Covert police patrolling violates the right to privacy guaranteed by the constitution
The Georgian Parliament is considering legislative amendments to road safety regulations proposed by the government.
The proposed amendments to the Law on Police allow photo/video equipment be installed on vehicles in use by the police with or without identifiable police signs for the purpose of ensuring road safety.
According to Article 27 of the current law, for the purpose of ensuring public safety, the police are authorized to place/install automatic photo and video equipment on roads, buildings, and their uniforms in accordance with the law, or make use of this equipment owned by another entity.
However, the law also states that the installed automatic photo (radar) and video equipment must be accompanied with conspicuously placed warning signs.
The proposed draft law is aimed at changing this key principle by authorizing the covert use of automatic photo (radar) and video equipment by the police.
Covert police patrolling described in the proposed amendment is, in essence, an investigative activity, which, in turn, is only allowed in special circumstances outlined by the law. The amendment essentially envisions a more simplified procedure of using this method, which poses the following risks to constitutional human rights and police integrity:
Inconsistency with Georgian law, Constitution, and basic human rights
Covert photo and video recording is an investigative activity that constitutes a severe violation of privacy. The right to privacy is guaranteed under Articles 16 and 20 of the Georgian Constitution. According to Article 20, the right to privacy may only be restricted in cases of urgent necessity prescribed by law, or by a court decision.
According to Georgian legislation, the use of covert audio and video recording is only permitted during investigations of severe and especially severe crimes.
The standard for covert audio and video surveillance was raised significantly during the 2014 reform of the Criminal Procedure Code. The use of audio and video recording was banned for crime prevention and law enforcement purposes without an investigation. The reform also identified a list of persons and the category of crimes for which covert surveillance is permitted.
The procedure of using covert video or audio recording must be in line with the standard set by Article 20 of the Constitution, irrelevant of its purpose (crime prevention, national security protection, ensuring legal order, and so forth). Therefore, the goal of ensuring road safety does not justify the use of covert audio and video recording.
- Violation of personal data processing rules
Personal data processing is regulated by the Law on Personal Data Protection. This law outlines the principles of data protection that all data processing entities are obligated to uphold. According to Article 4 Paragraph “c”, one of these principles is “processing data only to the extent necessary to achieve the respective legitimate purpose. The data must be adequate and proportionate to the purpose for which it is processed.”
The use of covert video and audio recording for the purpose of road safety fails to pass the proportionality test, since it violates the constitutional right to privacy.
- Using a bylaw to regulate covert recording
The fact that the draft law envisions covert police patrolling be regulated by an order of the Minister of Internal Affairs is also a cause for concern. According to Article 60, Paragraph 5 of the draft law, “by January 1, 2016 the minister must approve regulations for placement and use of non-stationary (moving) speed measuring devices and photo/video equipment installed on vehicles in use by the police with or without identifiable police signs”.
The draft law does not specify a number of important issues, such as whether covert cameras will constantly be recording, or be switched on only after detecting an offense. The law also does not provide a definition for a ‘police used vehicle’, specifically, whether cameras can be installed only on police cars, or on civilian vehicles a well (on the basis of a special agreement). According to the draft law, these and other important issues will be regulated by a minister’s order. According to Article 8, Paragraph “b” of the Law on Normative Acts, only legislative acts may determine the rules and conditions for exercising and protecting fundamental rights and freedoms, and related issues of legal liability.
Covert police patrolling is directly related to the right to privacy and personal data protection. Therefore, it should only be regulated through a law.
- Risks associated with covert police patrolling
In addition to gathering information on traffic violations, covert audio and video recording can also collect data on the movement, social habits, and personal and business contacts of individuals.
This is the basis behind existing regulation that cameras installed in public space (roads, shopping facilities, etc.) must be accompanied by warning signs. The Law on Personal Data Protection and the Law on Police stress that these warning signs must be placed conspicuously. The awareness of being recorded gives individuals the opportunity to control their behavior and, therefore, the amount of personal information that gets recorded and becomes available to others.
The Criminal Procedure Code provides for a special regime of destruction of information obtained through covert audio and video recording (Article 143 (8). The Law on Personal Data Protection provides for the creation of a special commission tasked with the destruction of information obtained through covert investigative activities. The purpose of the special regime of destruction is the protection of the right to privacy. The proposed draft law does not include regulations and deadlines related to the destruction of information obtained through covert police patrolling, which poses significant risks to the right to privacy and personal data protection.
Covert police patrolling contains a considerable risk of abuse of power by the Ministry of Internal Affairs. In addition to traffic security, information gathered in this way may also include personal and business information of individuals.
The current law sets strict rules for audio and video recording specifically in order to avoid these risks and uphold Article 20 of the Constitution.
Based on all of the above, covert police patrolling is not in line with the Georgian Constitution, and poses considerable risks of abuse of power. Processing personal data through this method is not proportional to the declared purpose of traffic security.
 1 The purpose of installing/placing surveillance equipment:
A) Crime prevention, protection of security and property, ensuring public order, and protection of minors against harmful influence.
B) Enforcement of traffic rules.
C) Avoidance, detection, and prevention of illegal border crossings, and ensuring border security.
D) Timely detection of threats to individuals and property at border crossing points.