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that CCTV surveillance can last well over five minutes even in
cases where no deployment or arrest results.
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which a newspaper reporter and photographer accompanied police on a search of a house. There, however, the issue was solely whether the presence of the media at the time of the search was unconstitutional; because the ride-along was not "in aid" of the search's execution, it unconstitutionally infringed on the privacy of the search's target."8 2 Layne did not address the lawfulness of later dissemination of information about the search, whether acquired by the media at the time it occurs or from police at some later point. In the CCTV context, then, Layne at most would ban the media and other non-law enforce-
ment entities from being present during the surveillance.
Other Supreme Court decisions, however, suggest the Con- stitution requires law enforcement to keep a tight rein on infor- mation it accumulates. In Whalen v. Roe,"s s the Court consid- ered a Fourteenth Amendment privacy challenge to a state statute that required physicians to submit information about patients' drug use to a state agency. Although the Court upheld the statute, it made much of the state's efforts to maintain security over the information submitted and the fact that the records were destroyed after five years.' At the end of its opinion, it also noted "the threat to privacy implicit in the accu- mulation of vast amounts of personal information in computer- ized data banks or other massive government files," and stated that "in some circumstances" a "duty to avoid unwarranted disclosures ... arguably has its roots in the Constitution.""8 Citing Whalen, the Court in Ferguson v. City of Charleston concluded that "[tihe reasonable expectation of privacy enjoyed by the typical patient undergoing diagnostic tests in a hospital is that the results of those tests will not be shared with non-
'8 Wilson, 526 U.S. at 614.
'u 429 U.S. 589 (1977).
' Whalen, 429 U.S. at 601 ("There is no support in the record, or in the experience of the two States that New York has emulated, for an assumption that the security provisions of the statute will be administered improperly."). The Court also noted that it did not need to address the constitutionality of "the unwarranted disclosure of accumulated private data whether intentional or unin- tentional or by a system that did not contain comparable security provisions." Id.
at 605-06.
31 id. at 605.
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medical personnel without her consent."8 Also relying on Whalen, the Court in Department of Justice v. Reporters Com- mittee for Freedom of the Press stated that "the fact that an event is not wholly 'private' does not mean that an individual has no interest in limiting disclosure or dissemination of the information."' That case went on to hold that, under the Freedom of Information Act (FOIA), government-maintained rap sheets on criminals need not be disclosed to the press be- cause they did not further the FOIA's "central purpose" of ex- posing to public scrutiny official information that sheds light on an agency's performance of its statutory duties.88
These cases indicate that the Court is willing to interpret the Constitution and statutory mandates to circumscribe disclo- sure of private information gathered by the government. In the CCTV setting, the content of these rules might vary widely.
With respect to storage of information, a jurisdiction might require that all recordings not relevant to a criminal investiga- tion be destroyed within a short period of time (the ninety-six hour limitation used in the survey reported in this article co- mes from Baltimore's policy89). Or it could opt for a much longer maintenance period, in the belief that the usefulness of particular tapes, either to inculpate or exculpate, may not be- come apparent until significant time has elapsed. The impor- tant feature here is to ensure the security of the recordings.
With respect to dissemination, the Court's cases suggest that allowing information to be used for non-law enforcement pur- poses ought to be permitted only under compelling circumstanc- es, if at all. The ABA Standards recommend that "disclosures be prohibited unless affirmatively authorized by statute, judi- cial decision or agency rule."3" That language echoes the .Sitz mandate that decisions affecting large segments of the public
532 U.S. 67, 78 & n.14 (2001).
489 U.S. 749, 770 (1989).
Reporters Comm., 489 U.S. at 774.
' See Remarks of Stephen McMahon, supra 68, at 6.
', ABA STANDARDS, supra note 16, at 13 (Standard 2-9.1(dXviXcomment). See Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 TEX. L. REV. 49, 85-92 (1995Xgiving reasons for requiring disclo- sure rules to be promulgated by deliberative bodies).
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Before leaving this subject, mention must be made of a provocative proposal made by William Stuntz. I have argued here that, in addition to rules regarding disclosure, we need rules concerning justification and implementation. Stuntz sug- gests that, at least when government engages in "secret search- es," we might profitably consider focusing solely on disclosure rules.91 More specifically, he proposes that government be allowed to carry out such searches randomly, without having to demonstrate any suspicion, on condition that it be permitted to use the information it obtains only in prosecutions for serious, violent crimes.92 That approach, he asserts "would allow us to give both the police and private citizens more of what they value-easier evidence-gathering and reduced risk of embarrass- ment or harassment."393
Although CCTV, as defined in this article, is not conducted secretly, it could be.39 Stuntz would allow such covert use at the whim of the police, as long as the disclosure rule is fol- lowed. No one would know their right to anonymity had been invaded unless and until they are prosecuted for a serious crime. Why not institute this regime rather than bother with the elaborate rules discussed to this point?
One concern is whether government can be trusted to limit its use of the information it obtains through covert CCTV to prosecutions of serious crimes. Given the secret nature of these searches, finding the "poisonous tree" in prosecutions for non- serious crimes may be difficult.3 95 Furthermore, of course,
39 William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2183-84 (2002)("The law could allow a given search tactic whenever the police want to engage in it, but forbid public disclosure of anything uncovered save in a criminal trial.")
39 Id. at 2184.
39 Id. at 2185.
s' See UPI, supra note 54 (describing new CCTV system in Hull, England "us- ing tiny cameras disguised in street lamps or concealed on buildings to transmit pictures to a monitoring center around the clock.')
"9 Informants can always be manufactured when necessary to cover illegal investigation practices. See Christopher Slobogin, Testilying: Police Perjury and What To Do About It, 67 U. CoLO. L. REv. 1037, 1043 n. 28 (1996Xdiscussing
"the invention of 'confidential informants' . . . , a ploy that allows police to cover up irregularities in developing probable cause or to assert they have probable [VOL. 72
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barring use of surveillance results in court does not provide any disincentive to police who intend to use CCTV feeds solely to harass "flawed consumers" or take other actions they know will not lead to charges being filed."9
The more important problem with the elimination of justi- fication and execution rules, however, has to do with the right to anonymity. Stuntz' proposal might not openly infringe that right for those not prosecuted, but it insidiously trenches on everyone's right to avoid suspicionless government scrutiny.
Indeed, in the CCTV context, once the public becomes aware that random covert surveillance is occurring, as it inevitably would after a few prosecutions in which the covertly gleaned information is used, the panoptic effect of this regime will be greater than occurs with overt CCTV. Although the survey results reported earlier suggest otherwise (with the covert scenario ranked significantly lower than the overt scenar- io397), the covert scenario used in the survey implied that the surveillance was limited to one location.39 8 In Stuntz' society, by contrast, we would assume that secret surveillance was pervasive, not just incidental. That would move us one step closer to an Orwellian society, because we would no longer know when and where government is attempting to find out what we are doing in public; in other words, we would not know when or how to protect against invasion of our public anonymity. Probably no passage in Orwell's novel 1984 is more chilling than the one partially excerpted at the beginning of this article: "There was of course no way of knowing whether you were being watched at any given moment.... It was even conceivable that they watched everybody all the time."3
cause when in fact all they have is a hunch.")
39 See infra note 408-09 and accompanying text.
31 See Table 1 (covert scenario (M=42); overt scenario (M=53)), supra p. 277.
31 Specifically, the scenario read as follows: "Police at a central control center monitoring hidden video cameras positioned at 300-yard intervals that can zoom in on the face and body of a person." Survey form, supra note 274.
3'9 ORWELL, supra note 3, at 6.
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