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Friday, September 19, 2008

"Yippee! You Can't See Me, But I Can You": Pink Floyd and Public Video Surveillance

I visited London for the first time in 2003 and like, any self-respecting Pink Floyd fan, immediately set out on a pilgrimage to the site of the long-vanished UFO Club, where the band first achieved cult status.  It was quite hard to find, in part, because unlike concert venues such as TT the Bear’s in Cambridge, The Metro in Chicago, or CBGB’s (may it rest in peace) in New York, the UFO Club was not a particular place but rather a periodic experience that took place every Friday night in what was, during the rest of the week, an Irish dancehall (kind of like a Jewish Reconstructionist congregation that borrows space in a Unitarian Church for services each Friday evening).  The Wikipedia article that identifies the UFO Club’s exact whereabouts was not yet posted, and the only site on the Web I could find that purported to give its specific address on Tottenham Court Road was filled with misspellings and suspicious factual claims.  But it was my only lead, so I followed it, and found myself on a quiet block with only a closed movie theater and a closed camera store, on which I wandered back and forth trying to establish the exact location on which Pink Floyd once played “Interstellar Overdrive” (in the video footage of the UFO Club performance that I’ve included above).

All of which brings me to public video surveillance: As I wandered back and forth examining the closed movie theater and the closed camera store, I noticed there was a video camera above the street that was moving back and forth with me, apparently observing my behavior which, to someone who was unaware of my loyalty to Pink Floyd or the poor-quality information in my head about the UFO Club’s former location, probably seemed crazy, or an attempt to case for the camera store or movie theater for a robbery.

London is covered with such video cameras – according to one estimate, at least 500,000 of them.  American cities, such as Washington, DC, Chicago, and New York, are installing similar video surveillance systems in their streets, parks and public transportation systems. One reason for this massive proliferation of cameras is the greater concern that people, and the law enforcement agencies charged with protecting them, feel about terrorism in the wake of the 9/11 attacks. Cities also want to use cameras to more effectively tackle crime, and to more closely monitor events where there is a need for crowd control.  So far, Congress and other legislative bodies have placed few hurdles in the way of such camera systems, and the General Accounting Office and others have decided that these systems likely raise no constitutional issues under the Fourth Amendment’s bar on unreasonable searches so long as the cameras only observe what happens in public space and do not capture video of the insides of homes, offices or other private spaces. Others argue that since the government would not have to get a warrant (or satisfy any other Fourth Amendment requirement) to put a police officer on every block, it shouldn’t be under any more constitutional restriction when it tries to cover much of the same ground with the more technologically-advanced method of installing cameras over each block.

But that argument misses something.  While installing camera systems is like putting a police officer on each block, it is also **unlike** doing so – in what may be constitutionally significant ways. Electronic eyes can capture much more detail than a person’s unaided observations – especially when they are equipped with powerful zoom capacities and can be connected to computers that can store and analyze massive amounts of information. The police officer on each block will not remember every face he or she sees.  He won’t be able to capture a record of every detail about our behavior for later analysis.  A powerful enough camera system might be able to do so.

Nor is it the case that what people do in the open is, by virtue of its happening in public space, automatically free of any “reasonable expectation of privacy.”  I can’t pretend that I felt my privacy was invaded when I was watched in London:  I didn’t reveal much about myself when I walked back and forth on that London block, and would not have worried much even if the camera operator had been able to infer something about my musical tastes.  But there are other times we can hardly avoid revealing hints about sensitive personal matters in public – when, for example, we enter a psychiatrist’s office or other medical facility from a public street, pause to write down the time and location of an Alcoholics Anonymous meeting announced on a kiosk, or go for job interviews in hopes of changing our career path (and under the assumption that are current employers aren’t at all likely to be nearby).  So it should not be shocking that, in a survey Christopher Slobogin reports on in explaining why public video surveillance should be a constitutional matter, the survey subjects judged CCTV surveillance to be quite intrusive – and more intrusive than some law enforcement techniques that the courts have classified as searches under the Fourth Amendment.  And as Daniel Solove has argued, the slogan the British government used to drum up support for England’s enormous video surveillance system – “You’ve Got Nothing to Fear if You’ve Got Nothing to Hide” – doesn’t really do justice to our considered judgments about privacy rights: “The key misunderstanding is that the nothing to hide argument views privacy in a particular way – as a form of secrecy, as the right to hide things. But there are many types of harm involved beyond exposing one’s secrets to government.” Even if the government is unlikely to care about our medical appointments or job interviews, life might be more a lot more uncomfortable, and a lot less free, for us if officials keep video records of such events – records that might one day be the target of FOIA requests by others, discovery requests in private litigation (as has happened to electronic highway records sought in divorce proceedings) or might be inadvertently placed on sites where interested people or businesses can find and search them.

There’s also another reason that city wide video surveillance might raise constitutional concerns that don’t arise for old-fashioned police observation in public space:  Where a new surveillance technology erases long-standing practical constraints, the only way to keep government in check may be to substitute legal constraints.  Judges and lawyers have sometimes appeared to rely on similar logic about the interchangeability of practical and legal constraints when arguing that we **don’t need** the Constitution to protect us from ubiquitous use of police roadblocks or “dog sniff” vehicle checks, because practical constraints already provide assurance that police aren’t going to waste valuable resources manning unnecessary roadblocks or use drug-sniffing dogs on every driver.  In Illinois v. Lidster, Justice Breyer noted that permitting the checkpoint program in that case wouldn’t lead “unreasonable proliferation of police checkpoints” because “[p]ractical considerations--namely, limited police resources and community hostility to related traffic tie-ups--seem likely to inhibit any such proliferation.” (540 U.S. 519. 526 (2004)). The same point was made by an amicus brief in Illinois v. Caballes, which pointed out that practical limitations “prevent law enforcement from training enough qualified handlers and dogs to allow a substantial proliferation of the use of canines.”  (Brief of Amici Curiae The Illinois Association of Chiefs of Police and The Major Cities Chiefs Association in Support of Petitioner in Illinois v. Caballes, 543 U.S. 405 (2005)).  But, of course, these practical restraints disappear when officials obtain technology that allows them to conduct the same kind of surveillance at a much lower cost – for example, by using an electronic “dog on a chip” or wasps instead of trained dogs to investigate vehicles for drugs or other contraband.  High-tech video surveillance systems can overcome the practical limits on ubiquitous visual surveillance in much the same way.

So what’s to be done about this?  One proposal I think won’t work is to simply dismantle the camera systems – or adopt a rule that flatly prohibits their use (or comes close to doing so).   While today’s camera systems are still of limited use in battling crime and terrorism, it’s hard to think that this will remain the case as the technology improves.  Although the British government could not use London’s camera system to stop the subway terrorist attacks that occurred in 2005, for example, video footage was valuable in tracking down the suspects.  And being able to solve crimes of that sort helps prevent similar attacks in the future.  Rather than insist on preventing use or installation of such camera systems, those who wish to safeguard Fourth Amendment privacy protections (and other relevant constitutional provisions) do better to accept their existence, and then think about how the Constitution, or yet to be enacted statutes, should constrain the way they are used or designed.   Fortunately, while courts have not chimed in (and are unlikely to do so soon), legislators and agencies are already doing some thinking about this. The Department of Homeland Security’s Privacy Office, for example, recently held an illuminating workshop on video surveillance technology, its use by law enforcement, and the legal or administrative rules that should govern it. 

On a more general level, impressive technological changes like those accompanying the spread of city-wide camera systems underscore the need to periodically examine how to preserve familiar constitutional principles in new social and technological landscapes.  When government can, thanks to new camera technology, suddenly gather and compile extensive private information about us from our activities in public space, then the old rule of thumb – that surveillance of our public activities violates no “reasonable expectation of privacy” simply because those acts happen in the open, where anyone can observe them – no longer works to protect the underlying principles behind Fourth Amendment privacy protection.  Rather, we need to set aside that rule of thumb, go back to first principles, and then engage in something akin to the kind of “translation” of these principles that Lawrence Lessig has written about with respect to other constitutional questions.  It shouldn’t surprise us too much that we may need to revisit and rethink elements of the Supreme Court’s “reasonable expectation of privacy” test for what counts as a Fourth Amendment search.  A lot has happened in the 41 years since the Supreme Court issued the decision in United States v. Katz, where that test was first introduced back in 1967 – the same year, incidentally, that Pink Floyd released its first album, The Piper at the Gates of Dawn, and made a name for itself at the UFO Club.

P.S. In case you missed it, there was a post on Concurring Opinions honoring the memory of Pink Floyd keyboardist and founding member Richard Wright, who died earlier this week.

Posted by Marc Blitz on September 19, 2008 at 03:24 PM in Information and Technology | Permalink

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