Released in May 2006, the Constitution Project's Guidelines for Public Video Surveillance: A Guide to Protecting Communities and Preserving Civil Liberties is easily the best text we have read on the subject of the legislative regulation of the installation and use of police surveillance cameras in public places. A truly substantial work (42 pages including extensive endnotes), the Constitution Project's Guidelines cannot help but remind us of the complete inadequacy of the New York Civil Liberties Union's Who's Watching? Video Camera Surveillance in New York City and the Need for Public Oversight, which was released in December 2006.
Judging from its footnotes, the Guidelines was finished in January 2006 but, precisely because its framing is general (America since September 11th), it doesn't appear dated or stale. Unlike the NYCLU's report, which seemed slightly stale upon release, the Guidelines doesn't attempt to be either topical or topographic: it does not include any maps of the locations of publicly installed surveillance cameras in a particular American city or town (it doesn't even mention such projects), nor does it track the rates at which these camera installations are growing. Though it occasionally refers to contemporary police practices and plans in a couple of American cities (Chicago and New York City), the Guidelines doesn't address itself to the truly local level (Mayors and city councils), but to the level of state government ("We intend these guidelines to be used by state and local officials and law enforcement agencies"). This is an interesting strategy, and might work quite well here in the State of New York.[1] In any event, the Guidelines is focused upon the core issues and yet is general enough to be applied anywhere in America.
The central arguments are these: surveillance-camera systems should be installed permanently in public places "only to address serious threats to public safety that are of indefinite duration"; only "terrorism" is sufficiently serious to warrant the use of permanent police cameras in public places; "property crime and violent crime other than terrorism, regardless of seriousness, do not pose a threat of indefinite duration at any given location"; only those cities -- and only those places within these particular cities -- where there is "a persistent threat of terrorist attack" and/or "danger to critical public infrastructure and the people who surround such sites" should have permanent surveillance camera systems.
These arguments reveal a sophisticated understanding of urban space, which is not homogeneous nor rigidly divided between public and private ownership, but which can be differentiated according to "the general character and current uses of these places." The Guidelines goes on to say:
Different rights and values may be at stake to varying degrees depending on the nature of the place -- for instance, free expression is likely a more primary consideration at a public park next to city hall than an alleyway behind a shopping mall. Similarly, the deployment of identification technologies may significantly chill free expression in the park, but in the lobby of a government building, these technologies may have only a minimal effect on individuals already required to present identification.
Building on this idea, the Guidelines sets forth a concise review and reassertion of the "Constitutional Rights and Values at Stake."
Privacy includes 'informational privacy' rights, such as a consumer's right to keep the businesses she patronizes from disclosing her name and address, 'decisional privacy,' which includes such matters as reproductive decisions, and the more traditional 'physical privacy' over one's self and property. Though these different branches of the privacy right are conceptually separable and vary in their legal protection, they all center on the right to personal autonomy -- what Justice Brandeis famously called 'the right to be let alone.' We use the term 'privacy' in this broad sense.
As the Guidelines will go on to show, contemporary surveillance cameras -- that is to say, digital video devices that are integrated into networked computer systems that can observe, record, track and identify individuals as they move through public places -- hinder, if not destroy, privacy in both "the broad sense" (the right to be left alone) and in each particular sense (informational privacy is violated by surveillance cameras that automatically record license-plate numbers; decisional privacy is violated by surveillance cameras installed outside of psychiatric institutions, drug-rehab facilities or abortion clinics; and physical privacy is violated by virtually every single police surveillance camera that operates in public).
The Guidelines remind us that "The right to anonymity is closely related to privacy."
Alan Westin, author of a seminal privacy treatise [Privacy and Freedom, New York: Athenaeum, 1967], described anonymity as a form of privacy that 'occurs when the individual is in public places or performing public acts but still seeks, and finds, freedom from identification and surveillance.' Because of this anonymity, 'he does not expect to be personally identified and held to the full rules of behavior and role that would operate if he were known to those observing him.' The Supreme Court has validated this view by recognizing that people should be able to remain anonymous while exercising certain constitutionally protected rights.
In a footnote to that last sentence, the authors cite McIntyre v. Ohio Elections Commissions Commission, 514 U.S. 334, 343 (1995), which referred to "a respected tradition of anonymity in the advocacy of political causes" in striking down an Ohio prohibition of anonymous campaign literature; and Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 166-169 (2002), which struck down a New York village requirement that door-to-door canvassers had to file in advance for a permit from the Mayor's office.
Unlike the NYCLU report, which mentioned but made no counter-argument to the NYPD's complacent assertion that it has the right to install surveillance cameras in public places "where there are no reasonable expectations of privacy," the Guidelines is unafraid to label such assertions "erroneous" and "false as an empirical matter."
[T]he Supreme Court has recognized that 'people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks' [Delaware v. Prousse, 440 U.S. 648, 663 (1979)] and that constitutional privacy interests may well be implicated when a camera is focused on activities the government has no legitimate interest in monitoring, such as 'a class ring' or 'identifiable human faces' [Dow Chemical Co. v. United States, 476 U.S. 227, 238-39 & n.5 (1986)] [...] Some [lower] courts have found the Fourth Amendment implicated in surveillance of private places -- even those visible from public vantage points. See United States v. Torres, 751 F.2d 875 (7th Cir. 1984) [...] In scholarly journals, many have argued that the Fourth Amendment is properly read to include restrictions on public video surveillance, but their arguments remain theoretical. See e.g. Marc Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity, 82 TEX. L. REV. 1349 (2004).
If you place the emphasis correctly, as its author(s) do, the Guidelines is hopeful or at the very least sees a possibility: "The Fourth Amendment protects individuals from 'unreasonable searches and seizures,' but no court has yet found law enforcement use of video cameras to surveill activity on public property to be an unreasonable search" (emphasis added); and "Similarly, courts have not yet recognized that modern video surveillance may chill or otherwise intrude upon protected First Amendment activities" (emphasis added). Not yet -- but maybe sometime. . . . This is so much better than resigned sighs that "the cameras are probably here to stay"!
In marked contrast to the NYCLU's report, the Guidelines does an excellent job of summarizing in a vigorous, "proactive" fashion the conclusions that have been reached, based upon "scientific" research into the actual effectiveness of public video surveillance.
A 2003 review by the Office of the Information and Privacy Commissioner of Alberta, Canada found the consensus amongst empirical studies to be that video surveillance has little effect on violent crime, and only a small positive effect on property crime. This positive effect on property crime, moreover, was substantially less than the effect of improved lighting [...] Finally, given the cost of deploying, maintaining, and operating such systems, no data exists to demonstrate that video surveillance is a more effective use of public resources than traditional law enforcement [...] In Oakland, California, the ACLU reports that [...] 'there is no conclusive way to establish that the presence of video surveillance cameras resulted in the prevention or reduction of crime.' While these studies and examples are grist for those who oppose video surveillance, the conclusions they draw by no means end the debate [emphasis added].
Of course, we are not interested in "ending" the debate: we want to win the debate, and to win the debate we need exactly what the Constitution Project is providing: convincing arguments and a hopeful, can-do attitutde.
In the meantime, there are the guidelines themselves. Model Legislation was issued in September 2006.
recommendations AND model legislation! differences scope and purpose (terrorism) public notice (signage) training of personnel storage and retention prohibitions and penalties
OK, "terrorism" and the problems with the Guidelines
[1] In its review of state law acorss the USA, the Guidelines notes that New York State stands virtually alone in that,
video surveillance [of public places] can only be conducted as part of a police investigation into the allegedly criminal behavior of an individual pursuant to a warrant. Because of what the statute terms 'the reasonable expectation of privacy under the constitution of this state or of the United States,' the bar for authorizing or approving such a warrant is set quite high, and the alleged crimes must be quite serious.
In a footnote to that last sentence, the Guidelines cites N.Y. CRIM. PROC. LAW Section 700.20 (2002) and notes that the "bar for authorization" is set at "serious felonies and drug-related crimes." And so, in 1997 and 1998, Mayor Giuliani was able to get NYPD cameras installed in Washington Square Park and several New York City Housing Authority units under the rubric of the "war on drugs." But there's a problem: what about the inevitable prospect that the camera-watchers will focus upon and witness/record evidence of "criminal behavior" -- lingering, panhandling, urinating in public, smoking marijuana, parading or demonstrating without a permit -- that clearly falls below the threshold of "seriousness"? Would not such evidence be inadmissible as improperly obtained? This indeed would seem to have been the point of the author(s) of the Guidelines when, to begin this very footnote, they cited N.Y. CRIM. PROC. LAW, Ch. 11-A, Pt. 3, Title T ("Procedures for Securing Evidence by Means of Court order and for Suppressing Evidence Unlawfully or Improperly Obtained"), Art. 700.
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