Tolentino, Irish Toni: Participatory Panopticon, Sousveillance and Prying into One’s Right to Privacy – Legal Protection Revisited

I. INTRODUCTION

One’s right to privacy is one of the most basic rights guaranteed by our civil laws. Art. 26 of the Civil Code of the Philippines provides that “Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another’s residence; (2) Meddling with or disturbing the private life or family relations of anotherXXX” Although the above provision does not specifically penalize prying into one’s privacy, there is an implication that such act is objectionable as it may be a cause of action for damages. While the right to privacy may not be absolute, it is one of those most essential rights for the dignified existence of men. However, with the advent of today’s technology, it has become one of the most easily abused rights. It has become so easy for men to look even into the secrecy of one’s abode with just a tiny gadget. Hidden cameras are just few of the many gadgets which make it possible for everyone to pry into the privacy of even the most intimate affairs of men.

While security cameras or hidden cameras are useful for investigative journalism, in solving crimes, and in addressing other concerns, these sometimes are also used in violating our basic right to privacy. As tiny as they are, they can easily record information that can simply be passed on to people with just one click of the finger. Who could ever forget the infamous scandal involving Dr. Hayden Kho and the perennial style of journalist Mike Enriquez in his program Imbestigador? These two (2) scenarios may have totally different dramas to tell but the stories are quite the results of gadget manipulation – hidden cameras (obviously without the consent of the actor in the video). And with the birth of technologically advanced recording gadgets comes novel concepts which may possibly interfere with one’s right to privacy. How do ordinary citizens protect their right with the rising Participatory Panopticon and Sousveillance?

This paper endeavours to revisit the law/s protecting man’s right to privacy. With the mushrooming of state-of-the-art gadgets, how protected is our right to privacy? Does it really end where right to information begins? And will our privacy be compromised with the continued improvement and development in the fields of communication and information?

II. AN OVERVIEW OF PARTICIPATORY PANOPTICON AND SOUSVEILANCE

The concepts regarding hidden cameras and CCTVs are not uncommon to us Filipinos. In fact, these have become tools to bring us reliable and up-to-date information. Every coin has two sides as the adage goes. The same is true for this kind of technology. It benefits the people as it serves as a tool “catching the prey, the criminal, the one doing illegal acts.” It is best associated with the infamous line “Caught-in-the-Act.” The subject could not deny because the recorded video explicitly shows what has been done by whom. On the contrary, innocent individuals may be humiliated or disgraced with just a click of a finger if this technology were to be used in such a manner as one famous celebrity doctor has utilized it and allegedly without him knowing it, the dignity of some women had already been violated. Of course, it is never a sin to record intimate moments or other personal affairs but the manner of recording it and the deed to be done after it has been recorded are simply different matters. Participatory panopticon and Sousveillance are closely linked with the aforementioned matter as basically it involves “Recording” and “Watching.”

The term “panopticon” was coined by English philosopher and social theorist Jeremy Bentham in the 18th century for his model for a prison in which the inmates are watched at all times (http://itc.conversationsnetwork.org/shows/detail375.html, accessed March 31, 2010). It is a type of prison building designed to allow an observer to observe (-opticon) all (pan-) prisoners without the incarcerated being able to tell whether they are being watched, thereby conveying what one architect has called the “sentiment of an invisible omniscience” (http://en.wikipedia.org/wiki/panopticon, accessed March 31, 2010). The idea behind a hidden camera is analogous to the concept of a Panopticon where the prisoners act freely as if nobody is watching them. An ordinary person acts differently when he knows that he is being watched over. But if he has no idea about the existence of any recording device, he acts naturally without any qualms. Real sentiments will be captured, no pretentions or forged actions. Thus, no denial can be made.

Jamais Cascio, self-proclaimed freelance world-builder, in his keynote address from MeshForum 2005 Event held in Chicago calls his bold vision for the future as “Participatory Panopticon,” and it spells the end of privacy and the end of secrecy. While personal privacy is eroding, the ability of those in power to lie, cheat, and steal is also becoming increasingly impaired. The term Panopticon has now been repurposed to describe a society in which everyone is being recorded and simultaneously is recording everything around them, a society he considers we are creating today. Cascio’s keynote address delves deeply into the technology that has created “sousveillance” (watching from below) – a kind of citizen photo and video patrol that watches the watchers. Discussing how camera phones could evolve into Personal Memory Assistants, Cascio paints a picture of a future where no one would ever forget anything and no activity would go unrecorded. The seeds of this imagined future exist now in current projects monitoring politicians and human rights abuses (http://itc.conversationsnetwork.org/shows/detail375.html, accessed March 31, 2010).

On one hand, Sousveillance as well as inverse surveillance are terms coined by Steve Mann to describe the recording of an activity from the perspective of a participant in the activity, typically by way of small portable or wearable recording devices that often stream continuous live video to the Internet. Inverse surveillance is typically an activity undertaken by those who are generally the subject of surveillance while Sousveillance involves community-based recording from first person perspectives, without necessarily involving any specific political agenda. To illustrate, When one or more parties to a telephone conversation record it, it is referred to as sousveillance, whereas when the conversation is recorded by a person who is not a party to the conversation (such as a prison guard violating a client-lawyer relationship), the recording is called “surveillance”. The term “sousveillance” stems from the contrasting French words sur, meaning “above”, and sous, meaning “below”, i.e. “surveillance” denotes the “eye-in-the-sky” watching from above, whereas “sousveillance” denotes bringing the camera or other means of observation down to human level, either physically (mounting cameras on people rather than on buildings), or hierarchically (ordinary people doing the watching, rather than higher authorities or architectures doing the watching) (http://en.wikipedia.org/wiki/Sousveillance, accessed March 31, 2010)

Participatory Panopticon and Sousveillance may sound novel to many Filipinos but these concepts are actually not unusual nowadays considering that Filipinos, just like any other people, have become accustomed to recording of experiences and watching over of what is happening around.

Just like the typical purpose of any recording device, Participatory Panopticon and Sousveillance could not be said to be inherently evil. But certainly there will be people who might be using these for inappropriate purposes. While these concepts may be used primarily for security reasons, many will positively perceive these as means of invading our right to privacy.

In contrast to the concept of a hidden camera, participatory panopticon in a way implies the involvement of the actor. As James Casio puts it “Soon — probably within the next decade, certainly within the next two — we’ll be living in a world where what we see, what we hear, what we experience will be recorded wherever we go. There will be few statements or scenes that will go unnoticed, or unremembered. What’s more, these archives will be available over the net for recollection, analysis, even sharing. And we will be doing it to ourselves. This won’t simply be a world of a single, governmental Big Brother watching over your shoulder, nor will it be a world of a handful of corporate siblings training their ever-vigilant security cameras and tags on you. Such monitoring may well exist, probably will, in fact, but it will be overwhelmed by the millions of cameras and recorders in the hands of millions of Little Brothers and Little Sisters. We will carry with us the tools of our own transparency, and many, perhaps most, will do so willingly, even happily. I call this world the Participatory Panopticon.” (http://www.worldchanging.com/archives/002651.html, accessed April 5, 2010).

Sousveillance likewise involves the consent of the subject as it is the conscious capture of processes from below, by individual participants; surveillance is from the top down, while participation capture is inscribed in the very protocols of cooperation and is therefore an automatic ‘inscription’ of what we are doing (http://www.worldchanging.com/archives/002651.html, accessed March 31, 2010)

While it can be said that the emergence of both concepts is coupled with involvement and consent on the part of the actors or subjects, still the possibility of harassment and invasion of privacy could not be discounted. Harassment may result in what we do with the recorded events. Invasion of privacy may be the natural consequence of allowing “other people” to look into our experiences. Privacy has always been the utmost concern relative to “Recording” and “Watching Over” of human experiences. How do we protect privacy in the midst of seemingly growing trend of “Recording” and “Watching Over?” How do we intend to protect something that we must keep and yet expose it at the same time? It is but proper that we draw the line between privacy and transparency.

III. HOW PROTECTED IS ONE’S RIGHT TO PRIVACY?

In an effort to put an emphasis on the primacy of one’s right to privacy, I have endeavoured to look into the Philippine Constitution to ascertain whether protection of this right is constitutionally mandated. By Right to Privacy, I am referring to that right against any unauthorized “recording” or “watching over.” I found no constitutional provision which explicitly safeguards this right but privacy in some other sense is protected by way of the following:

Section 3, Article 3 of the 1987 Philippine Constitution:

1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

The privacy being protected by the above provision relates to communication and correspondence. Additionally Republic Act No. 4200 otherwise known as the Anti-Wiretapping Law also aims at protecting private communication. Section 1 of said law provides that “It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or however otherwise described. It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in Sec. 3 hereof, shall not be covered by this prohibition.” If I may comment, I consider the protection afforded by the aforementioned legal provisions to be very limited. More than communication and correspondence, the acts of each individual especially a private citizen should likewise be protected from any form of unauthorized “recording” or “watching over.” It is now a different story when an individual consents in the recording. Likewise, what we do with the information gathered through recording (with or without the subject’s consent) is another matter.

The above provisions may not explicitly provide for the protection of an individual against the ill-effects of “recording” and “watching over.” However, as mentioned earlier privacy is protected by our civil laws. But a more important inquiry is, do our laws have the teeth against unauthorized “recording” and “watching over” if these have become the usual means of securing information or capturing a culprit performs illicit acts, or obtaining any evidence against a wrongdoer. Will the end justify the means? That if it were to capture acts of wrongdoers, it is just right to use almost invisible gadgets to obtain evidence against them. What if recordation is just for fun, if we only intend to capture personal affairs? Let’s get direct to the point, the case of sex videos or scandals which exposes and dishonours women (even men), how do we deal now with the culprit, the one who proliferated the material? What is the basis of bringing to court the individual who had the intimate scene be recorded? Is it a defence that both parties consented to the recording? It is just so disheartening that we do not have ample laws to protect our basic rights to privacy as such right has already been compromised by the developments brought about by technology.

Further, with the emergence of participatory panopticon and Sousveillance, how do we now reconcile the concept of protecting one’s privacy if the parties being watched over and the “watch men” are one and the same? How do we protect our very own privacy if we do not only allow recording but also participate in it. I believe then it is a matter of policy-making that despite the emergence of new concepts relative to privacy, we have rules that would govern any abuse or misuse of the products of recording. Evidently, we cannot totally prohibit these; in fact, the benefits may far outweigh the evils it may bring. It solely depends on how we make use of these concepts as tools for the betterment of mankind. I suppose Participatory Panopticon and Sousveillance may be very good tools to see to it that we will have clean, orderly and honest election. These may also ensure fitting performance of one’s duties as nobody wants to be captured cheating or defrauding others. Transparency certainly works fair but not at the expense of giving up privacy.

At the end of the day, nothing compares to an amply protected private life which no money can buy.

IV. CONCLUSION

Man’s right to privacy may never be an absolute right. It may not also be the sole requirement to lead a dignified life but it is undeniable that it is an essential element to differentiate the existence of humankind. With the birth of almost invisible and highly sophisticated gadgets, it has nearly become impossible to safeguard this particular right. However, no matter how small the possibility of protecting this right is, man should exert all means to look after its defence. Apparently, the Philippine legal system does not provide for any specific laws which will govern man’s conduct involving Participatory Panopticon and Sousveillance. Thus, any violation of one’s right in relative to this may only be punished in relation to an existing law such as Republic Act No. 9262 also known “Anti-Violence Against Women and Children Act” or any other applicable laws.

“Recording” and “Watching Over” are very essential in some particular events especially if the event involves the interest of the public. One such instance is the upcoming May 2010 Election. In fact, nothing must go unnoticed for this national event as the result involves not only public interest but the future of the Filipinos. These are the times when the most technologically advanced gadgets are a must around us to ensure that we will have honest and clean elections, to guarantee that there will be no chances for deception – there must be eyes who will watch over. There is a very clear distinction between one’s private life and the nation’s public interest which definitely requires watching over. And it is a challenge for the new set of lawmakers who will be elected this May 2010 to come up with laws that will endeavour to protect Man’s privacy. However, the challenge does not end there. More than just the legal blueprints, it is the implementation which will definitely leave a mark and make a resonating difference.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: