How a spy pen and a shocking court case show technology will always outpace the law
Lessons learned from the case of a teacher who used a spy pen to take images of students' cleavage
Why did a shocking court case about a teacher who took pictures of his female students using hidden cameras have to go all the way to the Supreme Court of Canada for a conviction? Angela Power, a privacy consultant, and Daryl Pullman, a bioethicist specializing in privacy, look at what's private in the age of surveillance.
A landmark case involving a spy pen, a teacher, and images he took of young girls has been working through the Canadian judicial system since 2015.
It'll likely create an entirely new legal standard for privacy across the country.
This story involves Ryan Jarvis, a teacher from London, Ont., who used hidden technology — a spy pen — to capture videos of his female students around the school.
The majority of videos showed the students' faces, upper bodies and breasts.
Jarvis was charged with voyeurism under the Criminal Code and, after a protracted legal process that eventually took the case to the country's highest court, he was found guilty in February.
It seems incredible, when confronted with the facts of this case, that the lower courts didn't reach the same verdict.
The initial judge wasn't satisfied that the videos were captured for a sexual purpose, and Jarvis was acquitted last April.
That ruling was appealed.
The Ontario Court of Appeal found Jarvis did act with sexual intent, but concluded the students involved had no reasonable expectation of privacy because there was around-the-clock security cameras in and around the school.
Finally, it went to the Supreme Court of Canada, where it was recognized that our expectations of privacy and the reasonableness of this expectation are context-based and can change from one situation to the next.
Thus the teacher was found guilty of the offence.
We have the right to choose when we are recorded
This means our justice system now recognizes that an individual can accept surveillance or observation in one circumstance, but reject such observation or surveillance in another context.
Put another way, it means that while the students may have accepted general surveillance as a matter of school policy, they had a reasonable expectation not to be subjected to private surveillance by their voyeuristic teacher.
The lower court rulings implied that we have diminished privacy rights in public spaces where surveillance already exists.
The need for vigilance and the maintenance of high and clear ethical standards with regard to privacy has never been greater.
In the digital age we are subjected more and more to surveillance in public spaces. But we still have a reasonable expectation of privacy.
Both before and after this case, we have a right to choose when and under what circumstances our private activities will be recorded, even if they occur in a public space.
A narrow, location-based understanding of privacy is antiquated and does not fit in this digital universe where our activities can be monitored in one way or another.
What does it mean to respect individual autonomy?
The digital age is upon us, forcing us to continually reconsider basic moral and legal notions like privacy, autonomy and individual choice.
This Ontario case speaks directly to the ongoing need to reassess what it means to respect individual autonomy, under what circumstances consent to surveillance can be assumed as implicit and when explicit consent is demanded.
Pointedly, this legal process took four years to reach a conclusion most of us would reach much sooner through other means.
Despite the just outcome in the end, it was a drawn-out process that likely had a profound impact on everyone involved — especially the young female students.
Our understanding of what constitutes a reasonable expectation of privacy will continue to be challenged in this age of digital innovation. Technology will continually outpace the law. While the law will eventually catch up with our social mores and values, as it did in this case, those values are themselves subject to change as circumstances evolve.
Ultimately, we cannot afford to become complacent and simply accept the ongoing erosion of our privacy in the face of ubiquitous technology and invasive social media. The idea that privacy is dead veers close to the edge of no return.
We simply can't afford to accept this as the new normal and allow our values to devolve. The need for vigilance and the maintenance of high and clear ethical standards with regard to privacy has never been greater.