IEEE Technology and Society Magazine - Summer 2014 - 66
in public places). Statutes defining
when governments may lawfully
capture images regulate the de
facto power by defining a de jure
(or official) power. Official power
lawfully exercised grounds subsequent claims for moral justification
when governments capture images
without subject consent. Where
images are captured by state agents
outside lawful parameters, and/or
in ways that intentionally or unwittingly evade proper accountability,
then government power has been
abused and the privacy of the image
subject unjustifiably infringed: a
of a residential house is private,
the house's driveway is considered as allowing restricted access
to cater for legitimate callers such
as postal workers delivering mail.
Only employees may enter certain
areas of work premises, yet there
may also be public access areas for
customers. roads and open civic
areas fall within the category of
public access. Anyone entitled to
be at large may enter such areas.
The more restricted the level of
access, the greater the expectation
of privacy among those entitled
to access, the greater must be any
Individuals are entitled at least
to anonymity in public spaces.
moral wrong has been committed.
Further, miniaturization and economies of scale mean that embedded
sensor technologies capable of image
or audio capture, once the costly preserve of government agencies, may
now be possessed by individuals:
they may be worn as simply, unobtrusively, and as forgettably as a pair
of spectacles or a lapel pin.
This, albeit briefly, establishes
the connection between image-taking and conceptions underpinning
personal privacy.
Location and Privacy
Whether there exists a justifiable
expectation of privacy or merely
an entitlement to anonymity, and
whether either of these may be justifiably overridden, varies according
to location. Basic moral objections
to non-consensual image-taking are
strongly reinforced when it is proposed to take non-consensual images
in certain types of locations. There
must be a correspondingly stronger counter-justification for taking
images in such circumstances.
Spaces may be broadly divided
into three categories of access: private, restricted, and public. This
landscape is complex. Any given
space may exhibit more than one
access category. While the inside
66
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moral justification for non-consensual image-taking.
Because an individual in a public space is liable to be casually
observed by others occupying or
passing through the same space,
there can be no reasonable expectation of being entirely private when
in a public space. It does not follow from this that individuals are
entitled to know the business of
anyone they encounter or pass by in
a public space. That an individual
is present in the space is undeniable through simple observation.3
But who that person is and why
they are there remains their own
business to the extent that they do
not draw public attention to themselves. The content of an intimate
conversation is no less private
because the interlocutors are walking in the public park.
Individuals are entitled at least to
anonymity in public spaces. Three
conventions underpin this: that in a
public space an individual should
be subject to momentary and casual
observation only; that the observer
should be observable; and that closer
scrutiny by others is only warranted
3
Burt [1, pp. 362-363]: "As a practical matter,
one's presence in, or use of, a public resource or
facility is itself an act of revelation ...."
where the subject of the scrutiny
draws attention to themself "by manifestly aberrant behavior," or through
deliberate publicity seeking [9].
Casual observation means being seen
but not noticed. To take notice is to
start gathering information. When an
individual is not noticed, then casual
observation causes no moral harm
because no information has been
gathered without consent and so their
autonomy has not been infringed.
What are the implications of
this space categorization for morally justifiable image-taking?
Whether an individual is located
within a private space, a restricted
space, or a public space refines the
moral considerations based on the
basic principles above. The basic
moral presumption is that an individual is entitled not to be filmed
or photographed without their
explicit consent. This presumption
is more stringent if that individual
is located within their residence, a
private space. At work, individuals
may be subject to workplace camera surveillance conducted by their
employer. If such image-taking is
to ensure compliance with occupational health and safety regulations, the wider benefits of such
compliance (and it being enforced)
override the basic presumption
against non-consensual imagetaking of individuals, particularly
where all staff are equally subject
of such surveillance and no one is
discriminated against.4 Individuals
travelling through public spaces,
commuting between home and the
workplace, pass through spaces
monitored by CCTV systems, both
publicly and privately managed. To
the extent that such surveillance
is momentary, the surveillance
4
Where employer surveillance is for performance
management purposes then the benefit may be
less widely distributed, accruing only to the employer's and perhaps shareholders' profit rather
than the health and safety of colleagues and perhaps the wider community. In such circumstances the justification claim for workplace surveillance seems weaker than a justification founded
upon worker safety.
IEEE TECHNOLOGY AND SOCIETY MAGAZINE
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