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.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.
- 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.
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.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.
- 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.
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.
- 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.
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: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.
- 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?
- 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.
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.
- 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
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.
- 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.
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.
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.
- "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."