34;crime war," louder than ever since the 9/11 terrorist attacks, has drowned out calls for greater control over technological street surveillance. The Fourth Amendment must be interpreted to recognize the right to public anonymity as part e Expectations of privacy that, to use the Supreme Court's familiar phrase, "society is prepared to recognize as reasonable".1 5.
Camera Surveillance of the Public Now and in the Near-
Nor is the suppression measure likely to be an effective deterrent in this context, since at best it benefits an infinitesimally small number of people exposed to the unlawful surveillance, and in any case is a poor remedial match to those types violations that public surveillance involves. . The dissonance between public surveillance and the individualized suspicion/exclusionary rule model suggests a need to rethink both the type of justification and the mode of implementation the Fourth Amendment requires.
The Surveillance Dragnet
Sometimes the footage is destroyed before authorities realize it could be helpful in solving a crime." Also, keeping footage doesn't guarantee identification. However, Brown also notes that the decline in vehicle theft in a CCTV area "seems to be after, when 8 months and the number of vehicle thefts is skyrocketing.” Id.
Current Legal Regulation of Public Camera
The Right to Public Anonymity
If the “uncomfortable” reaction Rehnquist refers to is not based on a sense of invasion of privacy, it stems from something very close: a sense of having what I would call “a right to public anonymity.” . Anonymity literally means nameless.'' The right to public anonymity provides the assurance of remaining nameless in public – unnoticed, part of the undifferentiated crowd – as far as the government is concerned.
The Impact of Losing Public Anonymity
The Panopticon Analogy
However, Foucault argued that modern society increasingly functions as a super-panopticon, one that "ensures the automatic functioning of power," by making "its actual exercise unnecessary."' As both public and private entities. pour more resources into methods of monitoring people and architecture that facilitates it, Foucault believed, ordinary citizens aware of this surveillance are likely to feel increasing pressure to conform to the norms by which the observers are perceived. Now, in contrast, consider some of the effects Foucault attributes to the "discipline" that he says comes from panopticism.
The Effects of Being Watched
The coercive effect of public surveillance has been noted by many others." But spontaneity is not all that can be inhibited by routine public surveillance. Pennock & J.W. Chapman eds., 1971) (The observed "becomes aware of himself as an object, of knowledge, that has a definite character [and] is fixed as something - with limited probabilities and not infinite and indefinite possibilities.");
The Government's Use of Surveillance
Video Surveillance in Public Places 1 (London Briefing Paper No at file with author) (arguing that the cameras are designed to deter "large groups, usually young single people, [whose] mere presence disturbs people who want to use the streets and shop in the centers in more conventional ways."). The telescreen . , at 44 ("In [the telescreen's] all-seeing function, it was far more sensitive, for it exceeded the potential of the Panopticon to achieve power over minds: one was aware that even the presence of a forbidden thought (``thought crime'') could be detected, betrayed individual with a small gesture or grimace ("facecrime") or with finer emotional signals of guilt, such as changes in breathing and heart rate.").
The Constitution and Public Camera Surveillance 252
Freedom of Movement and Repose
The Court of Kent explicitly stated that '[freedom of movement also has strong social values', including support for activities 'close to the core of personal life [such as] spending hours with old friends.' The right to travel was declared recently reaffirmed as a guarantee implicit in the Privileges and Immunities Clause of the Fourteenth Amendment.9'. Morales', a four-member majority of the Court declared that the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment 34. Freedom to Walk, Walk or lazing around - being influenced by the camera's panoptic eye.
The Right to Privacy
PUBLIC PRIVATE . whatever its intent, it can have a similar effect to stalking, given its inhibition of public movement."'. Regulation [of this technology] preserves the idea of a diverse, noisy America, where citizens are free to get lost in the crowd and where their sense of self stemming from their chosen affiliations and actions rather than from the all-seeing gaze of the state.”2. anonymity is useful in constituting individual and group identity in interaction."); Robert Post, The Social Foundations of Privacy: Community and Self in the Common Law of Tort, 77 CAL.
Freedom from Unreasonable Searches and
Second, the Court indicated that the government need not show actual knowledge of exposure to defeat Fourth Amendment protection. There are at least three lines of attack against this view of the Fourth Amendment's (non)application to CCTV. The first, of course, is to show that the Court's public exposure/assumption of risk approach to the Fourth Amendment is misleading.
An Empirically-Based Case for Fourth Amendment
Sources of Society's Privacy Expectations Vis-a-vis
No entity other than the government engages in concerted, overt surveillance of the public streets by means of cameras. More than 50% of respondents believed that an entity other than the government or private security firms should be responsible for the installation of CCTV in public places, 72%. to argue that use of balancing analysis to define search or seizure "is barred by the language of the Fourth Amendment itself. That provision's prohibition against 'unreasonable searches and seizures' applies the reasonableness test only after something has been designated a search or seizure." .').
The Study
78 Some of the scenarios in this study that were very similar to those used in the previous ones were given significantly different means. However, comparisons are problematic because the previous study included many variations that were not present in this study. Nevertheless, with the exception of the first two examples given, the hierarchy that emerges from the two studies is very similar.
The Relevance of Empirical Findings
It is also unlikely that society's views will change once the Court establishes the Fourth Amendment threshold, because the Court's ruling will reinforce those views. A second objection to a literal interpretation of Katz's expectation of privacy language is that, at the margins, it could render the language and history of the Fourth Amendment useless. There is also an institutional reason to align Fourth Amendment expectations of privacy with society's views on the issue.
Summary
Impementing the Right to Public Anonymity
Justification
Justifying Camera Location
However, it should be noted that universally regulated industry cases require the government to show a 'substantial' interest in the activity being regulated, and also require restrictions on when and how investigations may be conducted that provide a "constitutionally adequate remedy for the warrant ." Dewey v. 34; political model." A typical election process, which is likely to involve many questions, is not an effective way for a group to express its position on a particular police action. Such input can also provide the police with information about specific crime problems and the type of control that would could prove most useful.34 2 It is instructive that.
Justifying Individualization of Surveillance
But it will be no more difficult than defining when a non-seizure becomes a seizure, or determining when a stop requiring reasonable suspicion becomes an arrest requiring probable cause, issues the Supreme Court has grappled with on several occasions have - not always satisfactory. ."'3 Two factors that should be relevant here, according to the ABA standards, are "the extent to which the surveillance technology enhances the law enforcement officer's natural senses" and "the extent to which the surveillance of subjects is minimized. in time and space.3 If the camera's zoom or recording capacity allows operators to obtain information that would be difficult for an observer on the street to distinguish (such as a title on a book cover, or a biometric match with official records), then reasonable suspicion should be required; the same standard should be met if the cameras intentionally follow an individual for a long period of time (say, more than the five minutes involved in the secondary checkpoint in Martinez Fuerte) or on several separate occasions (analogous to Rehnquist's bar example). The amount of individualized scrutiny allowed should be roughly proportional to the amount of individualized suspicion the government has developed. In any case, the results of the study reported earlier indicate that the use of a beeper to monitor travel was rated almost as intrusive as a strip search,57 suggesting that members of the public believe that prolonged tracking with a beeper is much more invasive than the court seems to think.
Execution Issues
N otice
United States,6' involving drug testing of people who applied for and worked for the customs service, the Court noted that "[t]he employees are. James, allowing suspicionless home welfare inspections, the Court reasoned that by giving a recipient welfare a prior inspection notice minimized the invasion of privacy caused by the visit.3 A number of court cases also suggest that searches are arguably more palatable when targets ``consent'' ahead of time, which is impossible without some kind of notice." 4.
Avoiding Discriminatory Surveillance
The Supreme Court has emphasized the importance of duration limitations in many of its decisions defining the scope of the Fourth Amendment. In short, most violations of the right to public anonymity will not be remedied through exclusion. 34;Dragnet law enforcement practices,” to use Knotts' terminology, should be the domain of the Fourth Amendment.4 2.
Termination of Surveillance
Storage and Dissemination of Recordings
That capacity, plus the potential for misuse of the information thus generated, is obviously a major public concern. 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 accumulation of large amounts of personal information in computerized databases or other massive government files," stating that "in some circumstances" a "duty to avoid unjustified disclosures. One concern is whether the government can be trusted to limit its use of the information it obtains through covert CCTV to the prosecution of serious crimes.
Accountability
- Watching the Watchers
- Assuring Compliance
- Beyond Sanctions: Accountability Through
- Concluding Comments: A Different Fourth
The Supreme Court has indicated that failure to maintain accurate records of the results of a search is not a violation of the Fourth Amendment when the underlying search is valid. X"Since these items were constitutionally seized, we do not consider it constitutionally significant that they were not listed in the return of the warrant."). 41 Recall that 96% of departments surveyed by the IACP do not maintain information on the effectiveness of their use of CCTV.
