Regulation of surveillance cameras:
“It is not so much an issue of the law or not having enough means to steer here, it's an issue of us as a society and are we sufficiently debating this.”
Interview with Prof. dr. Corien Prins
by Goda Stogyte
Mrs. Corien Prins, the dean of the Law School at Tilburg University, agreed to share with us her knowledge and opinions about the balancing privacy and surveillance in nowadays society.
In terms of law personal data is defined to be any data that reveals the identity. Let’s start our discussion with your opinion, as an expert, if the data collected by surveillance cameras should be treated equally to other types of personal data?
Mrs. Corien Prins: I have different answers there. Under law, my answer would be yes, because it is very important that the concept of personal data as was in definition is broad enough to encompass the future developments regarding how pure data is related to persons. The EU law says that this relation can be directly or indirectly identifiable, and data recorded by surveillance cameras creates an opportunity or availability to connect the other data to the person. I would think that implies that regime is applicable. It is relevant and important that every provisions of the EU data protection scheme would be applicable once you have the technology to get from your face to you as a person.
What we notice in the EU law is that you always can see some kind of staircase: the first level is to decide if the data is under the regime of data protection directive, if yes you have to determine depending on the circumstances what could be expected from the legislative process, when it is important to decide what level of security is needed. In this way the situation is defined together with how we interpret and define the broader provisions that are in the regime. The law of personal data protection is a broad law. It makes it clear what type of data are within the input of the law and subsequently requires interpretations of the broader provisions depending on the context and type of data, etc.
There are some legal principles implied in the gathering of personal data, as: Notice for data collection, Purpose of it’s collection, Consent, Security, Disclosure, Access, and Accountability of such data collectors. What do you think are the main issues, if there are any, in implying these principles for data collected by surveillance cameras?
Mrs. Corien Prins: Individuals have the right to access the data recorded by surveillance cameras which is interpreted in the Dutch situation by the Supreme Court. And not only access, but also to receive a copy. This interpretation is very important, it means that any organization (like university) depending of course that a person is identifiable should give the data if asked. For example when we are teaching in the classroom, there is enough of combination of different data to make me identifiable. In this case I can ask for the access and require giving me a copy of the data. This is the Dutch interpretation of EU law. Of course, it also causes a lot of debate: well does that mean that we can have copies of everything?
What about the other people that are recorded in the same data sets you request?
Mrs. Corien Prins: It is a very important question. Law itself includes a requirement that the responsible people check whether the data also includes data of the third persons. Then they have to think if me providing a copy to you, having information on it of the other as well, would have a negative implications for the third part. That is the test: it's not about asking the permission of the third person, but it's about the responsible person deciding if it has negative consequences for the third person involved. It is interpretative because the responsible person makes a decision if provide a requestant with a copy or not regarding the interests. Suppose I refuse to give a copy because my argument is that it might be in violation of the thirds party's interest. The EU again gives a possibility to go to court and contest this decision, so there is subsequently an independent judge who decides the balance between the interest of requestant and the third party. However, hardly anyone goes to court, in practice it is just the law in books.
Officially there are legislative restrictions of surveillance cameras intrusion into personal privacy, as arguments why the legitimate interest for camera surveillance outweighs the interest of the data subject’s privacy or explaining why the purpose, like the surveillance of property, cannot be realized in a different way which is less invasive for the data subjects. Even so, the international statistics show that the use of surveillance cameras is relatively broad. What do you think about the restrictions for installing such cameras and are they enough to prevent intrusion into the personal privacy?
Mrs. Corien Prins: In my opinion, it is not so much an issue of the law or not having enough means to steer here, but it's an issue of us as a society and are we sufficiently debating this. There is always an easy argument for crime prevention and safety, but it's not always an easy argument pro-privacy. That is why it's difficult to balance crime prevention on one hand and privacy on the other. Often what we usually see is that our society very much stresses risk evasion, meaning whatever means we have to evade risks should be applied - that's the line of reasoning. So it's a difficult dispute because risk evasion has its price, and in this way privacy becomes no longer a serious argument. Usually we don't sufficiently debate the balance and the necessity of the balance and what's behind the balance. It's not so much a pure legal issue, it's much more an issue of norms, ethics, and balancing how do we see society, what type of society do we want to live in, etc. It's so much more a political debate: either local, national, regional or EU politics, because the law itself offers enough space and room for the balancing act. In the end it is politicians who have to use the law. I don't think that by making the law stricter you can find a solution here.
"Privacy is slowly becoming seen as something that nature conservation was years ago - an issue that can be used for marketing purposes."