Reportable Disease Surveillance in Virginia

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How do, and how should, the police approach surveillance? This was the issue that retired police Superintendent John Cummings addressed at February’s PEN evening. Drawing on his experience as an authorizing officer with responsibility for permitting or denying requested police surveillance operations, John spoke on a number of issues concerning surveillance and ethics.

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John began with clear recognition of the threat that state surveillance poses to democratic society. He highlighted challenges to privacy, the danger of function creep, the possibility of chilling effects and the risk of social sorting. Together with the reduction of private space, John argued that these may lead to a surveillance society dominated by a sense of suspicion and omnipresence, one likened more to the control of Bentham’s Panopticon than to the duty of care he saw as undergirding the police. As a result, he observed that it was unsurprising that surveillance is often portrayed as morally negative and a threat to freedoms.

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At the same time, John reflected on his more localised perspective as a former serving police officer. The value of privacy, for instance, may be very different to an abuser than to his abused victim. Surveillance can be used to protect and to provide care, as well as to control. Drawing on both the European Convention on Human Rights and the UK’s Regulation of Investigatory Powers Act (RIPA), John argued that the obligation of the state is not to interfere with a right to privacy unless there are countervailing circumstances which carry more weight. That is to say, there are circumstances in which surveillance is at the very least permitted, if not the duty of the state.

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To demonstrate when he felt such countervailing circumstances may have been met, John shared some of the questions that he would typically use to consider requests to deploy surveillance, seen through the prism of a National Decision Making Model. These included the potential harm to the public of the act occasioning the request; the realistic options available to the police once other priorities such as rights, risks and obligations had been considered; the necessity, proportionality, and collateral impacts of the proposed surveillance; and how the requested surveillance compared to the organisation’s mission and values. Ultimately, he argued, the choice came down to what the police officer should do in order to help prevent harm and promote good.