convincingly by
appeal to reasons other than the untrustworthiness of those surveilled; when these
reasons are those actually given in practice by the surveilling authorities; and when
the policy is not inconsistent with an attitude of trust towards people in general.
9. Surveillance practices undermine trust as a social good if they are based on a
presumption that people in general are untrustworthy, if they exaggerate though
excessive heavy-‐handedness the untrustworthiness of particular groups of people
singled out as suspicious, or if they draw attention to the presence of crime too
forcefully so that people begin to overestimate the threat posed.
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1. Introduction
Privacy has traditionally been the core value thought to be threatened by surveillance
practices (Warren and Brandeis, 1890; Westin, 1967; Jarvis-‐Thomson, 1975). In recent years,
equality and norms of antidiscrimination have also become a focus of concern by those
examining the moral costs of surveillance (Lyon, 2002; Bou-‐Habib, 2008; Ryberg, 2011).
Today, a new strand of critique focuses on the presumption of innocence, which is thought
to be the latest casualty of surveillance practices.
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This deliverable reviews and discusses
this third line of critique; it examines the extent to which different surveillance techniques
might undermine the presumption of innocence; and it draws on this analysis to reach
conclusions about their ethical acceptability.
Traditionally, the presumption of innocence has been discussed only in narrowly legal
discourse, as one component of the right of criminal defendants to a fair trial. But this is not
what is intended by ‘the presumption of innocence’ as it often appears in contemporary
moral and political debate about the justifiability of surveillance practices. What is meant
instead is something like a right
not to be treated as criminally suspicious unless one has
done something to warrant such suspicion.
This moral right to be presumed innocent is
conceived as applying to all individuals who are subject to criminal suspicion or who are at
risk of being subject to criminal suspicion. Its function is to protect people from being
burdened with the harms of criminal suspicion unfairly.
This movement to recognise a broader, moral right to be presumed innocent has been
prompted by recent developments and trends in police practices. Preventive policing
practices including surveillance have come under particular criticism. Sometimes this is
because they appear to treat with suspicion people who have done nothing in particular to
merit such suspicion. Sometimes it is because they appear to justify such treatment on the
basis of evidence that is weak and speculative. Surveillance techniques which have been
criticised as undermining or curtailing the moral right to be presumed innocent include the
mass monitoring of electronic communications represented by the US National Security
Agency’s PRISM programme (EU Parliament, 2013
2
); the use in the UK of CCTV cameras to
monitor a mainly Muslim residential area in which it was speculated that terrorist sleepers
may be operating (Galetta, 2012: 280); and the use by telecommunications companies of
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2
See in list of references Galetta and de Hert for IRISS, 2012: 283-‐291; Pavone for PRISE, 2008: 22; PACT,
As reported in the
Inquirer,
in July 2013 the EU Parliament announced the launch of an inquiry into the
compatibility of PRISM with rights including the presumption of innocence: "The Civil Liberties Committee
inquiry [will] assess the impact of the alleged surveillance activities on EU citizens' right to privacy and data
protection, freedom of expression, the presumption of innocence and the right to an effective remedy," (EU
Parliament quoted in Inquirer, 9 July 2013 ‘European Parliament Votes for PRISM Snooping Investigation’. At
http://www.theinquirer.net/inquirer/news/2280187/european-‐parliament-‐votes-‐for-‐prism-‐snooping-‐
investigation
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DPI (deep packet inspection) techniques to detect illegal file-‐sharing (Fuchs, 2012: 50;
Privacy International, 2009).
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The right not to be treated as suspicious has been grounded in the interests people have in
not suffering the harms of being stigmatised as criminal or potentially criminal (Campbell,
2010). It has also been grounded in a moral right to be treated as trustworthy (Nance, 1994;
Duff, forthcoming). Some critics also appeal to the presumption of innocence to identify and
object to the creation of an ‘ethos of suspicion’ (Kimmelman, 2000) or an erosion of the
trust that forms the basis of social relationships in a liberal society (Lyon, 1994).
Given the increasing importance given in current debates about surveillance practices to the
presumption of innocence broadly understood, and given also the fact that the SURVEILLE
project has not as yet considered of such practices the risk to this particular ethical value,
this paper makes the presumption of innocence its focus. It critically examines both the
stigmatisation and the trust-‐based accounts of the moral presumption of innocence,
drawing on academic work in these areas to reach conclusions about the ethical risks of
specific surveillance techniques and practices.
2. The presumption of innocence as the right to be free from stigmatisation
Appeal to the presumption of innocence to criticise surveillance practices sometimes implies
a right to not be stigmatised as criminally suspicious.
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Concerns about the stigmatising
effects of preventive surveillance practices have been expressed since the very first counter-‐
terrorism measures were taken in the EU and USA in response to the September 11 attacks
of 2001. For example, the German policy of data-‐mining for and surveillance of potential
terrorist sleepers known as the
Rasterfahndung
was struck down by the German Federal
Constitutional Court partly on the ground that it had a ‘stigmatising effect’ on those singled
out, associating them unfairly with a propensity to terrorist crime. The court argued that
this imposed harms on those suspected which could not be justified on the basis of the
evidence (Breuwer 2009:23). Concerns about the stigmatising effects of surveillance have
been raised most strongly in connection with measures that single people out on the basis
of their ethnic (including racial and religious) traits (Bou-‐Habib, 2011; Ryman, 2011). They
have also been expressed in relation to the creation of pools of ‘pre-‐suspects’ or individuals
who are thought likely to become suspects in a police investigation in the future (S and
Marper; Campbell).
2.1 Surveillance and the harms of criminal stigmatisation
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See, for example, ‘taint of suspicion’ (
S and Marper
14) resulting from inclusion in the database and the
implication that arrestees were ‘less than wholly innocent’ (
S and Marper
89).
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