ALWAYS SOMEONE LOOKING AT YOU . . .

"And if my thought dreams could be seen

They'd probably put my head in a guillotine" - Bob Dylan. ('It's Alright Ma, I'm Only Bleeding').

"Many judges have commented favourably on the detailed and accurate evidence reproduced from the recordings and there was no great objection from the public to the introduction and use of this modern form of surveillance." - Extract from article, 'Garda Use Of Video Cameras'. Garda Review, January 1993.

Technology changes the way we see the world and the way the world sees us. The old communal structures are fast crumbling to be replaced by the 'bubble' society. As the world becomes a village, so the village becomes a world. Twenty years ago we knew everything about our neighbour. Today, with the satellite and CNN et al, many of us are more likely to know more about Bill Clinton than our neighbour. We have access to so much information.

The communities of the past were to a large degree self-policing. The key was left in the door because everybody knew everybody and everybody watched everybody. Even if you had the urge to steal, you rarely responded to it because you knew that you simply couldn't get away with it. Not socially, anyway. Your neighbours would become suspicious. They'd start wondering how come you became so suddenly flush with money. And like, how could you steal a neighbour's TV when they'd probably be in visiting you the next week?

Modern society is totally different. Many families live in their own 'bubbles'; perhaps saying 'hello', 'good evening', to their neighbours but rarely visiting them. And for the criminal, modern transport means that they can rob a car, travel a hundred miles to commit a crime and be back home that night. They couldn't have done that in the 'old days'.

Technology - televisions, videos, telephones - is tearing away the communal structures which society used to be run on. And technology - video cameras, bugging devices, computer data bases - is maintaining order within the new Information Age.

As we shift effortlessly into the new and constantly improving technological world, we come under the eye of the camera and the ear of the bug, and that never-forgetting boundless memory of the computer data bank. Technology sees us, hears us and remembers us from birth. And there are precious few laws that say that it does not have a right to do these things. Only we, as citizens, can demand that the new technologies get new laws to control their abuse. And only we can decide what we see asabuse.

We must decide what our individuality, what our privacy and anonymity means to us; what value we put on it. We must decide whether we want to allow the State to video us as we, say, walk down O'Connell Street. We must decide whether the reduction/elimination of crime is more important than the reduction/elimination of our individual rights to privacy.

There can be a balance. But that balance can only be achieved if enough people start thinking about the new technologies for the new world. Democracy is about the maximum debate by the maximum number of people. And we should remember that if we do not debate and then decide, then the Technological State will make the decisions. It already is doing that. You are being watched. You are being listened to. You are being stored. Somewhere, you are just a face, a voice, a number.

Tom Cooney, spokesperson for the Irish Council for Civil Liberties (ICC), has given much thought to these developments. On the subject of video surveillance he has mixed feelings.

"Well, in general, I would say it has a legitimate use. But the point about it is that the law is so inadequate; there's a lack of legal regulation about the use of video surveillance equipment. That fact itself constitutes a violation of civil liberties. In other words, the absence of reasonable and careful regulations itself constitutes a jeopardy to the rights of individuals: the right of privacy, the right to anonymity, the right to free movement without being scrutinised or being intruded upon. So that would be the first general comment about the flaw in the law."

What steps would he like to see taken?

"The ICCL would like to see statutory regulations for the use of video recording equipment to scrutinise people; whether they go into stores, or whether they go into buildings, or whether they go into concerts. In relation to reasonable regulations there are a number of principles which we think should be taken very seriously and which should be enshrined in legislation; they're not but they should be. The first thing is that if anybody is about to go into a store- and the store owner uses video surveillance - we think that there should be a notice right at the door, informing people that should they enter the store they will be subjected to surveillance. Similarly, if somebody goes to a concert - before they even buy the ticket - they have a right to be informed that video surveillance will be used.

"There are a number of reasons for that. One is that people should have a choice whether or not they wish to have their activities recorded by others. A possible response to that is that if people go into a store and they've no bad intentions - they're not going in to steal - then they've nothing to fear. The problem with that is that if inadequate equipment is being used and the recording is of a poor quality, and say something is stolen, there's a danger that person will be falsely accused. And there's a danger that unreliable evidence will be used to secure a conviction. And so there's a danger that inadequate recording will produce miscarriages of justice.

"The other thing as well is that there must be principles which control, as it were, the use of those cameras. There should be limitations on the scope of a store owner's freedom to use cameras to carry out surveillance. It seems to me to be quite wrong that a store can sweep a whole street at any time of the day. In other words, that there should be limitations about carrying out surveillance in relation to the immediate area of the store and the store itself."

Are there any laws which govern the use of video surveillance?

"There's no specific legal provision dealing with that situation at all. And from the point of view of the law, we're in very much uncharted territory. It would seem that in the absence of legal provision, the store owners are at liberty to carry out surveillance on the street as a whole. The problem here is a problem of complacency. There are parallels here, if you take, for example, Bord Telecom, and the whole question of recording numbers of people who phoned you or people you phoned.

"Bord Telecom, as a matter of course, will hand these recordings over to the Gardaí if the Gardaí request them. They will hand them over on the basis that they've got an obligation to help the police, when the police are investigating crime. The same idea would probably facilitate any local authority which is using cameras to record traffic movement to hand these tapes over to the police. [Gardaí have direct access to the Dublin Transport Task Force 'traffic control' cameras.] And would also facilitate the police in insisting that they get access to those tapes.

"There is a danger now, you know, that the notion of Big Brother has been interpreted as an historical notion, but, in fact, in almost a silent, complacent way, it's becoming a reality. That as a matter of course we're looking at a future where activity on streets will be videod simply as a matter of course. And that the police will have access to these at any time they want. And that is a serious civil liberties problem. Because there is no public concern about it, there's a real danger that people will unthinkingly endorse the idea. And at the end of the day, the whole question of anonymity; moving freely without anybody knowing what you're doing - that notion, and that important notion - the legitimate right to privacy while you're on the street, will be simply given away.

New technology has profoundly altered the way our private lives can be monitored, says Tom Cooney.

"If a telephone was tapped in the past, you might get clues," he notes. "By the fact that suddenly peoples voices were a bit weaker, or you hear faint noises. Now, the technology allows tapping without any kind of interference. Also the type of technology which allows security authorities to read letters without opening them. And all of this is taking place without any real regulation.

"The use of modern technology to encroach on privacy; to build up an identikit picture of what a person does day-in day-out; to record their movements on the street; to listen to their telephone conversations; to read their letters; to build up private information about them in a centralised computer: all of these things are really a fundamental threat to individuality. And people are insufficiently aware of that."

What about government controls in this area?

"To the extent that Government has in any way attempted to protect individuals against those intrusions, those protections have been minimal," he argues. "Say, for example, in data protection. Probably in Europe it's the least vigorous; it's the minimalist response to providing people with access to data kept on a computer. There are so many avoidance techniques; there's so many escape clauses in that legislation, that at the end of the day it's a very weak piece of legislation. I would think that in fact the politicians are more given to the rhetoric of protecting people's privacy than to the reality. When one looks at the history of legislation in this country, there's very little to show that politicians take seriously the need to guard individuality. We still haven't got a law which provides safeguards against arbitrary phone tapping."

So what is the opinion of the ICCL on the phone tapping legislation currently being debated in the Dáil?

"We have a number of reservations. The first one is that the Government hasn't spelt out the specific offences which would justify phone tapping. In other words, it has very general criteria. ICCL think that good law making - fair law making - demands that specific grounds be set down in highly concrete terms.

"The second point is that in order to get a phone tap under the Bill that's currently being debated, the Gardaí must apply to the Minister for Justice. In our view, that's unfair. The authorisation for a phone tap should be made to a Court; an independent judicial body. Because, at the end of the day, the Minister will be relying very much on what the Gardaí are saying. And there will be nobody else to contest what the Gardaí are saying when they're making their case for an authorisation. A better approach would be to require the Gardaí to make an application to the Court - it needn't be a public hearing, of course - and there should be an automatic procedure where a lawyer is appointed to argue against the authorisation. In other words, given that the party who is about to be subjected to a phone tap, isn't there to defend himself/herself, there should be a lawyer appointed to argue the opposite side of the case.

"Another problem is that there are no limitations with regard to how long a phone tap can be carried on. There's no requirement that the Gardaí go back to a Court periodically, in order to get a renewal. The danger of that is that a person could be subjected to a virtually permanent phone tap. Again, there are no real controls on the scope of the phone tapping power. Once the tap is set up on the phone, it can record anything; any conversation - it doesn't matter who is calling. In our view the law should be stricter than that. They should only be allowed to phone tap in respect of suspected persons."

What about the safeguards that are built in to the proposed legislation?

"There's a particularly pernicious element here," says Cooney. "Because the apparent safeguards will involve a High Court judge, who can review the operation of the phone tapping system. And there will also be, in effect what will be a complaints referee, who may be a judge or a practising lawyer. The idea here is that a High Court judge or a complaints referee can require that a tap be ended. The problem is, if you are the person whose phone is being tapped, and your phone has been tapped illegally, well then you don't have any right to be told by either the High Court judge or the complaints referee that this was the case. If, for example, your constitutional rights have been violated, you have no right to be told. And this, we feel, is a pernicious invasion of the separation of powers.

"Because what it does is it involves the judiciary in giving a kind of legitimacy to the phone tapping procedures under the Bill, when in fact the judiciary should be an independent body in the State. The judiciary shouldn't be involved at all in monitoring the system, particularly when if they come across an illegality, they're not obliged to tell anybody about it; not obliged to tell the aggrieved party. The Government is saying: 'Well look, having the judiciary involved either as somebody who reviews the operation of the system as a whole, or as a complaints referee, means that the system is going to be fair'. In fact, what this does is that it makes the judiciary complicitous in a skewed and unfair phone tapping system."

Tom Cooney agrees that, in general, the capacity of tech-nology to keep people under surveillance, has raced ahead of the laws to protect an individual's rights to privacy.

"Yes. In general it's probably fair to say that in Western democracies there has been very little progress with regards to protecting citizens against these new technologies . In England, the National Council for Civil Liberties has itself been speaking out about the use of surveillance equipment in, for example, public houses. One of the situations which it was concerned about was where police put a surveillance camera in a public house to record meetings between different individuals, and then they insisted on using this for the purpose of prosecution. That itself shows the lack of regulation in a sophisticated democracy like England. That's pretty much par for the course."

Would it be fair to say that these new technologies are helping to create the all-knowing police state?

"There was an English reformer in the 19th Century, Jeremy Berthem, and he had this idea for a prison called a Penoctegon. The idea was that it would be a kind of a circular prison. And in the middle you would have a structure which would allow a view of everything right around. Everything a prisoner does from morning to night would be seen from this central place. So there was no privacy for any of the prisoners. In a sense our society is in danger of becoming a kind of Penoctegon, where you have got Central Government in the middle, and it can look out at individuals and see everything it wants. And there will be no privacy, no anonymity. And there will be total subversion of the conditions within which the individual thrives. And they are of course risky conditions, but they are inevitable and necessary conditions if individuals are to develop their own sense of a worthwhile life.

What are the practical implications of the State having such an 'identikit picture' of individuals?

"There's a danger of people being singled out and being kind of stamped with the aura or mark of criminality, even though they're innocent. You know, we've a precedent for that kind of practice here in Ireland. Particularly during the 70's, when the Special Branch seemed to have a free hand with regard to arresting people and interrogating them. They did it mainly on the basis that if you were any way associated with somebody who's thought to be subversive, you were game for being rounded up and questioned, a practice which lead to the miscarriage of justice in the Nicky Kelly case for example."

"If we move on to the context where Gardaí have easy access to information through technology and stuff is fed into a central computer - this is the logic of what's happening. You know, details go in - some of which may be quite wrong - the Gardaí can use this information as a basis for saying: 'Well now, we've reasonable suspicion that a person might be involved'. And the law regarding arrest is so general, is so loose, that it would be possible for a person to be arrested and interrogated simply because they happen to be in a place at a particular point in time. Or they happen to speak to somebody on a particular day. Not withstanding the fact that they're totally innocent. What it will do, it seems to me, it will increase the possibility that people will be arrested arbitrarily for the purpose of interrogation. And in a sense they will have the mark of Cain imposed upon them."

As surveillance technology begins to become more widespread does Tom Cooney think that we will see the emergence of a very paranoid society?

"Yes," he replies. "Take, for example, the response within Irish society towards crime. I think there is already in existence an hysteria about crime. The leading example of this at the moment is the hysteria created in relation to the mugging of tourists; even though very few tourists get mugged, and, you know, we're down the list of countries in terms of tourists who get mugged. Hysteria has been created and traders in Dublin city exploit that hysteria. The Gardaí exploit that hysteria. This hysteria is really unwarranted, and it's a manufactured hysteria, and Dublin traders, in particular, are exploiting it. The ideas that Dublin traders have in relation to Garda powers are extreme; they're outlandish. And I think they're doing this because they have no conceptions of the rights of individuals, because they're looking at a wholly narrow, self-interested, immediate solution. I would think that, politically, their leanings are probably towards a very strong-armed state, so long as it doesn't interfere with their right to make a profit."

Will we see, particularly among young people with political or other establishment ambitions, a fear that they better not become associated with - or speak out on - anything that might be remotely regarded as 'subversive', because it will all be recorded in the 'black disk and tape'.

"I think politicians, particularly younger politicians, are going to be reluctant to speak out. And it is notable, for example, that since the Labour Party got into power, Labour TDs have become quieter in relation to civil liberties issues. We don't hear any trenchant criticisms of Garda powers anymore from Labour Party politicians. We don't hear any trenchant and sustained criticisms of the prison service. We don't hear any trenchant criticisms of the way in which the Social Welfare system is operating in a way which humiliates people; strips them of their dignity - particularly through the snooping system and the various investigations that go on. So, we don't have that anymore because it isn't politically profitable to be seen to be speaking out on these things. Because the danger for a young politician is that if he or she speaks out on greater police powers, the message going out to the people is that he or she is 'pro-crime'."

On which point: in an article in the January 1993 issue of Garda Review, entitled, 'Garda Use Of Video Cameras', while promoting their widespread use, made the following point: "The criminal fraternity and their fellow travellers will be very quick to object to any form of Garda surveillance which might curtail activities." How would Tom Cooney respond to that?

"That's the kind of paranoid thinking that creates this blinkered view that the Garda spokespeople have unfortunately become skillful at. They repeat it ad nauseam; it influences politicians. And when politicians are doing very little - or are seen to be doing very little - about unemployment, and when they can't really tackle urgent social issues - they've got to pretend they're doing something. And one of the most notable features of Irish political life - and really an unremarked feature of Irish political life - is the amount of energy devoted in the past ten years to stripping away the rights of the ordinary individual in the criminal process. If one goes through the Dáil debates over the last ten years, it is simply astounding the amount of space that is taken up devoted to crime. And to a reflexive endorsement of the assumed need - but wholly false assumption - that there's a need for stronger Garda powers.

"And, you know, any law that's introduced, it will inevitably be operated unfairly, arbitrarily, unjustly against disadvantaged people. Young people going into town: You're more likely to be refused entry into a shop and searched in a shop if you're a person from a working class area, than if you are what looks like an affluent teenager. You're more likely to be stopped by the police and roughed up on the streets if you're from a working class background, than if you're from an affluent background. You're quite likely to be taken into a police car and driven a number of miles out of Ballymun and left to walk back to your flat, simply because you refused to move on from a chip shop. That's not likely to happen to you if you're living in Foxrock. Criminal powers are introduced, for the most part, to police on the behalf of the affluent class, and to police on their behalf against the underclass; the deprived."

Finally, how can a person find out, for example, if they are being videod as they walk down O'Connell Street?

"The only real way they can find out whether the State or any State agency is say recording what's going on on a particular street, is to get their TD to ask a question of the Minister for Justice. That's the best way. There is a problem here, of course, in that we don't have a Freedom of Information Act, whereby people have right of access to information. The Department of Justice is at the moment deliberating on the need for Freedom of Information Act. This is precisely the time when people should put pressure on their politicians and on Government to have a full-blooded Freedom of Information Act. Which will mean that we can get access to information. There's absolutely no reason why we shouldn't have access to information which doesn't threaten the security of the State. And now is the time to put on that pressure."