From photo to file: law enforcement recording media and their governance through privacy

Abstract

Law enforcement records are generally cast into two categories: administrative records and intelligence records. This paper will investigate how the different media technologies historically employed to construct those records affect their aptitude to be regulated through contemporary regimes like privacy and data protection.

In the 19th century, police and judicial administration employed photography as an identifying technology to prevent recidivism. However, this photographic treatment also produced a vast archive of criminal images through which photography came to define both the contingent instance and the generalised look (the typology) of deviance and social pathology (Sekula). Eventually, the generation and insertion of these representations into a criminal archive came to be limited by 'privacy'. Through excluding non-convicted persons from having information extant in police filing systems, privacy prevented stigmatisation by ensuring the state had an accurate image of its subjects. Intelligence files, on the other hand, produced a more complex relation between the media form (dossiers) and the subject represented. Those processes have so far eluded strong regulation by privacy, as the predictive nature of intelligence surveillance goes beyond the binary of criminal / non-criminal that animated the administrative photographic archive. Any regulatory regime must therefore address the non-representational (non-identifying) nature of images produced through the speculative process of intelligence assessment, and its routine application to innocent persons.

From the perspective that legal subjectivity depends entirely on its technological representation (Haldar), this paper will explore the application of privacy and data protection to the harms generated by registering such images in law enforcement archives. Ultimately it will assess whether data protection, with its rights of access and rectification, may be better geared at addressing the demand for accurate representations of subjects. The possibility of a 'jurisprudence of access' will thus be canvassed for its utility in establishing appropriate limitations to state power in the context of intelligence surveillance.

About the speaker

Jake Goldenfein is a PhD candidate at Melbourne Law School doing socio-legal research on the intersection of surveillance and privacy law. He has also been a researcher at the Swinburne Institute of Social Research, and New York Law School in the fields of IP, privacy, media law, media history and theory, and technology policy. He is an admitted lawyer in the state of Victoria and practiced for a short period before beginning his doctoral research.