On Friday 19 September, we published a case study on Pursuit Magazine’s Facebook site. This involved two parts: the first, a set-up giving some basic information, asking people what they would do in a certain scenario.The second part, which was published on Monday, gave a little more information and asked whether people would change their opinions in the light of this extra information.
Today we will put the two parts together with some thoughts on what people said, and include a concluding part which shows the decision a British court came to when it considered a similar case.
The first part set the stage:
A lot of people responded to this, possibly because it came out at 17:00 on a Friday:
There was quite a range of responses, from “never trust the government” to “take the case.” Quite a few people wanted to know more (What exactly did the local authority want to know, and why?), but generally people presumed that there could be good reasons for the authority making the request and therefore, that Anthony should take the case. There was also a sense that, provided the client was legitimate, there shouldn’t be a problem with Anthony taking the case.
Overall, those in favor of taking the case outnumbered the more cautious by 50%.
The second part offered additional information for the more cautious responders. This went as follows:
FULL TEXT: Not as cynical as some about working for the government, Anthony is curious as to the details of the case. Rather than say yes straight away, though, he calls up the authority to find out more. It turns out that a family of two adults and three children may have been lying about their primary residence in order to get their youngest child into a particular school. As this is not obviously a criminal case (at least in this particular jurisdiction) the authority doesn’t want to turn to the police. They have also outsourced their own investigation capacities in recent years in response to cuts.
The authority clarifies that they want Anthony to monitor the family’s use of one of the two houses. The assumption is that if that is not the primary residence then the other must be. Two weeks should be sufficient for this, they feel. They want him to record when any member of the family leaves the house and where they go. When the family are in the house the authority want Anthony to record which lights are on, when they are turned on and when they are turned off.
Does this additional information alter the advice that you would give Anthony? If so, in what way? If not, why not?
Fewer people responded to this:
Those who did respond became suspicious with this extra information, with things not stacking up quite right. Why did the authority want to know about family activities? How can Anthony monitor all the lights in a house at once, and what evidence would that provide regarding anyone living in the house?
Before reading on, this is your chance to pause and decide what you would advise Anthony in each case. Should he take it or let this one pass him by?
Take a moment to enjoy this photo of a baby fur seal as you contemplate the question:
The case was not entirely fictional, but drawn from a real example that happened in the UK in 2008. Poole Borough Council in the south of England had its staff carry out surveillance on the family of two adults and three children. The justification for this was that two people had complained to the council that the mother (Jenny Paton) had told them she’d lied about her residence in order to get the third child into the school. The surveillance lasted for between two and three weeks and came to light a few months later when the Council told the parents what they had done.
Paton felt that the surveillance was wrong, and took the Council to an Investigatory Powers Tribunal – a court set up to rule on complaints of unlawful use of covert surveillance. Under UK law, public bodies which are permitted to use covert surveillance must ensure that it is necessary, proportionate, and discriminating (three ethical principles which I agree with and which, I argued a few months back in Pursuit, should underlie surveillance whatever the law).
I’ll summarize below, but the Tribunal’s full findings can be found here:
The Tribunal found that the Council made no attempt to interview Paton prior to the surveillance, nor were less intrusive surveillance measures considered. As such, the Tribunal found that the surveillance was not necessary.
The Tribunal also found that surveillance had included the father and the three children, none of whom were suspected of having committed any fraudulent or criminal activity. As such, the surveillance was not discriminating, but rather included people against whom no complaint had been made.
Thirdly, although the Council justified the surveillance as aimed at preventing crime, the Tribunal found that whatever the outcome, no prosecution would have followed. As such the purpose of the surveillance was not justified under the terms of the relevant Act.
Fourthly, the Tribunal found that the surveillance was disproportionate to the goal of detecting a false address for gaining a place at a school. This case “was not of a high order and was not a pressing social need.”
So to review, there were four reasons that this surveillance was unlawful:
1. Surveillance was unneccessary; less intrusive measures were not considered.
2. Surveillance was intrusive, as it included people who were not suspected of any wrongdoing.
3. Surveillance was not justified, as no prosecution would have resulted.
4. Surveillance was disproportionate; finding a false address not a pressing need to society.
That might not worry some who don’t operate in the UK. More concerning (to me at least) is that these four reasons are also unethical. That is, whatever the local laws, they are good reasons to consider before undertaking any surveillance.
So what do you think? Was the Tribunal correct in its findings? Do you not need to worry about these issues if the law is different where you work? If you were prepared to take the case, would you change your mind now, or do you think the surveillance can still be justified?
There’s room for more comments below! Thanks for taking part. Let’s do this again!
About the Author:
Kevin Macnish, PhD is a teaching fellow and consultant in ethics at the IDEA Centre, University of Leeds. He has written numerous articles on the ethics of surveillance. You can follow him at @KMacnish.