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Voyeurism in the Age of Surveillance
By: Jason Young

March 22, 2005

Like other nations, Canada has moved to adopt criminal sanctions for electronic voyeurism, a social problem that has become acute with the availability of cheap and inobtrusive surveillance technologies. The legislative efforts are welcome and yet I cannot help but wonder if we are missing the forest for the trees.

When I was in my early twenties, I moved to Nanaimo to study nursing. For two of those years, off an on, I rented a room from the Walloons, Ernest and Kay and their daughter and son. The Walloons always treated me with respect and I was included in nearly all family events in the years I was around them.
One evening, near the end of June, 1997, Ernest's son, Steve, called my attention to the mirror in the bathroom. He pointed out a scratched piece of glass at the top – a black area of approximately 1 cm by 1 cm. Steve told me to take a closer look and so we both took turns standing on the counter viewing what appeared to be a small black lens behind the mirror. I called Kay in and her reaction upon seeing the lens was, "I hope my husband isn't taping people!" We then briefly discussed the possibility of it being a humidistat, but since it was sealed behind the mirror, this didn't seem like a viable explanation. I assumed it had some kind of useful but harmless function and I completely dismissed the thought of Ernest doing something harmful to others.
I was away most of July on holidays, but upon my return I discussed my observations of the mirror with my boyfriend. He and I inspected the mirror and surrounding area more closely and saw that on the wall behind the mirror, a piece of drywall had been cut out and replaced. In the ceiling above, I saw wires that looked like computer wire or cable vision wire proceed from the wall and travel across the ceiling then down the wall and into the back of a cupboard. My boyfriend forced open the cupboard, which was locked, and we found inside a VCR, video screen, and seven video tapes.
When I viewed the tapes I found, to my horror, that they contained recordings of myself and others dressing and undressing in my bedroom and attending to personal toilet in the bathroom. Although the tape was heavily edited, it was obvious that the footage spanned the entire period of time that I had lived at the Walloons' house. I was so horrified, disgusted and embarrassed that I could not bear to go through all the tapes.
One of the videotapes showed me in the bathroom removing a tampon. I cried when I saw this the first time, and it still makes me cry. Knowing that Ernest watched me do this is humiliating. This is something that I never, never would share with anyone. No one can know how badly this makes one feel. Knowing that he watched it more than once and saved it on an edited tape is even more embarrassing, if that were possible. To me, Ernest's choosing to retain that image, among others, means that he planned to continue to view it. Just the thought of him watching me remove a tampon makes me feel sick to my stomach.
On August 15, 1997, I delivered the seven videotapes to Corporal Bate of the Nanaimo RCMP and told him of the circumstances of how they had come into my possession and of my suspicions as to their maker. Corporal Bates advised me that there is no criminal charge appropriate to this kind of activity and that not only could he not return the tapes to me, but that the only option open to him was to return the tapes to Ernest.

In response to incidents much like this true story and calls from the Provincial and Territorial Ministers of Justice, the federal government introduced Bill C-20 An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act, on December 5, 2002. The purpose of the Act was to, inter alia, create a new offence of voyeurism by mechanical or electronic means. It was designed to address the growing problem created by the availability of cheap, miniature, and often wireless digital cameras that are frequently used to surreptitiously record people - primarily women - in places and at times they may otherwise have a reasonable expectation of privacy.

Bill C-20 died on the Order Paper in November 2003 when Parliament prorogued, but was re-introduced on February 12, 2004 as Bill C-12 and was passed by Parliament on May 12, 2004. However, Bill C-12 suffered the same fate in the Senate as had its predecessor when Parliament dissolved later that month. It has been reintroduced in the current Parliament as Bill C-2.

This trilogy of bills seeks to provide relief for victims of voyeurism in an age of surveillance. Like its predecessors, Bill C-2 would amend the Criminal Code by adding the offence of surreptitiously observing, by mechanical or electronic means, whether recorded or not, a person who is in circumstances that give rise to a reasonable expectation of privacy. In order to trigger the offence, one of the following three situations must occur. First, it would be illegal to observe, photograph or record an individual if the purpose of this act was sexual, even if the person observed is fully clothed. Second, it would be a crime to observe, photograph or record someone when they are in a place – like a bathroom or bedroom – where he or she can reasonably be expected to be nude or to expose his or her genitals or anal region, or her breasts, or to be engaged in "explicit sexual activity". When a person is being observed in such a location, he or she need not be undressed or engaged in sex. Third, it would be illegal to observe, photograph or record an individual when the person is nude, or engaged in explicit sexual activity, or exposing his or her genital organs or anal region, or her breasts and the purpose of the watching, photographing or recording is to catch the person undressed or engaged in sex.

Lawmakers have had some difficulty shepherding the bills through Parliament, but it is the unrelated child pornography provisions of the omnibus that have stalled its passage. Reportedly, the s. 162 amendment has all-party support – an important consideration in a minority Parliament – and yet it is not without its critics. Professor David Paciocco of the University of Ottawa Faculty of Law argues that the provision, as worded, is too broad and could, for example, land paparazzi and their publishers in prison for invading a subject's privacy. In a country not known for worshiping at the altar of celebrity, the public may not have much sympathy for a poor paparazzo who finds himself on the receiving end, but the imprecision of the section could lead to bizarre and unintended consequences for other individuals as well.

First, the actual voyeurism offence casts a net broad enough to catch more than Peeping Toms and paparazzi. Consider, for a moment, the facts in the recent Supreme Court case of R. v. Clark. The appellant, Mr. Clark, had been convicted at trial of wilfully performing an indecent act in a public place in the presence of one or more persons. Specifically, he had been accused of masturbating near the uncovered window of his illuminated living room at night, where he had been observed by his telescope-toting neighbours standing some 90 to 150 feet distant in their darkened bedroom.

Mr. Clark was ultimately exonerated by the Supreme Court on the grounds that the meaning of "public place" should be interpreted in a manner consistent with physical as opposed to visual access. Writing for the majority, Fish J. found that Mr. Clark's living room could not be a place "to which the public [had] access as of right or by invitation, express or implied".

Given that Mr. Clark's living room was not a public place, but rather a private place and presumably a place in which he held a reasonable expectation of privacy, it would seem that Mr. Clark's neighbours could then be charged under the proposed s. 162. After all, Mr. Clark was nude, engaged in a sexual act, and his neighbours admitted to not only watching him, but trying to record his activity with a camcorder, albeit if only to turn that information over to the police.

Second, while it is true that the s. 162 amendment contemplates a "public good" exception in cases where "the act [of voyeurism] serves the public good", that act is not defined, raising questions about how privacy and freedom of expression might fare one against the other. Regardless, there is something quite perverse in any exception to an anti-voyeurism provision that would legitimate spying on your neighbours.

Third, the proposed amendment would establish criminal liability for knowingly possessing an illegally obtained voyeuristic recording for the purpose of printing, publishing, distributing, circulating or selling it or making it available, but notably the motive of the accused would be irrelevant. The individual who downloaded voyeuristic pornography from the Internet by way of a peer-to-peer client which either by default or by design allowed sharing of the file with other peers, could be found guilty under this provision and sentenced to a term of up to ten years, potentially twice as long as any individual who engaged in the voyeurism in the first instance.

In last week's ID Trail Mix, Pippa Lawson reported on the Department of Justice's current round of consultations on "lawful access". As part of those consultations the Department revealed that it intends to modernize language in the Criminal Code, including possibly by redrafting s. 487.01, to make it an offence to make a visual recording of a private activity, maliciously or for gain and without the knowledge of the person carrying out the activity. "Private activity" in this case would mean any activity that is carried out in circumstances in which there exists a reasonable expectation of privacy for a person in regard of his or her movements or image. The offence would apply to the execution of surveillance by law enforcement, would be indictable and those found guilty would be liable, as under the proposed s. 162, to a term of imprisonment not exceeding five years.

The market has failed and likely will continue to fail to address the enabling technologies of voyeurism and the facts with which I began this post poignantly illustrate the individual consequences of this behaviour; the victim writes:

As a result of the videotaping, I no longer believe there is such a thing as a private moment. While in any bathroom or bedroom, I always find myself looking for cameras or places where they might be hidden, even though that seems irrational. Even after I assure myself there is no camera in the room, I consider that my actions are, nonetheless, controlled, as if I am being watched, and I know that is irrational as well, but I cannot help myself…. Alone, behind closed doors, where I believe that I should feel the safest, is where I feel most vulnerable.

In the circumstances, the spirit of these legal proposals is a welcome one for privacy and appropriate. And yet, I cannot help but wonder whether we are missing the forest for the trees. The tension between technology, rights and social norms evident in the attempts to deal with the problem of voyeurism belies a much larger one. As a society, we attempt to mitigate the individual harms of prurience while ignoring, even mainstreaming, the social ones. We celebrate Pam and Paris' home sex videos and raise each up as a star. We break all Internet traffic reports to download the Starr Report. And year after year, we continue to tune in to Cops, Big Brother and Cheaters. The list is long.

Privacy is a mutable value and can mean many different things. It can represent distinct legal interests as well as broader social ones. Our respect and disdain for privacy – our own and that of others – alters the nature of our relationships to one another and also the very fabric of the community. Legal sanctions for voyeurism seek to mitigate the personal harms and protect individual interests, and to some degree they will do so, but they are ill-suited to address the social harms or protect the social value of privacy.

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