Balancing Utilities: Public video surveillance in Sweden

Balancing Utilities: Public Video Surveillance in Sweden(Obs utkast)Fredrika BjörklundInstitutioner för samhällsvetenskaperSödertörns HögskolaStockholmTel. 08 608 4093E-mail: fredrika.bjorklund@sh.sePapper presenterat vid Statsvetenskapliga förbundets årsmöte30 September – 2 Oktober 2010Arbetsgrupp: Policyval vid samhällsförändring1

policy documents and parliamentary debates. How is privacy defined, which are theconflicting values presented and what does the solution looks like? I will argue that theSwedish approach can be described as extremely consequentialist; the task presented bySwedish authorities can be summarised as one of balancing utilities. Accordingly the rightsperspective, i.e. privacy defined as a right, which is the alternative way of approaching theissue, is rejected. Ultimately this has significance for how the relationship between the stateand the citizen is understood.Certainly, it is reasonable to ask if this is a specifically Swedish way to attend to publicvideo surveillance? It will be argued that it is, and that, at least partly, the policy on videosurveillance is typical to a protecting state, i.e. a manifestation of a Swedish welfare statelegacy. The close relationship between the political and the judicial “discourse” signifies avalue consensus to the benefit of the Swedish model; and possibly to the detriment of anunbiased debate. In order to substantiate these claims, references are, when applicable, madeto other national contexts and also international documents.Privacy and surveillance studiesSurveillance studies is today an established academic field; attracting sociologists, lawscholars and to some extent political scientists. To a large extent scholars have, inspired byFoucault and his exploration of the perfect prison, the panopticon, focused on surveillance asan issue of a new kind of public institutional control. Another focus is surveillance as anexpression of new kinds of social relations. Technological progression creats new conditionsfor state power and for social interaction. Some important works that have to be mentionedare Norris and Armstrong (1999) Lyon, David (2001) Lyon, David (2006) Haggerty andEricson (2006).Often surveillance studies do have a normative point of departure, although it is seldomexpressed explicitly. Certainly the interest in investigating the conditions of a newsurveillance society is spurred by a critical attitude to this phenomenon. This is also true aboutthe specific orientation of surveillance studies focusing on value conflicts and the potentialviolation of privacy involved in technological supervision. This literature is primarilytheoretical, philosophical and normative. But despite the normative nature of the studies andthe normative nature of the issue as well there are few empirical studies on how privacy, orthe idea of privacy, is actually understood and apprehended in different contexts. Workexamining the values involved in existing surveillance practices has been less frequent. Thereare several policy focused studies on the regulation of privacy, and the international efforts in3

this field have generated a special interest (Bennet 1992, Rule and Greenleaf 2008, Newman2008). But different approaches to the normative issues are poorly studied, especially on thenational level. Using a critical idea analytical frame, this is a study on the Swedishcomprehension of the values and normative conflicts involved in surveillance.The rise of video surveillance in SwedenThere are no exact figures on the total amount of public video surveillance cameras installedin Sweden, but very likely, in 2010, there were more than 50 000 units. Sweden is one of thecamera densest countries in the world. Video surveillance has been used since the SecondWorld War, but initially it was exclusively practiced by the security police; in detectingpossible violations against state security. In the 1970 video surveillance appeared on thepolitical agenda as a measure of general crime prevention, but initially it was primarily usedby financial institutes and within the banking sector. It was not until the beginning of the 20 thcentury that the massive expansion of technological supervision began. Certainly the Worldtrade centre bombing and other terror incidents motivated efforts to find efficient measure tocombat such threats in all countries. But it was not as a means in the fight against terrorismthat video surveillance should become most salient in Sweden; instead, supervising the publicspace with the argument to protect law and order in general was a more importantjustification. Public spaces such as local communications and stores were increasinglyequipped with video cameras, later on also schools, taxicabs and public squares. The questsfor surveillance were usually impelled, not by state authorities but by private or localinitiatives. However, it was not seldom benefited from by the former and therefore also in theinterest of the state, i.e. the police and the legal system.Despite the massive deployment of cameras, video surveillance has never been a hot issuein the Swedish public debate. The debate during the last ten years has been rather modest,both on the Internet and in the more traditional mass media, and there is no civil societyorganisation with video surveillance high on the agenda. In the newspapers the journalisticinterest is mostly limited to reporting on specific occasions, when for example cameras aredeployed in new areas, or the technological progress of the surveillance technique; a criticalperspective is seldom raised. One would have expected that the recently establish Pirate party,should have put criticism of the technical visual supervision high on its political program. Theparty set up as a kind of interest organisation in matters of the free use of internet sources,later it took on also general issues of privacy protection; but video surveillance seems not tobe prioritised as a specific item. Nor has the issue of public video surveillance inspired to any4

Internet activity of the kind that occurred in connection with the introduction of the FRA acton phone tapping in 2008.The general public seems, to be fairly contented with the new “security reinforcing”measures. The public opinion is fairly affirmative when it comes to technological supervisionof public places. When asked in a SOM-investigation 2009 61 % of the respondents answeredthat they think that video surveillance of public places always can be motivated. The positiveanswers have increased since 2002 when 47 % argued in favour of using video surveillance.Also, it is interesting to note that the opinion on video surveillance deviates from the opinionon other potential integrity violating measures, where the public seems to be more sceptical. 1In sum, the attitude to video surveillance in Sweden can be characterized with disinterest anda fairly general affirmation.Legal regulation of public video surveillanceWhile Sweden is in the forefront when it comes to expansion of video surveillance, it is alsoahead of most countries in legally regulating the field. Unlike most other countries, there is aspecific legal act on video surveillance. However, this fact does not automatically mean thatthe legal instruments are restrictive concerning when and where video surveillance ispermitted. Somewhat paradoxically it looks like the readiness to legally regulate goes hand inhand with introducing video surveillance in new social contexts; i. e. the law to a large extentconfirms the already existing development rather than slows down and restricts anything.The Act on public video surveillance (Lagen om allmän kameraövervakning 1998:150)came into force in 1998. It replaced the former legislation on video surveillance cameras(Lagen om övervakningskameror m. m. 1990:484). But the first legal act on TV supervision inSweden dates back to as early as 1977 (Lagen om TV övervakning 1977:20). Thetechnological progress in the field and its possible implications in terms of privacy violationmotivated the revision of the first legal act. 2 In the preparatory works to both the first and thesecond legal act we find a genuine scepticism towards the implications of the new technology.The risk of misuse was thoroughly discussed, but the idea of possible applications of the newtechnique was rather vague. In the second adjustment, which resulted in the current legal act,the word “public” was added to the name of the act, but new arguments were also introduced.According to the Government Bill, the main intention was to regulate the use of videosurveillance so that it could be used as an efficient instrument of crime prevention while also1Dagens Nyheter internet edition 2009 09 302Government Bill 1989/90:1195

in a satisfactory way maintain privacy protection. 3 With the 1998 revision a positive end,crime prevention, was attributed to video surveillance and its usefulness regarded as avariable to be considered in the legal process.The current legal act on public video surveillance says that surveillance of public spaces inSweden is allowed if certain conditions are met. Normally an authorisation is required by thecounty administrative board (Länsstyrelsen). Under certain circumstances, in for examplebanks and in specified areas in stores, no permission is needed; it is sufficient that the boardreceives a notification. There are also exceptions for police surveillance with specific aims, aswell as for some other public authorities such as the National Road Administration. As a rulethe presence of a camera has to be informed on by a signpost, but some activities are excludedfrom this demand as well. Besides giving permissions the 21 county administrations inSweden supervise the observance of the law on video surveillance of public spaces. TheChancellor of Justice may appeal against county board decisions in the administrative court inorder to protect public interests. 4One legal case worth noting is the Chancellor of Justice’s claim in the Administrative Courtof Appeal (kammarrätten) in 2007 against a decision in the County Administrative Court(länsrätten) concerning the authorisation of polis video surveillance in central Stockholm.The Chancellor of Justice disapproved to granting the police permission to install cameras in anumber of public places and streets argued by the police to be exposed to high rates of crime.The Administrative Court of Appeal dismissed the Chancellor’s argument that the personalintegrity of individuals was not considered in a proper way. The case was eventually appealedto the Supreme Administrative Court, but dismissed also in this instance. The court concludesthat licensing should, according to the preparatory work to the act on Public videoSurveillance, be less restrictive if the purpose is to prevent crimes and accidents. 5Since 1998 amendments to the current act on video surveillance have been continuouslydiscussed. In 2001 the Government initiated an evaluation, which resulted in the Videosurveillance report 6 . Some modifications of the law were asked for in the report, for examplethat illegal video surveillance should lead to compensations. Another suggestion concernedless restrictive restraints on authorisation of police video surveillance and surveillance by3Government Bill 19997/98:644In addition to the legislation on surveillance of public spaces, secret video surveillance is guided by two otherlegal acts, the Law on secret video surveillance (Lagen om hemlig kameraövervakning 1995:1506) and the Lawon compulsory measures (1987:450 Tvångsmedelslagen). However, the practice of these two laws is not in focusof this study.5Regeringsrätten mål nr 7873-086Kameraövervakningsutredningen, SOU 2002:1106

storeowners. However, the proposals given in the report did not guide any revisions of the lawat that time. In 2008 a new expert commission was established with the mandate to look overthe legislation. The report, A new video surveillance act, was published in October 2009; itcontained suggestions on damages fees for unjustified violation of privacy but alsoprolongation of the admitted time for footage preservation 7 .A comparison between the three consecutive acts on video surveillance indicates that thelist of exemptions from the requirement on formal permission from the county board havegrown gradually since 1977. In practice permissions also increasingly tend to be given moreor less as automatic prolongations of previous authorisations.However, the law on video surveillance of public spaces does not cover all areas oftechnical supervision of the public. The deployment of cameras in so called semi-publicspaces, such as working places, living areas and schools, are not regulated by this legal act.Instead the Personal data act (Personuppgiftslagen 1998:204) is applicable and the SwedishData Inspection Board is the supervising authority. The Data Inspection Board may demand acorrection if privacy is violated in an unjustified way by the filming. But video surveillance isnot understood as a strict type of personal data registration; as long as the footage is so calledunstructured, which it usually is, there are milder demands than normally prescribed in thelaw. The Data Inspection Board impositions may be appealed against in the administrativecourt.One influential case worth mentioning concerns surveillance in schools. In 2008 the DataInspection imposed the Stockholm School Board to ensure that indoors-video surveillance ina secondary school in Stockholm was cancelled. The Data Inspection argued that videosurveillance was not a proportional measure, when considering the purpose of supervision,preventing theft and vandalism, in relation to the infliction on the pupils’ interest of a privatesphere. 8 The school board appealed the decision to the County Administrative Court withoutsuccess and later on to the Administrative Court of Appeal.Actually, Swedish Data protection has a long history. The first Swedish Data act is of earlydate, it originates from 1973 and was one of the first acts in the world on protection ofprivacy. However, with the European Union Directive 95/46 all EU nations were required toset up data protection acts in the late 1990s, and the Swedish act was adjusted to the demandson European coherence. In most countries the national data protection acts are the supremedocuments regulating video surveillance, although restriction on footage are found also in7En ny kameraövervakningslag SOU 2009:878Datainspektionen Dnr 742-20087

other national legal documents. So, the Swedish Act on Public video surveillance may beregarded as a reinforcement of privacy protection in this field, a kind of protection that is rarein an international comparison. Sweden has two legal acts applicable to video surveillanceand in addition the control function is shared between the Data Inspection Board, which actson the basis of the Personal data act and the county administrative boards, basing theirdecisions on the Act on public video surveillance 9 .Still, Sweden was ranked, by Privacy international in 2006, as second from the bottomamong EU countries when it comes to attending to the privacy of its citizens. In the nationalranking Sweden is categorized as a country with “systemic failures to uphold safeguards”. 10Despite extensive legal regulation privacy is still not satisfactorily protected. The Swedishstate on the one hand is fast to regulate, on the other hand, nevertheless, fails to substantiallyguard privacy in legal documents.Crime preventionSo in fact the issue should rather be turned around, it is not about stricter attention to privacyin Sweden compared with other countries. The appropriate question is rather: Why is this, inan European comparison, weak attendance to privacy in Sweden? Certainly, there is morethan one possible explanation to this, but one, which is close at hand, is of course that thereare other values at stake, potentially conflicting with the attendance to privacy, that isregarded as more important. The obvious contesting objective aimed at in video surveillanceis the prevention of crimes.As mentioned above, with the 1998 legal act and the preparatory works 11 crime preventionfor the first time was presented an explicit object of video surveillance. In other words fromnow on the legal regulation on public footage was a direct legal translation of a politicallyexpressed ambition to combat crime with specific means. In fact, the political investment invideo surveillance as an efficient means to gain crime prevention was very large. And thelegal regulation transformed into an affirmative document on increasing video surveillance.But crime prevention is not a completely uncontested ambition in this context; and the reasonhas to do with efficiency or rather lack of demonstrated efficiency.9However, this is not obviously the most efficient organisational and legal structure and it has been discussedand criticised from time to time. In fact the public report of 2009, mentioned above, suggested that the overallsupervisionary role should be allocated to the Data Inspection Board in order to secure the national uniformity indecisions.10www.privacyinternational.org11Government bill 1997/98:648

However, before discussing the political promotion of video surveillance as efficient crimeprevention some notes should be made on the concept of prevention. Video surveillance isusually categorised as a kind of prevention denoted as situational. The literature discriminatesbetween situation directed measures and socially directed measures of prevention (Zedner2007). While the latter kind of measures concerns improving social and other conditions forpeople in the risk zone of criminality or caring for former criminals return to a decent life, theformer type of prevention is intended for specific situations where crimes are likely to becommitted. The different kinds of preventions also attend to individuals, or rather the possibleoffenders in different ways. Focusing on situations means focusing on opportunities ratherthan risk groups. By situational prevention the familiar devise “Opportunity makes the thief“becomes a description of reality guiding the practice of crime policy. Offenders are for themost part, deemed to be normal, mundane individuals who give in to temptations as and whencriminal opportunities arise….” (Garland 2000:2) Without arguing on whether this is true orfalse, crime emerges as the outcome of a rational choice that any of us may make, given thatthe risk of detection is small.Accordingly, this implication of video surveillance as situational prevention imperils acorresponding generalisation of distrust. With reference to scholars in the field, it can beargued that the average citizen is reduced to a potential suspect. (Loodge 2004, Goold 2009).Provided that crime prevention when approached as a public good often is equated withincreased security, that is public security, an additional complication turns up. Videosurveillance is here to enhance peoples’ security in a society supposed to be more and moredangerous; i. e. the argument is to protect. But, the protected individual is also the potentiallysuspected individual; protection and distrust seems to coincide in the state citizen relationship.The term “public” in public video surveillance clearly refer to situational prevention. At thesame time as crime prevention was introduced as the prime aim of video surveillance thisadditional specification turned up in the legal discourse. When video surveillance was set tobe an important crime preventive measure its field of application was also generalised.Certainly in a way video surveillance at that time has expanded into a public affair because ofits pure extension, but the term public also opened up for a general use of cameras in keepingorder in a society composed by individuals not automatically trusted in advance. With thestress on “public” in Swedish video surveillance the generalisation of distrust is accentuated.But public video surveillance as crime prevention is also involved in a general distribution ofsecurity/protection.9

However, several studies, Swedish as well as international, has put the merits of videosurveillance in crime prevention into doubt (Brottsförebyggande rådet: 2003, 2009, Welsh andFarrington:2007). The general conclusion is that video surveillance may work under certainspecified circumstances and in specific locations such as parking places, places with a highlevel of criminality and on property crimes such as planned burglary. But video surveillanceis, according to the Swedish crime prevention board, no universal key to reduce crimes; itworks best in combination with other measures (Brottsförbyggande rådet 2009). Still, on thepolitical arena, despite the research on the field, prevention has remained as a stronglyemphasised argument for video surveillance 12 . This is so no matter of the political orientationof the government and it has also been an argument widely accepted in the parliament duringthe last ten years. Of course, in promoting video surveillance as crime prevention the not soencouraging research results had to be considered, but nevertheless prevention haspersistently been used as the most important justification. When facts told against theprogram, favorable evidence to the contrary has sometimes actively been searched for.Against the background of poor results, a public committee (SOU) appointed in 2001 wasinstructed to “consider and deliver suggestions on how camera surveillance in an efficient andstrategic way could be used in crime preventing efforts”. 13Certainly the confidence in video surveillance as crime prevention may to some extentexplain a lack of attention to the risk of privacy violation. However, the suggestion here isthat the weak attendance to privacy in Sweden has to do also with other thing than the simpleassumption that other values, in this case crime prevention, outrank privacy; this assumptionhas to be qualified. How privacy is attended to in the context of surveillance has to do withmore fundamental properties characterising the values involved and the way they areweighted against each other. In this process the idea about privacy, its definition and urgencyis set.12The instructions to evaluation of the law from the Ministry of Justice, 2001:53, Minister of Justice B Ask,parliament protocol 2006/07:132, Ministry of Justice Instruction 2008:22. Parliament protocol 1997/98:86( Maud Ekendahl (m)), motion bill 1997/98:Ju21 (Gun Hellsvik et.al. (m)), motion bill 1997/98:Ju910 (OlofJohansson et.al. (c)). Parliament protocol 2006/07:1463 (B Ask (m)), Motion bill 2005/06:Ju273 (R Marcelind(kd)), Parliament protocol 2006/07:132 (G Wallin (c )), Parliament protocol 2006/07:132 (L Astudillo (s)).Certainly there were also skeptical voices in the parliament, see for example Parliament protocol 1997/98:86(Siv Persson (fp), Kia Andreasson (mp)), motion bill 1997/98:64 (Gudrun Schyman et. al. (v)).13Ministry of Justice, Instruction 2001:53, SOU 2002:110, Public video surveillance Allmänkameraövervakning)10

The balance metaphorFeaturing the Swedish approach is, on the one hand, understanding privacy primarily as aantithesis to something else; i.e. to some other value in a balance act, on the other hand,dismissing privacy defined as a right.Firstly, privacy is seldom mentioned as a self-contained and independent concept. Privacyoccurs almost exclusively as an additional and conflicting value when the objectives of videosurveillance are discussed. Privacy is defined in relation to a competing gain that might beachieved. In the Act on Public video surveillance this relational conception of privacy isinscribed in the rules on the permitting procedure:The permit to public video surveillance must be issued if the value of such surveillance weightsheavier than the individual’s interest of not being supervised. 14This is what in the legal vocabulary goes under the name of “the proportionality principle”;the surveillance measures taken have to be proportional to the injuries inflicted on privacy.The act assumes a conflict between the gains from public surveillance and the individual’sinterest in not being supervised. Privacy, not being subjected to surveillance, serves as anentity possible to put into a calculation where the value of surveillance is the other variable.Non of the variables are defined further, but still, they have to be balanced against each otherin order to decide which one weights heaviest in a specific case. The idea of a balance actoccurs frequently in public reports and the political debate, but with the variables expressed inslightly different ways.Secondly, privacy is, as in the legal text above, most commonly defined as an interest. In thegovernment bill proposing the 1998 legal act, a potential conflict between two interest weresketched; the interest of combating and investigating crimes and the individual’s interest ofprotection of privacy. In public video surveillance these two interests must always bebalanced against each other. 15 The image of a balance involving two different interests ispretty popular both in documents delivered by the government and the Ministry of Justice andin the parliamentary debate, 16 but the balance is sometimes also expressed in terms ofconflicting needs. Answering an interpellation in the parliamentary debate 2006 on theproposed new law on video surveillance the Minister of justice argues that14Act on public video surveillance 1998:150 §6.15Government bill 1997/98:64 Lag om allmän kameraövervakning.16See for example, the instructions to evaluation of the law from the Ministry of Justice in 2001, and 2008;instruction 2001:53 and 2008:22, Parliamentary standing committee on the administration of justice2007/08:JuU8, the parliamentary debate on the government bill, protocol 1997/98:86 (Margareta Sandgren (s)).11

The need for measures and their effects have to be clarified and have to be weighted againstpeoples opposite needs of protection of privacy. 17The legal establishment, appointed to safeguard the protection of privacy, also uses the idea ofa balance between needs and interests. For example, in a newspaper article in November2008, the Chancellor of Justice argued, in terms of balances involving both needs andinterests, the need for surveillance conflicting with the interest of privacy. The issue of theChancellor’s critical concern was the, to the police favourable, judgement in theAdministrative Court of Appeal on video surveillance in the inner city of Stockholm. 18 We aredisappointed says the Chancellor of Justice in an interview, and had hoped that the courtshould have had another opinion about the balance between the interest of surveillance andthe interest of privacy. 19 Later on he followed up his arguments in another article in the samenewspaper.It is not easy to decide the correct balance between the need for surveillance and the interest of aprivate life. Although, according to my opinion there is a risk that surveillance tempts toshortsightedness and that enough attention isn’t paid to long-term negative effects. 20Interests and needs are variables frequently put into the surveillance calculation but the ideaof a balance also turns up in other shapes, for example in terms of conflict between crimepreventing effects and privacy violation, 21 or as an issue off efficiency, that is a conflictbetween efficiency in crime prevention and the privacy of citizens 22 or innocent citizens 23 .Occasionally, but seldom, a conflict is sketched between video surveillance and theindividuals right to protection of his/her privacy 24 . In the parliament, somewhat remarkably,the right perspective is represented almost exclusively among left wing deputies.In the act of balancing privacy and the gains from supervision are constantly made relativeto each other and sometimes this relativism is drawn even one step further. In the quotationbelow from a speech made by the Minister of Justice, the balance, which usually is presentedas a general estimation is described as an ongoing and case depended process.17Parliament protocol 2006/07:132 (Beatrice Ask Minister of Justice) 12§ Svar på interpellation 2006/07:651om lagen om allmän kameraövervakning)18Dagens Nyheter 08112619Dagens Nyheter 081107, Interview with Chancellor of Justice Göran Lambertz.20Göran Lambertz, Chancellor of Justice, Dagens Nyheter 081129 Lagen tillåter inte dagenskameraövervakning.21Parliamentary standing committee on the administration of justice, report 1997/98:JuU14, (reservation, SiwPersson (fp)).22Parliament protocol 1997/98:86, (Alice Åström (v))23Motion bill 1997/98:Ju20 (Siw Persson et. al. (fp))24Motion bill 1997/98:Ju22 (Gudrun Schyman et. al. (v))12

The present law on video surveillance means that a an adjustment between the need forsupervision and the protection of the individual’s privacy has to be done from case to case…Which interest that weighs heaviest shall not be established once and for all but has to vary fromcase to case. 25With the relativism suggested here privacy is deprived of every form of consistent protection;temporary circumstances may instantly alter the balance.Also the Chief inspector at the Data inspection subscribed to the balance principle, in a ratherrelativistic manner, in a newspaper article some year earlier. The fact that the Chief inspector,in difference to the Minister, is more sceptical to the entire issue, seem to be of lessimportance, when he suggests that he:thinks that all agree to that this expansive field continuously has to be followed up, put intonorms, be an issue of interest adjustments and examined. 26In fact, the idea of a balance is used, not only by surveillance advocates, but by all kinds ofcritics to extended video surveillance. Although, the privacy argument is strong amongcritical columnists, not many in total though, in the Swedish newspapers, it is interesting tosee that also among them the idea of a balance involving privacy as one of the variables ispromoted. The utility of video surveillance is questioned with the argument that;we will loose both privacy and money without necessarily gaining in crime prevention. 27Certainly the balance metaphor is a construction where two desirable but seeminglyincompatible aims, the aim of attaining security/crime prevention from video surveillance andthe aim of privacy, can both be achieved in a way that seems less conflicting than it otherwisewould be. By balancing them there is no need for any choice, both of the aims can be attainedto an appropriate extent. Obviously, the idea of a balance is especially attractive to politicians.In fact, balancing security and civil liberties, is a universal metaphor widely used in both thelegal and the political discourse (Liberatore 2007:114). That is because it is essentially both aneutral and constructive endeavour; nobody can be against it. “The term ‘balance’ tends todisarm opponents because it has no tenable antithesis: nobody would stand up and argue forimbalance, or indeed for disproportionality”(Ashworth 2007:208).Thus, the proportionality principle is not an exclusively Swedish phenomenon, it is aperspective applied in many national contexts. It represents a kind of consequensialistic25Parliament protocol 2006/07:1463 (Beatrice Ask, Minister of Justice)26Göran Gräslund, Chief inspector at the Data inspection, Dagens Nyheter 050212.27Hanne Kjöller, Dagens Nyheter 080106 Hur kunde något så dyrbart hanteras så billigt? See also Lars WeissDagens Nyheter 081209, Men kamerorna då?13

thinking that is indeed widespread in the security discourse. In addition, the values involvedare, as in the Swedish case, for different reasons, often used in an imprecise way - thatbelongs to the political rhetoric. But the idea of a balance is extremely powerful in theSwedish case because of the lack of elements of rights reasoning. Understanding privacy as aneed or an interest is, in fact, understanding it as an utility rather than a right. Balancingutilities against one another is much easier than if rights are involved, because the latter havea more inviolable and absolute character.The Swedish conception of privacyAlthough, most people should agree that the access to privacy is an important aspect of whatis meant by a dignified human life, the precise meaning is not obvious. A commoncomprehension of privacy, i.e. the traditional liberal one, is as a negative right; i. e. the rightto be left alone and not to be interfered with, normally, by the state. This is privacy as aproperty right. Since this is a rather passive definition, (see Bennet and Raab:2003 p20f) andpossibly partly outdated in the information era, efforts have been made to qualify the concept,using more positive terms; privacy is a right to self-control and control over distributedinformation about you. This definition may lead to the conclusion that privacy is a value notonly as an individual property but also as a political asset; violation of privacy may disturb thefree opinion and eventually also affect the democratic system. (See Schwartz:1999) The basicissue here is whether privacy merely is a value associated to the individual or if it also is apolitical or social value. The latter is argued by for example Regan (1995).Certainly an even more fundamental disagreement is whether privacy should be regarded asa right at all. But, before deciding on this issue, the meaning of the concept “right” has to besettled; in general there are two main perceptions. Commonly, rights associate to the naturallaw position on legal practice forcefully advocated by Dworkin (2009). In a milder version,speaking about rights we usually think about something that is more or less ultimate,something that is costly to violate. This idea of privacy as an absolute right has beendismissed both by legal positivists and communitarians. “Privacy is one good among othergoods and should be weighted as such” Etzioni argues (2007:115). The value of privacy isdependent on the context of the common good. (Etzioni 1999).However, the international discourse of conventions and declarations is built on the ideaon human rights and among them privacy is included. But, in fact using the word right, in thiscontext or in ordinary speaking, usually does not mean a clearly formulated opinion on thephilosophical level. This is definitely so also on the arena of national politics. On the other14

hand regardless of whether rights are absolute in the philosophical sense, they have thecharacter of values relatively hard to compromise on; at least rhetorically this is the case.Certainly, privacy understood as a right is such an indivisible value, but when the demand onprivacy competes with other desirable aims, it is tempting to relativise it and make it into avalue more on equal level as other valuable objectives. The Swedish discourse goes even onestep further. Specific to the Swedish context is that privacy does not occur as a right at all.Instead privacy is discussed as a utility on equal footing as other utilities, that is needs andinterests.The Swedish representation of the surveillance balance, consisting of interests and needs,can be analysed against the background of a broader discursive environment. Certainly, thespecific conception of privacy reflected in the balance construction has its roots in Swedishlegal traditions. But, before discussing this issue, another discursive condition will beaddresses; the peculiarities of the Swedish language.The Swedish language does not contain any specific word for privacy, something pointed toby Flaherty (1992) in his study from 1992 on privacy and surveillance in five states.Although, this does not mean that there is no conception of privacy. Mostly integritet is theword used in the Swedish language. Integritet includes both the English privacy and theEnglish integrity (decent, honourable). Commonly, it is used synonymously to privacy:sometimes with the supplement personal, i. e. personlig integritet.Certainly, linguistic formations affect and interact with the way we think about differentthings. But although, the human language in a way sets the limits of imagination, the impactof the lack of the word privacy in the Swedish language should not be exaggerated. The realpolitics significance of this condition is not obvious, because there are related expressions athand.But still, it is interesting to notice that the expression used opens up for trading on theconcept of privacy, i.e. integritet. Integrity (privacy) and security might be defined as thesame thing. Subsequently, the conflict between the two can be solved. Thus, the Swedishlanguage embeds a solution to the balance equation. The balance comes out more in the formof a paradox rather than representing a genuine contradiction.The solution to the balance paradox is illustrated by the quotes from a parliament deputybelow. Firstly, security is defined as part of privacy (den personliga integriteten), that is, notbeing afraid is an important aspect of privacy.To be able to move around freely is to a very large extent a part of peoples privacy. 2828Motion bill 2007/08 Ju:417 (Luciano Astudillo (s) mfl.) Användning av övervakningskameror15

Video surveillance increases the possibilities for people to move around freely without beingexposed to threats. Secondly, it is argued that the violation of security i.e. to be a victim ofsevere crime is an important aspect of to the violation of privacy.The most severe violation of privacy is to be exposed to serious crime. 29Almost the same wordings appear in a joint article by the Prosecutor-General, the Nationalpolice commissioner and the Director-General of the Swedish secret security police (SÄPO).To be a victim of crimes or terrorist attacks is an intrusion on privacy. 30 The Director of thepublic prosecution authority forces this argument even one step further in an interview. Heargues that video surveillance actually increases privacy because you feel more safe and takencare of. 31 The radical conclusion will be that not deploying cameras threaten both security andprivacy. A more nuanced way to formulate the issue is to put one kind of integrity intrusionagainst another kind of integrity intrusion. This is the way it is done in the instructions toevaluation of the law from the Ministry of Justice in 2001.The privacy (integrity) intrusion that video surveillance implies has also to be put against theprivacy (integrity) intrusion that comes with not being able to move freely because of fear forbeing exposed to crime. 32Certainly, obscuring the difference between privacy and security is fundamental tolegitimising surveillance, and it substantially weakens critical arguments. It would be to go tofar to say that viewing privacy as identical with security is generally applied, still it ispresented, several times, also in statements from the government. The Minister of Justiceargued in the following manner in the parliament in 2008:I think that for the citizens’ security in a society with surveillance it is important to know whenthere is supervision. 33Of concern here was the need for putting out signposts where there is a camera deployed inorder to make people aware of that they are being watched. Intuitively and most commonlythe demand on signs and transparency belongs to the privacy protection argument. Theminister speaks about security, but security in this sentence could be exchanged by privacy29Motion bill 2007/08 Ju:417 (Luciano Astudillo (s) mfl.) Användning av övervakningskameror30Fredrik Wersäll, riksåklagare, Stefan Strömberg, rikspolischef, Klas Bergenstrand, generaldirektör, SÄPODagens Nyheter 06 02 11. Sluta måla upp falska bilder av ”övervakarstaten”. Riksåklagaren, rikspolischefenoch Säpochefen: Vi behöver moderna verktyg för att bekämpa den grova brottsligheten.31Intervju med Sven- Erik Alhem, överåklagare. Av Kari Molin, Dagens Nyheter 050819.32The instructions to evaluation of the law from the Ministry of Justice, 2001:53.33Answer on Interpellation 2007/08:383 Kameraövervakning (Beatrice Ask, Minister of Justice).16

and the meaning would be the same. The Minister of Justice is not the only one in theparliamentary debates to put the argument behind signs in this way. 34There is a built in ambiguity in the Swedish vocabulary. As said before, the impact of thisambiguity should not be overstated. But, from a discourse analytical point of view it iscertainly relevant to the position and quality, of this value in Swedish legal acts.Privacy protection is sparsely attended to in the Swedish legal framework; in addition,when the term privacy (integritet eller personlig integritet) occurs its status is weak. Neitherin the Act on Public video surveillance, nor in the Swedish Act on data protection there isanything said on the right to privacy. The act on data protection generally avoids mentioningrights as something that may be claimed in the context of data protection, the purpose of thelaw is simply said to be to protect people from violation of their personal integrity. Thus, theSwedish act differs from, and is in a way weaker than, corresponding acts in other Europeanstates, for example the British and the Polish acts, in the way the data subjects are approached.In the latter acts the data subject is a person with rights to protection. In addition the Dataprotection act in Sweden is a subsidiary law, in case of conflicts with another act this actoverrides. This is the case also in other countries but, an ambitious video surveillanceregulation policy, such as the Swedish, may in fact erode, rather than support, the protectiveambitions of the data protection act.The protection of privacy in the Swedish constitution is not very strong when comparingwith other countries. According to 2 chapter 3 § in the Instrument of Government Act(regerinsformen):Every citizen shall to the extent that is in detail stated in law be protected against violation of hisprivacy by computerised registration of personal information.Certainly, the Instrument of Government Act is not an enforceable legal act, it is a guidelinefor governing the state. Chapter 2 is titled Basic freedoms and rights, Still, privacy is nevermentioned as an explicit right and there is also a proviso built into the charter. Protectionagainst violation shall be met to a certain extent informed on in other legal acts. A publiccommittee which presented its final report in 2008 35 had as part of the instruction to proposeamendments to this paragraph. The suggested amendment concerned increased protectionagainst extensive surveillance and mapping of private circumstances. Still, there would be nogeneral or specified protection of the right to privacy, and whether the suggestion will result34See for example Parliament protocol 2005/06:82 (Johan Pehrson (fp))35Skyddet för den personliga integriteten Bedömningar och förslag. Slutbetänkande avIntegritetsskyddskommittén. SOU 2008:3.17

in a reinforcement of the protection of privacy in practice is not clear. However, since 1995the European Convention on Human Rights, including privacy prescriptions is incorporated inthe Swedish legal system and can be referred to in Swedish legal judgements.Comparing the Swedish constitutional rules on privacy with other national constitutionssuch as for example the Polish suggests that privacy is attended to in a much more thoroughway in the latter constitution. The right to privacy is protected in article 47 which states thatEveryone should have the right to legal protection of his private life and family life, of his honourand good reputation and to make decisions about his personal life.Although we find the idea of proportionality also in the Polish constitution, the right toprivacy has a strong position as the ultimate value. Any “limitations shall not violate theessence of freedoms and rights”. 36The Polish Inspector General of data protection is guided by the Polish constitution on rightsto protection of personal data. The Inspector can also, and does so, refer to the Polish CivilCode (Kodeks ciwilny). Article 23 in this act states that the personal interests of the humanperson, among them dignity, freedom of conscience, image secrecy of communicationinviolability of home “remain under the protection of civil rights regardless of the protectionprovided in other provisions”, while the Swedish data inspection board is not guided by anynational legal document explicitly referring to the right of privacy protection. 37The Polish constitution follows international legal documents in defining privacy asproperty right. In international legal frameworks such as the Universal Declaration of HumanRights, the International Covenant on Civil and Political Rights and the European Conventionfor Protection of Human Rights and Fundamental Freedoms privacy is attended to as anindividual property right to be secured from state abuse. In the European convention it is saidthatEveryone has the right to respect for his private and family life, his home and his correspondence.There shall be no interference by a public authority with the exercise of this right except such as isin accordance with the law and is necessary in a democratic society … 38 .As mentioned before, the property right conception - the right to be let alone- can beopposed to as a passive and atomistic approach making privacy into a rather apolitical and36Konstytucja Rzeczypospolitej Polskiej art 31:3.37giodo.gov.pl, datainspectionen.se38ECHR art 8 Also the Council of Europe Convention No. 108 for the Protection of Individuals with regard toAutomatic Processing of Personal Data (subscribed by Sweden in 1983) and The European Union directive 95/46on Data Protection attend to privacy as right.18

defensive value. The German case is interesting because here we find a clear ambition todefine privacy in a positive and substantial way that goes beyond the traditional liberaldefinition found in international conventions. In 1983 the Federal Supreme ConstitutionalCourt decided to interpret two edicts in the constitution; the ‘right to free development ofone’s personality’ and the ‘right to human dignity’ as involving the right to ‘informationalself-determination (informationelles Selbstbestimmung). Everyone has the right to informationon and control over data stored on her or him. The fear of personal information being storedshould not hinder people to use their basic freedoms and democratic rights. (Kilian 2008:80f).So, a reluctance to consider privacy as a right distinguishes the Swedish approach to thisvalue from the approaches in other European states, as well as the international discourse onthe issue. Certainly, it is interesting to discuss the Swedish comprehension as a product of amore distant Swedish legal history. For example, which bearing, if any, do the so calleddoctrine of Uppsala (Uppsalaskolan), very important to the early 20 th century legalestablishment, have on the current discourse? According to this doctrine idealism and absoluterights should be totally dismissed. Besides legal positivism, it also contained an utilitarianperspective on the law, implying that the social good has to be considered in law giving andlaw practice. The doctrine was formed by scholars, who some of them, were more or lessassociated to the social democratic party and their programme had a great impact on thepolicy of this party. Although social democratism may have ceased to be an hegemonicSwedish approach today there is reason to believe that it still has some influence on theunderstanding of normative issues such as the concern for privacy. Historically, socialdemocracy was less attracted to the idea of liberal individual rights.In the Swedish legal context violation of privacy is seldom discussed neither as aninviolable democratic concern nor as an absolute right. In the context of video surveillance theterm rather signifies a vaguely specified, utility. The utility conception allows for, and evenfacilitates, relativism and thereby reinforces the balance approach. By extension the utilityperspective may result in that privacy ends up as something of a subjective need, that is,another aspect of relativism is involved 39 . The argument on video surveillance posed by thechancellor of Justice presented below illustrates this turn. In November 2008, when theChancellor appealed in the Swedish Supreme Administrative Court against the affirmativedecision on police surveillance in the Subordinate Administrative Court, he explored his39But the utility approach also opens up for other types of relativism, for example weighing the needs of amajority against the needs of a minority. As noted by Ashworth: the “practical impact often drifts towards a‘balance’ that involves restricting the rights of a small minority in the hope of enhancing the security of themajority” Ashworth 2007:20919

arguments in an article in a daily paper. Explicitly referring to the balance between the needfor surveillance and the privacy interest, he argued thatThe legal protection of privacy first and foremost concerns those who really feel discomfort withsurveillance. We who are not affected so much have to remember that. 40Certainly, equating the need for protection of privacy with a feeling of discomfort is almostimpossible would privacy be approached as a right. In addition, reducing privacy to asubjective feeling, does not guarantee this variable a strong position neither in this nor in anyforthcoming balance acts.However, viewing privacy as utility, and not as a right, definitely has consequences for howthis value should be met by the state. Privacy as a utility, an interest or a need, is something tobe distributed in appropriate proportions to concerned individuals or groups of individuals.Rights, on the other hand are something to be legitimately claimed against the state. In fact,rights have this nature, irrespective of whether they are understood in Dworkin’s absolutemode or as inviolable but in a less strict sense. Certainly interests are also to be claimed butthey are not per definition legitimate in the same way as rights.Two Swedish institutions are especially relevant for claims on privacy violations, the Datainspection and the Chancellor of Justice. Both of these institutions subscribe to the balanceprinciple. They are strongly integrated in the same discursive practice on the utility of privacyas the policymakers in the government and in the parliament. The Data Inspection is aninstitution established to supervise the attendance to privacy and to scrutinize the practice of,among other institutions, the public administration. This mission could be performed indifferent ways, using different kinds of arguments. The Chief Inspector of the Data Inspectionfully approve to the utility perspective 41 ; subsequently the argument on stronger privacyprotection concerns a heavier weight put on this variable compared with the other valuesinvolved in the balance equation. Protection of privacy in video surveillance matters meansreminding about the need for proportionality. There is no qualitative difference in theargumentation, i.e. rights versus utility, between the political sphere and the data inspection;criticism is a matter of emphasises.Possibly, there are also structural factors involved in the Swedish legal-political consensus.It should be noted that the Chief Inspector of the Data Inspection is appointed by the Swedish40 Göran Lambertz Swedish Chancellor of Justice, Dagens Nyheter 081129. Worth noting is that the Chancellorused the word privatliv (privat life) instead of personal integrity. Private life is a word not belonging to theSwedish legal context, in fact, linguistically it reduces the content of privacy (integritet) to something verylimited.41Göran Gräslund, Chief inspector at the Data inspection, Dagen Nyheter 081002.20

government. In other countries, such as for example, Germany and Poland, the ChiefInspector of Data protection is appointed by the parliament; this is something that, at leastformally, gives them a stronger position towards the government. However, institutionalconditions are not the subject of this paper.The welfare state legacy?Supplying security is a traditional field of state competence. In the current more and moreglobally spread security discourse, states have taken on new forms of responsibility for thesafety of people, involving new types of devices such as video surveillance. Privacy on theother hand is traditionally something that should be protected from state interference. Makingprivacy and security into equal entities of utility, i.e. including them both under the umbrellaof protection, invalidates the fact that privacy claims are something that normally emanatefrom the individual or the society and are directed against the state. In the Swedish caseprivacy is something distributed by the state not something that should be legitimatelyasserted against the state. The Swedish state takes responsibility for both the distribution ofsecurity and the distribution of privacy in adequate proportions. The idea of a balancebetween security (crime prevention) and privacy is the metaphorical depiction of theaggregation of different utilities.There are no obvious complications in understanding crime prevention/security as apublicly distributed utility. Concerning the concept of privacy it is more complex. Whetherprivacy is a utility, rather than a right, is a matter of academic dispute. International legaldocuments favour the right conception, and this is also the case in many, probably mostnational practices in democratic states. Without making any normative statements it has to beconcluded that the Swedish utility approach weakens the idea of privacy. If privacy isregarded as something that should be distributed by the state rather than something to belegitimately claimed against the state it will inevitably have a weaker position.In fact distribution of utilities is the usual way of welfare state policy, by the establishmentof video surveillance explicitly demanded to include an additional field of concern – privacy.Guided by the traditional welfare state ambitions, the state is responsible for deliveringprivacy to its citizens in the same way as it used to supply for material needs. The discursiveconsensus around the utility perspective, involving also the legal establishment in the fieldmakes the task easier.21

LITERATURE:Ashworth, Andrew (2007). Security, Terrorism and the Value of Human Rights. In Benjamin J Gooldand Liora Lazarus (eds), Security and Human Rights. Portland, Or.: Hart Publishing.Bennet, Colin J. (1992). Regulating Privacy Data Protection and Public Policy in Europe and theUnited States. Ithaca: Cornell University Press.Brottsförebyggande rådet. Kameraövervakning i brottsförebyggande syfte. Rapport 2003.Brottsförebyggande rådet .Kameraövervaking i Landskrona. En utvärdering. Rapport 2009.Dworkin, Ronald (2009, 1977). Taking Rights Seriously. London: Duckworth.Etzioni, Amitai (1999). The Limits of Privacy. New York: Basic Books.Etzioni, Amitai (2007). Are New Technologies the Enemy of Privacy? Knowledge,Technology and Policy, 20:115-119.Flaherty, David H. (1992) Protecting Privacy in Surveillance Societies. The University of NorthCarolina Press.Garland, David (2000). Ideas, Institutions and Situational Crime Prevention. In Andrew vonHirsch, David Garland and Alison Wakefield Ethical and Social Perspectives onSituational Crime Prevention. Oxford: hart Publishing.Goold, Benjamin, J. (2009). ”Technologies of surveillance and the erosion of institutional trust”. InKatja Aas et. al. (eds) Technologies of Insecurity: The surveillance of Everyday Life. Oxon:Routledge.Haggerty Kevin D. and Richard V. Ericson (eds) (2006). The new politics of Surveillance andvisibility. Toronto: University of Toronto Press.Kilian, Wolfgang (2008). Germany. In Global Privacy and Protection: The First Generation, editedby James B. Rule and Graham Greenleaf. Cheltenham: Edward Elgar Publishing. (80-106)Liberatore, Angela (2007). Balancing Security and Democracy, and the Role of Expertise: BiometricsPolitics in the European Union European Journal on Criminal Policy and Research 13(1-2), pp109-137.Lodge, Juliet (2003). “EU homeland security: citizens or suspects?”. Journal of European Integration.26(3: 253-279.Lyon, David (2001). Surveillance society: Monitoring everyday life. Buckingman: Open UniversityPress.Lyon, David (2006). Theorizing Surveillance: The panoticon and beyond. Cullompton Devon: WillianPublishing.Newman, Abraham L. (2008). Protectors of Privacy. Regulating Personal Data in the GlobalEconomy. Ithaca: Cornell University Press.22

Norris, Clive and Gary Armstrong (1999) The Maximum surveillance Society: the Rise of CCTV.Oxford, New York: Berg.Regan, Priscilla M. (1995). Legislating Privacy: Technology, Social Values and Public Policy. ChapelHill: University of North Carolina Press.Rule, James B. and Graham Greenleaf (ed) (2008). Global Privacy Protection: The First Generation.Cheltenham: Edward Elgar.Schwartz, Paul M. (1999). Privacy and Democracy in Cyberspace. Vanderbilt Law Review, 52:1609-1701.Welsh, B. C. and D. P Farrington (2007). Kameraövervakning och brottsprevention: En systematiskforskningsgenomgång. Stockholm: Brottsförebyggande rådet.Zedner, Lucia (2007). Seeking Security by Eroding Rights: The Side-stepping of Due Process. InBenjamin J Goold and Liora Lazarus (eds), Security and Human Rights. Portland, Or.: HartPublishing.23