Open to all? Regulating open street CCTV and the case for “symmetrical surveillance”

Abstract

The courts may not work, but when everyone is videoing everyone else justice will be done.--Marge Simpson (1) Can we stand living exposed to scrutiny, our secrets laid open, if in return we get flashlights of our own that we can shine on anyone who might do us harm--even the arrogant and the strong? Or is an illusion of privacy worth any price, even the cost of surrendering our own right to pierce the schemes of the powerful? --David Brin, The Transparent Society (2) Over the past five years, there has been a rapid and sustained expansion in the use of public area closed circuit television (CCTV) cameras in the United States. Although cameras have been a familiar sight in banks and shopping malls since the early 1970s, following the attacks of September 11, 2001, more and more cities have made moves to install sophisticated camera-based surveillance systems in streets, parks, and other public spaces. In major cities like New York and Chicago, large scale schemes now provide the police and other law enforcement authorities with an unprecedented ability to observe citizens as they go about their daily lives in public, while in places such as Baltimore and New Orleans, substantial funding from the federal government has led to the establishment of smaller but highly advanced CCTV networks. (3) Although the US still lags behind countries such as the United Kingdom in terms of the number of cameras in operation, (4) if current trends continue it may only be a matter of time before we see cameras on virtually every street corner and subway platform. Although there is now a relatively well-developed corpus of academic literature that attempts to make sense of CCTV and to understand its broader sociological and political significance, strikingly little has been said about the legality of such technology, or the extent to which it can and should be regulated. In part, this may be because there seems little prospect of the courts extending existing privacy protections to cover the use of technologies like CCTV. To date, courts have shown a distinct unwillingness to treat public area surveillance as a search for the purposes of the Fourth Amendment, or as a violation of any constitutionally protected right to privacy. In United States v. Knotts, for example, the Supreme Court rejected any suggestion that the electronic tracking of a vehicle could be regarded as a search, on the grounds that a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. (5) Read alongside the decision in United States v. Katz, this has been taken by many lower courts and academic commentators to mean that the use of covert CCTV surveillance in public spaces--and presumably, therefore, overt surveillance--is lawful. (6) While the absence of a clear constitutional basis for limiting the use of CCTV obviously does not prevent local and state legislatures from imposing their own restrictions, the lack of judicial interest in privacy in public spaces (and the spread of surveillance technologies more generally) appears to have reinforced the belief among law makers that the police and other law enforcement agencies should be free to engage in the surveillance of public spaces as and when they see fit. In this regard, the answer to the legal question--is the use of CCTV in public spaces restricted by law?--has been taken to provide the answer to the normative question--should the use of CCTV in public spaces be restricted by law? Unsurprisingly, the apparent conflation of these two questions has been exacerbated by the events of September 11, as well as by the more recent bombings in Madrid, Bali, and London. Since the attacks on New York and Washington DC, any discussion about the balance between the rights of the individual and the interests of law enforcement must now explicitly consider the dangers posed by international terrorism. …