Surveillance and Monitoring of Police Officers


Thus far in this chapter, I have argued that there is a moral right to privacy (and in some contexts, confidentiality), and while this right is not absolute, it is not a right that a person waives or has suspended merely by virtue of agreeing to take up employment. That is, employees retain their right to privacy in workplaces. Accordingly, there is a presumption against infringements of the right to privacy in the workplace. That presumption can be overridden in certain circumstances; nevertheless, there is a presumption to be overridden. Moreover, given that privacy is a moral right , the presumption is by no means easily overridden. Naturally, as we have seen, there is a good deal of activity in the workplace that is the fit and proper object of reasonable levels of monitoring and surveillance by employers and indeed by fellow employees. Consider a surgeon, a sales team or a local area police command. It is reasonable for the performance of the surgeon, the salespeople, or the command (in terms of ratio of successful operations to unsuccessful ones, number of sales, or ratio of solved to unsolved crimes, respectively) to be monitored . Moreover, in this context it is reasonable for the performance of surgeons, individual members of the team, or the command to be monitored and the results made known to clients , peers, and/or management, respectively.

Moreover (as was argued in the last section), a reasonable degree of monitoring and surveillance of work activity is justified on the grounds that it does not violate the right to privacy and does enhance productivity; indeed, bona fide employees would welcome such monitoring and surveillance, given it was non- intrusive , overt, and in the service of reasonable productivity targets.

Naturally (as discussed in the last section), there are well-founded ethical concerns arising from infringements on the right to privacy by excessive or intrusive workplace monitoring and surveillance undertaken for the purpose of enhancing performance and productivity. Moreover, these concerns arise in police organisations, as in other workplaces. However, in respect to these ethical concerns, police organisations do not seem any different, at least in principle, from most other organisations or workplace settings.

Nevertheless, when it comes to workplace monitoring and surveillance, police organisations do seem to be importantly different from most other organisations and occupations. Specifically , the ethical issues raised by workplace monitoring and surveillance of police officers undertaken for the purpose of combating crime and corruption does seem to be different in principle from such monitoring and surveillance of members of most other occupational groups. This seems to be so for two main reasons.

First, policing is a high-risk activity. In particular, the fundamental human rights ” the right to freedom and, indeed, the right to life ” of suspects , victims, and police officers themselves are routinely at stake. In this respect, policing is akin to some other occupations, such as soldiers and doctors . Moreover, certain categories of police officers are engaged in activity that is high risk in certain other respects. Consider members of a drug squad who routinely handle large amounts of cash and drugs. These officers are akin to the employees in a bank who handle gold bullion. The risk consists of the temptation to engage in serious property crimes. The general point to be made here is that the risk in high-risk occupations ( especially the risk of serious rights violations, including some violations of property rights) justifies higher levels of monitoring and surveillance than would otherwise be the case. Specifically, the infringement of one moral right ” privacy ” is justified if it is done so in order to prevent the violation of other moral rights such as the right to life, the right not to suffer grievous bodily harm, and the right not to have one s core financial assets stolen.

Second, police are the ones who are principally responsible for combating crime and corruption. The community has established police services to protect them and to act as guardians. In so doing, the community has conferred upon the police various powers, including powers of monitoring and surveillance. For without these powers the police would not be able to adequately protect the community. Police monitor traffic flows in order to ensure that reckless drivers do not put lives at risk. Police surveil known pedophiles in order to gather sufficient evidence for their conviction and imprisonment. And police, or similar agents , put in place various systems of monitoring and surveillance in workplaces for the purpose of combating crime and corruption. Consider a large company s anti-fraud plan, including electronic crime and corruption. However, inevitably at this point, the question posed in antiquity by the Roman poet Juvenal arises, namely, Who guards the guards ? Who is monitoring and surveilling the exercise by the police of their very considerable powers? [ 3] The short factual answer to this question is that invariably the police monitor and surveil the police, albeit police management, especially departments of internal affairs and, to some extent, external watchdogs that are typically staffed by serving or former police officers. However, the general point to be made here is that there is an in-principle difference with respect to workplace monitoring and surveillance, at least for the purpose of combating crime and corruption, between police organisations and most other organisations and occupations; this difference is the difference between, so to speak, being guarded by the police and guarding the police.

While the first point in relation to high-risk occupations (and specifically the need to balance infringements of privacy rights against real and potential violations of other moral rights) is obvious enough, the second point in relation to guarding the guards might be thought to be spurious . In organisational and occupational workplace settings in which the risks of serious crime and corruption are low, the grounds for infringing on the privacy rights of employees are correspondingly weak. By contrast, in organisational and occupational workplace settings in which the risks of serious crime and corruption, and therefore serious rights violations, are high, the grounds for infringing on the privacy rights of employees are correspondingly strong. So perhaps airline pilots and police who carry firearms ought to be subjected to random drug and alcohol testing; the right to privacy is trumped by the right to life. But this does not mean that subjecting academics to such random testing would be justified. Again, an employee who has the capacity to make large electronic transfers of funds and is suspected of fraud, or a police officer that handles large quantities of drug money and is suspected of theft might reasonably be subjected to targeted covert electronic monitoring of their personal financial assets. But this does not mean that the routine covert electronic monitoring of the personal financial assets of all employees in a retail furniture store, or for that matter of all police officers in a community policing agency, is justified.

Moreover, sometimes monitoring and surveillance is performed in the service of protecting confidentiality in the first instance, and ultimately the moral right or rights the confidentiality in question exists to protect. Consider military and police personnel who have electronic access to highly sensitive and confidential information, the disclosure of which could put lives at risk. Surely these personnel ought to be subjected to regular electronic auditing processes in respect to their accessing, retrieval, and communication of such information. Indeed, such auditing not only protects the rights to confidentiality in question, it also protects the personnel themselves if, for example, their integrity is called into question by complainants.

The upshot of this discussion is as follows . Insofar as police are in a high-risk category, then correspondingly high levels of monitoring and surveillance are justified; but insofar as they are not, then such monitoring and surveillance would not be justified. Either way, the justification in terms of guarding the guards is doing no work here; it is a spurious justification, or so the argument goes. However, this argument against the guarding of the guards thesis is too quick. Certainly, policing is a high-risk occupation in the relevant sense, and therefore, higher levels of monitoring and surveillance are warranted than might otherwise be the case. However, drawing attention to the problem of guarding the guards amounts to identifying one of the main reasons that policing is a high-risk occupation . The problems that arise from the fact that the police police themselves have been amply demonstrated by criminologists, and are evidenced by the long history of police corruption unearthed by numerous commissions into police corruption in the USA, the UK, Australia, and elsewhere (Miller, 1998; Newburn, 1999). So there is no need to rehearse all the arguments here. Rather, I will make the following general point.

The problem of guarding the guards is in reality a set of problems, including the following ones. First, historically police have been reluctant to rat on their mates ” the problem of the so-called blue wall of silence . Second, police, being themselves experts in policing methods , are notoriously difficult to effectively monitor and surveil (they know how to de-bug and thereby thwart surveillance teams ). Third, there has often been a question mark concerning the degree of independence that police investigators have in respect to investigations into the criminal activities of other police, including the monitoring and surveillance aspects of such investigations; that is, there is a good deal of empirical evidence of poorly conducted investigations, of breaches of confidentiality, and so on.

Collectively these and related problems add up to the general problem of guarding the guards. However, each of these problems can be addressed individually. Moreover, if this approach is taken, then the question of the type and degree of monitoring and surveillance of police officers to be undertaken can be addressed on a case-by-case basis in light of the specific problem thus identified. For example, surveillance of police officers with a knowledge of surveillance techniques might have to take a different form than it would normally take. Again, the electronic and other monitoring of internal affairs investigations might need to be more thorough and detailed than for external investigations.

So far, so good. However, arguably the danger that now lurks is twofold. First, the question of whether the surveillance and monitoring of police might become too extensive or too intrusive. This is especially the case in relation to so-called preventative anti-corruption measures, as opposed to reactive ones. It is one thing, for example, to engage in intrusive covert targeted surveillance in relation to someone reasonably suspected of a specific serious crime. It is quite another to subject whole populations (in this instance, whole populations of police officers) to covert intrusive surveillance. For the latter measures threaten one of the central propositions advanced in this chapter; namely, that employees, including police officers, retain their individual right to privacy in the workplace (Glasbeek, 1998).

Consider in this connection the following preventative measures that make use of electronic databases and profiling techniques. Assume that statistical research into police corruption yields a set of indicators of such corruption, including a large number of complaints, a history of disciplinary actions for minor incivilities, unusual absenteeism/sick leave, or working in a high risk area (e.g., drugs). On the basis of these indicators, a profile is developed of officers at risk. A search of the electronic database yields a set of police officers who fit this profile. These officers are now subjected to covert intrusive targeted surveillance. Surely, this is an unjustified violation of the right to privacy of the officers in question for the reason that such surveillance is (a) an infringement of their privacy since it is covert and intrusive, and (b) unjustified in that there is no evidence that they have committed any specific crime.

On the other hand, let us assume that this profiling exercise is used in the context of an early warning system for the purposes of counselling, retraining , and the like. Here, the intervention is not an infringement of privacy, but rather the targeting of at-risk individuals for supervisory attention. Naturally, increased supervisory attention will involve higher levels of overt observation, and this in turn might yield evidence of corrupt activities. However, such a process does not necessarily involve any infringement of the individual s right to privacy.

I will complete my discussion in this chapter by making three concluding points. First, while I have argued that there is an in-principle difference between police officers and most other occupations in relation to workplace monitoring and surveillance undertaken for the purpose of combating crime and corruption, there is also a sameness ” police officers retain their individual rights to privacy in the workplace.

Second, combating crime and corruption in the workplace and elsewhere depends on the desire to do good and avoid evil on the part of those monitored and surveilled. Accordingly, unjustified, covert, and intrusive monitoring and surveillance will undermine trust, generate an us-them mentality , and ultimately undermine the attempt to combat crime and corruption. On the other hand, overt ” even overt and intrusive ” surveillance (e.g., cameras in cells , recording of conversations between highway patrol officers and citizens) may well be acceptable to police officers because it protects them from false allegations while simultaneously protecting citizens from police abuses of powers.

Third, notwithstanding the development of a variety of useful methods of monitoring and surveillance to deal with the problem of policing the police, the in-principle problem of guarding the guards remains. For, at its most general level, it is the problem of ensuring that those who are undertaking the monitoring and surveillance ” police officers, internal affairs investigators, police managers, watchdogs, or employers ” are not abusing their powers to monitor and surveil, and are themselves subjected to oversight and scrutiny, including appropriate levels and types of monitoring and surveillance. [ 4]

[ 3] Juvenal in Satire VI in 120 A.D.

[ 4] Thanks to Greg Chilvers of the New South Wales Police Association for comments on this chapter.




Electronic Monitoring in the Workplace. Controversies and Solutions
Electronic Monitoring in the Workplace: Controversies and Solutions
ISBN: 1591404568
EAN: 2147483647
Year: 2005
Pages: 161

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