Master Thesis

The Panopticon, Data Protection and the Surveillance Society

September 2014

Master of Victimology and Criminal Justice

Tilburg Law School

Tilburg University

Thesis supervisors

Dr. M. F. Ndahinda

M.W.G. Bosmans

Abstract

This Master Thesis examines the concept and practice of Surveillance via the State & Private actors targeting citizens. The main focus in on 3 main applications; CCTV monitoring, DNA databases and Data storage. As the subject of surveillance is unfolded, based initially on Bentham’s Panopticon, an analysis of surveillance types and agents follows along with a specialization in the Greek legislation implementing EU legislation on Data Protection.

Data protection is essential in the context of contemporary society since it is remarkably easy to get access to other people private information. Due to that reason, it was interesting for me to review the phenomenon of surveillance targeting citizens in the form of video footage in public places, creation of DNA databases and storage of personal information. The scope of this Thesis was to critically discuss the aforementioned applications and to review whether they intrude the right to privacy. Most importantly, I was interested to examine whether Greece managed to comply with the EU legislation on Data Protection, and to review the existing Greek legislation regarding data storage, DNA database and CCTV video surveillance, since there is no similar review with centered on Greek legislation, including the three aforementioned applications.

Table of Contents Chapter 1 Introduction ...... 4

1.1 Introduction ...... 4

1.2 Research Methods & Design ...... 7

CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM ...... 9

2.1 The Panopticon ...... 9

2.2 Criticism on Panopticon ...... 12

CHAPTER 3 THE PHENOMENON OF SURVEILLANCE ...... 16

3.1 The Concept of Surveillance ...... 16

3.2 Types of surveillance ...... 16

3.3 Dataveillance as a type of surveillance ...... 17

3.4 Agents of surveillance ...... 19

3.4.1 Surveillance by the State ...... 19

3.4.2 Surveillance by Private Actors ...... 23

3.5 Surveillance Post 9/11 ...... 26

3.6 Surveillance as a privacy matter ...... 28

CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON ...... 29

4.1 Panopticon Revisited ...... 29

4.2 CCTV monitoring ...... 29

4.2.1 Criticism on the effects of CCTV monitoring as a surveillance measure ...... 31

4.3 Data storage and consumer cards ...... 32

4.4 DNA databases ...... 35

CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION ...... 37

5.1 Greece; Three levels of contemporary Panopticon ...... 37

5.1.2 EU Directive on Data Protection ...... 37

5.1.3 Creation of the Hellenic Data Protection Authority ...... 38

5.2 Application of CCTV monitoring in Greece, HDPA provisions and the accordance with EU legislation ...... 39

5.3 Creation of DNA Database in Greece, HDPA and the EU legislation ...... 41

5.4 Data Storage in Greek Legislation and the accordance with the EU Legislation ...... 43

CHAPTER 6 CONCLUSION ...... 45

REFERENCES ...... 48

Chapter 1 Introduction

1.1 Introduction

Bentham’s Panopticon, as a theoretical construction, has been the center of numerous philosophical and sociological debates as to the concepts that it introduces; surveillance, discipline, obedience and control. Although Panopticon remained an idea, scholars have analyzed and reviewed the effect that such a construction would have. They have searched for the meaning and several of them criticized its possible effect, not only the direct one, (prisoners- offenders), but also if this theoretical pattern were to be used in society and not just in prisons. If this is the case, would then the fundamental rights of the citizens be compromised by that pattern?

Following Bentham’s Panopticon, Orwell’s novel “1984”1 introduces the concept of surveillance related to the society unlike Bentham’s concept of surveillance which was centered on penal policy. In particular Orwell, in his imaginary state and clearly affected by his fear for the society’s surveillance, (Haggerty & Ericson, 2000), writes about the extreme actions of the government implemented on the citizens of Oceana; screens inside citizens’ houses, monitoring every action and every thought. The result of disobedience to the rules of the Big Brother was imprisonment. (Orwell, 1949) Obviously both in Bentham’s and Orwell’s writings we can identify the metaphor behind them, but nowadays surveillance is more than a metaphor. In addition to Bentham and Orwell, Foucault created the term Panopticism to explain his theory about Panopticon and the path to discipline through surveillance. “Panopticism is the theorization of surveillance society, derived from Bentham’s project of a prison.” (Brunon - Ernst, 2012, p.16) Primarily during the process of explaining Bentham’s theory, Foucault came to the conclusion that the most important effect of the Panopticon is to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.

Foucault’s major fear, society surveillance, was expressed once again in Gary Marx’s writings (1988,1998, 2004) and evolved later on by Oscar Gandy (1993) who refers to a system of panoptic sort, in which three actions are taking place; collection, process and share of personal information of either individuals or groups, regardless their role on the system, (citizens, employees, consumers, etc.). For Gandy, this mechanism is used daily and constantly for creating models which would turn the profiling of our personal data easier for administrative purposes. (Gandy, 1993) Does society control us through power and social surveillance? As

1 Orwell, G. (1949). Nineteen Eighty-Four. A novel. London: Secker & Warburg

4 Chapter 1 Introduction

David Lyon (1994, 2001, and 2003) indicates, surveillance can be perceived as a form of “social sorting”. (Lyon, 2003) He explains that social surveillance can be identified in a variety of shapes.

“Surveillance… is intensified in a world of remote relations, where many connections do not directly involve co-present embodied persons, and where we no longer see the faces of those with whom we are “in contact” or with whom we engage in exchange. Searchable databases rely on data abstracted from live embodied persons, data that is subsequently used to represent them to some organization.” (Lyon, D., 2003, p. 27)

According to Elmer (2003), we live under panoptic surveillance and a simple proof of that is the issue of monitoring transactions. Elmer analyzes the process of monitoring and the way companies store and process our personal information that we as consumers willingly share in favor of a discount or other conveniences. In the words of Stalder (2002),

“The creation, collection and processing of personal data is nearly a ubiquitous phenomenon. Every time we use a loyalty card at a retailer, our names are correlated with our purchases and entered into giant databases.

Every time we pass an electronic toll booth on the highway, every time we use a cell phone or a credit card, our locations are being recorded, analyzed and stored. Every time we go to see a doctor, submit an insurance claim, pay our utility bills, interact with the government, or go online, the picture gleaned from our actions and states grow finer and fatter.” (Stalder, 2002, p.120)

Clarke (1988) introduces the concept of “dataveillance” as “systematic monitoring of people’s action or communications through the applications of information technology.” 2He distinguishes the techniques of “dataveillance” in two major categories, personal and mass. By doing so he is raising the importance of the surveillance of our data by monitoring our digital traces. In other words, we, as citizens, without being aware of it, share our personal data constantly in many different ways and actually via this sharing we can be traced by every organization in the world, or by any government that controls and processes data, satellites, traffic cameras, etc. When for example we go to a supermarket to purchase our basic products, and the cashier asks us if we would like to have a consumer’s card for discounts about our preferable products, we don’t think that this information will be used for something else than discount. In fact, there is a high percentage of occurring probability that this information will be shared with companies that the Supermarket is in association with. The reason behind this sharing of our data and our

2 http://www.rogerclarke.com/DV/CACM88.html#Conc

5 Chapter 1 Introduction preferences in products is as simple as it can be; creation of customers’ profiles that enables companies to foresee our preferences on products, the frequency of our shopping etc. Also these kinds of profiles could easily be shared with insurance companies for example to measure the risk of your insurance coverage, since supermarkets don’t sell only food but other products as well (alcohol, cigarettes, medicine, etc.).

A clear reflection of Panopticon theory in the context of society is given by Kietzmann & Angell (2010). They suggest that as Panopticon can be seen as measure by the state to control the prisoners, on a similar way, nowadays Panopticon is more than that. There are 3 generations of Panopticon on our society, and via them, as prison would be the micro level; society now is the macro level of that culture of control. The first one includes surveillance cameras that are used to make us behave in order to have the fear of surveillance with the outcome of not breaking the law. The second one is more centered around the consumer, for example membership cards, credit cards, mobiles etc., where people are convinced that by sharing their personal data they “behave” with society’s giving orders and they are accepted by it in a way, when actually they do not realize that by sharing all of their personal information via networks, shops or cards, they easily can be identified and their personal data are going to be viewed/shared by companies, authorities, banks, etc. The third and last one is via internet and satellites. When people can on their daily routine “spy” on other people via surveillance cameras, photos and videos shared on line, when you can identify one’s location through GPS or other applications that give geographical coordinates then how can we believe that we are free as citizens? With the exact words of Kietzmann & Angell, “think what could have happen if people were paid to report any antisocial behavior they saw and recorded?” (Kietzmann, & Angell, 2010 p. 138)

The central question in this thesis concerns the essence of surveillance. Specifically, the question is whether CCTV monitoring, DNA databases and data storage, as applied surveillance measures by the State and Private actors, can be considered as intrusive towards the right to privacy? Additionally, does the current EU legislation safeguards data protection and most importantly, since the focus will be in the implementation of the aforementioned tactics in Greece, has Greece adopted EU legislation properly? What is the content of this legislation concerning CCTV video surveillance, creation of DNA database and data storage process? The scope of this thesis is to address and thoroughly examine these questions.

6 Chapter 1 Introduction

By taking into consideration all theoretical facts mentioned above, in this paper the subject of surveillance in the context of modern society will be discussed, focusing on three aspects of it, based on the generations of Panopticon in our society as cited by Kietzmann & Angell (2010); CCTV monitoring, creation of DNA Databases and data storage. By explaining each generation in detail, and afterwards by reviewing the implementation of those tactics in Europe in general, the main scope is to review in depth the extension of these practices in Greece. In order to do so I will include the relevant legislation regulating Data protection and privacy rights concerning Greece as well as examine whether Greek Legislation managed to be in accordance with the EU legislation on the protection of personal information.

The purpose of this study is to review whether surveillance measures adopted by the State and Private actors constitute a violation of the privacy right. Focusing on CCTV monitoring, DNA Databases and data storage on a first level will provide us with necessary knowledge to be able to critically review whether their implementation in Greece specifically is violating the right to privacy based on the application of EU legislation on protection of personal information and Greek legislation. What measures have the Greek legislation adopted to protect Greek citizens from surveillance and ensure the safety of their personal information? All those questions will be discussed in depth on the following chapters.

1.2 Research Methods & Design

In this paper I am conducting a literature review in which by analyzing on a first level Bentham’s Panopticon as a theoretical phenomenon on punishment and punitiveness, I will concentrate on its effects for the inmates and what it represented for Bentham. Along with Bentham’s Panopticon there will be a critical review of his theory by Foucault (1977), Pugin (1841), Strub (1989), and others. Afterwards, I will focus on Kietzmann’s & Angell’s generations of nowadays Panopticon, where I will explain thoroughly the three levels of surveillance in the context of the contemporary society, as they identify them. Moreover, I will introduce surveillance as cited on Marx (1988), Lyon (1994, 2001, and 2003), and review Elmer’s system of panoptic surveillance (2003), introduce Clarke’s concept of dataveillance, and discuss the types of surveillance and create a categorization between surveillance via Private actors and State, as well as post 9/11 surveillance.

7 Chapter 1 Introduction

CCTV monitoring, DNA databases and data storage review in depth will follow regarding the use of personal data. For each practice I will give an explanation of their evolution through time and the history of their implementation. Lastly I will focus on Greek Constitution as well as on EU legislation for the protection of personal information, specifically for the three aforementioned measures of surveillance to examine whether Greek legislation is in compliance with EU law. The importance of this paper lies on the fact that there has not been a study analyzing those practices altogether along with the applicable legislation (both EU & Greek).

8 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

2.1 The Panopticon

Panopticon is an ideal construction originated by Jeremy Bentham, during 18th Century. Contrary to common beliefs, Bentham was not the actual father of this ideal construction, but his brother was, Samuel Bentham. When J. Bentham visited his brother in Russia where he was an engineer, Samuel had designed a circular textile mill. The purpose behind the architecture of the mill was that it needed to be built in a way which allowed workers to be watched by their overseers, without them been able to know when they are been watched which would actually make them behave accordingly. After this, Bentham came up with the idea of what he called the “Panopticon”, an architectural construction based on the one that his brother had initially designed, which would have the same potentials; people that were going to be hosted on that establishment should be monitored constantly but without them been aware of this inspection. In the words of H. Strub, “Bentham intended that the Panopticon’s design would provide no refuge from the “all- seeing eye.” There would be no private space, no moment when one could assume that one was not being scrutinized, awake or asleep.” (Strub, 1989, p. 41)

In Bentham’s mind, this establishment is suitable for a prison facility, due to the fact that prisoners should be under constant surveillance in order to be controlled and avoid unpleasant and violent events, or even escapes. However, continuous surveillance was not possible at the time; he thought that by building the facility in a proper way, his expectations would be met. Specifically, the cells were not connected with each other so the prisoners would feel and actually be in solitude and in the center of the facility, there was the inspection lodge, the place that the guard would stand to inspect the prisoners. In other words, the guard could see all the prisoners but the prisoners could not see him. This is the key element of the particular architecture of Panopticon; the fear of constant surveillance. (Bentham, 1791)

It is obvious that Bentham thought everything in great detail. Not only he had thought about the design of the building, but also the design of the cells, the amount of light coming from the window which was necessary for every cell, the heating of the cells, the amount of food per prisoner, etc. Nonetheless since inmates should not be aware of the presence of the inspector, or his whereabouts, he included in his ideal establishment tubes that connect each cell with the inspector’s lodge for purposes of isolating the noise;

9 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

“To save the troublesome exertion of voice that might otherwise be necessary, and to prevent one prisoner from knowing that the inspector was occupied by another prisoner at a distance, a small tin tube might reach from each cell to the inspector’s lodge, passing across the area, and so in at the side of the correspondent window of the lodge.” (Bentham, 1791, p. 8)

Even though Bentham’s idea regarding the construction of the Inspection house was quite detailed and thorough, for the purpose of the thesis I will concentrate on the principles behind this idea; the principle of solitude and the principle of complete and constant surveillance. As Himmelfarb (1965) explains in his letters about the Panopticon, the main idea was that constant surveillance would both punish and reform the inmates. It would also help them work more efficiently and they would behave in an appropriate way simply because the guard might be watching.

To begin with, prisoners could be supervised but they could not see or contact one another. The architecture of the facility was planned in a way that each individual would be alone and most importantly, feel alone. In this way, riots along with fights between the inmates or even accidents would be avoided. At the same time, the guard, the jailer, as Bentham calls the supervisor, will be able to watch the inmates at all times. (Bentham, 1791) All in all, prisoners could be seen, but not see. This characteristic of Panopticon is of great importance and based on that his critics referred to the concept of surveillance. Consequently, those two principles combined represent the core of Panopticon; individuals constantly under inspection in order to reform them and make them behave in the preferable way along with living in solitude which would be the element of prevention concerning the functioning of the facility. In Orwell’s imaginary society, citizens were under the fear of constant surveillance and control which produced fear. Fear not only turned people to avoid “unpleasant” for the government acts, but transformed them into thoughtless machines by implementing the existence of thought police. (Orwell, 1949) The similarity with surveillance in the contemporary society via a variety of ways will be examined in the following chapter, which will further discuss the main aspects of surveillance ıdentified in academic literature.

Moreover, the concept of labor is of great importance in Bentham’s writings, due to the reformation of the inmates. By occupying the prisoners, not only they wouldn’t have time to think or plan something against the guard, but also reformation would be easily reached.

10 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

Prisoners were to work fourteen hours per day and the daily labor would be decided by the contractor. (Boyne, R., 2000) The fruit of their labor would be used for the expenses of the facility. In her writings, Himmelfarb indicates that Bentham had on his mind to actually be the one that inspects the prisoners, and on his proposal for constructing the building, he proposed that there would be no further expenses since he wouldn’t get paid for that position. (Himmelfarb, 1965) As Davies Kim (2012) cites, eventually prisoners - through the fear of constant surveillance - would not only behave as stated above in a way that is acceptable by the guard, but also - through this psychological procedure - they would learn how to behave in general. Inmates wouldn’t be able to contact each other, thus through solidarity, they would have time to think about their wrongdoing, and lastly work would make them more thoughtful about society and help them become in general, better persons and as follows better citizens. (Davies, 2012)

Though this idea is quite pioneering for its time, it didn’t eventually turn into practice.

Except from the Panopticon, Bentham expressed his thoughts for other facilities as well that would serve the same purpose; surveillance. One of the well-known proposed facilities by Bentham was Chrestomathia, an institution for learning, where he had conducted a detailed teaching programme in order to educate children in the best possible way. (Bowring, 1817) Moreover, he mentions the desire for a construction of a hospital, a mad house and others. Unfortunately for him, none of his proposed establishments was accepted in his home country and Bentham never recovered from this rejection. (Semple, 1993)

Taking all the above into consideration we can assume that Bentham, clearly influenced by his Utilitarian views and beliefs, had as primary concern to introduce to society establishments that would maximize the wealth, happiness and in general the greater good for the greater percentage of the population. In his own words, the utility of similar establishments was;

“Morals reformed, health preserved, industry invigorated, instruction diffused.” (Boyne, 2000, p. 288) If prisoners or patients, or psychologically disturbed people were to be facilitated somewhere he wanted these establishments to provide security for the citizens along with proper reformation and care for the individuals that would be facilitated. In hıs writings he stresses out moral reformation as the maın goal pursued in the Panopticon and similar facilities.

11 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

As previously mentioned, the main idea behind Panopticon is the fear of surveillance. Prisoners should feel that they are being watched even though this would not necessarily be the case. In this way, not only they would behave in a way that would be acceptable by society, but it also would keep them from attempts to escape.

All in all, Bentham’s idea of how a proper establishment should be constructed has been the center of attention regarding what it represents. As Bentham explains, in order to have the favorable results, in this case, obedience and proper behavior of the prisoners, they should constantly be under the fear of inspection. Due to that fear, they would have no other choice than to act in every case as the observer desires. Consequently there would be no fear for riot, escape, misbehavior or else. The establishment would reform these people and prepare them for returning to society. Therefore in this thesis, it is of great importance to underline the major concepts of Panopticon; surveillance and discipline. If we could use a metaphor to describe Panopticon, it would be similar to the one E. Burke used when he faced the plan of constructing

Panopticon; “there’s the keeper, the spider in the web.” (Himmelfarb, 1965, p. 59)

2.2 Criticism on Panopticon Several criticisms of the Panopticon can be identified since it represented a facility of surveillance, discipline and control; it was meant to be used as a measure of obedience. Pugin (1841) published a book regarding modern establishments of his time which were influenced by Medieval Architecture line, and presented a building by the name “Modern Poorhouse”, which was clearly a reflection of Panopticon, concerning the structure. (Pugin, 1841) In this building, poor people are divided from their families and they are sent to that establishment where they should work hard and be rewarded with a bed for their services, diminished, and treated harshly. (Pugin, 1841)

A number of scholars that commented on Bentham’s Panopticon referred to its totalitarian essence and they compared it with the Orwellian novel, “1984”. According to Strub, (Strub, 1989), Orwell’s novel captures the core of Panopticon. The similarities can be identified in the five elements of panoptic control; “panoptical inspection, certitude of punishment, covert of observation, invisible omnipresent and hierarchical panoptical organization.” (Strub, 1989, p. 42-43) By “panoptical inspection” Strub refers to the principle of constant supervision, where

12 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

prisoners could not hide form the guard. “Certitude of Punishment” was essential for Bentham since he believed that punishment should be used to deter people. “Society could proactively address crime before it occurred by emphasizing moral choices and creating a just system of laws.” (Thomas, 2004, p. 2) This is the reason why Bentham proposed innovating ideas for education because he believed that in order to make society a better place for its citizens, education should be changed in order to reform people and prevent crime. Panopticon was meant to punish harshly prisoners via constant inspection. (Invisible omnipresence) Additionally, it was of great importance to Bentham, in order to be able to reform prisoners, to make them feel like they are under surveillance constantly. Since this could not happen, he wanted to succeed it by producing fear related to the guard’s inspection. This is why he proposed the specific structure of the facility, the design of the cells in the way he did, etc. It was his goal to produce fear of this divine1 omnipresence of the guard. (Covert of observation) Lastly, with his “hierarchical panoptical organization”, by choosing one single person to be the guard that will inspect prisoners, he emphasizes according to Strub, to the desired feeling of continuous surveillance. (Strub, 1989) Each one of this five elements can be identified in Orwell’s novel, where citizens are monitored constantly not only at their workplaces, but also at their houses, the streets, even in their minds. (Orwell, 1949)

However, the main philosopher who analyzed Bentham’s ideal establishment of surveillance in depth was Michel Foucault. He created the term Panopticism to explain his theory about Panopticon and the path to discipline through surveillance. “Panopticism is the theorization of surveillance society, derived from Bentham’s project of a prison.” (Brunon - Ernst, 2012, p.16) Primarily during the process of explaining Bentham’s theory, Foucault came to the conclusion that the most important effect of Panopticon is to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.

In Foucault’s perspective, the Panopticon represents a cage. For him, this establishment is another way of the state trying to manipulate individuals. This power should not be given to the state. Individuals are not pawns and for Foucault in general, punishment is not really necessary.

Prisoners inside Panopticon would be like animals in a cage. “It is not a dream building, but diagram of

1 The use of the word divine is metaphorical in order to highlight the constant surveillance which is only apparent in relıgious context.

13 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

a mechanism of one power reduced to its ideal form…it is in fact a figure of political technology.” (Foucault, 1977, p.205)

In order to understand Foucault’s view about Panopticon and its impact on society and people in general, we should first of all comprehend his theoretical position on punishment and justice. During an interview regarding his work, he explained that placing people under surveillance in order to control them is a means of manipulation by the state that would be of benefit to the economy of power. For him, prison is a way of transformation of individuals and this transition took place mid-18th -19th century.

Taking this into consideration we can assume that Foucault rejects not only prison as an institution but also writes that prisons and police are necessary for the population just because media along with the state created the image of criminals who produced fear. As argued by Pritikin (2008) criminals inside prison influence each other and prison can literally be seen as a school for crime. (Pritikin, 2008) Based on that fact, if state manage to create an image of high criminality rate and the need for restrain and protection measures then, citizens wouldn’t realize that in fact the measures to be implemented are meant for surveillance.

According to Foucault, the Panopticon represented a contemporary establishment of discipline and power. It is necessary at this point to highlight Foucault’s link between Panopticon and panopticism; Panopticon reflects an ideal constructıon of deterrence while panopticism reflects the general ideas that were the foundatıon of Panopticon. Bentham in his writings denotes the new face of punishment and surveillance. This reformation can be seen in

Panopticon. Foucault points out the creation of a “carceral system” ; “A subtle, graduated carceral net, , with compact institutions, but also separated and diffused methods, assumed responsibility for the arbitrary, widespread, badly integrated confinement of the classical age.” (Foucault, 1977, p. 297) Consequently, with the proposed Panopticon, a new era of punishment begins, which signifies the failure of the previous period of punishment. (Foucault, 1977) Additionally, he underlines the necessity of isolation of prisoners inside the Panopticon. Since prisoners could be seen, but could not see those monitoring them, that can actually turn them into an “object of information, never a subject of communication.” (Foucault, 1977, p.200) For Foucault this can be identified as a measure of reformation. Panopticon is not just a proposed facility for punishment and discipline, but can be seen also as laboratory where experiments can be conducted there, in order to test the behavior of

14 CHAPTER 2 FROM BENTHAM’S PANOPTICON TO PANOPTICISM

the objects (Foucault, 1977); in our case, prisoners are the objects. But for example, on Bentham’s proposed Madhouse, mentally disturbed people would be the objects of the experiments; “Whenever one is dealing with a multiplicity of individuals on whom a task or a particular form of behaviour must be imposed, the panoptic schema may be used.” (Foucault, 1977, p. 205)

All in all, studies of surveillance include Bentham as the foundatıon of that concept and by extension Bentham is linked with Foucault’s writings due to the latter’s detailed analysis. Indeed Bentham is widely known as a Utilitarian philosopher who proposed the construction of a surveillance facility that was meant to deter and punish people in an uncommon way for his time. By taking into account that the fear of inspection could lead individuals to behave accordingly, Bentham opened the gate for a series of surveillance tactics based on that simple idea of constant surveillance. For Bentham the Panopticon was proposed as a measure of reform but the essence of Panopticon for scholars represents a metaphor for surveillance that in the following years evolved and ultimately became the inspiration for new measures of discipline and control. Specifically for Foucault, Bentham’s masterpiece was indeed a metaphor for the surveillance society which main scope is to control, observe and reform its citizens. In his own words; "On the whole, therefore, one can speak of the formation of a disciplinary society in this movement that stretches from the enclosed disciplines, a sort of social 'quarantine', to an indefinitely generalizable mechanism of panopticism” (Foucault, 1977, p. 216)

15 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE

3.1 The Concept of Surveillance

Surveillance is a phenomenon that has affected our generation in many ways. Studies regarding this concept are actually divided in two broad categories; the studies which examine surveillance from the side of those who are responsible for adopting these techniques, (States/private sector) and studies that are centered on those who are actually under inspection and surveillance. (Monahan, 2011) In this thesis, attention will be given to studies concerning those under surveillance. The following section will examine types of surveillance, as well as surveillance tactics adopted by the States and private actors (private sector).

Additionally there will be a focus on studies post 9/11, since surveillance as a phenomenon evolved and became more intrusive. In the present chapter, these concepts are examined chronologically building on existing scholarship, and a link will be made between them and Bentham’s Panopticon, in order to view the effects of surveillance on society. Most of the surveillance literature that can be found is linked to Panopticon and as I explained in the previous chapter, the reason for this is because Bentham’s Panopticon was interpreted, during his time, but also nowadays, as the base of surveillance; through the fear of constant supervision and the invisible eye, prisoners would behave in an appropriate way. By adopting mechanisms similar to the ones proposed by Bentham in his ideal establishment of “correction”, society uses them to control citizens’ behavior. Before introducing the actual link between Panopticon, surveillance and its implementation in the contemporary society, it is necessary first to define the term surveillance.

For the definition of Surveillance, I will use Lyon’s words who defined the phenomenon as “the focused systematic and routine attention to personal details for purposes of influence, management, protection or direction.” (Lyon, 2007, p.14)

3.2 Types of surveillance

Since surveillance is a universal phenomenon, there is no clear distinction regarding its types, hence there will be a division for the purpose of this thesis in two broad categories; online (electronic) transaction surveillance for the purposes of data mining and profiling, and physical surveillance (CCTV monitoring). Slobogin (2005-06) states that there is a need for a distinction between physical surveillance, communication surveillance and transaction surveillance.

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(Slobogin, 2005-06). Physical surveillance is the monitoring of a person based on physical activities, communication surveillance includes monitoring of a person’s communications via wiretaps etc., and transaction surveillance “involves accessing already existing records, either physically or through computer databanks.”(Slobogin, 2005-06, p. 140) Nonetheless Crampton (2007) introduces another type of surveillance, geosurveillance, which he defines it as “the surveillance of geographical activities.” (Crampton, 2007, p. 390)

The types of surveillance that will be included in this thesis are CCTV monitoring, DNA

Databases, geosurveillance, ubiquitous surveillance. Despite the fact that concerning transaction surveillance, the literature is massive, R. Clarke (1988) was the first to give a definition to this kind of surveillance; dataveillance. Dataveillance can be perceived as; “the systematic use of personal data system in the investigation or monitoring of the actions or communications of one or more persons.” (Clarke, 1988, p. 499) Even though that in his articles he discusses the distinction of dataveillance form surveillance as a different kind and a unique category of its own, there is no usage of this term identified from other scholars.

3.3 Dataveillance as a type of surveillance

While surveillance can be perceived as monitoring of people’s actions, the key characteristic that singularizes dataveillance is the type of monitoring; under surveillance, tactics of monitoring are more physical whereas dataveillance practices are digital. Particularly, dataveillance can express interest for the digital traces of a person as for example credit card transactions, phone calls, online activity and online purchases. Clarke identifies two types of dataveillance; personal and mass dataveillance techniques. (Clarke, 1988)

Personal dataveillance mechanisms are simply records that organizations/companies or institutions keep of individuals they are interested in, for purposes of determining whether their financial transactions for example are acceptable or valid. Mass dataveillance mechanisms are applied on a group of people when there is a certain interest in some of them. Those mechanisms are centered on verification of data, mostly again financial, while comparing them with data collected by other organizations/companies. For this to be achieved organizations use facilitative mechanisms via computer matching verification programmes. (Clarke, 1988)

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Additionally Clarke (1988) points out the dangers along with the benefits of personal and mass surveillance for the individuals and for society. Under the dangers of personal dataveillance, he includes “wrong identification” and “blacklisting”, whereas under mass dataveillance he adds “complexity”, “unknown accusations and accusers” and “repressive potential for a totalitarian government.” (Clarke, 1988, p. 505) Despite the fact that dataveillance for him is quite intrusive (1988) he also identifies some benefits as the avoidance of frauds, protection against errors and abuse. (Clarke, 1988)

Several years following “Information technology and Dataveillance” (1988) Clarke published another article in which he identified what he called the eras of dataveillance. (1994) According to him, there are three time periods first, from 1940-1980, the era of “Justifiable Centralization” where “Data was collected (as close as possible to its source, in order to reduce costs and ensure quality), and passed to the centre for storage and processing.”1 Second, 1980- 2000, the era of “Unjustified Centralization” where he points out the difficulties that organizations and political forces were to handle and overcome due to the rapid technologically improvement and lastly 2000- , the era of “Dispersed Power” where;

“the dominant mode of operation would appear to be cooperation among peers, rather than master-slave relationships. The centralist, authoritarian tendencies which appeared to be inherent in computers is giving way to dispersed power. In the new context, there may be more danger of anarchy and ungovernability than of repression by a powerful State.”2

It is obvious at this point that Clarke had in his mind certain difficulties that needed to be overcome, regarding upgraded technology and improved techniques of data mining and integration. Dataveillance evolved through time as did technology and as will continue to do so in the future.

Regarding European Union member states, an EU Directive on Data Protection was adopted in 19953 but since it is a Directive it is not binding and member states should transpose this Directive into their domestic legislation. The purpose of this Directive was to ensure the processing of personal data within EU and to ensure that the right to privacy is respected and not

1 http://www.rogerclarke.com/DV/NotesDVEras.html 2 http://www.rogerclarke.com/DV/NotesDVEras.html 3 http://ec.europa.eu/justice/data-protection/dates/index_en.htm

18 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE violated. Unlike the EU, the US is still in the process of developing a similar Directive as the European one, but the companies in US are bound by the Video Privacy Protection Act4 (public law signed by U.S. Congress in 1998) Cable Television Consumer Protection and Competition Act 5 (public law in 1984), Fair Credit Reporting Act 6 (federal law) and Massachusetts Data Privacy Regulations7 (state law). According to Ryan Moshell (2004-05)8 the reason that European member states are more sensitive towards data protection is due to the World War II, where personal information sharing was one of the main reasons that individuals where captured or suspected for their beliefs etc. US also had experienced in the past transgressions related to illegal sharing of personal information but their system relies upon self- regulation. (Moshel, 2004-05)

3.4 Agents of surveillance

3.4.1 Surveillance by the State

Even though surveillance is a phenomenon apparent for centuries, contemporary surveillance has managed to develop through time and technology and it is necessary to distinguish between the face of the surveillant. In this chapter focus will be given to the methods of surveillance towards individuals by the State which includes police, governments and State institutions/organizations. A number of scholars have dealt with that specific subject, and in order to explain the methods of surveillance by the State, I will concentrate on Marx (1985, 1988, 2002, 2003, 2004), Slobogin (2002, 2005), Wong (2006), Crampton (2007), Wood (2009) and Wright et al (2010).

Gary Marx in his article “Are we becoming a Maximum Security Society” (1985) identified the link between surveillance mechanisms and the end of privacy along with individual liberty. In his analysis of surveillance mechanisms, he refers to electronic devices that are commonly used to know the whereabouts of convicts (on parole). Several well-known devices used by police are taps, wires, polygraphs etc., and of course satellites, radars and others similar to those mentioned, which are generally used with the excuse of safety and precaution from unpleasant and deadly events such as terrorists attacks. In his view, society couldn’t manage to

4 http://epic.org/privacy/vppa/ 5 http://www.publicaccess.org/cableact.html 6 http://epic.org/privacy/fcra/ 7 https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93H/Section2 8 37 Tex. Tech L. Rev. 357 2004-2005

19 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE see the negative side effects of such technological improvements and for the author this is quite risky because such acts should not be left aside. In his own words, “privacy is also difficult to protect because much of the surveillance either is almost impossible to detect or truly invisible.” (Marx, 1985, LA Times) Consequently he states that there is a major need for attention to these new technologies and he underlines the need to adopt appropriate approaches to cope with those mechanisms infringing on privacy.

Few years following the publication of the above-mentioned article, Marx argued in another article entitled “Make sure the video camera doesn’t lie” (1988) that since technology has involved in such way that videos of events are being used everywhere and represented quietly important evidence in criminal proceedings, people should be more thoughtful before believing what is actually on the video. Due to the high level of fabrication methods, falsifications may be included on the videos which means that privacy for one more time is of concern. In addition, he raises the matter of whether public cameras and importantly hidden cameras, affect our privacy rights:

“Do our privacy protection laws need to be changed to take account of the new situations created by video? Should videotaping, now largely exempt from legislation, be subject to the same legal requirements as audiotaping, or to even more stringent standards, since it is more invasive?” (Marx, Newsday, October 23,

1988)

Moreover, in a 2002 article, Marx introduces the concept of New Surveillance as “the use of technical means to extract or create personal data. This may be taken from individuals or contexts.” (Marx, 2002, p. 12) A list with examples is given following this definition, examples of everyday life where mechanisms of new surveillance are been used by lay people besides police; “children monitors”, “video surveillance cameras on working environments” etc. (Marx., 2002, p. 13) With the clarification concerning the concept of new surveillance and along with the examples, it is clear that technological development offered to surveillance techniques new methods, that would make surveillance as a tactic more transparent to the individuals. The important fact is that even though concern is been raised regarding those techniques used by police and by ordinary people, laws and prohibitions should be more strict in order to ensure privacy and individual freedom of citizens.

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Additionally Slobogin (2005-06) argues that police enforcement uses your transaction if you are a person of interest without difficulties regarding authorization. In his own words;

“transaction surveillance provides the government for creating personality mosaics and linking people to crime, it could well be even more useful than visual tracking of person's activities (physical surveillance) and eavesdropping on or hacking into a person's communications (communications surveillance).” (Slobogin, 2005-06, p. 140)

Geosurveillance, according to Crampton (2007) is used by State to control territories, groups, populations and in extend individuals if necessary. Its techniques are varying among “tracking devices like radio frequency identification tags in passports, cell-phone geolocation, closed- circuit television, organ donors and the monitoring of criminals.” (Crampton, 2007, p. 391) The justification behind this type of surveillance is the fear of terrorism and immigration. Immigrants are for decades a significant matter for states and via satellites and all those other techniques mentioned above, government is trying to regulate the amount of illegal immigrants passing borders or creating groups that could be a danger for the society, ergo fear for terrorism.

Wood (2009) examined the “fears” in U.S. that lead to those surveillance tactics.

According to him, around 1960-70 U.S. government was afraid of two major phenomena; “threat of communism” and “sexual revolution” along with “feminism.”(Wood, 2009, p. 182) In response to those phenomena, surveillance tactics were adopted by U.S. Administration, in order to be able to control citizens with the preferable outcome to be aware of any plans or events prior their occurrence. Wiretapping and monitoring at the time were used by the military, the NSA and FBI but along came databases of personal information. (Wood, 2009) Consequently, this response of the state lead to a “fear for the state” (Wood, 2009, p. 182), a fear related to the acts of the State and its representatives would commit in order to ensure secrecy regarding government actions and safety for the U.S. A decade later, wiretaps and monitoring gave their way to “guidance systems, early warning and espionage satellites and resilient communications that could survive nuclear attack.” (Wood, 2009, p. 183) Even though the methods adopted by the U.S were the first that raised concerns about privacy, the UK was the first country that installed CCTV monitoring in public spaces due to fear of hooliganism, and criminality levels. After this implementation by the UK other countries applied this technique to public places and it is more than clear that to some extent, Orwell’s imaginary state has to a certain degree been

21 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE successfully transposed from fiction into reality. As the State of Orwell’s “1984” adopted monitors inside the house, in public etc. similarly States now all over the world adopted not only these kind of techniques but also profiling techniques, networks, databases, everything that a mind can think to control behaviors and thoughts and of course by extend prevent acts that are to be avoided.

Wright, Friedewald, Gutwirth , Langheinrich, Mordini, Bellanova , De Hert , Wadhwaa, Bigo (2010) argue that contemporary society is facing what they call “ubiquitous surveillance” and they identify three major characteristics of this new type of surveillance; “the emergence of new image analysis algorithms in CCTV, the inclusion of new sensor systems that go beyond visual surveillance, and new data integration capabilities that combine traditional surveillance with advanced profiling and data mining techniques.” (Wright, et al 2010, p. 346) Their definition of the term “ubiquitous surveillance” is the new face of surveillance that is at least unavoidable for every single individual since even the slightly transaction can be inspected; from daily shopping, to computer-internet browsing, consumer cards, DNA databases, CCTV monitoring etc. Despite the existence of laws and declarations on invasion of privacy rights, surveillance tactics are part of in our daily lives.

The important thing that characterizes this new face of surveillance and distinguishes it from former types is the three features that are included. Firstly, as technology evolves through time, the potentials of CCTV monitoring are growing and its capabilities are becoming stronger. Some decades ago, CCTV monitoring was existent in public places but at this point everyone can monitor you, whether you are doing your shopping, walking on the street, watching a game at a football court, or even at your very private moments. Some examples of this phenomenon are the following; automated number plate recognition, activity recognition, facial recognition etc. (Wright, et al 2010, p. 348) Secondly, sensor systems might upgrade the quality of our lives but along with that, they can literally turn everything, even a building, into a transparent mass, making individuals identifiable from the outside. Such examples of innovations are the following; brain scanning, infrared non-contact temperature measurements etc. (Wright, et al, 2010, p. 349) Thirdly, data mining and process techniques are being intergraded and developed rapidly which makes the process of data proliferation easier. (Wright, et al 2010) Several

22 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE examples of data integration are the following; location data mining, electronic health records and counterterrorism databases. (Wright, et al 2010, p. 350)

3.4.2 Surveillance by Private Actors

Surveillance by private sector includes techniques of categorization and profiling authorized by companies. Gandy (1993) chose to analyze surveillance regarding its impact on individuals. He introduced the term “panoptic sort” to describe a system where our personal information are gathered by companies and shared without our consent;

“The panoptic sort is a difference machine that sorts individuals into categories and classes on the basis of routine measurements. It is a discriminatory technology that allocates options and opportunities on the basis of those measures and the administrative models that they inform.” (Gandy, 1993, p.15)

The three elements that are preluded are identification, classification and assessment. (Gandy,

1993) these are the processes of the panoptic sort and even though they are different, together they interact with a higher purpose; categorization of individuals. The first process, identification can be explained as the task of identifying the individual either via transactions, signature, fingerprint, DNA, face recognition, video or photograph. The second process, classification includes the categorization of individuals into certain categories based on the prior identification. For example, if you are consuming unhealthy food, smoke and drink then the system will categorize you as a risky person regarding health insurance policies based on expectations. If during the identification procedure there are gaps that are to fill in, then the system will try to fill them in by what is expected. It doesn’t matter if you still haven’t faced a serious disease; you are prone to develop diabetes. This is a sort of classification based on expectations. The third and final process is the assessment. During this stage individuals are assessed based on the two other processes and they are compared with others in order to create a hypothesis for each individual. (Gandy, 1993)

Stalder (2002) links surveillance to privacy as follows; consumers are inspected from their transactions by companies, banks, websites etc. All of the latter share a personal information database and unfortunately people cannot avoid sharing their data with them because on the contemporary society no one can remain in the shadows. Therefore he refers at this point to the matter of “Bubble Theory of Privacy.” (Stalder, 2002, p.122) This means that even though

23 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE citizens are discomforted by the sharing and processing of their personal data, most of them are doing nothing to alter the situation; people continue to share their data because as discomforted as this might be and despite the fact that there is a feeling of invasion of privacy, it is more than difficult to achieve any kind of transaction without sharing personal information. (Stalder, 2002)

The subject of panoptic surveillance is introduced by Elmer (2003) as he unfolds the routine of processing personal information of consumers. On Elmer’s “A Diagram of Panoptic Surveillance”, surveillance is apparent on a specific extension; consumer profiling.

“The removal of uncertainty, and by extension the need to make conscious decisions, is replaced by an uncannily familiar world of images, goods, and services. Such is the case with digital television and a host of techniques on the world wide web, where programming/content is sometimes automatically filtered down to reflect past viewing choices.” (Elmer, 2003, p. 244)

In this passage it is more than obvious what Elmer cites; as technology is evolving, the uncertainty and the limited possibilities of individuals gave their way to certainty and solutions not only via interactive transactions but also via web pages and so on. Despite all that, he states that funder the panoptic surveillance, the essence of punishment and discipline are not implemented in society as they were on conceived for the Panopticon. On the contrary, punishment and discipline are being implemented differently. For example, when an individual is using web pages to proceed to his purchases, then several discounts and coupons are offered to him via those web pages. The latter can be characterized as reward. When the individual chooses to proceed to purchases not online but via physical transactions, then those discounts and coupons are not offered. Punishment here can be perceived as this particular withholding of reward; consumers are rewarded if they follow these new consuming techniques but they are punished only if they choose to stop using those at some point for any reason. Then and only then, punishment and need for discipline appear. It is essential at this point to clarify that the form of punishment is the inconvenience that consumers would face in their transactions. As consumers, we share with companies our personal data so they can provide for us the favorable reward based on our consuming level, but punishment only occurs when a change take place that affects the system generally. (Elmer, 2003)

For Lyon (2003), surveillance has developed through time and has managed to create equilibrium between the methods of surveillance and the modern society. While Lyon (2003)

24 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE focuses on the sociological perspective of surveillance, he identifies several characteristics of surveillance; “ubiquitous, associated with management and governance, endemic to large scale organizations, with corporeal aspect, controls space and time, implicated, rhizomatic and disabling as well as enabling in its tactics.” (Lyon, 2003, p. 42) All these key features can lead to one argument; due to the fact that surveillance is part of political, cultural and sociological sphere, it can be thought as a path to fulfill categorization amongst citizens. For example, companies list their employees’ and consumers’ data. That personal information will be shared with other companies as well as with banks and insurance companies. This is how insurance companies can categorize individuals as risky or not risky, and propose a health insurance programme appropriate for each individual. It is more than clear that since surveillance is included both in the political and financial sphere, again some categorizations occur that distinguish people into trustworthy (financially) or not and so on. (Lyon, 2003) Society through time always used this system of “social sorting” as part of a routine. From the non-civilized communities to our modern societies, sorting was apparent. In the context of the contemporary society, as we all try to achieve a level of qualifications, we actually base our lives on sorting and creating self- identities that will also help others identify and value us. This is quietly a paradox of our time and it can be considered as the reason why surveillance at this point is so important for individuals as well as the State or institutions or companies. We need to know who we can trust financially, or politically. How would we know that? Via profiling and social sorting; “The surveillance system obtains personal and group data in order to classify people and populations according to varying criteria, to determine who should be targeted for special treatment, suspicion, eligibility, inclusion, access, and so on.” (Lyon, 2003, p. 20)

As stated on the previous chapter, surveillance implemented by private sector is intrusive, dangerous for the privacy of individuals but above all it should be of knowledge that the amount of information we choose to share depends only on our decisions. The reasons why presumably private sector is interested on our information is at this point clear; via data profiling it is convenient for companies, banks and others to categorize us and create profiles of consumers that would make them more profitable. By understanding consumer behavior it is easy to multiply the profit because you as a company know what a customer wants or why is he proceeding on that transaction for example. Consequently it is safe to say that while surveillance by the private sector is interested in categorization of consumers (financially), surveillance by the

25 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE state is centered on motives regarding the need to control citizens in order to avoid unpleasant acts.

3.5 Surveillance Post 9/11

The attacks of 9/11 on the U.S soil were a crucial universal event that stigmatized the country as well as the whole world. Since the attacks, policies regarding security evolved and changed drastically in a way that it is discussed it compromises the freedom and privacy of individuals. Many scholars have review the changes in the matter of surveillance measures that target citizens in the name of counterterrorism, immigration fraud and money laundering for preparation of terrorist attacks.

Levi & Wall (2004) divided the surveillance measures implemented by the U.S government in two categories; hard and soft. Hard security measures are border controls and security against Information Communication Technologies (ICT). Soft measures don’t have any specific targets but they are processing huge amount of data, to detect any kind of criminal activity that could be thought as radicalized in order to prevent terrorist attacks. (Levi & Wall, 2004) They argue in addition that all those new techniques of surveillance can have a significant impact as for example identifying more offending, de-legitimization, disincentives, and displacement activities, new forms of offending and institutional entrenchment. (Levi & Wall, 2004, p. 210) These side effects will cause complexions to police enforcement which will lead either to more intrusive measures or to not efficient coping with the existing criminalities.

Apparently, public safety is the number one justification for surveillance. Specifically, Wong (2006) refers to the 9/11 attack and how it affected the policies and the legislation concerning safety issues. NSA can get authorization for telephone records, credit cards and any kind of transaction regarding the person of interest. (Wong, 2006) Certainly this kind of surveillance can be justified due to security issues but how can we be sure about the reasons each individual is been under inspection? NSA’s major interest is to monitor individuals who are considers a threat to national security, as for example terrorists. This justification has led to a mass of authorized wiretapping which intrude in individuals’ privacy and raises the subject of who is exactly this object of surveillance.

26 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE

Additionally, L. Stefanick (2008) discusses the issue of sharing data on the basis of the USA Patriot Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) where the government for protection purposes is having complications to secure the legal processing of personal information. By analyzing a case study of sharing personal information from Canada to a health insurance company to America, she raises serious concerns about the protection of those data by state and also by the private sector.

The USA Patriot Act was a measure signed by the U.S government in 2001, to regulate and restrain the mass of immigrants crossing the borders of U.S soil. According to R., Rodriguez, (2008) immigration profiling was targeting immigrants based on their country of origin which means that the U.S had signed a legislation making it legal to obtain personal information and particularly in this case transactions regarding specific individuals coming from Muslim and Arabic countries. (Rodriguez, 2008) This measure can be characterized not only as intrusive but also, since it targets individuals from a specific country of origin, as discriminatory.

Moreover, Best (2010) discusses the issue of individuals on the one hand been aware about the privacy matters concerning surveillance, but on the other hand, their unresponsiveness concerning their actions. (Best, 2010) Even though it is well known that people should be careful about sharing personal information on line, there are no apparent countermeasures seen by the people. After the attacks of 09/11, individuals “gave up” their civil rights in the name of the war on terror, and surveillance tactics are implemented not only on U.S but also on countries that have associations with U.S. Control society is rising and governments are implementing security measures to secure and protect citizens from a horrifying terrorist attack, which means that for those measures to be successfully implemented citizens have to accept intrusions in their privacy. In the context of the Social Contract, where citizens had to give up their freedom in order to achieve protection, they united in front of the eyes of one leader who was in charge completely. (Hobbes, 1651) On a similar vein, in order for our governments to secure us from attacks or other criminal activities, they are invading our individual rights for the sake of protection using the excuse; counterterrorism.

Regarding transaction surveillance, Amoore & De Goede argue that post 9/11, transactions monitoring has increased again for the purpose of detecting a terrorist attack. (Amoore & De Goede, 2005) “transactions are imagined as a site where potential terrorists

27 CHAPTER 3 THE PHENOMENON OF SURVEILLANCE leave a footprint, while simultaneously the safeguarding of ‘normal’ shopping is positioned at the forefront of the way of life to be secured.” (Johnson, R., 2002) Nonetheless, it is more than clear that transactions are monitored in order to reveal unusual patterns of shopping for example or of deposits on Banks, identify the individual(s) and target him for a more thorough surveillance measures. Concerns are been raised over decades, but the phenomenon is evolving and there are no protection measures enough to sustain our privacy rights.

All in all, based on the reviewed literature on Post 9/11 surveillance practices, measures have increased due to the purpose of counterterrorism which automatically brings on the front the crucial matter of handling immigration issues. Centered on this excuse, states collect, obtain, and process data to protect citizens from any criminal activity and of course control them via necessary for the modern society means, as for example internet, phone cameras etc. Concerns are raised for privacy and civil rights but in the post 9/11 world, as well as on the Social Contract, our liberties are taken away from us for the “greater good."

3.6 Surveillance as a privacy matter

In a groundbreaking article published in the 19th century, Warren & Brandeis9, defined, the right to privacy as the right to be let alone. (Quoted in Kramer, 1990) The right to privacy is more than a simple right; it is the core of every right, the right to be different, to define yourself in your own ways while been part of a society, and it’s not restricted on the protection from invasion to the body but also to the soul. Based on that, if public and private actors intrude or violate our right to privacy by any means possible this is a great violation of our core, not just a violation of a right. However, in specific cases when there is a necessity to intrude someone’s privacy, as for example if that person is a suspect of a crime, then it is possible for both State and Private Actors to proceed to actions that might be considered as intrusive for the person’s privacy, but the important element in this case is that for State and Private actors to be able to collect data and investigate that person, there is a need for justification for the suspicion. Without it, it is a grave violation of the right to privacy. Consequently, the aforementioned types of surveillance are justified only in case of suspicion and not for having under surveillance the whole population.

9 Warren & Brandeis, The Right to Privacy, (1890) Retrieved by http://groups.csail.mit.edu/mac/classes/6.805/a;rticles/privacy/Privacy_brand_warr2.html

28 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON

4.1 Panopticon Revisited

The second chapter discussed the Panopticon, its scope and its link to surveillance. At this point, focus will be given to the passage from the idea of Panopticon as introduced by Bentham, to the modernized implementation of Panopticon on the contemporary society. According to Kietzmann & Angell (2010), Panopticon as a concept managed to evolve through time and currently its focus is not restricted on prisons, but as an extend, on our society. Specifically, as representations of Panopticon on modern society they identify three generations of it; CCTV monitoring, the data centered observance, and last but not least, what they define as “spy technology”, which includes satellites and applications as Google Maps and others similar to that. (Kietzmann & Angell, 2010)

For the purpose of this thesis, a discussion will follow in relation to the phenomenon of CCTV monitoring, consumer cards-data sharing and DNA databases as the framework based on which the implementation of surveillance tactics is introduced on contemporary society.

4.2 CCTV monitoring

As previously discussed in the third chapter, CCTV monitoring is a common used application of surveillance tactics and certainly it has opponents and critics. As a surveillance measure it was firstly introduced by the US government on 1968, and few years later it was also implemented by UK around 1970, to fight crime and prevent it. (Robb, 1979) According to Slobogin (2002), CCTV monitoring of public places is a government tool for recording activities 24/7. The use of those cameras of course is not restricted; public streets, buildings, rest rooms, parking spaces, trains, stations and many more places are monitored in order to ensure security in public places. He argues that the justification for this monitoring is the following; “The first assumption, of course, is that it enhances public safety. The second is that it does so less expensively than any equally effective alternative.” (Slobogin, 2002, p. 223)

For Koskela (2003), both Panopticon and CCTV monitoring are perceived as a technological mean of power meant to observe without been understood by the subjects of surveillance. The element of visibility for Koskela is the most important principle of both Panopticon and CCTV because as he explains, by been able to see and observe even the «darkest corners», it automatically prevents criminalities and leaves no stone unturned concerning crime

29 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON

and victimization of people. (Koskela, 2003) He explains that due to the use of electronic means for surveillance, it exceeded the individual sphere and at this time, surveillance is covering not only private premises, and individuals in particular, but also urban places to prevent accidents, crimes and to inspect and control immigrants who are thought to have a tendency to crime. (Koskela, 2003) Another important parameter of surveillance that Koskela highlights is the emotion caused by it; shame, guilt, embarrassment. Those emotions lead to self-control. This is the reason why police use these type of electronic surveillance; they want people to fear that they might be caught on doing something they shouldn’t, and that consequently leads to self-control, thus crime prevention. (Koskela, 2003)

In a case study about CCTV monitoring in Australia, Wilson & Sutton (2004) argue that the implementation of CCTV cameras in public areas is often based on controlling antisocial behavior and turning town centers to safe places to attract visitors and ensure safety. (Wilson & Sutton, 2004) The outcome of the case study specifically for Australia was that CCTV monitoring in public places found to be both expensive and complex, along with inevitably time consuming. Therefore, Wilson & Sutton state that CCTV implementation is drastic when it comes to coping with specific crimes, as shop lifting, car accidents, etc. (Wilson & Sutton, 2004) On the contrary, Walby (2006) on his case study about rising CCTV cameras in Canada, argues that the installation of cameras in public places is not just a matter of state, but also a matter of individuals, which means that in most countries the implementation of CCTV cameras are regulated by the state but in Canada, citizens requested it, to ensure safety. (Walby, 2006)

Additionally, Kingsley (2008) raises the issue of self-surveillance concerning cameras as an outcome of fighting surveillance. Specifically, individuals, while having the fear of doing something wrong and being caught by a camera, they use cellphones cameras either to create their alibi for a situation that might seem unclear, or to record something that happened by their own. He defines that phenomenon as «citizen journalism», where people instead of been the subjects of surveillance become the surveillants. (Kingsley, 2008) This phenomenon firstly was introduced by a group of people around the 90’s in UK called the Witness Project, where participants of that group recorded situations of human abuse in order to send it to the appropriate authority. As the author adds, this phenomenon developed through time which

30 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON

consequently lead to a different kind of usage. (Kingsley, D., 2008) The fear of self-spying as stated by Kietzman & Angels, turns into reality. (Kietzman & Angels, 2010)

According to a report by Carli (2008), the main reasons of installing a CCTV monitoring is to prevent potential criminal activity, to assist police with the action of gathering images and recordings of criminals and lastly for court evidence usage. (Carli, 2008) As for their efficiency;

“CCTV systems have preventative and reactive measures, revive business in desolate or poor areas, increase the efficiency of the police force, build social cohesion, protect the private environment of citizens and assure confidence and ensure feelings of safety and security, thus leading to a more ordered and stable society.” (Carli, 2008, p. 8)

In his article, Nellis (2010) discusses the issue of video surveillance targeted specifically at sexual offenders. He argues that even after their time in prison, they remain the subject of surveillance for their whole life. (Nellis, M., 2010) For him, this is a matter that should raise awareness concerning the magnitude of surveillance on people in general, and especially on offenders. It is understandable to take a close look to suspicious acts but it’s unacceptable to target someone for the rest of his life for an action he was punished for. (Nellis, 2010)

Kietzmann & Angell (2010) cite that the implementation of CCTV monitoring on the streets was a tactic by the state to ensure and highlight the existence of the authority even when it is invisible. Similarly to the Panopticon guard, authority is inspecting citizens through a screen, waiting to identify criminal or unacceptable behavior. At some point, security officials understood that this whole measure of surveillance was both ineffective and expensive (Kietzmann & Angell, 2010), therefore, the cameras were no longer active, but they were still there for the purposes of “deception”, so citizens would know that someone is indeed watching them, when there is not. The element of continuous observance is an essential element and quite efficient because it can direct the behaviors of the persons under inspection.

4.2.1 Criticism on the effects of CCTV monitoring as a surveillance measure

CCTV monitoring as phenomenon is quite controversial as it has raised concerns about privacy issues along with doubts regarding its effectiveness. According to a study conducted by Welsh & Farrington (2009), CCTV is effective for preventing vehicle crimes, robberies and mostly it has

31 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON

positive results of usage in the UK. Specifically, this analysis was centered on the comparison between countries concerning the effectiveness of CCTV and in extend which crimes its implementation is affecting. Results showed that video surveillance is preventing crimes as robberies and shop lifting but on the other hand, since it creates the false sentiment of safety to the public, it also relaxes citizens and they may fall pray easier to a crime such as the above. (Welsh & Farrington, 2009)

All in all, video surveillance is a wide, well known and effective measure for crime prevention, but it doesn’t eliminate the fact that it intrudes citizens’ privacy and civil rights. More and more countries as the years pass are using CCTV in public places in order to increase the feeling of safety and security on citizens but concerns should be raised regarding its usage and its scope beyond fighting crime.

4.3 Data storage and consumer cards

In the third chapter there was a discussion over the subject of storage, process and share of personal data and information either via private sector or by the state. This massive phenomenon is literally expanding as technology evolves. However, most commonly it is identified as a technique by companies due to the fact that based on the personal information and profiles of individuals, they can manage, control and affect consumers’ behavior. The whole idea behind keeping records of information is to understand what consumers want and use this knowledge to make a profit for companies. In this paper the concern lies beside the impact that this storage has on privacy.

Stalder (2002) gives an example to explain how data are been processed; when an individual rents a car, he might not share at the moment his/her personal information with that particular company but payment is only applicable via credit card, which means that undoubtedly, personal information that he shared with his bank will be presented during his transaction to the renting company. (Stalder, 2002) Subsequently, for individuals it is not clear whether they should share their private information with companies etc., and if they choose to share, questions arise about the appropriate content of that information and how it will be processed, thus the outcome is that we, as consumers, share our personal information without even considering the

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risks and the impact of such action. Consequently we cannot escape from this panoptic surveillance society where every step and every decision can be identified.

According to Culnan & Bies (2003), there are three perception on consumer’s privacy; the corporate, the activist and the centrist. While it is clear judging by the names of those perspectives, a clarification is needed; The corporate is centered on the opinion that via sharing personal information to companies, it actually not only increase the profits of companies but also it has a positive effect on consumer’s life because if companies know what people want, it makes it easier for them to provide it. The activist approach is the exact opposite. It focuses more on the privacy and the boundaries of it since if we agree to the massive flow and storage of data then anyone would have the opportunity to own your data which by nature is an intrusion of privacy. Lastly, the centrist approach is the golden line since it accepts both the significant issue of privacy and its respect along with the need for profit and sharing of data from the companies to satisy their clients in the best way possible. (Culnan & Bies, 2003) which approach of those three is the most respective towards privacy matters? In the words of Culnan & Bies; «Consumers should continue to disclose personal information as long as they perceive that they receive benefits that exceed the current or future risks of disclosure. » (Culnan & Bies, 2003, p. 327)

Purdam, Mackey and Elliott (2004) demonstrate that companies are interested in individual records and promote the storage of data because it is of great assistance to know for example who your employee is, or to create specifically coupons based on someone’s preferences to attract customers. But the important matter at this point is that we are getting closer to the end of privacy. (Purdam, Mackey, Eliot, 2004) Furthermore they discuss the definition of privacy and that privacy’s legal definition can be different from country to country. For them, name, address, demographics and biometric information are quietly private but based on the context of the information and the country’s legislation it can differ. This lead to a confusion regarding what is private and what not and what really is the variable that determines whether an information is private or not.

Moreover, Kietzmann & Angels (2006) argue that state and private actors need to make people accept this kind of privacy invasion. How is that possible? In order to convince people that giving up their information is for their own sake, the excuse of security and protection

33 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON

against trafficking, drugs, terrorism and corporate greed is used. Based on that, governments state that when information exist on everyone is easier to track down criminals and detect- prevent bad things from happening. (Kietzmann & Angels, 2006) How else would they be in the position to prevent for example a financial trap or a planned attack if they wouldn’t have all the appropriate information prior to the act? By making us belief is for our own good, they have managed to persuade us to surrender to their tactics as a child surrenders to the proposed solutions by their parents.

Companies are mostly interested in personal data in order to explain patterns in on line purchasing and be able to produce more profit. Ashworth and Free (2006) argue that there are many different ways that companies can access our personal transactions and on line patterns based on cookies, spyware, adware and on line forms. (Ashworth, & Free, 2006) Their article discusses the issue of privacy and whether people are aware or not about this kind of inspection we are exposed to as consumers. According to Fernback (2007), consumers are aware that their personal information are been processed but they do not know how and to what extent.

For Knott & Zwick (2009), the reason for gathering personal information has its primary purpose on control of population. Specifically if we follow the reasoning that governments and companies have as primary concern financial control over citizens, then the process and purpose of information storage is the following; based on your financial records (transactions, accounts, loans, credit cards, etc.) companies can decide whether or not you are trustworthy regarding your financial history and pattern.1 All in all, information owned by companies are sold and shared with banks, other companies, health insurance companies etc. in order to be able to detect if someone can be trusted, financially speaking.

However, by collecting personal data of consumers and analyzing those by using data mining techniques, companies can explain the behavior of individuals and be able to change their policies or to adjust them to increase their profit. (Kietzmann & Angell, 2010) They argue that private sector, (companies, banks, etc.,) reward their consumers sharing of personal data with discounts, coupons and other. By doing so, individuals keep sharing more which leads to a mass of shared personal information, used to create personal information databases and afterwards the

1 Retrieved by http://www.consumerreports.org/cro/money/consumer-protection/big-brother-is- watching/overview/index.htm

34 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON

information are sold either to banks or health insurance companies, or to state institutions and organizations. (Mohammed, & Kehaulani Goo, 2006) Through the process of collecting and purchasing individual information, state was able to track tax evaders, people healthy enough to recruit to the military, people unhealthy enough to profit health insurance companies, etc. (Kietzmann & Angell, 2010)

4.4 DNA databases

Creating a DNA database was firstly introduced in the UK around 1980 when a serial rapist was caught based on the DNA sample on victims. After that incident, forensic criminologists and scientists were keen on creating a database that would help tracking down offenders. (Werrett, 1997) Additionally, it would also help with cross border crimes since many criminals leave the country of the crime. (Martin, Schmitter, Schneider, 2000) In other words, for the scientists DNA is essential for solving crimes, since if someone is in custody and police takes a sample of his genetic material, even if that person didn’t commit the crime his DNA would still be in the police records, and if his DNA is found on a victim then it would be a matter of time to convict him.

After the creation of the first genetic material database in the UK on 1995, other European countries followed. The question raised is whether it is ethically right to keep a record of someone’s genetic material if that person wasn’t guilty of a crime at the time of his arrest? This is the topic of major debates among scholars. In general scholars are proponents of this idea, but in reality it is not that possible to create and sustain a universal database of DNA since there is a variety of restrictions and legislation considering this matter amongst countries which makes it impossible at least for the following years. (Martin, Schmitter, Schneider, 2000) Due to the fact that genetic material has the potential to violate a person’s privacy right, society should ensure that the privacy rights of a person should be secure. (Yee, 1995)

Marx (1998) commented on the use of DNA Databases by police. As he states, the characteristics of genetic material, are simultaneously alike with what characterizes individuals; uniqueness. If society is able to identify citizens using their own unique element that separates them from every other person, then new laws should be adopted due to the origin and importance of the DNA itself exactly because invention of new DNA analytical methods open new roads of exploration and possibilities. If somebody’s DNA is found at a crime scene, then at the same

35 CHAPTER 4 GENERATIONS OF CONTEMPORARY PANOPTICON time this person would be considered as a suspect. This will lead to inaccurate assumptions and might also lead to wrongful convictions because in order to be sure about the perpetrator, except from the genetic material, there is a need of additional evidence. DNA can be transferred even via touch, and therefore, investigation is more than needed. (Marx, 1998)

In the UK if a person is suspected for a crime but is not found guilty of the crime then the genetic material should be immediately off the records whereas in France for example, only genetic material of sexual offenders that were convicted should be kept. (Martin, Schmitter, Schneider, 2000) If police in U.S. stores DNA after the release of a citizen then it is a violation of Fourth and Fifth Amendment. (Rooker, 2000) According to a newspaper article by Donovan (2008), U.S. government signed a law which allows government to take a sample of genetic material of all newborn babies in order to create a national database. The reasoning behind it was to prepare a programme of health emergency. Based on that, this law in a nutshell will give the right to government and researchers to own and experiment with the collected DNA without any restriction. (Donovan, 2008)

A report by GENE UK (2011) demonstrates the reason why genetic material is more important to the police in comparison to fingerprints. As it seems, DNA contains also information about a person’s health and since relatives’ DNA is slightly different between them, by having a person’s DNA police can track also relatives or close family of that person. Additionally, concerns are not raised about the use of DNA in the context of criminal justice, but for its misuse; Since it can give information about someone’s health, and since it is unique for every person, it means that when owned by the police, genetic materials are linked to other personal information in order to check whether the specific person has criminal records or if that person belongs to the risky population, prone to crime based on the person’s criminal history. (GENE UK, 2011)

Taking all the above into consideration, DNA is considered to be an important tool for detecting crime and tracking offenders. But since legislations concerning DNA and its storage differs from country to country, a universal DNA database is a plan that has to overcome great challenges.

36 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

5.1 Greece; Three levels of contemporary Panopticon

The use of CCTV monitoring, the procedure based in which personal data are shared and the subject of DNA databases is identifiable in the context of modern society more than ever due to technological development and globalization. Greece, along with other EU countries is following a similar path concerning implementation of CCTV cameras, DNA databases and data storage in order to be in accordance with the EU legislation. In this chapter, there will be a discussion regarding the application of CCTV monitoring in public places, the creation of a DNA database and data storage, sideways with a review of the Greek legislation centered on them. Greece, as an EU country, is bound by EU legislation and focusing on that, there will be a reference to the application of the appropriate legislation and its efficacy concerning privacy rights of the citizens.

5.1.2 EU Directive on Data Protection

For the purposes of ensuring the non-violation of privacy right, there is the data protection legislation which mainly targets intrusions either informational or personal. Particularly, the first EU Directive on Data Protection was adopted in 1995 and it regulated the processing and sharing of personal data amongst EU countries.1 However, due to technological evolution and to the many different ways that our data are collected, shared and analyzed, EU council proposed another legislation to ensure the protection of personal information and to regulate the ways they are gathered, either via private actors or by State institutions. In other words, in 2012, the European Commission proposed an amendment of the current Directive,2 the General Data Protection Regulation, in order to help citizens regain trust in the on line system, companies etc. However, one of the major problems of the Directive of 1995 is that every country within EU implemented it differently which lead to a fragmentation and based on that the new legislation will point out the need for harmonization regarding the implementation in order to ensure that privacy for all that matters is defined exactly the same. 3

1European Parliament/ News (24/07/2013) Retrieved by http://www.europarl.europa.eu/news/en/news-room/content/20130719STO17438/html/Data- protection-Keeping-your-privacy

2European Commisssion Newsroom (25/01/ 2012) Retrieved by http://ec.europa.eu/justice/newsroom/data-protection/news/120125_en.htm 3 European Commission. Retrieved by

37 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

The highlights of this amendment are the following; the creation of a unique

Data Protection Authority (DPA) which will handle all the EU citizens data, the right of portability, the need in case of Data breach to notify both DPA and the individual in due time, the explicit consent of the individual when providing personal information and lastly, responsibility and accountability. 4

Although the reform is still under discussion, the expected time for adoption by the Member States is 2016. The reasoning behind this proposed legislation is that ultimately, citizens will have control over their shared personal data, they will be able to erase the data they shared with a specific company, they will gain trust in the internet transactions, and also given the explanation by the official site of Data Protection5, innovation and further chances for employment will appear along with safety of personal information. The important element is that protection concerning personal information should be the same in Member States in order businesses and companies to be able to adjust their policies regarding handling of data accordingly. 6

Consequently, the right to privacy is a very significant right for humanity since it allows people to define their selves and keep their personal information private, as well as ensure that in the possibility of sharing with permission their own data then the party with whom they shared their information with, is not allowed to share or process them without their consent. It is important to protect the personal information and this is the reason why due to the globalization and the development of technology new regulations had to be implemented to protect further from intrusions to privacy.

5.1.3 Creation of the Hellenic Data Protection Authority

As part of the 1995 Directive on Data Protection, every country was obliged to create a Data Protection Authority to be responsible for the safety of personal information and issues regarding privacy matters. The Hellenic Data Protection Authority7 (created in 1998), has as main scope not only to ensure the safety of personal

http://ec.europa.eu/justice/data-protection/document/review2012/factsheets/6_en.pdf 4European Commission. Retrieved by http://ec.europa.eu/justice/data-protection/document/review2012/factsheets/2_en.pdf 5European Commission Newsroom (25/01/ 2012) Retrieved by http://ec.europa.eu/justice/newsroom/data-protection/news/120125_en.htm 6 European Commission. Retrieved by

http://ec.europa.eu/justice/data-protection/document/review2012/factsheets/4_en.pdf 7 Hellenic Data Protection Authority. Retrieved by http://www.dpa.gr/portal/page?_pageid=33,40911&_dad=portal&_schema=PORTAL

38 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

information but also to control those who process these personal information. In other words, it can be thought as the safeguard of the right to privacy. According to the article 9A of the Greek Constitution, «protection of personal data is ensured by an independent authority, which is constituted and operates as specified by law. »8 This means that the creation of the HDPA was necessary in order to balance both the rights of the citizens and to help organizations and companies to process legally personal information of individuals.

5.2 Application of CCTV monitoring in Greece, HDPA provisions and the accordance with EU legislation

Norris (2009), in his review on the increased use of CCTV in EU, writes that CCTV installation for the purposes of crime prevention should be in accordance with the European Convention for the Protection of Human Rights, The Charter of Fundamental Rights of the European Union, the Data Protection Directive and with the Council of Europe Convention for the Protection of the Individuals with regard to Automatic Processing of Personal Data. (Norris, 2009) Furthermore he states that implementation of CCTV monitoring is intrusive regarding personal data because there is an imbalance between the surveillant and the person under surveillance with one key point; the person under surveillance cannot avoid been under inspection, cannot be certain about the amount and the type of data the surveillant is gathering about him/ her and this is the reason why there is a need for a strict legislation concerning protection of private information. (Norris, 2009)

Specifically, he points out the key elements that appropriate regulation should include; firstly a person should know that he/she is under video surveillance, secondly, a person should be confident for the fact that his/her images won’t be shared with unknown third parties and lastly, the systems of video surveillance should be in accordance with current legislation. (Norris, 2009) Based on Norris (2009) and his suggestion for the legislation to be adopted, it is safe to say that HDPA has indeed adopted provisions to ensure the legal possession and handling of the product of video surveillance by the police authority.

8 The Greek Constitution, English Translation. Retrieved by http://www.translatum.gr/dictionary/syntagma-tis-elladas-greek-constitution-translation.htm

39 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

In a similar vein, Coudert (2009) refers to the new Data Protection Directive which according to him is a step forward towards safety and the legitimate handling of personal information. He highlights the principles concerning privacy regarding to video surveillance; the principles of purpose specification, proportionality and transparency. In particular, the first principle, highlights the importance of the specification of the data that are been processed, specification regarding not only the type of data via video surveillance but also the source that is gathering those data and the way this source is going to handle them. The second principle, the principle of proportionality is about the appropriate way to analyze the data collected via video surveillance based on the severity of infraction of privacy to gain them. Lastly the third principle, concerns the right of an individual to have control over the gathering of their personal data. (Coudert, 2009)

The LAW 3471/2006 for the Protection of Personal Data and Privacy in the Electronic Communications Sector and Amendment of Law 2472/1997, has filled the gap of the previous legislation (Law 2472/1997 for the Protection of Individuals with regard to the Processing of Personal Data) in which there wasn’t a provision for the protection of personal information gathered from video surveillance placed by the State in public areas. Under this regulation, (Law 3471/2006) Article 28 provided that the Authority may archive any applications or complaints that are deemed groundless or self-evidently vague or are submitted unduly or anonymously. The Authority shall advise the data subjects and applicants as to its actions. 9 Overall this Act made some changes that should have been done years ago, but the amendment may be not far- reaching enough. Certainly, there is a necessity for re-evaluation of legislation on data protection.

Specifically for the implementation of CCTV monitoring in Greece, the process is as follows; the Greek Ministry of Justice addresses a request to the authority responsible for Data Protection, which in this case is HDPA, and asks for evaluation. Based on HDPA Opinion/ Decision on each case, it is stated if the specific action to be, intrudes the right to privacy or violates individual rights. Video surveillance on public places is solely justified on the ground of safeguarding the security of the state, national

9 HDPA Legal Framework http://www.dpa.gr/portal/page?_pageid=33,43560&_dad=portal&_schema=PORTAL (visited on 25/7/2014)

40 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

defense and public security, but there are some implications regarding this subject, as specified in HDPA Opinion 1/200910; firstly, this opinion reflects and evaluation of an action to be, by the Greek Ministry of Justice regarding placing video footage on public places. Based on this decision of the HDPA, there should be clarification for the processing of a person’s personal information, especially images and video, along with arguments to prove the necessity of this action. According to HDPA Opinion 1/2009, «constant video surveillance through the recording of sound or/and image of a high number of people who are not in any way breaching the law, in public areas constitutes a clear case of infringement of the right informational self-determination» (HDPA Opinion 1/2009, p. 2) This means that for placing cameras in public places a well-grounded reasoning should exist behind it; places with high criminality rates to ensure that citizens in cases of a crime at the specific area are safe, and all the crimes to be occurred specifically in that area would be on video surveillance. Secondly, there is no provision for the effective protection of the subjects whose rights may be infringed upon by the processing of their personal data. Thirdly, due to the fact that there is no clarification for the authority which will gather and process the data, there is no specification concerning who will be responsible for possible infringement of the right to privacy. (HDPA Opinion 1/2009)

All in all, regarding the amendment of the Data Protection Legislation and the HDPA concerning video surveillance, the related amendments and decisions are certainly a step forward towards the protection of personal information since in Law 2472/1997 there wasn’t a specific provision for placing video surveillance in public places. Additionally, of great importance regarding the amendment are the principles of proportionality, transparency and specification regarding the use of personal information by video surveillance. Certainly they can be considered as a step towards a better safety net for personal data of the citizens.

5.3 Creation of DNA Database in Greece, HDPA and the EU legislation

The Council for Responsible Genetics released a report on 2011, in which it catalogues all the Databases in practice in every country and the ones that are to be created. Since Greece didn’t have a database at the time of the report, the Council

10 HDPA Decisions http://www.dpa.gr/portal/page?_pageid=33,43590&_dad=portal&_schema=PORTAL (visited on 25/7/2014)

41 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

included the applicable legislation for the gathering, process and destruction or removal of the genetic material instead of assesing whether Greece had successfully applied EU legislation. According to the report, under the Code of the Greek Criminal Procedure, the article 200A foresees that in the case of strong indications that a person has committed a felony or misdemeanor punishable by imprisonment of at least three (3) months, law enforcement agencies receive genetic material required for analysis for the purpose of identification of the perpetrator of this crime. The analysis is limited only to data absolutely necessary for finding and conducted at state or university laboratory. From this article the important facts are the time length of the three months, and that the DNA analysis can be requested not only to prosecute someone but also to defend him/her. In the second paragraph of the same article, it is clarified that the results of the DNA analysis must be directed not only to the authority but also to the person to whom they belong. If the analysis of the DNA is negative, then the genetic material should be destroyed in the presence of the person, the prosecutor and a judicial authority. However the fingerprints are not destroyed up until the death of that person. In many countries, even if the results are negative they are still kept in case of future felony. (Thibedeau, 2011)

According to Voultsos, Njau, Tairis, Psaroulis, Kovatsi (2010) the National

DNA Database of Greece was created in 2008, in which only the genetic materials of convicted criminals would be kept, but with an amendment of 2009, permission was given to extend the database not only via collecting genetic material from convicted persons but also to retain the genetic material even if the person is innocent. This means that there would be an expansion of this DNA database which will include ultimately genetic material from innocent people. Another change of the initial legislation concerns the issue of the authority that gives permission for the extraction of the genetic material. In the 2008 legislation, only a judicial authority could give permission for sampling but after the 2009 legislation, the permission is in the hands of the district attorney which means that consequently the sampling is a routine. (Voutsos et al, 2010) Additionally, since transparency and accountability are necessary for citizens to trust this new enhancement, an independent authority should store the information of the genetic material. In Greece’s case, HDPA is responsible for the storage, which in fact is in accordance with the EU recommendation (87) 15.

42 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

One of the flaws that Voutsos et al (2010) identified on this new DNA

Database is that while in other countries an opinion poll was carried out regarding the creation of a national DNA Database, in Greece it never happened. A second flaw of this new legislation concerns the size of database criteria; due to the fact that Greece in general, targets the reasoning for the high criminality on the immigrants, this could turn out to be rather racist since every person that is in custody, the district attorney will give a permission for sampling. In fact, the authors focus on the vagueness of the offense that is characterized as a felony in order to get imprisonment of three months. It is not clear whether the law foresees that genetic material should be taken form people convicted, arrested or in custody. (Voutsos et al, 2010) The third flaw is that this legislation does not have a separate provision for children which automatically can be interpreted that children are treated equally with adults regarding offenses. (Voutsos et al, 2010)

All in all, regarding the implementation of EU legislation on the Creation of DNA

Database, Greece is not in agreement due to the following facts; Vagueness concerning the inclusion of DNA profile, detention of the DNA profile dependent on the severity of the crime, nondiscrimination between adults and children.

5.4 Data Storage in Greek Legislation and the accordance with the EU Legislation

Data storage and protection in Greece is regulated by Law 2472/1997, implementing the Directive 95/46/EC (Data Protection Directive of 1995), which was reformed with Law 3917/2011 implementing the Directive on Data Retention 2006/24 EC.

According to Hopkins’s review (2012) of the reform, the General Data

Protection Regulation of 2012 (amending the Directive of 1995) is not as different as it should be compared to the previous Directive. (Hopkins, 2012) Regarding the transfer within EU or Internationally of personal information, the Regulation foresees that personal data are to be processed to another Member State of the EU, to a non EU Member State with permission from the Authority if the EU Commission hasn’t guaranteed that the specific country can protect the data and handle them adequately. (Hopkins, 2012)

43 CHAPTER 5 GREECE; COMPLIANCE WITH EU LEGISLATION ON DATA PROTECTION

Another addition of the Regulation is the power and the duties of the supervisory authority. With the Regulation the Authority responsible for the protection of Data, (HDPA for Greece) has more possible effect compared to the power and control it had within the Directive. (Hopkins, 2012)

Moreover, in accordance with Hopkins’s review (2012), the most important reform of the Regulation concerns the topic of data breach (Article 23 & 24 of the Law 2472/1997 on the Protection of Individuals with regard to the Processing of Personal Data). With the right to complaint about a data breach and the right to a judicial remedy against the Authority, it becomes far more prescriptive than the Directive. Additionally it takes a step forward regarding sanctions, penalties for data breach and mandatory fines, which can characterized it stricter than the Directive. This means that our personal information shall be handled and processed with our permission and when this is not the case then with a complaint to the Authority there is the possibility of compensation etc. This Regulation will be applied until 2014 and then depending on the implications and the efficiency, it will either remain as it is or additional amendments will follow. (Hopkins, 2012)

Taking all the above into close consideration it is safe to assume that the creation of HDPA, is a safeguard towards the safety and the protection of our personal information. Greece has managed to implement the Regulation of 2012 efficiently and most importantly based on the fact that the Regulation is more severe in its measures compared to the previous Directive, it is a well promising amendment. However, there are some implications on the subject of DNA Databases and video surveillance as mentioned in previous chapters. The implementation of the Regulation was successful but the actual application is still a matter to be examined after 2016 which is the time limit for the accordance with the Regulation of 2012.

44 CHAPTER 6 CONCLUSION

Conclusion

The purpose of this thesis was to clarify the link between Bentham’s Panopticon as a key structure of surveillance, with the contemporary surveillance citizens face by State & Private actors. On the first level, there was a discussion over Bentham’s theoretical construction which for centuries remained the essence of surveillance, along with the novel written by Orwell (1949), in which citizens were prisoners in their own houses, restricted to think, act and do as they please due to the fear of the government and the invisible eye, exactly as the prisoners inside Panopticon. Orwell and Foucault feared for the day when government will be able to control us, inspect us and use surveillance measures to restrain us.

Following, a review of the phenomenon of surveillance, its types and discussion over the surveillants was introduced. Many theorists wrote about surveillance implemented by the State as well as from Private actors. The question is whether the former or the latter are more dangerous and intrusive concerning individuals’ rights. Taking all the aforementioned into consideration, it is apparent that surveillance by the State is difficult to disobey and deny since State, Governments and police are the carriers of those tactics. Polygraphs, DNA Databases, CCTV monitoring, and other ways of consistent observation by Public sector are unavoidable on the one hand, and on the other hand quite dangerous because in a way we as individuals are the subject of surveillance by our own State and State’s representatives, and the only thing we could do is be aware of it and live by the rules of the State. The real issue at this point is what exactly is the scope of this surveillance by the State? What do we need CCTV monitoring, why a Database with genetic material? The answer on that is as general and as simple as it can be; for the sake of crime prevention, for the necessity to prevent diseases and face them, and as Lyon argues (2003), for the creation of a categorization system; divide individuals into broad categories, label them, with a result to be able to know everything and be able to prevent any unnecessary or harmful actions towards the State or a representative of the State. (Lyon, 2003) Only if State can control its citizens, obedience can occur, as seen in Orwell’s novel, and of course in the Panopticon.

Focusing on three specific measures taken by States and private actors

universally, CCTV monitoring, Data storage and the creation of DNA databases were

45 CHAPTER 6 CONCLUSION the important subject of this thesis. By analyzing those phenomena separately and identify their key scope and the ways that they violate (or not) the right to privacy, the scope was to clarify the reasoning behind those tactics. The review of this phenomena lead me to the conclusion that all of those measures consist of a violation to the right of privacy, each one for a different reason. CCTV violates citizens’ right to privacy due to the fact that cameras nowadays exist everywhere, everyone is subjected to them, and the information gathered by those video surveillance tapes are not necessarily to be possessed and stored since they key point is to inspect criminals and prevent high rates of criminality. Not to closely gather video footage for every citizen regardless of his/hers criminal activity and unlawful acts. Additionally, it might be an effective measure to ensure the safety and protection of citizens but that doesn’t mean that it can be controlled by any of us or that we can be sure its usage is nothing but legitimate and in accordance with the applicable legislations, domestic and international.

Data storage is the fear of every citizen on the 21st century, since not only companies and governments but supermarkets, banks, health insurance companies and nearly every organization that individuals interact keep a record of personal information. Commonly used opinions for this phenomenon is that based on the information that companies gather, they can make our lives easier, rewards us with discounts and so on. However, reality is far more different. The reasoning behind this major storage of personal information is to increase the profits of companies, since they can sell our data, share them and store them for future and unknown to the citizens, usage.

Lastly, the creation of DNA databases can be a great intrusion of the right to privacy since by collecting someone’s DNA you own not only essential and private information for that specific person, but also for his family. DNA is a major integration and quite an innovation in the field of science and prevention of crime, but on the other hand, legislation shall be strict because the content of those information can be used in a legitimate and illegitimate way.

The fifth chapter included a discussion in depth for Greece, its legislation

concerning those three measures of surveillance, and the accordance with the EU legislation. As there were no other study that gathered information for CCTV, DNA and data storage all together for Greece, it was quite difficult to find sources other than

46 CHAPTER 6 CONCLUSION

those of the application of the legislation. Since, according to EU legislation on the Protection of Personal Information, the time frame for the application of this legislation is on 2016, there cannot be said with certainty what changes in the regulation there might exist, but, focusing on the accordance with the EU legislation, Greece has managed to adopt the necessary regulations on the first level.

All in all, for the purpose of summarizing the above, one thing is apparent; surveillance in contemporary society is part of our daily lives, even if we are not able to detect it completely; we can only assume and have a hint but its ways are meant to be invisible. It has different forms and shapes, and moreover, the scope behind it is categorization of citizens/consumers and to some extent, control. The Panopticon, for Bentham, was an establishment that was meant to control behaviors, discipline individuals, and produce a level of fear of inspection in order to alter behaviors and discipline the prisoners. In a similar vein, the current face of Panopticon has been transmitted from one establishment to the whole society. States, governments, companies, banks, police and plenty of other institutions/organizations, are interested in citizens/consumers actions, behaviors, transactions, life etc. The explanation for that phenomenon is more than comprehensible at this point: if the state has as ultimate scope to control us then first of all, surveillance tactics (monitoring of online transactions, collecting and sharing personal information) are to be implemented. This particular implementation can be compared to the domino effect; one action lead to another and based on the development of technology and of course the need to protect individuals, surveillance evolved rapidly and took many shapes which makes it difficult to ensure citizens privacy. The inspection and observation of our actions can be perceived as pathways to discipline us. If the citizens are living their life under the “orders” of the society, then the ultimate scope is overachieved. Organizations and institutions working for Data privacy, should alert people and make them aware of this situation. Citizens should be concerned about what will happen if these techniques develop more as technology will in the years to come.

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