NEW JERSEY LAWYER | October 2009. 55. WWW.NJSBA.COM that taxpayers are funding the installa- tion of surveillance system
POINT
Three Myths of Public Video Surveillance by Grayson Barber
Your cell phone transmits your location. Your E-ZPass tells the state where you drove and how fast. Cameras track your every move. Should we be grateful, or worried? (Editor’s Note: This commentary and the following article repre-
cameras, the results have been disappointing. A 2005 research
sent opposing views of the same practice—public video surveil-
study by the British Home Office concluded that although the
lance—which has been increasingly in the local and national news
government spent millions of dollars on surveillance systems,
and will likely continue to be debated for years to come.)
the cameras had no significant impact on crime.6 A German study showed that surveillance cameras in the Berlin subway
O
n park benches, at busy intersections,
did not improve safety.7 Ubiquitous cameras in London have
even at home, New Jerseyans are being
failed to produce an overall reduction in crime. Additional
watched, recorded, and monitored by the
studies commissioned by the Home Office (the interior min-
government. Amazingly, we have been
istry responsible for policing) have concluded that the impact
lulled into accepting this as an ordinary,
of surveillance cameras is marginal, at best.8
even desirable, exercise of state power.
One possible explanation for the failure of the cameras is
This commentary addresses why the author believes we
that surveillance is boring. It is hard for operators to watch
should be skeptical of the claims made in favor of surveillance
monitors competently for long periods of time. Real-time
systems, and focuses on what the author views as three myths
monitoring of cameras leads to a rapid deterioration of oper-
about cameras in particular.
ator concentration. According to the National Institute of Justice (part of the U.S. Department of Justice), after 20 minutes
Myth #1: Surveillance Cameras Make Us Safer Camera surveillance networks are proliferating across the
of monitoring, most operators dropped below acceptable standards.9
state, even though studies show that they have little effect on
Additionally, cameras do not establish relationships with
crime.1 In 2006, for example, the city of Trenton positioned
the community. Residents of a neighborhood cannot go to a
dozens of surveillance cameras throughout the capital, but
camera for help. Cameras do not know their kids’ names. We
declined to reveal where they were located.2 In addition to
may reasonably ask if it is more cost-effective to spend limit-
working cameras, the police installed dummy models, so that
ed law enforcement resources to add police officers and street-
‘decoy’ camera bubbles would foster a feeling of police
lights in high-crime areas, than to spend money on expensive
omnipresence. “They will create the feeling that the police
technology.10
3
are everywhere, even when we can’t be,” said Police Director Joseph Santiago.
4
The social costs of surveillance must also be taken into account when performing a cost-benefit analysis. What is the
The cameras were purchased for hundreds of thousands of
cost to the community if surveillance makes individuals reluc-
dollars “to improve the safety and security” of the city, accord-
tant to exercise their civil rights? What if they fear repercus-
ing to Trenton’s business administrator.5 Unfortunately, where
sions for engaging in activities that are legal, such as demon-
studies have been done to evaluate the benefits of surveillance
strating or standing on a street corner with friends? Given
54
NEW JERSEY LAWYER | October 2009
WWW.NJSBA.COM
that taxpayers are funding the installa-
miscreants; they monitor everyone, “the
ent in one’s physical vicinity.20 The
tion of surveillance systems, their abili-
kind of stuff Stalin only dreamed of.”13
expectation of privacy when there are
ty to deter crime must be demonstrated.
More than one wag has called this the
other humans around is very different
It has not been. If the very people being monitored are required to pay for their surveil-
Hoover approach—referring not to J.
from what we expect from high-powered
Edgar Hoover, but a vacuum cleaner the-
surveillance equipment that covertly
ory of “total information awareness.”
observes, monitors, and records, cannot
lance, they are entitled to know whether
This approach, when analyzed, has
the cameras are serving their intended
been found to have little effect on crime
If a man follows his target surrepti-
purpose.11 They should know whether
rates.14 This being so, it appears that
tiously whenever she leaves the house,
the cameras are working, whether any-
from a law enforcement and public safe-
for months on end, we would call that
one is watching, and how much it will
ty perspective the dedication of scarce
stalking or a search.22 When the FBI mon-
cost to repair aging equipment. If the
resources to surveillance systems may
itored gatherings of the American Friends
crime rate remains the same, for exam-
actually be counterproductive, as well as
Service Committee, it appeared to be
ple, the money should be put to more
an inefficient use of tax dollars.
treating protest activity as criminal.23
be seen and is not known to the subject.21
Camera systems are not neutral; they
effective use elsewhere. Interestingly, the technology that does produce a measurable reduction in
Myth #2: There is No Reasonable Expectation of Privacy in Public Places
are deployed according to the biases of the operators who are conducting sur-
crime is street lighting. A review of 13
Another common argument in favor
veillance. Docility and conformity do
lighting studies in the United States and
of surveillance cameras is the proposi-
not invite attention, as compared to
Great Britain revealed an overall 20 per-
tion that we should not care because
innovation and, especially, disfavored
cent average decrease in crime, with
there is “no reasonable expectation of
status. Studies show that surveillance
reductions in every area of criminal
privacy in public.” But as the United
cameras are disproportionately aimed at
activity, including violent crime.12 In two
States Supreme Court has said, “[p]eople
minorities, the young and the poor.24
areas, “financial savings from reduced
are not shorn of all Fourth Amendment
As noted, surveillance is boring. Even
crimes greatly exceeded the financial
protection when they step from their
the best-trained watchers can drift after
costs of the improved lighting.”
homes onto the public sidewalks.”15
20 minutes; hence, the normal biases of
The report concluded:
The police cannot stop a person on
mere mortals inevitably come into play.
16
the street and demand identification.
At the 2004 Republican National Con-
Street lighting benefits the whole
A public telephone cannot be tapped
vention in New York City, for example,
neighborhood rather than particular
without a warrant.
People cannot be
a police helicopter equipped with an
individuals or households. It is not a
forced to give their names before they
infrared camera was deployed to moni-
physical barrier to crime, it has no
distribute leaflets.18
tor protestors, but instead filmed a cou-
17
adverse civil liberties implications, and it
The federal Video Voyeurism Act19
ple’s intimate romantic activity on their
can increase public safety and effective
makes it clear that people do have an
terrace.25 In 2005, a police officer used
use of neighborhood streets at night. In
expectation of privacy in public places.
surveillance cameras to gaze at women’s
short, improved lighting seems to have
The statute prohibits “knowingly video-
breasts and buttocks at the San Francis-
no negative effects and demonstrated
taping, photographing, filming, record-
co International Airport.26
benefits for law-abiding citizens.
ing by any means, or broadcasting an
Plus, people may prefer to lie low,
image of a private area of an individual,
curtailing legal activities for fear of
One of the most common arguments
without that individual’s consent, under
being watched. The FBI monitored pro-
in favor of generalized passive surveil-
circumstances in which that individual
life demonstrations, and the Washing-
lance is that we should be willing to give
has a reasonable expectation of priva-
ton D.C. Metropolitan Police Depart-
up a measure of privacy in order to gain
cy.” Although the statute focuses on
ment used aerial surveillance to monitor
security. The problem is that if surveil-
voyeuristic photographs of an individ-
demonstration activity on Inauguration
lance cameras do not make us more
ual’s “private area,” it assumes the exis-
Day in 2001. This places a chilling effect
secure, then we are giving up privacy
tence of privacy even in a public space.
on
and getting nothing in return.
constitutionally
protected
First
It is a mistake to bootstrap a justifica-
Amendment activities, not to mention
Some security experts question the
tion for surveillance by arguing that the
abusive intrusions abetted by the imbal-
real purpose of surveillance camera sys-
“reasonable expectation of privacy”
ance of power between the watcher and
tems. They are not designed to catch
shrinks when there are other people pres-
the watched.
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NEW JERSEY LAWYER | October 2009
55
Myth #3: The Law Cannot Keep Up With Technology Just because technology makes it pos-
Ideally, an independent oversight
eras must make this information publicly
body should audit surveillance systems,
available, so that individuals can learn if
to ensure they are serving their intend-
their privacy rights or civil liberties have
sible to conduct generalized passive sur-
ed purpose without misuse, abuse, or
been affected. Individuals must also have
veillance, it does not follow that we
discrimination. Ultimately, a private
an opportunity to correct misinformation
should unthinkingly submit to unlimited
right of action for individuals should be
and hold authorities accountable if they
government power. To the contrary, we
recognized, so government authorities
have been inappropriately or illegally tar-
must ask who will watch the watchers.
who misuse the system can be held
geted for surveillance.
Technology should serve the law, not
Surveillance always affects privacy,
legally responsible.
the other way around. It is wrong to throw up our hands as if we were powerless to insist that cameras should be used only for legal purposes.
because strangers can use equipment to
A Government of Limited Powers
record and store incidents that would not
Technology makes surveillance easi-
normally attract attention. Just as the
er, but it does not alter the principle that
colonists despised writs of assistance
If the goals of a surveillance program
ours is supposed to be a government of
because they authorized sweeping search-
have not first been clearly articulated,
limited powers. The very nature of video
es, we should not tolerate unchecked
then there is no way to conduct a peri-
surveillance creates a significant power
police surveillance of legal activities. As
odic review to determine whether the
imbalance. The individual cannot see
the U.S. Supreme Court observed long
To
the watcher. The watched do not know
ago, “[t]]he needs of law enforcement
strengthen the political legitimacy of
who is watching; what they are watch-
stand in constant tension with the Con-
government control, there must be
ing for; or how data is being recorded,
stitution’s protections of the individual
transparency
accountability.28
stored, or used. Camera operators, on
against certain exercises of official power.
Authorities who spend enormous sums
the other hand, are anonymous and
It is precisely the predictability of these
on cameras must demonstrate that the
may find they are in a position of power
pressures that counsels a resolute loyalty
cameras’ limited benefits outweigh their
where no one monitors their use of the
to constitutional safeguards.”30
monetary and social costs.
powerful technology at their disposal.
program is achieving its goals.
and
27
The constitutional safeguards that
Along with the lack of transparency
In a New York Times Magazine article
apply to surveillance cameras include a
and government accountability, there
shortly after Sept. 11, George Washing-
fundamental philosophy of limitations
are serious concerns relating to data
ton University Law School professor Jef-
on government power. Alluring as mod-
consolidation and data sharing with
frey Rosen made the following observa-
ern technology may be, we must
third parties. To minimize the risk of
tion
remember that its proper use is to serve,
abuse or misuse of data collected and
surveillance in England, and the rela-
stored under surveillance systems, the
tionship of cameras to terrorism:
about
generalized
passive
not bypass, American law.
Endnotes
government should specify how much
1.
Brandon C. Welsh and David P. Far-
information is gathered and stored, and
Although the cameras in Britain were
how long it is stored. The data should
initially justified as a way of combating
rington, Home Office Research, Dev.
only be kept for as long as it is required
terrorism, they soon came to serve a
& Statistics Directorate, Crime Pre-
to achieve the stated purpose of the sur-
very different function. The cameras
vention Effects of Closed Circuit
are designed not to produce arrests,
Television: A Systematic Review,
Steps must be taken to secure the
but to make people feel that they are
Research Study 252 (Aug. 2002),
data so it is not stolen or used for rea-
being watched at all times.…And
available at www.homeoffice.gov.
sons that depart from the system’s
rather than thwarting serious crime,
uk/rds/pdfs2/hors252.pdf.
veillance system, and then destroyed.
intended purpose. Strict guidelines
the cameras are being used to enforce
should limit the number of people with
social conformity in ways that Ameri-
access to information, limit improper
cans may prefer to avoid.
2.
Electronic Eyes Peeled, The Times of Trenton, April 27, 2006.
29
3.
use of stored data, and reduce the legal
Joyce J. Persico, Trenton Police Keep
A police officer was suspended for
liability local governments might incur
Members of these communities should
revealing that several decoy cameras
if the surveillance systems are ever used
know when they are monitored, who is
were not functional. Rose Y. Colon,
improperly to harass individuals or dis-
watching, and who has responsibility for
City Police Department Suspends Crit-
criminate against certain sections of the
gathering and storing the data. The gov-
ic, The Times of Trenton, April 26, 2006.
population.
ernment agents who purchase the cam-
56
NEW JERSEY LAWYER | October 2009
4.
Darryl
R.
Isherwood,
Santiago
WWW.NJSBA.COM
Defends Policing Changes, The 5.
6.
7.
13. Noah Shachtman, The New Securi-
body’s Watching Me: A Fourth
Times of Trenton, April 26, 2006.
ty: Cameras That Never Forget Your
Amendment Analysis of the FBI’s
Joyce J. Persico, Trenton Police Keep
Face, New York Times, Jan. 25, 2006.
New Surveillance Policy, FindLaw’s
Electronic Eyes Peeled, The Times of
14. See generally, EPIC and Privacy Inter-
Writ, June 14, 2002, available at
Trenton, April 27, 2006.
national, Privacy and Human Rights
http://writ.news.findlaw.com/amar/
Martin Gill and Angela Spriggs,
at 85-98 (EPIC 2006); Brandon C.
Assessing the Impact of CCTV,
Welsh and David P. Farrington,
Home Office Research Study 292,
Home Office Research, Dev. & Sta-
Profiling, Amnesty Now, Spring 2003.
February 2005 at 58, available at
tistics Directorate, Crime Preven-
24. Clive Norris and Gary Armstrong, Ctr.
www.homeoffice.gov.uk/rds/pdfs05
tion Effects of Closed Circuit Televi-
For Criminology & Criminal Justice,
/hors292.pdf.
sion: A Systematic Review, Research
Univ. of Hull (UK), The Unforgiving
Heise online report, Study Shows
Study 252 (August 2002), available
Eye: CCTV [Closed Circuit Television]
Video Surveillance on the Berlin
at www.homeoffice.gov.uk/rds/pdfs
Surveillance in Public Space (1997).
Underground Has Not Improved Safety, Oct. 10, 2007, available at www.heise.de/english/newsticker/n
9.
(1979).
25. Mike Dorning, U.S. Cities Focus on Spy Cameras, Chicago Tribune, Aug. 8, 2005.
16. Kollender v. Lawson, 461 U.S. 352
26. Matthew Cella, Spy Cameras Fail to
National CCTV Strategy, ACPO and
(1983). But see Hiibel v. Sixth Judicial
Focus on Street Crime, Washington
the Home Office, October 2007,
District Court of Nevada, 542 U.S. 177
Times, August 13, 2006.
ews/97168. 8.
2/ hors252.pdf. 15. Delaware v. Prouse, 440 U.S. 648
20020614.html. 23. Chip Berlet and Abby Scher, Political
available at www.crimereduction.
(2004) (upholding a “stop-and-iden-
27. If a national terrorist-tracking sys-
homeoffice.gov.uk/cctv/cctv048.pdf .
tify” statute that permits an officer
tem has even a one percent error
National
Justice
to detain any person he encounters
rate, it will produce millions of false
Research Report: Chapter 2 – Video
“under circumstances which reason-
alarms, creating a spectacular waste
Institute
of
at
ably indicate that the person has
of scarce law enforcement resources.
www.ncjrs.gov/school/ch2a_5.html.
committed, is committing or is
Dan Farmer and Charles Mann, Sur-
about to commit a crime.”).
veillance Nation, Technology Review,
Surveillance, 10. Melissa
available
Ngo,
You
Are
Being
Watched But Not Protected: The Myth of Security Under Camera Surveillance, Intersection: Sidewalks and Public Space (Chainlinks, 2008). 11. In Washington DC, surveillance cameras have been used successfully for allocating police resources dur-
17. Katz v. United States, 389 U.S. 347 (1967).
43, April 2003. 28. This is a major conclusion of the
18. Talley v. California, 362 U.S. 60
U.S. General Accounting Office in
(1960); Schneider v. State of New Jer-
Video Surveillance: Information on
sey, 308 U.S. 147 (1939).
Law Enforcement’s Use of Closed-
19. Video Voyeurism Act, 18 U.S.C. §1801 (2006).
Circuit Television to Monitor Selected Federal Property in Washington
ing major public events, to facilitate
20. See Comments of the Electronic Pri-
DC, GAO-03-748, June 2003, avail-
crowd management, and to coordi-
vacy Information Center to Depart-
able at www.gao.gov/new.items/
nate traffic. U.S. General Account-
ment of Homeland Security on
ing
Surveillance:
Docket No. DHS-2007-0076, Notice
Information on Law Enforcement’s
of Privacy Workshop and Request
Use of Closed-Circuit Television to
for Comments, Jan. 15, 2008.
Office,
Video
d03748.pdf. 29. Jeffrey Rosen, A Watchful State, New York Times Magazine, Oct. 7, 2001. 30. Almeida-Sanchez v. United States, 413 U.S. 266, 273 (1973).
Monitor Selected Federal Property
21. See Joint Public Oversight: Hearing
in Washington DC, GAO-03-748,
Before Comm. on the Judiciary on
June 2003, available at www.gao.
Public Works and the Env’t, Council
Grayson Barber is a fellow at the Cen-
gov/new.items/d03748.pdf .
of the Dist. of Columbia (June 13,
ter for Information Technology Policy at
12. David P. Farrington and Brandon C.
2002) (statement of Marc Roten-
Princeton University, 2008-2009. She is a
Welsh, Effects of Improved Street
berg, executive director, Electronic
First Amendment litigator and privacy
Lighting on Crime: A Systematic
Privacy Information Center), avail-
advocate with a solo practice located in
Review, Home Office Research Study
able at www.epic.org/privacy/sur-
Princeton. The author wishes to thank Marc
veillance/testimony_061302.html.
Beebe for his research contributions to this
251, August 2002, at 42, available at www.homeoffice.gov.uk/rds/pdfs2/ hors251.pdf. WWW.NJSBA.COM
22. Akhil Reed Amar and Vikram David
article.
Amar, I Always Feel Like SomeNEW JERSEY LAWYER | October 2009
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