Comment by _moof
6 hours ago
In the US, photographing and recording police are first amendment-protected activities.
Likewise, the fourth amendement doesn't forbid a police officer from recording someone in public, because there's no expectation of privacy when out in public.
The courts have found that legally, one officer recording one person is no different from a large-scale, automated surveillance system recording everyone.
Well, that argument goes both ways. If the scale and automation don't make a difference, they don't make a difference.
Given that this is Canada, the first and fourth amendments don't come into the discussion.
Canada's rights are in the Charter of Rights and Freedoms, and they aren't absolute.
Part 1, Section 1.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Subject to that, we get Section 2.
Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
Section 1 is literally just "ignore everything below this section".
If they're not absolute, they're not rights. It's a feel-good document that protects jack shit.
I think this just highlights that a law, as written, isn't everything.
Say one country has this type of "feel-good document," but it's consistently interpreted by powerful courts as a strong protection, and the government generally leaves people alone due to democratic norms. Another country has a strict and absolute constitution, but courts in practice don't interpret it as such, or people are more frequently harassed when criticising the government. Where would you feel more comfortable speaking your mind, and which document is more useful for protecting freedoms?
I'm not making a specific claim about any real countries, though I would say that freedoms are not strictly worse-protected in Canada than in the US. I'm only stating that a law or other document in and of itself can't protect anything - government and society need to respect it.
Democracy is about more than just elections, and freedom is about more than just laws.
Au contraire, taking rights as if they're defined absolutely means that conflicts between them cannot be resolved equitably, but rather only binary-axiomatically. In this US, this plays out as most natural rights being undermined through inescapable interactions with corpos, with the justification that you've "voluntarily" agreed that you will not exercise your right. There are some exceptions of course (eg Pruneyard v. Robins), but they're more like exceptions that prove the rule.
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I would think the natural follow on would be that police have a relative expectation to be photographed and recorded by the public, their actions being public record - they're acting on behalf of the government, FOIA and all that sort of thing applies, right?
Isn't this effectively outsourcing body cams? The frequent stated reason for lack of which is "we would but our department can't afford it :'( anyway check out this new armored vehicle we bought!"
"Tracking" on duty cops doesn't seem unusual, though I think a different argument could be made for their off duty time.
* Edit: this is Canada, so my feelings likely don't apply to their laws.
While this doesn't apply to Canada, an American law professor (who leans very conservative politically) has argued that the public has the right to record the police doing their jobs, based on the due-process clause of the U.S. Constitution rather than on the First Amendment. (EDIT to clarify: he's not arguing that there isn't a First Amendment right to record the police, he's saying that besides the First Amendment, the due-process clause also gives citizens a right to record the police doing their jobs). You can read the 2012 paper "A Due Process Right to Record the Police" at https://ir.law.utk.edu/cgi/viewcontent.cgi?article=1460&cont...
I have only skimmed the paper myself, so if it contains any mistakes I'm likely to have missed them. But his argument seems good to me.
> Isn't this effectively outsourcing body cams?
I think its equivalent to putting a tracker in everyone's car and giving the police access to it.
Surveillance is also firmly in pre-crime territory. People being stalked when they haven't (yet) done a crime.
I believe the American Supreme Court explicitly ruled against that in the past ~10 or so years. Except it was one GPS tracker on one car, done without a warrant.
I don't know why that decision, explicitly founded on "making warrantless surveillance too easy violates the intent of warrants" is being used as toilet paper.
But in the inverse, right? It's like putting a tracker on every cop's car and giving the public access to it.
> The courts have found that legally, one officer recording one person is no different from a large-scale, automated surveillance system recording everyone.
That is not the case. It hasn't been truly tested, and there are very strong hints in SCOTUS's previous opinions that scale dramatically changes the equation for them.
Of course SCOTUS is currently much more amenable to the idea of changing their mind, so who knows how it'd actually hit, but it's far from decided law in the US.
For one example, Sotomayer's concurrence in US v. Jones (2012)
> Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring).
> I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. See Kyllo, 533 U. S., at 35, n. 2; ante, at 11 (leaving open the possibility that duplicating traditional surveillance “through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy”). I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).*
The case you’re commenting on took place in Brampton. The Charter is slightly more nuanced on this topic than the American Bill of Rights.
> The courts have found that legally, one officer recording one person is no different from a large-scale, automated surveillance system recording everyone.
If you're talking about US courts, then no. If they had, then we wouldn't see -for example- SCOTUS ruling that "geofence warrants" were searches that require Fourth Amendment analysis, rather than being equivalent to picking up a recording of events that happened in plain sight. We also wouldn't see at least one Federal judge openly noting that the judges that cite US vs. Knotts really need to read the entire opinion, rather than just the bit that agrees with what is convenient for them.
US v. Knotts is the forty-year-old case that is the source of the "You've no right to privacy when you're on public roads" idea that both people and judges have been parroting for quite a while now. In addition to establishing that principle, it also considered a possible future where the electronic surveillance that -at the time-
* had to be manually installed into cargo destined for the target's vehicle
* was only capable of tracking a single target vehicle
would become sufficiently advanced as to permit 24/7 dragnet surveillance... at which time, courts would need to reconsider what was just and right in light of such dreadfully advanced mass surveillance capabilities.
Pages 28 (starting at section C.) through 38 of this judge's opinion and order [0] are good reading... it can be hard to tell, but the judge really takes other judges who rely on Knotts but clearly haven't actually read it to task. If you have a half hour free, you should really read the whole thing.
[0] <https://storage.courtlistener.com/recap/gov.uscourts.oknd.76...>