Computers, Privacy & the Constitution
-- JonathanGuerra - 30 Oct 2010

Security cameras are ubiquitous in big cities now, and this has created vast concerns about privacy. I live six blocks away from the law school, and once I leave the front door of my apartment every move I make is on videotape. Admittedly, there are more cameras here than in other neighborhoods in the city. This is Columbiaville after all, where the students are uncomfortably close to that park where those people hang out at. It is not as bad as it was ten years ago but they are still concerned Fittingly, cameras lead the way to Jerome Green.

Closed Circuit Television took off in urban areas after the World Trade Center and Pentagon attacks. Less than a year after the attacks, cameras began popping up everywhere DC. Adam Goodheart in his op-ed for USA Today, saw irony in the fact that Independence Day celebrators were assured of their safety because law enforcement through CCTV would be keeping an eye on spectators. He views the ubiquitous placement of cameras as an affront to privacy and the Constitution, but he deceptively notes that to do audiotaping a warrant is needed, but not so for videotape. The distinction is not audio surveillance versus video surveillance; it is public surveillance versus private surveillance.

In U.S. v Knotts, the court noted the distinct difference between surveying a person in public rather than in private. Without a warrant the authorities had placed a beeper inside a container of chloroform in order to monitor its transport. The beeper worked by omitting a periodic signal that could be detected by the authorities. Upon trial, Knott’s motion to suppress the evidence obtained by the beeper was denied and he was convicted. The Supreme Court upheld the conviction stating: Where visual surveillance from public places along driver's route to owner's cabin or from adjoining owner's premises would have sufficed to reveal driver's arrival with container of chemical used to manufacture illicit drugs, fact that police officers relied not only on visual surveillance, but on use of beeper to signal presence of driver's automobile to police receiver did not violate Fourth Amendment.

This is a quotation from the syllabus. Each Supreme Court opinion reminds you that the syllabus is made by the Reporter of Decisions and is no part of the ruling of the Court. So you can never say that they said what's in the syllabus. Don't say it here.

In other words, there is no reasonable expectation of privacy for what you do in public. Had the drum containing the beeper made its way inside Knotts’ cabin then there would have been grounds for suppression.

For me the logic of this is hard to deny—in as much as what it stands for is the basic proposition that what is public is not private. I allow anyone who is witness to observe what I do in public. Anyone is free to catalog my movements from when I leave my home to when I return. Therefore, it is difficult for me to grasp how widespread CCTV is a constitutional violation.

CCTV in general is idle surveillance. If an incident is reported then tapes are reviewed. Some surveillance is active though. For instance, New York City housing projects are subject to active surveillance under VIPER (Video Interactive Patrol Enhancement Response). Under VIPER, NYPD officers monitor a series of closed circuit televisions in order to look out for illegal activity. It was reported a few years back that many of these officers were actually under review for conduct violations. The fact that officers stationed to observe the monitors had abused their previous positions of course heightens concern about active surveillance, but really what foul can come from it. So an officer decides that he would like to use the cameras to follow the derriere of a young female or use the cameras to exclusively follow young black men wearing sagging pants, the harm that comes from this seems minimal. Sure such activities would mean that city resources are being wasted, but there is no direct harm to a person or their privacy when they are simply being viewed in public.

That all being said. I do not like that every move I make in Columbiaville is on camera, but my discomfort does not stem from feeling that my privacy is violated. My discomfort stems from feeling that my autonomy is curtailed. I know that if I decided to do something illegal I would most likely be caught. It does not matter whether or not I actually wish to do something illegal, whatever it may be. What matters is that I feel as if there is less of a choice because performance of an act in view of the cameras likely means arrest. It is in this regard that I feel like I have less of a choice, and that I have unwittingly articulated the argument for surveillance.

I think it's worth going a step further here, to ask whether that sense of "autonomy limitation" isn't worthy of a little more respect than the mere wish to be able to break the law. Everyone understands that living life "on the record" is different from living life the way we wish to live it. Even though we are obsessed with celebrities, we understand that the celebrity's way of life, in which no moment is ever private again, is a prison in which we would not wish to live. Just as we understand that even a society wealthy enough to put a policeman taking notes on every streetcorner every minute might not wish in the end to do so. And why a society doing so is just one easy step away from intolerable despotism.

The combination of omnipresent video capture with reliable facial recognition software will mean that Columbiaville always automatically knows who you are, and never forgets anything. Also, everywhere will be Columbiaville, so there will be no way whatever to leave.

Is this okay with you, modulo your potential decision at some moment to commit a crime, or are there one or two other reasons why this outcome is completely not okay? You are going to have a law license and a practice, and if this is not okay with you, you should decide to use some portion of your practice to do something about it. Writing another version of this essay from that perspective, if and only if you come to find yourself actually adopting it, will help you to think about what you might do if you decided to do something. That's the moment at which all great plans begin to come together.


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r4 - 17 Jan 2012 - 17:48:26 - IanSullivan
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