Computers, Privacy & the Constitution

Is photography and video recording the fairest manner to prevent attacks and crime?

-- By TomasHolguin - 04 Mar 2015

1. Introduction

Since the 19th century, many embraced surveillance as the way to prevent attacks and crime. Among the mechanism used recently by governments, the installation of surveillance cameras in public spaces was favored (Morton and Edelbach, Society, Ethics, and Technology, 2013).

The combination of the high-speed at which the government uses technological devices and the slow-pace of legislators and courts to use the tools available to enact new regulations or to reinterpret the existing laws, is taking the American society under the constant scrutiny of the cameras without a major discussion as to the real significance of the videos and the photography's, as true reproductions of "reality".

Not without a major discussion of the philosophy of photography? Is that really what we require under the circumstances, and if so, why?

2. The role of photography

Back in the 19th century, photography was the subject matter of several discussions, as recalled by Susan Sontag (On Photography, 2005).

Why begin paragraphs with these flat sentences in passive voice? Surely the purpose of the language is to make the reader want to read on, not to discourage engagement grammatically and substantively.

On one side, some considered photography as an art, and others a manner to show reality. For example, the French writer Émile Zola, in 1901 declared –after fifteen years of amateur picture taking; that;_you cannot claim to have really seen something until you have photographed it._;

This approach marked the beginning of the use of photography (and latter video-recording) to serve not only artistic goals but also political purposes. Instead of just recording a particular and subjective piece of reality (as painters did), photography and video recording became the rule for the way things objectively appear to the world. The conclusion reached then, was that the photographer was a transparent observer that plagiarized what happened in reality. Photographers had no discourse –since they were not poets– they were only transcribers.

But as Susan Sontag recalled too,"people quickly discovered that nobody takes the same picture of the same thing.". The idea that cameras were the ones taking the picture and not the individual behind them furnishing an impersonal, objective image was slowly changed to the fact that photographs are evidence not only of what there is, but of what an individual sees: pictures, was latter claimed, are an evaluation of the world, not a simple copy.

What does any of this have to do with the quite different subject of machine cognition, which is what the cameras you are actually going to get around to discussing eventually represent?

3. The version of the Supreme Court

One would expect that judges would reformulate and interpret the existing legal tools according to the new realities under which they are required. The Supreme Court in Scott v. Harris (Supreme Court of the United States, Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, April 30, 2007) reached a very dangerous conclusion in connection with the use of images.

The facts of the case can be summarized as follows: In 2001, Harris was clocked exceeding speed limits in Georgia and a sheriff sought to pull him over. A high-speed pursuit by Scott and others was initiated. After traveling ten miles in six minutes, Scott received permission to perform a maneuver to cause Harris' car to spin to a stop. Instead, Scott bumped the rear of Harris' car; the car left the roadway, went down an embankment and crashed. Harris is now quadriplegic. (See Wasserman, Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, 91 Judicature 180.)

The issue was whether an officer using excessive force during a high-speed pursuit as a way of ending a chase, acted against the Fourth Amendment. The Court concluded that a "police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment." However, the real problem of the decision was that the Court used a video taken from the police car to grant summary judgment to the officer.

As the Court said, there was no issue of material fact as to the reasonableness of the officer's action and no reason or opportunity for a jury trial (Schwartz, Silbey, Ryan, Donoghue, Analysis Of Videotape Evidence In Police Misconduct Cases, 25 Touro L. Rev. 857). The Court concluded, as if the video was their eyes, that "the record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff's version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion." Once the Court viewed the video they claimed to be present at the scene and no other proofs were required.

That's a problem in the law of summary judgment, not a problem in the philosophy of photography, despite the obvious forms of criticism along those lines to which the decision has been subjected by everyone from the dissenters on. Nobody disputes that the video of the car chase is evidence. Whether it can be said to have proved everything necessary to the judgment without the creation of a material issue of fact on the other side—the much-deplored conclusion of the Court—is quite another matter. The intervening question of whether a picture is the depiction of its object for some extra-juridical meaning of "is," I don't see presented at all.

4. Government's view:

The government believes that cameras are, in fact, useful tools to prevent attacks. The Obama administration asked Congress last year for funding to buy 50,000 body cameras to record events like the shooting of Brown. Obama proposed a three-year, $263 million to increase use of body cameras. The argument used by the President is that cameras are tools to increase "the trust between law enforcement agencies and the people they protect" (See:

"Preventing attacks" is the phrase you would use to describe this point?

This decision is problematic taking into account the manner in which the Court analyzes videos, as unbeatable proofs of reality, when recorded by police officers.

Surely this is exactly the inflation of the decision in Harris that you could have avoided with more precision in the earlier discussion. I doubt that any District Judge in the United States feels that Harris changed her or his approach to the granting of summary judgment. Sport cases exist everywhere.

The approach of the Government and the Court does not take into consideration a conclusion reached at the XIX century, according to which the photographer could have a political discourse; that a photograph or a video changes according to the context in which it is seen and is used. In each situation it can suggest different things but none can secure their only meaning.

As Wittgenstein argued for words, that the meaning is the use –so for each photograph_. Supreme Court's approach to video as an objective prove of reality posses many dangers which will be multiplied when the policemen administers their own valid proofs.

Maybe, contrary to Obama's claim, under the view of the Supreme Court this might not be the fairest way to enhance "collaborative relationships between local police and the communities they protect" (See:

The draft does not convince me that this is a Wittgenstein problem, though I think I know a not-Wittgenstein problem when I see one. See Zapf & Moglen, Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein, 84 Geo. L. Rev. 485 (1996). Indeed, I don't know exactly what the draft was trying to convince me about except a somewhat irrelevant "problem" in the philosophy of photography, which is how photographs, which are things photographers make, can also be to any extent faithful representations of things existing in the world. This is not actually a hard problem, and it isn't actually important here, of which the latter point is the only important one. "Here," wherever we were, two things were conflated: machine cognition in the networked society, where cameras are the eyes of computers collecting data; and video streams as evidence. About the latter subject, you had a case to report, and an entire indistinct political or policy point to make on the basis of it. How it relates actually, if at all, to the prior subject is unclear.

I think the most promising way to improve the draft is by leaving the "On Photography" material out, and concentrating on either the evidentiary consequences of the plethora of video cameras now about in the environment, or the fact that most of them are not eyeballs for eyeballs, but rather eyeballs for algorithms.


Webs Webs

r3 - 25 Apr 2015 - 19:04:31 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM