A Regulating Surveillance: Suggestions for a Possible Way Forward
The need for privacy protection against surveillance has assumed new significance due to the onslaught of technological developments that increasingly undermine the capacity of individuals to maintain anonymity in relation to public activities and their physical movements across public places. Modern surveillance practices arguably require a rethinking of some of the tests and assumptions that underlie existing privacy laws, including tests based on “reasonable expectations of privacy”, distinctions between content and between transactional data and content. They also call for active consideration of the full range of regulatory tools available and ways in which those tools can be adapted to reduce their existing limitations. This paper draws on a range of privacy resources, and on regulatory theory more generally, to suggest possible ways forward.