Privacy rights and public spaces: CCTV and the problem of the “unobservable observer”

Abstract

Over the past ten years, closed circuit television (CCTV) cameras have become an increasingly familiar part of the urban landscape in many developed countries. (1) Throughout Europe, despite early concerns about the possible implications for human rights, governments have now begun to regard video surveillance technology as a magic bullet in the fight against crime and public disorder. In Britain alone, over one million cameras have been installed in towns and cities across the country, with an estimated 500 being added to this number every week. (2) While initially slow to embrace this new technology, in recent years public area CCTV has also begun to become more popular in the United States. Street cameras can now be found in Boston, Los Angeles, and New York as well as in a growing number of smaller cities and towns. (3) In many instances, these cameras have been installed without public consent or even public discussion and are subject to little in the way of either formal or informal legal regulation. Provided they have the support of local government, the police and other law enforcement agencies are free to monitor public spaces such as streets, parks, and open malls with little regard for the concerns of private citizens. To some extent, this lack of regulation stems from a reluctance on the part of the courts to tackle the question of whether individuals have some legitimate expectation of privacy in public spaces. Despite declaring in Katz v. United States that the Fourth Amendment protects people not places, since the late 1960s the Supreme Court has been highly resistant to the idea that privacy rights can extend to streets or other public areas. (4) The Court has also repeatedly refused to consider any suggestion that public area video surveillance should be regarded as a form of police search, a view that has been consistently endorsed by the lower courts. (5) As a consequence, individuals who believe that they have been the subject of unnecessary and intrusive CCTV surveillance can expect little sympathy from local, state, or federal court judges. (6) This judicial reluctance is understandable. Privacy rights are notoriously difficult to define, particularly in terms of their operation in public and semi-public spaces. (7) Yet, while most of us accept that we surrender a certain amount of personal privacy once we leave the confines of our own home, few would concede that we have no expectation of privacy when we stand on the street or walk through a park. The problem lies with identifying the interests that are harmed by the absence of privacy protections in such circumstances. How, for example, is being watched by a CCTV camera different from being watched by a stranger sitting on a park bench or, for that matter, by a police officer standing on a street corner? Why is one somehow more intrusive than the other, and does this tell us anything about the types of interests involved or how best to protect them? This article examines these questions, and the possibility of developing a coherent framework for thinking about individual privacy rights in public spaces. In particular, it considers whether CCTV surveillance represents a special or unique threat to such rights and how the law should begin to approach the issue of regulation and control. Whether we like it or not, public area surveillance technology is now a fact of life, and there is a pressing need for us to reconsider many of our assumptions--legal and ethical--about the nature and importance of privacy rights. Privacy as a Civil Liberty Although there are many competing conceptions of privacy as a civil liberty, one of the most coherent accounts is that advanced by the legal philosopher David Feldman. According to Feldman, privacy rights are important because they provide individuals with the ability to determine and control the boundaries between different, interlocking social spheres. …