Identification, Surveillance, and Profiling: On the Use and Abuse of Citizen Data

PREEMPTING CRIMINAL HARMS, Dennis, Sullivan, eds., Hart, 2012

22 Pages Posted: 25 Jan 2012

See all articles by Malcolm Thorburn

Malcolm Thorburn

University of Toronto - Faculty of Law

Date Written: January 25, 2012

Abstract

In this chapter, I do two things. First, I identify three conceptually distinct aspects of what is loosely called "surveillance." And second, I distinguish two ideal types of systems of surveillance: common law and continental. I argue that there is much to recommend the continental ideal type.

The first form of "surveillance" is identification. This is simply a mechanism for ensuring the continuity of identity over time and across space of individuals. This is not only relatively benign but actually a requirement of a well-ordered modern society. The second (surveillance, properly speaking) is more troubling. It is a mechanism for collecting specific information about specific individuals. But this is not nearly so worrisome as the third type: profiling. Here, the collate bits of specific information about specific individuals to form a profile that we may use to treat people differently according to the category that that profile falls into. This is often a mechanism for illegitimate discrimination and it often runs afoul of the presumption of innocence in the criminal process.

Common law countries are often far more concerned with identification schemes (and identification cards in particular) than they are with surveillance systems (such as CCTV) or with profiling. This, I argue, is a serious mistake - but it is one that is now deeply entrenched not only in our popular culture but also in the constitutional jurisprudence of countries such as Canada and the United States.

Keywords: identification, surveillance, presumption of innocence, profiling, policing, criminal procedure, privacy

Suggested Citation

Thorburn, Malcolm Bruce, Identification, Surveillance, and Profiling: On the Use and Abuse of Citizen Data (January 25, 2012). PREEMPTING CRIMINAL HARMS, Dennis, Sullivan, eds., Hart, 2012, Available at SSRN: https://ssrn.com/abstract=1991747

Malcolm Bruce Thorburn (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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