Surveillance Camera Systems: The Semblance of a Police State
- Tree of Knowledge Research
- Jun 4, 2015
- 6 min read
To paraphrase a famous quote by Benjamin Franklin, ‘Those who would trade Liberty for security deserve neither.’ Ever since the attacks on September 11, 2001, fundamental civil liberties have been sacrificed by American citizens in the name of security -- ranging from TSA screening passengers at every commercial airport checkpoint in the country to the NSA recording phone calls and surveilling internet activity. Now, with the advent of new technologies, the government is employing high-tech video cameras from automated license plate readers to radar devices that can peer through walls of houses to see whether anyone is inside raising serious concerns of Constitutional violations.
Over the past decade and a half, Video Surveillance Systems have been popping up all over the United States. Law enforcement has taken an aggressive approach to ensure the safety of citizens by employing dozens, if not hundreds, of surveillance systems in cities and towns across the country. For example, thousands of video cameras sit above parks and streets throughout New York City; Baltimore installed cameras at all of its downtown intersections and in its Inner Harbor area; Washington D.C., which already has cameras monitoring its downtown streets, subways, parks, and other public spaces, plans to increase surveillance systems throughout the city and Chicago is following suit.[i] In addition, the Justice Department is employing the use of small aircraft equipped with high-tech devices that mimic cell towers that can obtain certain personal data from phones that connect to them.[ii] These Orwellian technologies that police departments are employing are not simply surveillance cameras that scan the streets – instead, with new high-tech advancements, police departments are invoking a wide range of instruments including automatic license plate readers, red light cameras, speed cameras, biometric technology such as facial recognition, and audio equipment that can map the location of a gunshot within seconds. [iii]
Many of these surveillance systems are implemented without a warrant, probable cause, or any form of public consent. Are these new systems infringing on our Fourth Amendment right against unreasonable searches? Since the late 1960s, many would have said no, including the Supreme Court. In Katz v. United States, the Court held that the government generally does not need a warrant when surveilling us, unless it observes us or examines our belongings after entry into places or circumstances in which we have a “reasonable expectation of privacy.” 389 U.S. 347 (1967). In fact, the Supreme Court went on to say the Fourth Amendment does not establish a “general constitutional ‘right to privacy,’” but merely protects against unreasonable searches and seizures by government agents. Id. at 350.
Since Katz, the Supreme Court has maintained a general conjecture that individuals have no reasonable expectation of privacy in their movements in public. United States v. Knotts, 460 U.S. 276 (1983). See also, Oliver v. United States, 466 U.S. 170, 180-81 (1984) (finding that the Fourth Amendment limits police investigation of homes and the curtilage surrounding the home but has no application to “open fields”); Dow Chem. Co. v. United States, 476 U.S. 227 (1986) (finding that observation of persons when being viewed from navigable airspace, does not offend the Fourth Amendment). This broad rule may have worked in the past, given the limited scope of police investigative technologies; however, today, the technological advances make possible the ability for police to ascertain close to everything about a passerby -- private information is essentially becoming more and more public every time a person steps outside. Where is the line drawn? When do public camera surveillance systems cross the line and violate the Fourth Amendment?
In 2012, the Supreme Court had the opportunity to answer some of these questions in United States v. Jones; however, failed to do so clearly. In Jones, the Federal Bureau of Investigation and the D.C. Metropolitan Police Department used multiple surveillance measures -- including visual surveillance, wiretapping, and GPS tracking -- to gain information concerning the defendant, a nightclub owner suspected of drug trafficking. 132 S. Ct. 945, 948. The Court was faced with the question of whether a person has a reasonable expectation that their movements will not be recorded in an extended, uninterrupted manner. Id. at 956. The nine justices unanimously considered the police’s surveillance activities constituted a search under the Fourth Amendment; however, the justices were split as to the fundamental reasons why the police's actions infringed on defendant's Fourth Amendment Rights. Id. In particular, the Court found that the installation of a GPS violated the Fourth Amendment due to the physical installation on Defendant’s automobile; but, steered clear of discussing the issues raised by police surveillance technologies. Id. [iv] Justice Alito did explain in his concurrence that while “relatively short-term monitoring of a person's movements on public streets” is generally free from Fourth Amendment restrictions, “use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy” and should constitute a Fourth Amendment search.” Id. at 957-64 (concurrence J. Alito). Still, no guidelines were emplaced deciphering the length of time a person can be surveyed before infringing on that person’s privacy rights.
Courts have been very reluctant to develop clear cut rules due to the fact that a difficult balance must be struck between the privacy people are willing to sacrifice in return for widespread security. Some crucial justifications for employing surveillance technology on public streets and sidewalks include: (1) police can respond to crime more effectively and quickly by viewing criminal behavior in real time, (2) the cameras prevent crime simply through their presence,[v] and (3) protecting America’s critical infrastructures and key assets from terrorism. In fact, in the aftermath of the Boston Marathon bombing, law enforcement officers were able to find images of two suspects by analyzing surveillance images gathered by both public and private cameras. These cameras have also been found to be beneficial for traffic management and highway safety. [vi] No doubt exists that high-tech camera policing is more effective than traditional foot and vehicle policing when implemented for crime control. As effective as high-tech policing may be, we are creeping more and more into a complete surveillance state.. As additional technology is employed to augment the natural senses of sight and hearing, the Supreme Court will soon face the burden of making firm determinations of the Constitutionality of such technology for public surveillance.
[i]Morning Edition: Profile: Use of Surveillance Cameras in New York City and Other Places Around the World (NPR radio broadcast, Feb. 25, 2002) (noting reports of thousands of cameras in New York City and deliberations about installing "a hundred cameras with face recognition software in Times Square"), transcript available at 2002 WL 3187213; David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? 5 (1998); Jess Bravin, Washington Police to Play "I Spy,' Wall St. J., Feb. 13, 2002, at B1 (noting that cameras in Washington, D.C. "already monitor mass-transit stations, monuments, and schools" and that plans are underway to extend the monitoring to "streets, shopping areas, and neighborhoods," creating "what will soon be one of the nation's most extensive public surveillance networks"); See David Heinzmann, City to Put "Gotcha' Cameras on Crime, Chi. Trib., July 11, 2003, at 1 (describing plans to put cameras atop light poles in areas where police want to disrupt drug traffic); Nikki Usher, Video Surveillance Comes to the Big Easy, San Diego Union Trib., Aug. 24, 2003, at A14 (listing twelve American cities using video surveillance).
[ii] Sam Frizell, Is the Government’s Aerial Smartphone Surveillance Program Legal?, TIME Tech Privacy, (Nov. 15, 2014), available at: http://time.com/3586511/government-aerial-surveillance/
[iii] See, e.g., Ryan Gallagher, Police Across U.S. Quietly Turning to Cameras That Track All Vehicles' Movements: Survey, SLATE (Jan. 14, 2013), http://www.slate.com/blogs/future_tense/2013/01/14/automatic_license_plate_readers_survey_shows_most_u_s_police_agencies_plan.html (noting recent surveys indicating that automatic license plate readers are spreading throughout American police departments); Larry Barszewski, Fort Lauderdale to Add More Red-Light Cameras, SUN SENTINEL (Jan. 23, 2013), http://articles.sun-sentinel.com/2013-01-23/news/fl-brief-lauderdale-red-light-cameras-20130123_1_american-traffic-solutions-red-light-cameras-intersection-approaches (noting that cities like Fort Lauderdale are moving to install more red light cameras); Erin Cox, State Highway Administration Defends Speed Camera Program, BALT. SUN (Jan. 15, 2013), http://articles.baltimoresun.com/2013-01-15/news/bs-md-speed-camera-briefing-20130115_1_camera-tickets-camera-law-camera-program (discussing Maryland's significant investment in speed cameras across the state); Eric Hartley, LAPD's 16 San Fernando Valley Surveillance Cameras Go Live, L.A. DAILY NEWS (Jan. 16, 2013, 9:00 PM), http://www.dailynews.com/general-news/20130117/lapds-16-san-fernando-valley-surveillance-cameras-go-live (mentioning that surveillance cameras used by the LAPD use facial recognition software technology that can identify a person from 600 feet away).
[iv] See, e.g., Lauren Millcarek, Comment, Eighteenth Century Law, Twenty-First Century Problems: Jones, GPS Tracking, and the Future of Privacy, 64 FLA. L. REV. 1101 (2012).
[v] Richard Pendlebury, Hi-Tech Eyes Help to Crack Crime, Daily Mail, Apr. 17, 1993, at 12.
[vi] See Keri A. Funderburg, FHWA Honors Top Traveler Information Sites, 67 Pub. Roads (2004), available at http://www.tfhrc.gov/pubrds/04jan/iwatch.htm (Transportation management centers use traffic surveillance cameras to monitor roadways and report travel information to drivers via the Internet.)
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