In this
AISight post, by Angelo J. Pompano, we are sharing a forward looking account from 2000 which remains impressively insightful 15 years later. What is most interesting is that the dangers are here today, and not off in some distant dystopian society.
http://www.yale.edu/ynhti/curriculum/units/2000/3/00.03.05.x.html
Privacy in the Age of Video Surveillance, This Is Not Your Father's Candid Camera
No, this is not your father's Candid Camera. Privacy in the
Age of Video Surveillance is a serious concern. With the proliferation
of video surveillance equipment in every conceivable situation of our
daily lives, concealed video cameras are not a source of amusement as on
the old Candid Camera television show, but a real restriction on our
right to privacy. Consider a hypothetical, but possibly typical day:
you wake up and walk out to your mailbox. A neighbor's private security
camera is trained on his driveway across the street and picks you up.
Later, you drive to work and when you get to the light on the corner, a
video camera is watching to see if you went through red. You stop off at
an ATM and you are taped. You go into the 7 Eleven-taped; pump gas-
taped; get on the interstate and the traffic control cameras are focused
on you. You get to work and the camera in the parking lot follows you
into the building. Then you finally get you your desk and once more you
are monitored. Let's not even consider the possibility of hanging out at
the water cooler or going into the bathroom. It's only 8:15 AM and you
have already had more TV exposure than Regis Philbin. You begin to think
that maybe you shouldn't have worn that plaid tie with the checkered
shirt.
The purpose of this unit is have students consider how many times a
day their privacy is compromised by unseen video cameras and to have
them understand that neither the 4th Amendment of the Constitution nor
any statutory provision really protect them. The unit is concerned with
privacy as it relates to closed circuit television used in surveillance
by both government agencies and private corporations. It is intended to
be used with 8th grade social studies classes but may be adapted for use
with other grade levels and subject areas. It is aligned with the
Reading, Writing and Speaking Content Standards of the City of New
Haven.
Video Surveillance Cameras
Security vs. Privacy
Video surveillance has been commonplace in England and Europe for some
time. In recent years it has been a growing phenomenon in the United
States as well. By means of the technology of closed circuit television,
individuals are observed without their knowledge in stores, at the ATM,
in elevators, in restaurants, in school hallways, and when stopped
police in patrol cars.
The Technology
The technology of video equipment has gotten to the point where the
units can be activated by motion detectors and can tape in color even at
night. One reason why the use of video surveillance is becoming so
prevalent is because cameras are shrinking, thus making it easier to
conceal the equipment. Video surveillance cameras can be so small that
they can be hidden almost anywhere in the workplace and even worn on
clothing. These little devices are capable of zooming in on the smallest
of details and can pan and tilt.
- The PVSS
(Personal Video Surveillance System) is the size of a badge and can
project images of arrests to video recorders in a patrol car.
A drawback to miniaturization however, is that smaller cameras
result in blurrier images. Technology is addressing this problem by
developing software to clear up out of focus video. According to Albert
Janjigian of STAT Resources, software is being developed to bring those
fuzzy pictures into sharp focus.
It remains to be seen if manipulated images will be questioned as
valid evidence. Who is to say that when an image is "made sharper" it
doesn't become distorted to the point where it changes a person's
features, resulting in misidentification? One thing that video does have
in its favor is that it records what it "sees" and unlike the human
mind does not forget.
Video Monitoring in the Corporate World
Video monitoring has become prevalent in the corporate world for several
reasons. The technology has improved the quality of the images to the
point where it is possible to zoom in enough to read a license plate
clearly or to make a positive identification of a person. At the same
time, the price of the equipment has decreased to the point where a
business can easily recoup its investment in equipment by cutting losses
due to stealing or worker down time. Also, the threat of industrial
espionage has forced many companies to resort to video surveillance to
protect their technology. By the same token, terrorism has driven
government agencies to resort to the same tactics.
- The lack of
stringent laws governing video surveillance (also) makes it an
attractive option for businesses and city agencies. For example, it's
illegal in many states to secretly tape-record a conversation, but
secretly videotaping someone is perfectly legal.
Police Video Surveillance
____
What would cause Americans to accept this invasion of their privacy when
freedom of unrestricted mobility has been a cornerstone of our
democracy? The answer can be found in the daily headlines. Because we
have become so terrified of violent crime and terrorism, many of us
accept the loss of some personal freedom for a feeling of security. On
the surface video surveillance by police departments in public areas
seems to be a noninvasive measure implemented for the well being of the
public. Although they may not be happy with the use of the video
surveillance equipment to catch them as they go through a red light, few
people will argue with the reasoning that video cameras promote safety.
- A bank
ATM camera filmed a Ryder truck outside Oklahoma City's federal office
building just before the blast (April 1994) that killed 167 people. That
clue helped police track down Timothy McVeigh.
It is commonplace for the audience of the nightly news to view
footage of bank or store hold ups. Oftentimes this leads to the arrest
of a suspect. Cases such as these make it hard to argue that video
surveillance cameras should not be used.
Since 1993 police in Tacoma, Washington have been using video
cameras mounted on lampposts and telephone poles to monitor an area
plagued by gangs, drug dealers and prostitutes. One of the most
extensive video surveillance systems in the country has been in use in
Baltimore, Maryland since 1996. Both cities report a drop in crime in
those areas under surveillance.
- Frank
Russo, a retired police commander and the public safety director for the
Downtown Partnership of Baltimore, the merchant association that
spearheaded the surveillance project, says that besides making
law-abiding people feel safer, the cameras are in part responsible for
an 11 percent drop in crime in the area during the first year of
operation.
According to a 1996 California Research Bureau report on
public-video surveillance, as reported by Alex Salkever in the article
Too Many Unseen Cameras? the overwhelming majority of cities that use
video in the US say it has helped cut crime. Of course it can be argued
that the surveillance cameras do not actually reduce crime, but
instead, shift it somewhere else.
I thought I saw you in New Haven
The use of video surveillance cameras as a deterrent to traffic
violations has recently come to our own city of New Haven. The
Department of Traffic and Parking at 200 Orange Street has monitors that
observe the traffic flow at several intersections in New Haven
twenty-four hours a day. Video cameras such as the one at the
intersection of State and Water Streets not only capture the traffic
flow, but also any activity on the sidewalks. Unlike in some cities,
these cameras are movable. The equipment is capable of producing still
frames of cars that run through red lights. The still pictures will
clearly show the cars registration plates. A driver who causes an
accident by disobeying the signal not only runs the risk of a summons,
but still prints will be sent to the driver's insurance company. This
gets to the very heart of the privacy issue. Not only is the individual
photographed without permission, but also his photograph is going to be
distributed to a third party who will use it for business purposes.
The
argument may be made that it is illegal to run a red light and the
person doing so should suffer the consequences. However, there are no
guarantees that the cameras may not be used for other purposes. A case
can be made that since local government is already helping insurance
companies, the next step would be to sell the video to other
enterprises. One can imagine getting a call from a representative of a
body shop who wants to sell you a paint job because it was noted on the
video that your car was faded. Far fetched? At this time it is possible
watch the morning news on commercial television and see live reports of
traffic flow on local highways. This is a case of private enterprise
using publicly supported surveillance equipment for commercial gain:
namely ratings. In this case, this use of public equipment is accepted
because it provides a helpful service.
Abuses
While much of the public may be accepting of video surveillance, others
feel that safeguards are needed. As with so many things that are good
for the general welfare, there is always a risk of abuse. The
surveillance equipment in Baltimore has been termed a minimally
intrusive system because it is in a non-residential area. The cameras
are fixed in public areas and not set up to view into windows. While
that system may be responsibly operated, the potential for abuse exists
and has become increasingly common. With each advance in technology the
possibility that surveillance can get out of hand grows. Mark Hansen in
an article in the American Bar Association Journal entitled No Place to
Hide asks the question:
- Would we
tolerate the prospect that police might someday be armed with a device
that would enable them to conduct the functional equivalent of a strip
search on some unsuspecting citizen from a distance of up to 60 feet
away?
According to the article, a new generation of cameras, which can "see" through clothing and even building materials, is not far off.
These devices will be capable of not only revealing if a person has a
weapon under their clothing, but can produce a precise image of intimate
anatomical details.
We do not have to look to the future to find cases of abuse of video surveillance equipment. Serious problems exist today.
- In
Florida the general manager of the Apalachicola Times' newspaper
extended a legitimate system to include a hidden video camera in his
employees' bathroom. It was found that the camera was not against the
law.
- Employees
of the Dunkin' Donuts chain used its video-surveillance technology to
listen in on customers. The company was forced to remove the cameras.
- The
management at Boston's Sheraton Hotel was recording workers as they
changed clothes in a locker room on the pretext that it was
investigating suspected drug use by its workers.
- In
Concord, Calif., a JC Penney employee discovered that a guard was
showing videotape in which he zoomed in on her breasts. He made the tape
with the store's ceiling cameras.
- In England
- the most videotaped society in the world because of IRA terrorism-
B-grade filmmakers have raided footage from public video cameras to make
risque movies, often featuring unsuspecting couples
It is no wonder that critics of the use of this technology by law
enforcement agencies feel that the harm outweighs the good. In fact,
some police departments such as in Oakland, California have rejected the
idea of video surveillance when officials proposed installing video
cameras very similar to those now in use in New Haven.
- The
police department withdrew the proposal, concluding that they could not
find credible evidence that video surveillance was effective in fighting
crime and that the negative impacts would outweigh any benefits," says
John Crew, an American Civil Liberties Union lawyer who worked on the
case.
What irks the critics most is that as laws now stand, there are few
restrictions on monitoring the activities of others with the use of a
video camera.
Lack of Legislation
Most people who have found themselves the unwilling subject of hidden
video cameras have found that they have little recourse because there
are no federal regulations, no state statutes, and no labor laws
covering video surveillance. A U.S. Senate bill that would require
employers to inform workers about cameras in bathrooms or locker rooms
was attacked by the business community and stymied by Congress. "This is
all leading to a total-surveillance society," says Craig Cornish, of
the National Employment Lawyers Association.
The same holds true for police surveillance videos. "The law, as it
exists today, would appear to allow the use of any of this new
technology by police without the prospect of any judicial supervision."
The critics not withstanding, video surveillance devices in public
do not seem to violate any constitutional principles. If these devices
were set up to gaze into a private dwelling, however, that would be a
different story.
The United States Supreme has decided in a long line of cases, most notably in
Katz v. United States
389 U.S. 347, 88 S.CT.507 (1967), that there is no expectation of
privacy in a public place. The Court ruled that the limits of Fourth
Amendment protections against an illegal search did not stop at a
physical trespass into a constitutionally protected area. However, some
protection is suggested in that the court set forth two tests that since
1967 have been the reference point for other decisions. The first test
is expectation of privacy and the second is reasonableness of government
search. Neither test is explicitly in the 4th Amendment. However, the
4th Amendment does speak of unreasonable searches and seizures.
Up until this case in 1967 the court used to focus heavily on
property rights. Charles Katz had been convicted in federal district
court of bookmaking based on an eavesdropping device attached to the
outside of a public telephone booth without a warrant. The Supreme Court
threw out his conviction. Justice Potter Stewart writing for the
majority declared, "The Fourth Amendment protects people, not places."
Katz holds that "What a person knowingly exposes to the public, is not a
subject of Fourth Amendment protection. But what he seeks to preserve
as private, even in an area accessible to the public, may be
constitutionally protected.
Therefore it would follow that a person in public cannot have a
reasonable expectation of privacy from video surveillance cameras.
____If it's done in a public place, and
it's there purely for public safety purposes, it's not a problem," says
George Trubow, a professor at John Marshall Law School in Chicago and
director of the school's Center for Information Technology and Privacy
Law.
____
Still, some people question whether the use of video surveillance
cameras in public areas is reasonable police action vs. unreasonable
police infringement of the 4th Amendment. There is enough concern that
the American Bar Association has issued standards that take into
consideration the authorization, purpose, and duration of the
surveillance, the notification of the community, and use of the images.
Sheldon Krantz, a Washington, D.C. attorney, chaired the task force that
developed the standards. Under ABA standards, video surveillance
cameras and other detection devices can only be used to "see" into a
particular area if the Fourth Amendment allows a traditional search of
the area.
Under those standards, the use of such devices would be permitted
if they are reasonably likely to achieve a legitimate law enforcement
objective, have been approved by a politically accountable public
official, and have been presented to the public, which must be given an
opportunity for comment.
The standards have been published in a volume titled ABA Standards
for Criminal Justice Electronic Surveillance Third Edition, Section B:
Technological-Assisted Physical Surveillance.
Still, if you consider surveillance a search, it is one thing to be
searched electronically if there is probable cause. But the
indiscriminate surveillance of the general public seems to violate the
constitutional right to privacy as interpreted by the Fourth Amendment.
John Henry Hingson III is a criminal defense lawyer in Oregon City,
Oregon, and a past president of the National Association of Criminal
Defense Lawyers. He claims that the rights of the innocent are being
sacrificed in the name of law enforcement.
- "The
weapons of war are now being used against American citizens for civilian
law enforcement," he says. "And the casualties of this war are the
constitutional rights of the innocent."
This may not be the case for long, however. Even if the right of
privacy from unauthorized videotaping is not covered by the
Constitution, a right may be protected by statutory means. Florida
lawmakers have passed a bill which creates criminal penalties for
secretly videotaping, recording or filming people where they have an
expectation of privacy.
This is a step in the right direction and will protect people in
places such as restrooms. However, it does not protect citizens who do
not realize they are being videotaped when they are in a public place,
which is where most surveillance takes place.
What legislation is appropriate?
It has been established that we have no expectations to privacy when in a
public place. However, that does not necessarily mean that we have to
accept being video taped when we do not expect it. It is not
unreasonable for a person to expect to be able to venture into public
without his image showing up on in a situation that may be embarrassing
to him or may harm him in some way. It seems that appropriate
legislation would allow surveillance video equipment that would promote
public safety while putting severe restrictions on how that tape may be
used and who will have access to it. However, don't count on legislation
to stem the proliferation of surveillance cameras or how they are used
in the near future. For now, to paraphrase what they used to say on
television: anybody, anytime, anyplace may be the subject of this candid
camera.
