Issue brief no. 1 | August 2020 Good Governance of Children’s Data project Office of Global Insight and Policy State surveillance and implications for children Steven Feldstein, Senior Fellow at Carnegie Endowment for International Peace About this paper Surveillance tools are a core part of states’ governing strategies.1 In the digital era, governments rely on digital surveillance technology to support a range of interests — from national security and public order, to public health and municipal service delivery. Surveillance is generally understood to include technologies or systems that enable care or control of people “through the identification, tracking, monitoring, or analysis of individual data, or systems.”2 A key definitional point is that, while the purpose of surveillance can be to control or discipline individuals, surveillance can also be used to protect and care for citizens. Surveillance capabilities provide governments with important advantages; they are widely used across different models of governments. While there is significant literature that considers whether governments may legitimately employ surveillance strategies and when their use violates core human rights principles, there is comparatively less discussion about state surveillance standards for children.3 This paper focuses on the following questions: 1. To what extent are governments distinguishing between children and adults when employing surveillance measures, including for political activity? What pressing issues of concern emerge in relation to state surveillance of minors? 2. When it comes to state surveillance, what protections are in place for children beyond generalized consent frameworks? 3. How does state surveillance differentially affect children from vulnerable, historically marginalized, or underrepresented groups? 4. Should the international community establish more defined norms or principles to protect children from state surveillance? What role can or should the private sector play in this regard? Context of state surveillance Targeted surveillance techniques are intrusion op- erations which exploit software, data, computer sys- The use of surveillance by governments for political tems, or networks to gain unauthorized access to purposes is not a new phenomenon. Physical trail- user information and devices. In contrast to passive ing, phone-tapping and house searches are trusted surveillance, which targets a broader range of indi- methods of operation that security services have viduals or groups for mass collection, targeted strat- relied on for decades in all types of government re- egies rely on deployments of malware or spyware gimes. The emergence of new ICT surveillance tools to collect information for specific individuals. These linked to the proliferation of digital data has led to tactics are frequently carried out by commercial ven- rapid changes in how surveillance works, when it dors like NSO Group, FinFisher, and Hacking Team.7 applies, and how to balance individual protections with legitimate state interests. There are more com- Surveillance laws and directives are designed to munications data available for scrutiny than ever enable governments to access user content. Often, before. The internet has drastically increased the these laws mandate that cloud servers or social me- amount of transactional data available for individ- dia platforms store data locally (thus expediting law uals everywhere.4 Unsurprisingly, surveillance has enforcement requests), or they may authorize secu- become increasingly prevalent, such as tracking rity agencies to access personal data or communica- public sentiment through social media monitoring, tions under specific circumstances — often linked to surveilling protests and dissenting speech, monitor- national security.8 ing individual persons of interest (e.g. journalists, political opposition, government critics), and track- These surveillance strat- ing voter behaviour. egies have distinct im- The plications for children.9 In my own research, I identify four broad surveillance In line with the trends proliferation strategies commonly used by governments: artificial described above, gov- intelligence (AI) and big data approaches, passive ernments and private of digital surveillance strategies, targeted surveillance tools, companies are collecting and surveillance laws and directives. more data than ever re- surveillance lated to children through AI and big data surveillance tools are automated a range of ways and sys- presents techniques powered by advanced algorithms de- tems. Primarily, the inter- signed to identify broader behavioral patterns (mass net has become a ubiqui- troubling surveillance), as well as of specific individuals. They tous presence in many include biometric identification systems such as households and children risks facial recognition technology and genetic surveil- are accessing multiple lance (which are generally less accurate in relation digital instruments. On- for children to children), smart cities or safe cities (city networks line data derived from comprised of thousands of sensors transmitting real social media accounts, -time data to municipal authorities), smart policing smart phones, internet browsing, and gaming il- techniques (data-driven methods used to enhance lustrate the many ways in which children’s data are law enforcement response, inquiries and investi- being shared. The peer effect associated with these gations, and to undertake predictive analysis), and technologies presents particular challenges. As chil- social media monitoring (machine-driven programs dren reach adolescence, there is strong pressure to that monitor millions of online communications in maintain an active social media presence on apps order to detect specific keywords or identify more like Instagram, Facebook, TikTok, and Snapchat, leav- generalized sentiments or patterns). This represents ing many children prone to bullying, social anxiety, a nascent but growing category of surveillance.5 and data exploitation.10 Passive surveillance strategies encompass hun- Second, even when children are not directly logging dreds of communications surveillance instruments on to specific apps, they often access and provide that collect, monitor, and intercept data that has data linked to home technology from devices con- been “communicated, relayed or generated over nected to the Internet of Things (IoT), such as smart communications networks to a group of recipients speakers and connected toys. And third, outside the by a third party.”6 Representative technologies in- home, children’s data are commonly shared in a vari- clude internet monitoring, certain parental control ety of places, from location trackers in mobile phones apps, mobile phone tapping, location monitoring, and data from classrooms in schools, to video cam- and network interception. eras in public areas, and even medical records. 2 The availability of this data can bring significant of surveillance, there remains significant ambiguity. consequences when children become adults (not to When it comes to protecting children from unwar- mention that children’s data are often mixed in with ranted state surveillance, there are few protections adult data). that exist in law, either internationally or in specific countries. In fact, there are growing concerns about The proliferation of digital surveillance presents trou- the extent to which education, health, refugee, or aid bling risks for children. When it comes to biometric agency data may feed into state surveillance. There is technology, for example, its capacity to accurately also a widening recognition about the differential im- recognize or identify children’s faces is plagued by pact such technology may have on marginalized and problems. As the UNICEF report “Faces, Fingerprints persecuted groups and its disproportionate effect on and Feet” notes, this issue “may be due to the difficul- children within these groups. ty in capturing the biometric trait (such as an iris scan with very young children); the relatively poor perfor- mance of the trait among certain age groups (facial recognition); or the low levels of user acceptance International norms and standards (DNA).”11 Another challenge is correlating political and related to surveillance ethical risks associated with using this technology on children. In voluntary situations, children have a de- The accepted international standard for whether a creased ability to comprehend and make informed surveillance action is legitimate or not rests on con- decisions about participating in certain programmes cepts of necessity, proportionality, and legitimacy.13 It that involve surveillance. Their parents may also lack is specifically based on the following considerations: appropriate understanding to make informed deci- sions about the processing of their children’s data. • Is the surveillance strictly and demonstrably nec- Involuntary data collection completely cuts out chil- essary to achieve a legitimate aim? dren’s agency in determining how their data are col- lected, retained and used, with implications that may • Does surveillance represent a proportionate re- extend for decades. This leads to a third problem: as sponse to that aim? digital technology becomes increasingly central to in- dividuals’ lives, and as the declining cost of technolo- • Does domestic law authorize circumstances in gy and data storage enable further exploitation of this which surveillance is appropriate, and are these data, “more data