Privacy & Safety Can Co-Exist: Balancing Children’s Privacy and the Use of Surveillance Technologies

Context-Setting

There has been a significant rise in the use and deployment of surveillance technologies across the world – by private actors, governments and companies. To understand why this is, two questions arise: 

“Is there a growing need to invasively detect, monitor, intercept and collect personally identifying information?” (this could be perhaps because there are new and dynamic threats that otherwise cannot be efficiently curtailed except by surveillance technologies)

Or

“Is there simply a growing development of and access to these technologies that result in a rise in their deployment?” 

Whatever the case may be, surveillance technologies are increasingly in use. States deploy them to spy on opposition parties, journalists and rights advocates¹. However, they are also deployed for purposes of national safety, crime detection, and protection of critical infrastructure, and may indeed be used as tools for social good. The surveillance market is quite profitable with the information security product and services market reaching almost $190 billion USD in 2023 – which was $ 20 billion USD more than the previous year². 

A combination of its commercial value and potential for aiding societal good makes it practically impossible for the annihilation of surveillance technologies. They’re here to stay and to increasingly become more sophisticated. Video surveillance, facial recognition, gait recognition, data tracking, the Internet of Things (IoT) and the like, are growing in use. Hence, recent advocacy around surveillance technologies focuses more on the ‘how, why and (for) what’ of its use, development and deployment – especially its impact on privacy rights. For instance, the degrading use of ankle tags on migrants in the UK³. 

More narrowly, concerns around the use of surveillance technologies and its impact on children tend to be multidisciplinary spotlighting issues around privacy, a child’s understanding of the concept of trust, the heightened power dynamics of control over a child⁴, requirement of additional consent for surveillance, discrimination and treatment of marginalised children and other issues⁵. From a strictly human rights perspective, however, concerns about surveilling children are usually a conversation of balancing their rights and freedoms with the necessity to keep them monitored for their safety. 

Article 16 of the United Nations Convention on the Rights of the Child provides that “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.” and that “The child has the right to the protection of the law against such interference or attacks.” As noted in General Comment No. 25 on Children’s Rights in Relation to the Digital Environment, Innovations, “digital technologies affect children’s lives and their rights in ways that are wide-ranging and interdependent, even where children do not themselves access the Internet”. The UN Committee on the Rights of the Child went further to comment on specific rights such as Freedom of Expression, Freedom of Peaceful Assembly, Right to Privacy and administration of justice as areas where the use of surveillance technologies can impact. 

In this commentary, I attempt to propose a balance between the use of surveillance technologies on children and the respect of their fundamental rights; my central question being: How can privacy co-exist with safety in the use rights of surveillance technologies to monitor children?

What Surveillance Technologies?

While children are part of the larger society and are typically subject to mass surveillance deployed in public places and under public surveillance programs,  there are technologies that are more commonly deployed to monitor children. They include:

Facial Recognition

Facial recognition technologies are often deployed in schools, daycares, immigration borders⁶ and homes to monitor children typically for their safety. Admittedly, classrooms do not fall under traditional ‘zones of privacy’ like bathrooms, homes and lockers. However, researchers have opined that there is a possibility that this type of surveillance can have a “profound effect on [children’s] development and on their privacy expectations later in life.” Education records are also typically regarded as private information only to be accessible by children and their guardians. There are therefore arguments about whether data from visual surveillance of classroom activities fall under the definition of education records⁷.  

GPS Tracking Devices & Software

Devices such as AirTag, Tile, and apps like Google Maps and its tracking feature are typically deployed to track the whereabouts of children. They can also be used to set geofences to alert parents, guardians or whoever has access to these devices or software when the child is going beyond a set boundary – such as out of state or out of school. While these are noble functions, it must be understood that they can be hacked and their data, intercepted by malicious actors. For instance, it has been reported that hackers can add their malicious code to an AirTag disrupting the process of actually finding the AirTag⁸ – and in this case, the child. 

Of course, there are always risk factors in the use or non-use of technologies and this should not deter us from using them. It is however important for parents and those who deploy these technologies to be aware of the privacy implications of deploying them. 

This raises an ethical consideration associated with the product marketing of commercially available surveillance technologies. Tech companies and manufacturers often present these tracking technologies as fail-proof, infallible and impenetrable whereas they are not.  Hence, product marketing – especially for products that are and can be used on children – must be ethical and transparent about loopholes or at the very least must not purport to give absolute assurances in its marketing language. 

Privacy & Safety Should Co-Exist: Privacy as a Safety Measure

When we approach the subject of privacy from a strictly autonomy-based perspective and do not regard it as being a necessity for safety itself, we will continue to have conflicts and concerns regarding the use of surveillance on children. 

Children’s privacy rights are upheld to keep them safe from commercial exploitation, child pornographers, kidnappers, traffickers and bad actors. Therefore safety is a core effect of the respect of a child’s privacy. Hence, when children are subject to any form of surveillance, even if these technologies and mechanisms are deployed for their ‘safety’, it must be balanced properly with an understanding of privacy as a safety measure. 

Surveillance is not just about watching; but Who is Watching? 

In discussing the surveillance of children, the actors and stakeholders deploying surveillance technologies are as important as the credibility and design of the technologies themselves. 

The same nanny cam used by a mother to watch her newborn can become a dangerous tool if accessed by a kidnapper. And so, dialogue and advocacy around the right to privacy of children must be heavy on the ‘who’. Hence, if well-meaning stakeholders, for instance, are deploying surveillance technologies for the safety of children, they must ask and answer the question: who else has or can have access to this data?

And because it is digital technology, the answer is most likely not ‘no one’. Either through legitimate or malicious access, the ubiquitous nature of data collected/stored by digital technologies makes it such that it can always be accessible by multiple people. 

Below, I share best practices and policy recommendations to better manage the use of these technologies and protect children by recognising and upholding their privacy. 

Best Practices

1. Proportionate Use – Properly Define What Harm Means: As the saying goes, ‘Do not use a sledgehammer to crack a nut’. The fact that surveillance technologies are accessible does not mean they must be deployed in every situation. For instance, the use of surveillance technologies in the classroom simply to track student performance and prevent mind-wandering is an overkill. Mind-wandering is not harmful. Children from the beginning of time, have been prone to mind-wandering and may in fact be more productive when a level of mind-wandering is allowed. It is not a critical situation that should necessitate the exposure and potential privacy implications that the use of surveillance technologies brings. 
2. Graduating levels of surveillance: Where necessary, consider defining the age of the child(ren) and the scope of surveillance. For instance, some parents may loosen the reins of surveillance on children above a certain age while tightening the reins of surveillance on children within a younger age bracket. Younger children who have not developed sufficient discretionary judgment may be subject to familial surveillance/parental tracking for their safety, while children above 13 may then be allowed to enjoy more of their right to privacy. Scope is also important. Using, for instance, video surveillance on a child in the bathroom might be unnecessary, especially with the understanding that the data collected may become accessible to a malicious actor. Rather than use video surveillance, perhaps parents may replace it with their physical presence, the presence of a trusted party, or simply allowing the child to explore a safe environment alone. 
3. Education and Enlightenment: Choosing a surveillance tool for your child must simply not be a popularity contest. Parents, schools and caregivers must go the extra mile to research available tools and software – especially on their privacy ratings. They must ensure to keep the software updated and check the privacy settings, and account management settings. Review permissions and disable and limit access. See online resources such as https://www.internetmatters.org/ for more.  

Policy Recommendations

Below are recommendations for national, continental, global or even product policies regarding the use of surveillance technologies on children. 

1. Presumption against state surveillance: Emphasise a default prohibition against surveillance of children by government especially where it involves privacy-sensitive data, unless there is a clear and justifiable legal basis for it. Hence legal justification (clearly defined) must be required. 
2. Clearly Outlined Scope for Data Collection and Storage: Together with civil society, child psychologists, parents, researchers and other relevant stakeholders, states and tech companies must clearly outline the boundaries for data collection and storage in line with global best standards and frameworks on data governance such as the GDPR, the Malabo Convention, the EU ePrivacy Directive, UNICEF’s Children’s Rights and Business Principles and the likes. 
3. Child-Friendly Consent Mechanisms: For age categories that can give consent, then the communication or presentation of consent requests must be child-friendly and age-appropriate.  
4. “By Design: The conceptualisation and development of surveillance technologies should be done with privacy, security, inclusivity, sustainability and transparency by design. 
5. Privacy-Centred Procurement Policies: Institutional stakeholders such as states and schools must have written and defined procurement policies that centralise privacy in line with the UN Guiding Principles on Business and Human Rights. 
6. Mandate the documentation of surveillance use by governments: States and private entities must ensure to keep records of their use of surveillance especially as it relates to children, and make them open-source and accessible to stakeholders. This will aid accountability and transparency. 
7. Ethical Product Marketing: This involves prohibiting the use of children’s data obtained for targeted advertising. But it also involves honesty and clarity in marketing surveillance products especially those used or potentially to be used on children – highlighting the limits of what it can do and accompanying with advisory notes on how best to optimise safety measures. 
8. Child Online Safety Policy Monitoring & Coordination:  Everyone’s work is no one’s work. There must therefore be a policy-designated coordinating body; either a national agency, departmental team within a tech company, or committee in a regional/global setting to oversee the oversight and accountability of the use and deployment of surveillance technologies. This may also be a department within the National Human Rights Institutions. Closely connected to this is resource allocation to implement privacy programs, policies and investigations as may be necessary by the coordinating body. Where private companies contribute funding to these bodies, there must be clear policies that exclude interference or sabotaging as these bodies must maintain independence. 
9. Capacity Building: Periodic and continuing capacity building and training of staff and government workers involved in handling surveillance tech and the data collected must be prioritised and provided for by policy. Legal advice, peer-to-peer learning, civil society conferences and meetings, and direct training programs must be available and recurrent. 
10. Mandating Child’s Rights Impact Assessment: States must mandate tech companies and manufacturers of surveillance technologies and software to undergo independent child’s rights impact assessment and remediate based on feedback from the process. 
11. Remedies and Mechanisms for Redress: There must be laid-down remedies and redress mechanisms to prevent and address the violation of the rights of children. The processes for reporting, investigation and adjudication must not just be clear, but must also be effective, as well as the remedies available. 

References

1. “Facing the Truth: Hacking Team leak confirms Moroccan government use of spyware” https://privacyinternational.org/blog/1394/facing-truth-hacking-team-leak-confirms-moroccan-government-use-spyware ↩︎
2. Security & surveillance technology – statistics & facts” Statista https://www.statista.com/topics/2646/security-and-surveillance-technology/ ↩︎
3. “Migrants in UK face ‘degrading’ surveillance ankle tags” Context.  https://www.context.news/surveillance/migrants-in-uk-face-degrading-surveillance-ankle-tags ↩︎
4. “Childhood Spaces in a Changing World:  exploring the intersection between  children and new surveillance technologies” , Tonya Rooney https://www.researchgate.net/publication/270024899_Childhood_Spaces_in_a_Changing_World_Exploring_the_Intersection_between_Children_and_New_Surveillance_Technologies ↩︎
5. “State surveillance and implications for children” UNICEF https://www.unicef.org/innocenti/media/1136/file/UNICEF-Global-Insight-data-governance-surveillance-issue-brief-2020.pdf ↩︎
6.  “The US wants to use facial recognition to identify migrant children as they age” https://www.technologyreview.com/2024/08/14/1096534/homeland-security-facial-recognition-immigration-border/ ↩︎
7.  U.S. DEP’T OF EDUC., BALANCING STUDENT PRIVACY AND SCHOOL SAFETY: A GUIDE TO THE FAMILY AND EDUCATIONAL RIGHTS AND PRIVACY ACT FOR ELEMENTARY AND SECONDARY SCHOOLS (2007), http://www.ed.gov/policy/gen/guid/fpco/brochures/elsec.pdf ↩︎
8. “Can AirTags Be Hacked?” LifeHacker https://lifehacker.com/can-airtags-be-hacked-1847774227 ↩︎