This document was drafted in June 2000 and updated several times (most recently March 2001) by the members of the Surveillance Camera Players (SCP). The SCP is firmly convinced that the use of video surveillance in public places for the purposes of law enforcement is unconstitutional, and that each image captured by police surveillance cameras is an unreasonable search. We also believe that it is irresponsible of the government to allow unlicensed private companies to install as many surveillance cameras as they please, and to install them wherever they please. As the SCP, we have struggled to alert people to these dangerous conditions. But we are not lawyers, and do not know how to fight back in court. And so we have drafted this document to convince you, the lawyers, to take legal action, and thus help us put a stop to unconstitutional video surveillance -- in New York City, and hopefully elsewhere, as well.
We believe that the right to privacy is a fundamental human right. The right to privacy is guaranteed by the Fourth Amendment to the United States Constitution, and by Section 12 of Article I of the Constitution of the State of New York, which state in unison:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
It is very significant to us that "persons" precedes "houses" in this sentence, for this ordering clearly suggests that the people's right to be secure isn't limited to the confines of their "houses," but extends everywhere persons are able to take themselves. Security is guaranteed in public as well as in private places.
The right to privacy (not "security") is explicitly and unambiguously protected by the Constitution of the State of Hawaii, which was updated in 1978.
RIGHT TO PRIVACY: Section 6. The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The legislature shall take affirmative steps to implement this right. [Add Const Con 1978 and election Nov 7, 1978]
SEARCHES, SEIZURES AND INVASION OF PRIVACY: Section 7. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communications sought to be intercepted. [Am Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978]
And yet, despite these unambiguous laws, the privacy rights of millions of American citizens are being violated every day by the widespread use of surveillance cameras by police departments. Though these cameras are ostensibly being used for the purposes of "security" and law enforcement, their operators are not showing probable cause or compelling state interest before installing and using them; they are not getting warrants; and they are not specifying what evidence they expect to obtain by using them. Worse still, the operators of these cameras don't in fact have reasonable grounds for using them to search the particular individuals and groups that happen to come within their sight! All they have is the notion that someone might do something illegal in that particular location. Since it isn't known who that "someone" will be, everyone is treated as a potential criminal. In short, the operators are acting as if they were military personnel, not civilian authorities. Rather than generating intelligence that is "high grade" (i.e., evidence) and thus admissible in a court of law, they are generating huge quantities of "low grade" intelligence that needs to be sorted, analyzed and processed into a usable form. Especially when it is rendered usable, this intelligence isn't subject to the rules of discovery: its contents are kept secret, even if no criminal activity ever took place. (Elsewhere we have undertaken an analysis of military surveillance and its connections with the use of surveillance cameras by domestic law enforcement authorities.)
Compounding the problem is the fact that surveillance cameras are in operation literally everywhere one goes, both in public areas such as parks, streets, sidewalks, plazas, airports, bus terminals, subway stations and trains, and in private establishments such as workplaces, banks, shops, stores, restaurants, health spas, taxis, garages, loading zones, and housing developments. Unfortunately, it is almost impossible to know exactly how many cameras are in operation at any one time. Cameras can be made so small that they are practically invisible, and can be placed in locations that are difficult to find. In New York, matters are made worse by the fact that the city government doesn't make available any information about the number, sophistication or placement of cameras operated by the New York Police Department (NYPD). Indeed, all of the city-operated closed-circuit television (CCTV) systems in New York -- unlike those in Baltimore, Maryland -- are unmarked; the public is not informed of the systems' existence or operations, and so cannot give its consent to being watched. As a result, New Yorkers who are concerned about the effect these cameras are having on their civil liberties, and want to know more, are forced to locate, map and count the cameras on their own.
In 1998, the New York Civil Liberties Union (NYCLU) made such a count. According to the group's research, there were approximately 2,400 surveillance cameras in Manhattan alone. Based upon the design and location of the cameras, the NYCLU determined that the vast majority of them were owned and operated by private individuals and companies, and that only a small percentage were owned and operated by the NYPD or other government agencies. Convinced that there were even more surveillance cameras operating in 2000 than in 1998, we located, counted and mapped the locations of surveillance cameras in Times Square, a district in which a half-dozen NYPD surveillance cameras were installed in December 1999. We found a total of 129 cameras, or 54 more cameras than the NYCLU found there in 1998. If these results are typical, then there are today more than 6,128 surveillance cameras in Manhattan as a whole.
We believe that it is very likely that at least some of the videotape generated by these surveillance cameras is being misused. It is certainly the case that several "reality-based" television shows and Web sites are filled with surveillance footage provided by police departments, and that police surveillance tapes are frequently sold as either bootlegs or official video releases. Police videos that have been sold rather than destroyed often include footage recorded in dressing-rooms and public toilets and tend to focus on women and couples, rather than on men (see Doe v. B.P.S. Guard Serv., Inc., 945 F.2d 1422 (8th Cir. 1991) and Michigan v. Hunt, 259 N.W.2d 147 (Mich. App. 1977).) So extensive is the use of hidden video cameras to invade the privacy of women, to photograph them and thereby derive sexual satisfaction, that the State of Florida has proposed HB 3709, Chapter 98-415, which would prohibit the videotaping of someone with lewd or indecent intent while that person is in a dwelling, structure or conveyance that provides a "reasonable" expectation of privacy. (Since most of this "voyeuristic" videotaping is done in public places, one hopes that Florida's lawmakers will do what clearly needs to be done: assert that women and girls have a reasonable expectation of privacy when they go out into public, just like everyone else.)
Abuses are common because there are no federal laws on the books concerning video surveillance. Neither the federal Omnibus Crime Control and Safe Streets Act of 1968 nor the Electronic Communications Privacy Act of 1986 covers video surveillance, despite the fact that Title III of both acts contains provisions concerning audio surveillance. In the words of the judge who presided over United States v. Torres, 751 F. 2d 875 [7th Cir. 1984],
it is anomalous to have detailed statutory regulation of bugging and wiretapping, but not of television surveillance, in Title III [of the Omnibus Crime Control and Safe Streets Act of 1968], and detailed statutory regulation of television surveillance of foreign agents, but not domestic criminal suspects, in the Foreign Intelligence [Surveillance] Act [of 1978]. . . . But judges are not authorized to amend statutes, or bring them up to date.
Though federal statutes haven't been updated or amended to take account of video surveillance devices, state statutes have been. In the State of New York, for example, the relevant statute is C.P.L. Part Three, Title T ("Procedures for Securing Evidence by Means of Court Order and for Suppressing Evidence Unlawfully or Improperly Obtained"), Article 700. Like "eavesdropping" (the auditory monitoring of conversation and discussion), video surveillance can only be conducted as part of a police investigation into the allegedly criminal behavior of an individual if a warrant has been issued by a judge. Because of what the staute 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. The crimes allegedly being committed must be quite serious (conspiracy, bribery, usury, promotion of prostitution, riot and criminal anarchy, fraud, money laundering, etc.) or drug-related (criminal possession or sale of a controlled substance).
Despite such laws, police departments all over America are installing surveillance cameras in public places without getting warrants to do so. These police departments have apparently decided -- or have been told by Mayors and Governors -- that laws such as Article 700 in the New York C.P.L. cover private residences but not public places, and that no one has a reasonable expectation of privacy once they've left their place of residence. The current vogue for installing public CCTV systems began in the early 1990s, with the installation of a system in Newark, NJ. Other cities quickly followed Newark's lead: Anchorage, AK; Dover, NJ; San Diego, CA; Tacoma, WA; and Virginia Beach, Virginia. As a result of the terrorist bombing of the World Trade Center in 1993, the 1994 Violent Crime Control and Law Enforcement Act made it possible for local law enforcement authorities to receive federal funds for the installation of CCTV systems in public places. In 1995, the Federal Building in Oklahoma City was destroyed by a terrorist-like attack. And so, by 1996, public CCTV systems had been installed all over the country: South Orange, NJ; Baltimore, MD; Memphis, TN; New Orleans, LO; Fort Lauderdale, FL; Tampa, FL; and Hollywood, CA. (Terrorism is only one of several serious threats that local law enforcement agencies cite as their justification for installing surveillance cameras in public places. The others include: the "war on drugs"; armed street gangs; and petty "quality of life" infractions such as urinating in public, graffiti, smoking pot, etc.) New York City's public CCTV system dates from 1998.
It appears to us that a good case against the cameras can be made. Courts have already ruled: 1) that video surveillance shouldn't be used indiscriminately (without regard to probable cause) and that it should only be used when the need for it clearly outweighs concerns for privacy (see United States v. Torres, 751 F.2d 875 [7th Cir. 1984], United States v. Biasucci, 780 F. 2d 504 [2d Cir. 1986], and United States v. Cuevas ([5 th Cir. 1987] 821 F.2d 248); 2) that the Fourth Amendment protects us against illegal searches and seizures in both public places and our homes, and that people are entitled to their privacy, even when they are in public places, provided that there is a "reasonable" expectation of privacy (see Katz v. the United States, 389 U.S. 347 (1967)); and 3) that a "reasonable" expectation of privacy exists when one uses a public phone booth (Katz v. the United States), attends a rock concert (Jacobsen v. Seattle, 658 P. 2d 653 (Wash. 1983)), or enters a sports arena (Collier v. Miller, 414 F. Supp. 1357 (S.D. Tex. 1976)). What we want, of course, is to get a court to rule that a "reasonable" expectation of privacy exists when one walks on a sidewalk, crosses the street or enters a public park.
We are well aware of the fact that obtaining such a ruling may be very difficult. No doubt the following objections will be made: 1) though a sympathetic judge might recognize the validity of the subjective part of the expectation of privacy when one walks on a sidewalk, crosses the street or enters a public park, he or she will never recognize the validity of the objective part of it; and 2) the City of New York does indeed have a compelling interest for installing and operating surveillance cameras in public places: protecting the general public from crime. Let us address these objections, for we think they aren't as strong as they might appear.
1) As was pointed out by the judge in Vega-Rodriguez v. Puerto Rico Telephone Company, 110 F.3d 174 (1st Cir. 1997), arguments that video surveillance of public streets, sidewalks and parks is in fact constitutional are based upon the parity made between observations made by "the naked eye" of a police officer and observations recorded by an openly displayed surveillance camera. There is supposed to be a direct analogy or connection between the two forms of observation: the surveillance camera is merely an extension of the eyes of the police officer. And so, just as the posting of a police officer in a public park or at the intersection of two streets does not require probable cause or a warrant, the posting of a surveillance camera in such places shouldn't require them either. Though one is a machine and the other is a human being, a surveillance camera is no more intrusive than an officer: both see what is in "plain view." It would be on these grounds that our hypothetical judge would rule that the expectation of privacy in a public place such as Washington Square Park or Times Square fails the objective part of the test.
Unfortunately for us, Vega-Rodriguez v. Puerto Rico Telephone Company concerns audio surveillance and not video surveillance, because the judge in the case was not convinced that the analogy between "naked eye" and surveillance camera was valid. It is clear to us that the analogy is in fact totally invalid. Contemporary surveillance cameras -- say, the ones installed by the NYPD in Washington Square Park and Times Square -- are able to do things that no human eye is capable of: rotate 360-degrees around; telescope or "zoom" in and see small objects at distances of up to a mile away, without suffering a loss of image quality; and use prosthetic devices such as low-light lenses and infrared imaging to see in the dark or the rain. As a result, what may be out of the "plain view" of the "naked eye" of a police officer may very well be squarely within the plainly enhanced view of a surveillance camera. We are encouraged by the opinion of the Californian legal scholar Marcus Nieto, who noted in 1997 that "no cases have been adjudicated under the Fourth Amendment testing the use of rotating video surveillance cameras in a public setting. If a video camera monitored by police has an infrared filtering device with the capabilities to view activities that a reasonable person might expect to not be visible from public view, Fourth Amendment concerns might arise."
Advanced though they are, the cameras in operation in New York are relatively primitive compared to those in London, where some cameras are totally automated: their movements are not guided by the hand of a police officer stationed in a control room, but by remote sensors and tracking devices. Some cameras are equipped with "strange behavior" sensors, which automatically trigger the record and remote-tracking functions when someone makes a motion that is "associated" with a particular form of criminal behavior. Other cameras are equipped with face recognition software, which is a computer program that can automatically match a person's face (as it is captured by the camera) to images of it already stored in any number of databases. High-speed "dictionary" computers do the matching, using high-speed telecommunications networks. Though the brain of the police officer who watches with his or her naked eye may be very efficient by human standards and well-trained to boot, it can do none of these literally super-human things.
If the degree of invasiveness of the surveillance cameras and control rooms already in operation -- not to mention the capabilities of the ultra-sophisticated cameras and control rooms that will soon be in operation -- were known to and understood by New Yorkers, a large number of law-abiding people would surely refuse to assume the "risk" of going out into public or would do so with a considerable amount of anxiety, fear and distrust. In addition to those who prize their privacy and anonymity, those who would be most affected by hyper-invasive CCTV systems would include racial and ethnic minorities, women and other potential victims of sexual harassment or unwanted sexual advances, and people suffering from social anxiety disorders or paranoia. The social, economic and psychological effects of such a deplorable situation would obviously be catastrophic and hardly worth the "security" and reduced crime rates that cameras supposedly bring.
There are even larger issues concerning the reasonable expectations one might have of democratic societies such as our own. We can easily imagine and accept the fact -- for it is a fact -- that fundamentally undemocratic societies such as those in contemporary China, Iran and Iraq would subject their citizens to constant video surveillance, especially in public places. They are Police States, and Police States use surveillance cameras to spy on everyone all the time. But to the extent that America prides itself on being the leader of the free world -- that is, on being the democratic alternative to Nazism, Stalinism, Maoism, anti-Western Muslim Fundamentalism and all other forms of tyranny -- the existence of Big Brother-like video surveillance of public places in America may undermine popular belief in the ideals that have animated this country since its founding, and thus make it more likely that domestic extremists will assist foreign spies and terrorists or will express their opposition to the government by engaging in terrorism themselves.
For all the reasons listed above, we're confident that a judge's measurement of the objective component of the "reasonable" expectation of privacy test is not a foregone conclusion.
2) The problem with using surveillance cameras in public places to "reduce crime" is that the meaning of "crime" is not self-evident, and requires precise definition, especially if the threat of "crime" is so great that the indiscriminate surveillance of public areas is required. To some politicians and law enforcement officials, "crime" is committed by certain types of people; that is to say, certain types of people are closely "associated" with certain crimes, while others are not. For example, marijuana dealing and use are "associated" with Latinos, while robberies and muggings are "associated" with African-Americans. And so, if you want to wage a "war on drugs," you pull over every single car driven by people who look Latino; if you want to crack down on purse-snatchings, you stop-and-frisk every single African-American you see on the street. Called racial profiling, this practice -- despite being widely practiced by police departments all across America -- is quite illegal. Unfortunately, profiling is an essential component of CCTV systems. In the words of a camera operator who spoke to a documentary-maker from Granada, "Most people you can tell just by looking at them [if they're going to commit a crime]. . . . People with shirts and ties [in other words, middle-class white people] are OK." Another operator said that "I can tell [if people are going to commit a crime] by the hair."
To some politicians and law enforcement officials, "crime" includes many forms of behavior that are in fact perfectly legal. In the words of recent study of "The Technologies of Political Control," submitted to the European Parliament in 1998,
much of this [surveillance] technology is [in fact] used to track the activities of dissidents, human rights activists, journalists, student leaders, minorities, trade union leaders and political opponents.
Such deliberate misuses of CCTV systems -- which are redolent of the "Big Brother" society described in George Orwell's famous novel, 1984 -- are doubly unconstitutional, for they undermine or "chill" the rights guaranteed by both the First and Fourth Amendments.
Simplistic references to "reducing crime" are also complicated by the degree of seriousness of the illegal activity involved. Thirty years ago, when surveillance cameras were first introduced, "crime" in public areas meant serious offenses, such as burglary, car theft and assault. But, today, surveillance cameras are installed to prevent minor offenses such as littering, loitering, public intoxication, the use and sale of "soft" drugs, and traffic violations. Would the judges of thirty years ago have allowed the use of public surveillance cameras to fight minor offenses? No, absolutely not. They only allowed the Fourth Amendment to the Constitution to be violated -- something they were loathe to let happen -- because the cameras were installed to fight serious crime, which takes a serious toll on society and its citizens. But unlike serious crimes, most "quality of life" violations are victimless crimes, the eradication of which surely falls beneath the threshold of truly compelling state interest.
In June 1997, legal scholar Marcus Nieto undertook to answer the question Public Video Surveillance: Is It An Effective Crime Prevention Tool? He researched the use of public CCTV in all of the major American cities. Over and over again his report encounters the same obstacle: in Baltimore, "no useful data has been published"; in Newark, "no official crime-related data measuring the effectiveness of the system has been kept since the system was installed"; in Virginia Beach, though the police claim "they have made hundred of observations that have led to arrest," "there is little hard statistical data to support the effectiveness of the CCTV system"; etc. etc.
If records are being kept, they suggest that surveillance cameras, even when they are installed in large concentrations, are not effective tools in the prevention of crime. They do not enable police officers to make more arrests than they normally would. The presence of surveillance cameras has been shown to simply displace criminal activity, not end it. The criminals simply move out of the cameras' range. In response to these facts, public support for CCTV systems in the United Kingdom is dropping. According to one study, more than 50 percent of those interviewed didn't want either the government or the private sector to install cameras in public places, and more than 10 percent would like to see use of the cameras banned outright.
The surveillance of public places by local law enforcement authorities is a relatively recent development. Though the installation of surveillance or "security" cameras at banks was mandated by federal law back in the early 1960s, it wasn't until the late 1960s and early 1970s that municipalities began installing CCTV systems in "high crime" areas. Most of the very first public CCTV systems were installed in the New York metropolitan area: Times Square; White Plains, NY; Mt. Vernon, NY; Atlantic City, NJ; Hoboken, NJ; and Newark, NJ. (Another early public surveillance program was begun in Miami Beach, Florida.) Between 1975 and 1995, all these public CCTV systems -- plus a few set up in the 1980s, including the ones in Detroit, MI, and Charleston, WV -- were dismantled because they produced "mixed results" and so were too costly to maintain.
Even more encouraging is the decision, reached in September 1997 by the Oakland City Council, not to install a proposed high-tech video surveillance system in their city. In the words of Oakland's City Attorney, as reprinted by the American Civil Liberties Union, a lawful
method of surveillance may be no greater than that which can be achieved by the naked eye. Mindful of the advances in technology, the California Supreme Court has held that "precious liberties derived from the Framers (do not) simply shrink as the government acquires new means of infringing upon them." Additionally, the (U.S. Court of Appeals for the) Ninth Circuit has held that "the police may record what they normally may view with the naked eye." Consequently, one may have a reasonable expectation of privacy from observation from a video camera equipped with zoom or magnifying capabilities.
Let's get to work!
Contact the Surveillance Camera Players
By e-mail SCP@notbored.org
By snail mail: SCP c/o NOT BORED! POB 1115, Stuyvesant Station, New York City 10009-9998