A pre-press draft of a new paper I’ve written with Ruben Greidanus is now available on ResearchGate and SSRN. The paper is forthcoming in the North Carolina Law Review’s 2017-18 symposium issue. We would appreciate any feedback.
In the past few years, questions about when police officers should activate (or not activate) their body-worn cameras during police-public encounters have risen into the foreground of public and scholarly debate. Understanding how officers perceive body-worn cameras and policies surrounding activation (and how they view these as impacting their ability to make discretionary choices while on the job) can provide greater insight into why, when, and how officers may attempt to exercise their discretion in the form of resistance or avoidance to body cameras, seen as technologies of accountability. In this paper, we examine officer attitudes about how much discretion they ought to have about when (or when not) to activate their cameras, what concerns they have about overbroad, overly punitive, or ambiguous activation policies, and their perceptions about how frequently cameras ought to be activated in specific circumstances (i.e., general police-public interactions, arrest situations, domestic violence calls, traffic stops, when taking statements from witnesses or victims, and when responding to calls inside homes and medical facilities). These findings are drawn from a multi-year and mixed-methods study of police officer adoption of body-worn cameras in two municipal police departments in the Pacific Northwest region of the United States from 2014 to 2017.
A new paper I’ve written with colleagues at Tilburg University and Melbourne Law School has just been accepted to Law & Social Inquiry. We expect publication in mid-2018. Information below:
The Reasonableness of Remaining Unobserved: A Comparative Analysis of Visual Surveillance and Voyeurism in Criminal Law
Bert-Jaap Koops, Bryce Clayton Newell, Andrew Roberts, Ivan Škorvánek, and Maša Galič
The criminalization of offensive behavior is an important form of privacy protection, but few studies exist of visual observation in criminal law. We address this gap by researching when nonconsensual visual observation is deemed harmful enough to trigger criminal sanctions, and on what basis the law construes the “reasonableness of remaining unobserved,” through a nine-country comparative study (Canada, Czech Republic, Germany, Italy, Netherlands, Poland, Slovenia, UK, and US). We distinguish between a voyeurism-centric approach (focusing largely on nudity and sex) and a broader, intrusion-centric approach (such as observation inside closed spaces). Both approaches explicitly or implicitly reflect “reasonable” privacy expectations, by listing criteria for situations in which people can reasonably expect to remain unobserved or unrecorded. We discuss these criteria to present a framework for criminalizing nonconsensual visual observation, encompassing factors of technology use, place, subject matter, and surreptitiousness that create substantial disruptions in impression management, supplemented by factors of intent, identifiability, and counter-indicators to prevent overcriminalization. We explain this framework as relevant for protecting visual aspects of privacy in view of individuals’ underlying interests in autonomy, and show how visual-observation crimes can be interpreted as ways to assist people in their impression management in situations where disruptions occur in self-presentation and where normal techniques of rebalancing impressions provide insufficient redress. Discussing whether legal frameworks reflect contemporary socio-technical realities, we observe a gap in legal protection relating to non-covert taking of autonomy-undermining images in public as a major up-coming challenge to impression management.
This paper presents findings from an exploratory qualitative study of the experiences and perceptions of undocumented (irregular) migrants to the United States with various forms of surveillance in the borderlands between the U.S. and Mexico. Based on fieldwork conducted primarily in a migrant shelter in Nogales, Mexico, we find that migrants generally have a fairly sophisticated understanding about U.S. Border Patrol surveillance and technology use and that they consciously engage in forms of resistance or avoidance. Heightened levels of border surveillance may be deterring a minority of migrants from attempting immediate future crossings, but most interviewees were undeterred in their desire to enter the U.S., preferring to find ways to avoid government surveillance. Furthermore, migrants exhibit a general lack of trust in the “promise” of technology to improve their circumstances and increase their safety during clandestine border-crossing—often due to fears that technology use makes them vulnerable to state surveillance, tracking, and arrest.
Newell, B.C., R. Gomez and V.E. Guajardo. 2017. Sensors, Cameras, and the New ‘Normal’ in Clandestine Migration: How Undocumented Migrants Experience Surveillance at the U.S.-Mexico Border. Surveillance & Society 15(1): 21-41. [link]
For the (open access) version of record, go to http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1938&context=jil
Citation: Bert-Jaap Koops, Bryce Clayton Newell, Tjerk Timan, Ivan Škorvánek, Tomislav Chokrevski, and Maša Galič, “A Typology of Privacy.” University of Pennsylvania Journal of International Law 38(2): 483-575.