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2002] PUBLIC PRIVACY 213
1. Stephen C. O'Connell Professor of Law, University of Florida Fredric G.
Levin College of Law. The author would like to thank Tom Clancy and the
National Center for Justice and the Rule of Law, University of Mississippi Lamar
Law Center, for the generous support of this project and the invitation to speak
at the Technology and the Fourth Amendment Symposium in April, 2002. I also
thank David Fontana, Lyrissa Lidsky, Scott Sundby, and Andrew Taslitz for their
comments, and David Benjamin and Ryan Cobbs for their research assistance.
213
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PUBLIC PRIVACY: CAMERA
SURVEILLANCE OF PUBLIC PLACES AND
THE RIGHT TO ANONYMITY
Christopher Slobogin1 ©2002
Introduction...................................... 214
I. Camera Surveillance of the Public Now and in the Near-
Future....................................... 219
A. The Surveillance Dragnet ..................... 219
B. Current Legal Regulation of Public Camera
Surveillance ................................ 233
II. The Right to Public Anonymity................... 237
A. The Impact of Losing Public Anonymity ......... 240
1. The Panopticon Analogy .................... 240
2. The Effects of Being Watched ................ 242
3. The Government's Use of Surveillance ........ 247
B. The Constitution and Public Camera Surveillance 252
1. Freedom of Speech and Association ........... 252
2. Freedom of Movement and Repose ............ 258
3. The Right to Privacy ....................... 263
4. Freedom from Unreasonable Searches and
Seizures................................. 267
C. An Empirically-Based Case for Fourth Amendment
Regulation of CCTV .......................... 272
1. Sources of Society's Privacy Expectations Vis-a-vis
CCTV................................... 272
2. The Stud275
3. The Relevance of Empirical Findings.......... 280
D. Summary .................................. 285
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214 MISSISSIPPI LAW JOURNAL [VOL. 72
1. Alfred Lee, Big Brother is Watching You, THE STRAITS TIMES (Singapore),
August 23, 2001, at 7.
2. Spencer S. Hsu, D.C. Forms Network of Surveillance, WASH. POST, Feb. 17,
2002, at C1.
3. at 3 (Harold Bloom ed., Chelsea House 1987)(1949).
4. 460 U.S. 276, 284 (1983).
III. Impementing the Right to Public Anonymity ........ 286
A. Justification ................................ 287
1. Justifying Camera Location ................. 287
2. Justifying Individualization of Surveillance .... 295
B. Execution Issues ............................ 297
1. Notice ................................... 297
2. Avoiding Discriminatory Surveillance ......... 298
3. Termination of Surveillance ................. 299
C. Storage and Dissemination of Recordings ........ 301
D. Accountability .............................. 306
1. Watching the Watchers ..................... 306
2. Assuring Compliance....................... 307
3. Beyond Sanctions: Accountability Through
Information .............................. 310
IV. Concluding Comments: A Different Fourth
Amendment? ................................. 312
INTRODUCTION
In London, police say that every worker or shopper is caught on
at least 300 cameras every day.1 [In the United States] the secu-
rity industry estimates that more than 2 million surveillance
cameras are in use across the country. In Manhattan in 1998,
volunteers counted 2,400 electronic eyes in public places used to
catch everything from red-light runners at traffic intersections,
shoplifters outside grocery and department stores, and drug
sellers loitering near lampposts.2
There was of course no way of knowing whether you were being
watched at any given moment. GEORGE ORWELL, 1984.3
[I]f . . . dragnet type law enforcement practices should eventu-
ally occur, there will be time enough then to determine whether
different constitutional principles may be applicable. United
States v. Knotts.4
It is time to constitutionalize strictures on public surveil-
lance. The advent of sophisticated technology that allows the
government to watch, zoom in on, track, and record the activi-
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2002] PUBLIC PRIVACY 215
5. 460 U.S. 276 (1983).
6. Knotts, at 281.
7. Id. at 282.
8. Id. at 283.
9. The government had installed the beeper in a chloroform container, which
an accomplice of Knotts purchased. Id. at 278. The accomplice placed the con-
tainer in his car, which police followed. Id. The container was soon transferred to
the car of another accomplice, which police also followed. But the driver used
evasive maneuvers, and the police had to resort to the beeper signal to discover
the whereabouts of the container, which was located in a cabin in which Knotts
and others had constructed a drug laboratory. Id. at 278-79.
215
ties of anyone, anywhere in public, twenty-four hours a day,
demands regulation. Yet to date no meaningful constraints on
this type of surveillance exist. The constant drumbeat of the
“war on crime,” louder than ever since the terrorist attack on
September 11, has drowned out calls for greater control over
technological surveillance of the streets. This article argues that
the Fourth Amendment requires courts to regulate such sur-
veillance–in particular camera surveillance of public activity–if
the legislative and executive branches are unwilling to do so on
their own.
The primary obstacle to this agenda is the United States
Supreme Court decision in United States v. Knotts,5 which con-
sidered the Fourth Amendment's application to tracking a car's
movements with an electronic beeper. There the Court held that
“[a] person traveling in an automobile on public thoroughfares
has no reasonable expectation of privacy in his movements from
one place to another.”6 Even more significantly, it concluded
that the fact that such movements might be detected through
use of a beeper rather than via visual surveillance “does not al-
ter the situation.”7 If the Fourth Amendment is not implicated
by technological surveillance of a car traveling on public thor-
oughfares, it is unlikely to apply to enhanced surveillance of a
person walking the streets.
As the portion of Knotts highlighted above indicates, how-
ever, the Court did broach a caveat to its conclusion–perhaps a
tiny one, but nonetheless one that is very pertinent today.
Knotts had argued that a holding that no search occurs when
police track a person's car using a beeper would mean that
“twenty-four hour surveillance of any citizen of this country will
be possible, without judicial knowledge or supervision.”8 Al-
though the Court considered this observation irrelevant to the
case at hand, where the beeper had merely been used to relocate
the receptacle in which it had been placed after police lost vi-
sual contact,9 it also acknowledged that the type of “dragnet”
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216 MISSISSIPPI LAW JOURNAL [VOL. 72
10. Id. at 284.
11. See infra text accompanying notes 29-32.
12. See infra text accompanying notes 20-28. Even poor quality video can be
enhanced with new technology. Elizabeth Mehren, Technology Helps Put Surveil-
lance in Focus, L.A. TIMES, Oct. 9, 2001, at 24 (describing a company called
“Salient Stills” that can create a more cohesive image out of blurry video by
making a composite out of several frames).
13. See Christopher S. Milligan, Facial Recognition Technology, Video Surveil-
lance, and Privacy, 9 S. CAL. INTERDIS. L.J. 295, 3030-08 (1999)(describing digital
and biometric technology).
14. Katz v. United States, 389 U.S. 347, 360 (1967)(Harlan, J., concurring). See
infra text accompanying notes 235-247.
practices conjectured by Knotts might raise constitutional is-
sues.10
That concession is important because in many urban, and
even some suburban, areas today, full-time technological sur-
veillance of the public is the norm.11 While tracking devices com-
prise one aspect of this surveillance, it is cameras, positioned on
buildings and telephone poles, that pose the biggest threat in
this regard. The traditionally grainy video image, accessible at
the time it is captured only by the camera operator, is rapidly
being replaced by digital technology that produces top-quality
images available in real time to police and to others at remote
locations, including command centers and patrol cars.12
Digitization allows much easier long-term storage than bulky
videotape, thereby increasing the potential that images will be
around longer and viewed by more people, and it also makes
possible identification of those captured on camera through
computer-based matching programs (called “biometric” technol-
ogy).13 Dragnet surveillance is upon us.
The Court's unwillingness in Knotts to announce defini-
tively that all public surveillance is unregulated by the Consti-
tution may reflect an intuition that at some point this type of
surveillance amounts to a serious infringement of “reasonable
expectations of privacy,” the concept that defines the scope of
the Fourth Amendment.14 Yet the Court's hesitancy to push that
idea any further in Knotts probably stems not only from tradi-
tional judicial parsimony, but also from its perplexity over how
one can possess “privacy” in public. When one's every movement
is readily observable by others, how can one expect constitu-
tional protection of those movements?
This article answers that question from a number of per-
spectives, summed up in the notion that we all possess a “right
to anonymity,” even when in public. Continuous, repeated or
recorded government surveillance of our innocent public activi-
ties that are not meant for public consumption is neither ex-
pected nor to be condoned, for it ignores the fundamental fact
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15. This language first appeared in Harlan's concurrence in Katz. See Katz, 389
U.S. at 361. It has since found its way into several majority opinions. See, e.g.,
California v. Greenwood, 486 U.S. 35, 29-40 (1988); California v. Ciraolo, 476 U.S.
207, 211 (1986); United States v. Jacobsen, 466 U.S. 109, 122 (1984).
16. AMERICAN BAR ASSOCIATION, STANDARDS FOR CRIMINAL JUSTICE–ELECTRONIC
SURVEILLANCE (3D ED.), SECTION B: TECHNOLOGICALLY-ASSISTED PHYSICAL SURVEIL-
LANCE [hereafter ABA STANDARDS]. The ABA Standards were drafted by a Task
Force composed of judges, lawyers, law enforcement officials and privacy experts
in a series of meetings from 1995 through 1997, and were subject to comment
and redrafting by both the Standards Committee and the Council of the Criminal
Justice Section of the ABA, before being approved by the ABA's House of Dele-
gates in August, 1998.
217
that we express private thoughts through conduct as well as
through words. The Fourth Amendment should be construed to
recognize the right to public anonymity as a part of the privacy
expectations that, to use the Supreme Court's well-known
phrase, “society is prepared to recognize as reasonable.”15
Part I of this article sets the stage for this argument by de-
scribing some of the surveillance technology that exists and the
deficiencies in the way legislatures and courts have reacted to
it. Part II develops the basis for the right to public anonymity. It
draws from a number of different commentators and court deci-
sions, as well as from an empirical study that demonstrates the
extent to which ordinary citizens value the ability to walk and
drive the streets without having to contend with constant tech-
nological monitoring. Part III then explicates the implications of
the right to anonymity, relying to a significant extent on the
recommendations of the American Bar Association's Standards
on Technologically-Assisted Physical Surveillance,16 for which I
was the Reporter.
As Part III makes clear, a determination that public sur-
veillance must be subject to constitutional review does not nec-
essarily mean that the usual Fourth Amendment jurispru-
dence—involving warrants, probable cause, and so on–applies to
this particular type of government activity. I argue that the
courts' role should consist of setting minimal guidelines and
monitoring police decisions to assure that such surveillance is
conducted in a reasonable manner. More specifically, I contend
that, given its relatively unintrusive nature, most public sur-
veillance of individuals does not require probable cause in the
traditional sense. At the same time, rules regarding who is in-
volved in the targeting decision, the execution of the police ac-
tion, and post-action record-keeping and disclosure should as-
sume much more significance here than in connection with the
classic police search. While most of the details would be left up
to the political process, application of the Fourth Amendment to
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218 MISSISSIPPI LAW JOURNAL [VOL. 72
17. See infra text accompanying notes 311-15.
18. See infra text accompanying notes 29-34.
19. See Joyce W. Luk, Identifying Terrorists: Private Rights in the United
States and United Kingdom, 25 HASTINGS INT'L & COMP. L. REV. 223, 256-57
(2002)(describing reactive approach of United States to privacy violations).
public surveillance would guarantee that, in contrast to the cur-
rent state of affairs, courts would have the opportunity to pro-
vide legislative bodies with a “constitutional road map” on an
issue that is already a potent symbol of government-citizen in-
teraction, and one that is likely to become more so in years to
come.17
A sub-theme of this article is that Fourth Amendment juris-
prudence needs to expand its focus beyond the traditional indi-
vidualized suspicion model, backed by a motion for exclusion, as
the primary means of protecting individual interests. Surveil-
lance of large numbers of people cannot, and should not, be jus-
tified on a person-by-person basis. Nor is the suppression rem-
edy likely to be an effective deterrent in this context, since at
best it benefits an infinitesimally small number of people sub-
jected to the illegal surveillance, and in any event is a poor re-
medial fit with the types of violations that public surveillance
involves. The dissonance between public surveillance and the
individualized suspicion/exclusionary rule model suggests a
need for rethinking both the type of justification and the man-
ner of implementation the Fourth Amendment requires. Part IV
makes some brief observations in this regard, based on some of
my previous work.
I. CAMERA SURVEILLANCE OF THE PUBLIC NOW AND
IN THE NEAR-FUTURE
The government uses cameras to watch us in all sorts of
venues, ranging from private stores to public restrooms, from
government-owned buildings to public streets, from traffic inter-
sections and parking lots to detentions of motorists by state
troopers.18 This article will focus on government camera surveil-
lance of pedestrians in the public streets, as distinguished from
video monitoring of building interiors and motorist stops. Thus,
this article's use of the phrase “public camera surveillance” and
its commonly accepted abbreviation “CCTV”–for closed circuit
television–will refer only to the former type of surveillance.
Even when defined in this narrow sense, public surveillance
using camera technology is likely to increase exponentially in
the next decade. As in other areas of technological development,
the law is not likely to keep up.19
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20. Hsu, supra note 2, at C1.
21. Id.
22. Id. See also, Editorial, Big Brother in the Capital, ROCKY MOUNTAIN NEWS,
Feb. 20, 2002, at 30A (noting that D.C. cameras do not produce “the blurry videos
of convenience-store crimes [but] digital images from optical technology that can
see in the dark and zoom in on a page of fine print from hundreds of feet
away.”).
23. Hsu, supra note 2, at C1.
24. Jess Bravin, Washington Police to Play “I Spy,” WALL ST. JOURNAL, Feb. 13,
2002, at B1, B6 (quoting Stephen J. Gaffigan, former Justice Department Director
of Community Policing and head of the Washington Metropolitan Police
Department camera installation project, as stating, “The next logical extension is
into communities to aid our crime-fighting efforts.”).
25. Id.
26. Hsu, supra note 2, at C1. But it may already be behind the curve. A digital
system has been developed that allows camera images to be fed to a wireless
laptop operator who can control the camera and other remote devices. New Video
Technology from AXCESS Inc., PR NEWSWIRE, Feb. 26, 2002.
27. Marcus Nieto, Public Video Surveillance: Is It An Effective Crime Prevention
Tool? CRB-97-005 (California Research Bureau, California State Library, June,
1997), at 14-18, available at http://www.library.ca.gov/CRB/97/05/.
219
A. The Surveillance Dragnet
The future has arrived in Washington, D.C., in the wake of
the terrorist attacks of September 11. Hundreds of government
cameras are trained on streets, subways, school hallways, and
federal facilities,20 in a project that “makes Washington the first
U.S. city to be able to peer across wide stretches of the city and
to create a digital record of images.”21 State-of-the-art cameras
allow operators to take advantage of “satellite-based optics” that
enable them to see in the dark, capture words on a printed page
from hundreds of feet away, and peer into buildings.22 Only a
few private cameras have been added into the mix at this point,
but the head of the project states “I don't think there's really a
limit on the feeds [the system] can take;” further, he wants “to
build . . . the capability to tap into not only video but databases
and systems across the region,”23 eventually moving into any
number of schools, businesses and neighborhoods.24 All of this is
to be accomplished through a $7,000,000 central control facility,
which can then relay the feeds to nearly 1000 squad cars.25
At present in the United States, only Washington, D.C. has
such a sophisticated system.26 But many other American cities
have installed forerunner versions that are far from antiquated.
For instance, Newark, N.J., Tampa, Fl., Virginia Beach, Va.,
and Memphis, Tenn., all have cameras, ranging in number from
six to seventy-two, that cover large areas of public real estate
and that can rotate 360 degrees, pan and tilt, and zoom in on
subjects.27 Tampa recently added several dozen cameras
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220 MISSISSIPPI LAW JOURNAL [VOL. 72
28. Lane DeGregory, Click. BEEP! Face Captured, ST. PETERSBURG TIMES, July
19, 2001, at 1D. See also infra note 67.
29. International Association of Chiefs of Police, Executive Brief, The Use of
CCTV/Video Cameras in Law Enforcement, Executive Summary, March 2001, at
4, available at http://www.theiacp.org/documents/pdfs/Publications/UseofCCTV.pdf
[hereafter IACP Brief].
30. Id.
31. Id.
32. M.J. Zuckerman, Chances Are, Somebody's Watching You, USA TODAY, Nov.
30, 2000 (describing $ 40 million surveillance center, controlling 110 remote
control cameras in the suburbs of Washington, that can “peer inside a vehicle”
and “easily see into the homes and offices along the interstates”).
33. Nieto, supra note 27, at 21. In Anchorage, Alaska, for instance, volunteer
video patrols funded by the business community and state grants train cameras
on residential and commercial sections of the city. Id. In Hollywood, California,
cameras are monitored by local residents and Los Angeles Guardian Angels. Id. at
20.
34. Karen Hallberg, Nationwide Survey of Companies With Security Expenses,
Cahners Publishing Company, September, 1996 (on file with author).
35. This was the estimate in 1996. Nieto, supra note 27, at 7.
equipped with face recognition technology that purportedly
matches captured faces with criminal arrest records (although
the city discontinued the program when it failed to produce any
arrests).28
Many cities and towns are following suit in one way or an-
other. A 2001 study by the International Association of Chiefs of
Police found that 80% of the 207 responding American law en-
forcement agencies have deployed some sort of closed-circuit
television and that another 10% will soon do so.29 Much of this
technology is “in-car” video designed to record police detention
activities, or is placed at traffic intersections or in government
buildings.30 But about half the responding agencies use cameras
in “high crime areas,” 25% use them on “streets” and 15% use
them in “parks.”31 It should also be noted that some of the traf-
fic networks, although primarily designed to photograph the
license plates of speeders, can peer inside a vehicle, at areas
outside the intersection, and even into homes and offices along-
side the targeted thoroughfares.32
All of these cameras are owned by the government (al-
though in some locales they are operated by “volunteers” from
the community33). In the private sphere, camera use is even
more widespread. A nationwide survey of a variety of compa-
nies, taken over five years ago, found that 75% use CCTV sur-
veillance.34 That fact becomes important even if the focus is
solely state action, given the above-mentioned capacity to link
these cameras to government command centers.
That is precisely what has happened in Great Britain, the
champion of CCTV surveillance. There are now well over 800
local public video surveillance programs in operation in the
United Kingdom,35 involving between two and three million
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36. See Lee, supra note 1, at 7 (reporting that in 2001, Great Britain had
installed 2 million cameras and was planning on spending another $100 million to
install thousands more).
37. Nieto, supra note 27, at 8.
38. Simon G. Davies, Re-Engineering the Right to Privacy: How Privacy Has
Been Transformed from a Right to a Commodity, in T
ECHNOLOGY AND PRIVACY:
THE NEW LANDSCAPE 150 (Phillip E. Agre & Marc Rotenberg eds., MIT Press
1997) (estimating that 200,000 cameras cover public spaces and indicating that
this figure would grow at 20 to 30% annually).
39. Id.
40. Clive Norris, From Personal to Digital: CCTV, the Panopticon and the
Technological Mediation of Suspicion and Social Control, in S
URVEILLANCE AND
SOCIAL SORTING: PRIVACY RISK AND AUTOMATED DISCRIMINATION 11 (David Lyon,
ed. 2002).
41. Nieto, supra note 27, at 8.
42. Id.
43. Id. at 9-10 (describing CCTV programs in Canada, France, Ireland, Spain,
Monaco, Russia, Italy, China, Iran and Iraq).
44. CLIVE NORRIS & GARY ARMSTRONG, THE MAXIMUM SURVEILLANCE SOCIETY:
THE RISE OF CCTV 212-14 (1999)(describing “intelligent scene monitoring”).
45. Id. at 214-16 (describing “automatic licence plate identification”). This
system is already in use in London. See id.
221
cameras,36 and creating more video images per capita than any
other country in the world.37 Between 200,000 and 400,000 of
these cameras monitor public areas;38 many are equipped with
zoom lenses that can read the wording on a cigarette packet at
100 yards and bring nighttime images up to daylight level.39
And the installation of cameras is likely to continue unabated.
Researcher Clive Norris concludes that “in the first decade of
the new millennium, when average Britons leave their homes
what will be remarkable is if their presence is not seen, their
behavior not monitored and their movements not recorded by
the omni-presence of the cameras, CCTV operators, and video
recorders.”40 Most of these programs are jointly operated and
managed by law enforcement and the private sector.41 Almost
all are linked to police stations, but quite a few are also moni-
tored by private security guards.42 Many other European coun-
tries have similar systems.43
Today, these cameras are operated primarily by people. But
the camera systems of the (not-so-distant) future will be much
more automated. Motion detection systems will be able to dis-
cern when movements are out of the “ordinary” and then alert
human assessors, who are thereby spared sifting through moun-
tains of data.44 License plate recognition systems will be able to
identify those cars that enter unauthorized areas or that move
in the wrong direction.45 Facial recognition systems, more so-
phisticated than the one used in Tampa, will trigger a signal
when people with criminal records, outstanding warrants, or
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222 MISSISSIPPI LAW JOURNAL [VOL. 72
46. Id. at 216-19 (describing “digital facial recognition systems”).
47. See David Harris, Superman's X-Ray Vision and the Fourth Amendment:
The New Gun Detection Technology, 69 TEMP. L. REV. 1, 7-8 n.38 (1996)(describing
this technology).
48. See Lee, supra note 1 (reporting British Home Office figures showing a 63%
decline in crime rates in areas where cameras have been installed); Nick Taylor,
Closed Circuit Television: The British Experience, 1999 STAN. TECH. L. REV. ¶ 12
(reporting British police claims that car thefts in King's Lynn were reduced by
91%, and general crime in Bedford and Swansea was reduced by 55% and 51%,
respectively); Emelyn Cruz, Video Cameras Shooting Down Some Crime Rates,
THE SEATTLE TIMES, July 28, 1996 at B-1 (in Tacoma after cameras were
installed, crimes such as assaults, trespassing, prostitution and vandalism dropped
from 244 reported incidents in 1993 to 87 in 1994, and 125 in 1995).
49. Taylor, supra note 48, at ¶¶ 13-14. The success of CCTV in stores,
transportation centers and the like is better documented. For instance, London's
Gatwick Airport saw a 78% drop in crime in its car parks after cameras were
installed, and Chesterfield railway station a drop in vehicle crime of 96%. Stephen
Wright, Police Release CCTV Images of BBC Presenter, DAILY MAIL (London), May
3, 1999, at 2. But even here the effectiveness of CCTV is not proven beyond
doubt. See Emma Short & Jason Ditton, Does CCTV Affect Crime?, 2 CCTV
TODAY, Mar. 1995, at 11 (1995)(the results of independent and competently
conducted evaluations of CCTV systems installed in car parks, buses, housing
estates, football stadia and the underground are “fairly contradictory regarding
the effectiveness of CCTV as a crime prevention method,” with some showing no
effect, others showing high levels of displacement rather than overall reduction,
and others showing clear reductions).
50. Ray Pawson & Nick Tilley, What Works in Evaluation Research? 34 BRIT J.
CRIMINOLOGY 291, 294 (1994); see also, Taylor, supra note 48, at ¶13 (stating that
“the vast number of evaluation schemes that have been carried out to date have
been undertaken by those with an interest in promoting the cameras and have
been technically inadequate”).
51. Clive Norris, Remarks at a Conference of Experts–Video Surveillance: A
inappropriate authorization are spotted.46 Eventually cameras
will even be equipped with “see-through” technology that can
detect when an individual is carrying a gun.47
This huge investment in CCTV technology here and abroad
is based on two premises. The first assumption, of course, is
that it enhances public safety. The second is that it does so less
expensively than any equally effective alternative. Both pre-
mises are subject to some doubt.
Reports abound of prodigious camera-induced drops in
street crimes, in the 50 to 70% range.48 But these accounts are
of questionable accuracy (at least those that describe crime re-
duction due to street-based CCTV49). A recent commentary on
the reports about the United Kingdom's CCTV system describes
the glowing statistics as “post hoc shoestring efforts by the un-
trained and self-interested practitioner.”50 More neutral
analysis of the efficacy of public surveillance paints a different
picture. A meta-review of thirteen of the better-conducted
studies carried out in that country through 2000 concluded that
“the criminological evidence as to CCTV's effectiveness in reduc-
ing crime does not support the almost exponential increase in
cameras on British streets as a crime prevention measure.”51
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2002] PUBLIC PRIVACY 223
Crime Prevention Instrument in European Comparison 32 (Feb. 22-24,
2001)(manuscript available at Georg-August University, Gottingen, Germany and
from author). Another ironic development is that pictures of crime, captured on
CCTV, may actually make people feel less safe and less willing to frequent the
targeted areas. Jason Ditton, Glasgow City's Cameras–Hype or Help?, SCOTTISH
CENTER FOR CRIMINOLOGY, available at http:www.scotcrime.u-net.com/news1.htm
(reporting that, when a large sample of people was interviewed one year after
Glasgow installed cameras, “most didn't feel any safer and more said they would
avoid the city centre,” and speculating that the publicity from the crimes caught
on camera was partly to blame).
52. Brandon C. Welsh & David P. Farrington, Crime Prevention Effects of
Closed Circuit Television: A Systematic Review 41 (August, 2002)(Home Office
Research Study 252, on file with author). This study also noted that all five
North American CCTV studies showed no evidence of a desirable effect on crime.
Id. at 42.
53. See Jason Ditton, The Effect of Closed Circuit Television Cameras on
Recorded Crime Rates and Public Concern About Crime in Glasgow, SCOTTISH
CENTER FOR CRIMINOLOGY, available at http://www.scotcrim.u-
net.com/research.htm.
54. UPI, “Spy” Cameras vs. Villains in Britain (Mar. 8, 2002), available at
http:www.gyre.org/news/cache/1885. This article also notes that in London's
Newham district, with 300 cameras, street crime in 2001 increased by one-fifth
over the previous year, and car thefts increased by 3.6%.
55. Bruce Andrews, Here's Looking at You, SYDNEY MORNING HERALD, Dec. 26,
2001, at 16, available at 2001 WL 31626512.
56. Quentin Burrows, Scowl Because You're on Candid Camera: Privacy and
Video Surveillance, 31 VAL. U. L. REV. 1079, 1103 (1997).
223
Another recently concluded meta-analysis of the twenty-two
most carefully conducted studies in the United Kingdom and
North America indicated that while half of the studies found a
“desirable effect on crime,” five found an “undesirable” effect,
and six found no effect or an uncertain effect on crime; ulti-
mately, “the average overall reduction in crime was a rather
small four per cent.”52
One example of such research comes from Glasgow, one of
the first major cities to adopt CCTV. There, a three-year study
conducted by criminologists found that although crime was re-
duced in “certain categories, . . . there was no evidence to sug-
gest that the cameras had reduced crime overall,” and “[t]he
cameras appeared to have little effect on clear up rates for
crimes and offences.”53 Anecdotal statistics from the more recent
past are equally disappointing. In London, where cameras
abound, even street robberies–the crime CCTV is supposed to be
best at deterring–increased in 2002.54 In Sydney, Australia, a
relatively new camera system produced only one arrest every
160 days.55
American cities have had similar experiences. Early sys-
tems set up in Hoboken, N.J., Mount Vernon, N.Y., Miami, Fl.,
Charleston, S.C., and Detroit, Mich., were discontinued because
they were not cost effective.56 Cameras in Times Square were
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57. Id. See also Maureen O'Donnell, Cameras Around Every Corner, CHICAGO
SUN-TIMES, Feb.18, 1996, at 2, available at 1996 WL 6732224.
58. Cameras in the District of Columbia: Before the House Comm. on Gov.
Reforms, 107th Cong. 3 (2002)(statement of Johnny Barnes, Executive Director,
ACLU of National Capital Area)(quoting Report of Joseph Samuels, Jr., Chief of
Police, Oakland Police Department to Oakland City Council), available at
http://www.aclu.org/congress/1032202a.html.
59. Liz Kay, Camera Becomes New Weapon in War on Graffiti Vandalism:
Officials Say the Motor Sensing Device Deters Taggers, but Critics Say It Just
Pushes the Problem to New Location, L.A. TIMES, Dec. 24, 2001, at B4, available
at 2001 WL 28939163 (quoting a detective saying that gang members “rip [the
cameras] off. They break them, they turn them, they shoot them up. It's more of
a game for them. If they are going to do their illegal activity, they are going to
make sure [the cameras] are not working.”).
60. See UPI, supra note 54 (quoting one official who said “[t]here are hundreds
of thousands of nooks and crannies left” that cameras cannot view, and noting
that some criminals “are targeting luxury cars on the move so that any view the
cameras gets of them is fleeting at best” and that “[o]thers conceal their street
muggings by grabbing their targets in a clinch that, on CCTV, looks like nothing
more than a romantic hug.”).
61. According to Norris & Armstrong:
It is not possible for one or even two operatives to continuously monitor
the output of a twenty-camera system and, of course, as soon as they
selectively focus on one incident, other screens are going unmonitored.
This is exacerbated by the inherent boredom of watching dozens of
screens and the inattentiveness that results. But even the most attentive
of operators are swamped by the volume of information. For instance . . .
a medium-sized 24-hour city centre system with twenty cameras
dismantled after producing fewer than ten arrests in twenty-
two months.57 These failures might be attributed, at least in
part, to the primitiveness of the technology used. However, Oak-
land, Calif., recently ended its three-year experiment using
high-definition cameras–able to read a flyer hundreds of yards
away and a license plate more than a mile away–because it had
no “conclusive way to establish that the presence of video sur-
veillance cameras resulted in the prevention or reduction of
crime.”58
There are many reasons why cameras might not be effective
at reducing crime in the areas on which they are trained. To
understand why, consider the three ways cameras can, in the-
ory, be useful: (1) they might help spot incipient crime that can
be prevented, or at least solved, through immediate action; (2)
they might create a record of crime that can be used in identify-
ing and convicting perpetrators at some later point in time; and
(3) they might deter crime. In each of these three areas, obsta-
cles to smooth functioning exist.
Cameras' ability to help immediately nab potential or ac-
tual perpetrators is circumscribed by a number of factors. Cam-
era operators may not observe crime in the targeted area be-
cause the cameras have been destroyed or tampered with,59 bad
lighting or obstacles prevent good viewing (e.g., drug transac-
tions carried out between cars),60 or the operator is distracted61
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[generates] a quite staggering 43 million “pictures” per day.
NORRIS & ARMSTRONG, supra note 44, at 211.
62. See generally Remarks of Thomas Coty (Manager of the National Institute
of Justice Video Sensor and Processing Program), at Meeting of the Security
Industry Association and International Association of Chiefs of Police, at 39 (Apr.
17, 2002)(transcript available at http://www.securitygateway.com/E/E3_5.html
[hereafter SIA and IACP Meeting](stating “[O]ne of the problems we see in CCTV
is that if it's being operator maintained or monitored, after about twenty minutes
the eyes start to glaze and it's difficult to keep monitoring the monitor.”). Id.
63. Norris, supra note 40, at 19 (CCTV operatives . . . are . . . always
accountable to justify the request for intervention and, unlike the patrol officer,
do not have the benefit of hindsight, [which] serves to limit requests for
deployment to only those events that can generate the most concrete and
strongest justifications.”). Note, however, that operators can be overaggressive in
singling out certain types of suspects. See infra text accompanying notes 147-57.
64. See Taylor, supra note 48, at ¶ 32 (noting that soon after cameras were
introduced in Bingley, Yorkshire, the number of officers based in town was
reduced from twenty-four to three).
65. Norris & Armstrong, supra note 44, at 166 (concluding that the reason
many suspects reported by a field agent to the camera operator were never
located by the operator was that “location is often imprecise and descriptions are
too vague to significantly differentiate a suspect from the crowd”).
66. Id. at 188-96 (describing implications of fact that “the practice of street
policing, which traditionally enjoyed low visibility from managerial scrutiny is now
potentially subject to a far more intrusive supervisory gaze”).
67. Tampa abruptly suspended its face recognition program after less than two
months, apparently because the system failed to identify correctly a single face in
its database of suspects, and thus did not result in any arrests. The Failure of
Facial Recognition Technology in Tampa, Florida (ACLU Special Report), January
3, 2002, at 1 (on file with author). This report also describes several studies
indicating that, to date, the technology has not been very effective. Id. at 3.
68. See generally Remarks of Stephen McMahon (Central District Commander
for Baltimore City), SIA & IACP Meeting, supra note 62, at 39 (noting that tapes
are destroyed after ninety-six hours and that tapes of a few “non-crime related”
incidents were therefore lost).
225
or unable to recognize what is happening in ambiguous situa-
tions.62 If operators do see something suspicious, their distance
from the scene sometimes makes them overcautious in conclud-
ing a crime is occurring.63 And even when incipient crime is
clearly identified, police will not necessarily be deployed. A
dearth of sufficiently proximate officers (created in part by the
belief that fewer police are needed when cameras are present64),
lack of or poor communication between the control room and
those in the street,65 and even police fear of being caught on
camera and having one's actions misinterpreted can limit law
enforcement response.66 All of these problems have their ana-
logues in systems that are more fully automated. Alarms may
not sound because of technological flaws,67 or deployments may
not occur because of human ones.
Attempts to memorialize the crime and the perpetrator on
tape can also run into difficulty. Sometimes tapes are destroyed
before authorities realize they may be helpful in solving crime.68
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69. Kay, supra note 59, at 4 (stating that, with respect to one system, Los
Angeles “[o]fficials have not made any arrests based on photos taken by the
camera at any location [because] pictures are seldom clear enough to identify the
person responsible for the graffiti.”); Zuckerman, supra note 32, at 1A (noting that
tape at ATM machine had been used so many times that image of person using a
murder victim's card was too obscured for identification purposes).
70. Although the tape clearly showed officers beating King, it did not capture
the high speed chase and King's aggressive actions prior to the beating. See
GEORGE P. FLETCHER, WITH JUSTICE FOR SOME 38-41 (1996)(recounting the
behavior of King and the officers prior to the videotaping); see also The 1991
Rodney King Police Brutality Case and the Los Angeles Riots, at
http://www.crimsonbird. com/history/rodneyking.html (discussing police chase and
subsequent beating).
71. Zoe Henderson et al., Matching the Faces of Robbers Captured on Video, 15
APPLIED COGNITIVE PSYCHOLOGY 445 (2001)(reporting research finding that
matching unfamiliar faces from both high- and low-quality CCTV with
photographs is “highly error-prone”).
72. Norris, supra note 40, at 17 (recounting one case which involved 4000-man
hours of video analysis), & at 35 (noting that multiplexing cameras, a common
efficiency procedure that takes only a few frames per second from each of many
cameras, produces a loss of information that can make incident spotting difficult);
cf. State v. Bonnell, 856 P.2d 1265, 1271 (Haw. 1993)(describing accumulation of
fifty videotapes with twelve hundred hours of footage, containing just one minute
of conduct that might have reflected gambling activity).
73. Jason Ditton & Emma Short, Evaluating Scotland's First Town Centre
CCTV Scheme, in SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND SOCIAL
CONTROL (Clive Norris et al., eds., 1998)(after a year of cameras in Glasgow's
town center, “only between a quarter and a third of the ambulatory population
were even aware of their existence”); John Naughton, Video Eyes Are Everywhere:
“Big Brother” in Britain, THE OBSERVER (U.K.), Nov. 13, 1994, at 13 (noting that
most people in Britain are unaware of the extent to which camera surveillance
occurs).
74. Chris Arnot, We've All Been Framed: It's Not Big Brother Who's Watching
Over Us–It's All His Young Siblings, Monitoring Our Every Move in Public (and
Many Private) Places, THE GUARDIAN (UK), Dec. 13, 1999 (stating “[w]hen young
men have had between five and 10 pints of lager and their honour is challenged,
the presence of a camera makes no difference.”).
75. See also, Emma Short & Jason Ditton, Seen and Now Heard: Talking to the
Targets of Open Street CCTV, 38 BRIT. J. CRIMINOLOGY 404, 418-20 (1998)(noting
that eight of thirty criminals interviewed claimed CCTV cameras had no effect on
Nor does retention of the tapes guarantee identification. Record-
ings are sometimes of poor quality69 (although, as noted earlier,
digitalization has gone a long way toward rectifying this prob-
lem), images caught on tape are always subject to interpretation
(think of the Rodney King video70), and perpetrators are hard to
identify even with good images.71 Even if tapes are preserved
and the human error factor is assumed away, obtaining the rel-
evant frames can literally consume days of effort by the police.72
Finally, cameras cannot be effective deterrents if their pres-
ence is not made known to potential perpetrators, which appar-
ently is often the case.73 And even when the cameras' presence
is conspicuous, certain types of offenders are too preoccupied or
dense to notice, or are oblivious (as with rowdy revelers)74 or
uncaring (as with nighttime prowlers who wear masks, wigs, or
other disguises).75 A 1995 study reported that criminals believe
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their pattern of offending, with others saying they committed offenses outside of
camera range, and a “small minority” saying they gave up offending altogether).
76. See Nieto, supra note 27, at 11 (discussing the results of a study
undertaken by Rosemary Erickson of the Athena Research Corp.).
77. Stephen Graham, Towards the Fifth Utility? On the Extension and
Normalisation of Public CCTV, in SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND
SOCIAL CONTROL, supra note 73, at 89, 106 (“Anecdotal evidence has already
emerged that the Newcastle West End scheme has significantly cut phone calls to
the police, because local residents assume that the CCTV system will have
spotted any event, anywhere, and at any time.”).
78. For instance, Tacoma, Wash., one of the few American cities that has kept
crime statistics and reported significant reductions as a result of CCTV, see supra
note 48, added street lights, removed graffiti and cleaned up vacant lots at the
same time it installed cameras. Burrows, supra note 56, at 1124 n.361. In
Washington, D.C., a crime cleanup on Rhode Island Avenue was “jumpstarted by
the camera but it then was followed up with a lot of other action.” John
Thompson (Lieutenant Colonel in United States Army), SIA & IACP Meeting,
supra note 62, at 12; see also, Ben Brown, Closed Circuit Television in Town
Centres: Three Case Studies, 68 POLICE RES. SERIES 37 (1995)(stating that in
Birmingham efforts were made at “pedestrianisation” of key areas of the city
center at the same time cameras were installed), available at
http://www.homeoffice.gov.uk/rds/orgpdfs/ fcdps68.pdf); Norris, supra note 51, at 16
(“the rapid growth of the number of CCTV systems [in the United Kingdom]
(between 1993 and 1997) occurred at precisely the same time as the only
sustained fall in recorded crime since the 1950s”). The latter paper recounts a
number of other reasons reported crime reductions may not be accurate or not
attributable to CCTV.
79. See David Skinns, Crime Reduction, Diffusion and Displacement: Evaluating
the Effectiveness of CCTV, in S
URVEILLANCE, CLOSED CIRCUIT TELEVISION AND
SOCIAL CONTROL, supra note 73, at 185 (noting that although the town center
experienced a 16% reduction in crime after camera installation, crime in the
surrounding townships jumped by 31%, so that overall reduction was only 6%);
Brown, supra note 78, at 35 (“Since the installation of cameras, the incidence of
[street robbery, theft from the person and theft from a motor vehicle] in areas
surrounding zone A has increased sharply, and by the end of the study period,
the number of offences per month is over three times as high as when the
cameras were installed.”); Chris Sarno, The Impact of Closed Circuit Television on
Crime in Sutton Town Centre, in TOWARDS A SAFER SUTTON? CCTV ONE YEAR ON
(Marjorie Bulos & Doug Grant eds., 1996)(reporting that after camera installation
street thefts declined by 7%, but thefts inside commercial premises increased by
30%).
227
the presence of cameras is the least of their concerns in consid-
ering whether to rob businesses.76 Also of note is that the pres-
ence of cameras may simultaneously reduce surveillance by citi-
zens, who assume that the cameras will do the job.77
Findings that crime has dropped in areas exposed to cam-
eras must also be tempered by two facts. In some studies, part
of the crime reduction was undoubtedly due to other factors,
including additional crime control measures undertaken at the
time the cameras were installed and decreasing crime rates
overall.78 Second, many of these studies did not take into ac-
count the possible “displacement” effect of the cameras, despite
the likelihood that any crime that surveillance does deter is
simply pushed into an area that does not have cameras.79
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80. IACP Brief, supra note 29, at 5 (96% of the U.S. agencies surveyed by the
IACP “do not incorporate measurement systems of any kind” to determine the
effect of CCTV on crime rates).
81. Emma Short & Jason Ditton, Does Closed Circuit Television Prevent Crime?
An Evaluation of the Use of CCTV Surveillance Cameras in Airdrie Town Center,
THE SCOTTISH OFFICE CENTRAL RESEARCH UNIT (1995), available at
http://www.scotland.gov.uk/cur/resfinds/crf08-00.htm.
82. See Brown, supra note 78, at 17. Brown also notes, however, that the
decline in vehicle thefts in the CCTV area “appears to fade after 8 months and
the number of thefts of vehicles rises sharply.” Id. at 20.
83. Rachel Armitage et al., Burnley CCTV Evaluation, in SURVEILLANCE OF
PUBLIC SPACE: CCTV, STREET LIGHTING AND CRIME PREVENTION (Kate Painter &
Nick Tilley eds., 1999).
84. Arnot, supra note 74 (noting that law enforcement claimed a 74% crime
drop in Airdrie).
85. But see Norris, supra note 51, at 26-27 (noting that a number of other well-
done studies obtained “mixed results” compared to these “unequivocal success
stories”). In fact, several studies showed that cameras had no overall impact on
crime. Id.
86. Although not based on controlled studies, statements by American police
officials are consistent with this conclusion. Remarks of Stephen McMahon, supra
note 68, at 4 (noting reductions of 18 and 25% in first two years of CCTV
program in Baltimore); Remarks of Joseph Dunne (Chief of Housing Police, New
York City), SIA & IACP Meeting, supra note 62, at 21 (noting reduction of 25%
in first 6 months of camera use in New York housing projects). But see supra
note 52 (describing meta-study which concluded that U.S. studies have
These observations should not lead to the conclusion that
public video surveillance has little or no impact on crime. Al-
though law enforcement statistics are probably inflated (on
those few occasions when they exist80), it must be acknowledged
that even more careful, privately conducted studies indicate
that some cities experience a noticeable reduction in offense
rates after camera installation. For instance, the town center of
Airdrie, Scotland experienced a 21% drop in crime over the two
year period after cameras were set up, with no obvious evidence
of displacement, and after factoring out other explanatory vari-
ables such as a drop in overall crime rates.81 Newscastle experi-
enced significant drops in particular crimes: 35% for criminal
damage, 50% for motor vehicle theft, and 56% for burglary, com-
pared to 25%, 39% and 39% reductions for the same crimes in
the control areas.82 A third United Kingdom study found a 25%
drop in crime sustained over a two-year period, with no dis-
placement effects.83 Although these figures are significantly
lower than initial law enforcement claims,84 they are nonethe-
less impressive.85
When all the data are looked at closely, a fair conclusion is
that well-positioned, sophisticated cameras, run by competent
staff, might be able to reduce some types of street crime, partic-
ularly theft, by 10 to 25% in “high crime areas,” compared to
similar public areas that have no cameras, with only a small
displacement effect.86 The second question that must be an-
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consistently found that CCTV does not reduce crime).
87. G. Wade, Funding CCTV: The Story So Far, 7 CCTV TODAY (1998), at 28
(stating that several local townships are “dealing with operating budgets in excess
of £500,000 per year”).
88. Remarks of Joseph Dunne, supra note 86, at 22.
89. Norris, supra note 51, at 23 (describing a study by A. Beck & A. Willis,
Crime and Security: Managing the Risk to Safe Shopping (1995)).
90. Id.
91. See Davies, supra note 38, at 150 (quoting a Home Office spokesman who,
in commenting on the potential of CCTV, stated “if this all saves just one life, it's
worth it.”). Widespread CCTV could also help apprehend individuals like the
sniper who recently terrorized Washington, D.C., although such individuals would
probably be adept at avoiding overtly positioned cameras.
92. Vaseekaran Sivarajasingam & Jonathan P. Shepherd, Effect of Closed
Circuit TV on Urban Violence, 16 J. ACCIDENT & EMERG. MED. 255 (1999)(finding
in a study of three Welsh cities “an overall reduction in town/city centre
violence . . . of 1% in the 2 years after closed-circuit TV installation,” which the
authors concluded meant that CCTV “had no obvious influence on levels of
assaults,” a finding they said was consistent with the British Crime Survey
finding of “no overall change” in rates of urban violence following the installation
of public surveillance devices); Norris & Armstrong, supra note 44, at 166-67
(finding that although 38% of the 45 deployments they witnessed were for violent
action, most of them were fist fights and none involved death or required an
229
swered by careful policymakers is whether this reduction is
cost-effective. Could other alternatives, such as more patrols,
better lighting and greater community participation in law en-
forcement, achieve equal or better results at less cost?
I will not try to answer that question here. Some informa-
tion about the cost of CCTV can provide a useful starting point,
however. In the United Kingdom, a number of local authorities
have yearly operating budgets of well over $500,000 for camera
systems that cover downtown areas.87 The annual budget of
each of the several 100-camera systems in New York City hous-
ing projects is approximately $850,000 just for staffing (i.e., not
including the upfront costs of the cameras, their maintenance,
new tapes, tape storage, and associated expenditures).88
Whether equally effective alternatives would be cheaper is
harder to calculate. But it can be noted that even a relatively
successful CCTV system may not “pay” for itself. One study in-
dicated that good CCTV systems can make significant dents in
shoplifting, but that the value of merchandise retained would
not equal expenditures on such a system for nearly five years;89
as one researcher noted, “it might be more rational to just ac-
cept the losses.”90 Where violent crime is concerned that kind of
reasoning is less palatable, and expensive surveillance systems
might be endorsed if even just a few such crimes will be pre-
vented or detected.91 Unfortunately, however, violent crimes are
probably the most difficult offenses for cameras to prevent or
deter, given their often spontaneous nature.92
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230 MISSISSIPPI LAW JOURNAL [VOL. 72
ambulance).
93. Burrows, supra note 56, at 1106 (quoting a property owner who was a
catalyst in implementing a CCTV system in Los Angeles as stating “[y]ou can't
commit crimes if you know Big Brother is watching you.”).
94. Davies' comments about government attitudes in the United Kingdom are
instructive:
The government has placed video surveillance at the center of its law-
and-order policy. . . . CCTV is quickly becoming an integral part of crime-
control policy, social control theory, and “community consciousness.” It is
widely viewed as a primary solution for urban dysfunction. It is no
exaggeration to conclude that the technology has had more of an impact
on the evolution of law enforcement policy than just about any other
technology initiative in the past two decades.
Davies, supra note 38, at 151.
95. Lisa Guernsey, Living Under an Electronic Eye, N.Y. TIMES, Sept. 27, 2001,
at G1, col. 5 (describing poll conducted after September 11, 2001, that showed
increased public support for giving up “some personal freedoms in order to make
the country safe from terrorist attacks,” and that showed increased support for
governmental monitoring of e-mail and phone conversations on a regular basis).
96. Davies, supra note 38, at 152; see also, Taylor, supra note 48, at ¶ 35 &
n.52 (stating that “the use of public space visual surveillance in Britain remains
largely outside of the law,” although noting that storage of surveillance results
may be covered by statute); A. Michael Froomkin, The Death of Privacy?, 52
STAN. L. REV. 1461, 1539 (2000)(“The world leader in the deployment of
surveillance cameras, the United Kingdom, has some of the strictest data
protection rules in the world, but this has done little or nothing to slow the
cameras' spread.).
In sum, it is not clear that public surveillance using cam-
eras is always a worthwhile investment from a public safety
perspective. That conclusion is unlikely to slow the continued
proliferation of such surveillance, however. “Common sense”
judgments, which view the efficacy of cameras systems as a
foregone conclusion, are likely to dominate any debate on the
matter.93 Politicians will continue to point to cameras as a “sil-
ver bullet” method of crime prevention.94 Recent terrorist at-
tacks will only add to the pressure to provide protection through
surveillance.95 Although, as noted above, some cities have termi-
nated CCTV programs that have failed to reduce crime, there is
also the possibility that once the newer, more expensive systems
are set up, inertia will prevent their disassembly even in the
face of proven ineffectiveness. The primary question is not
whether such systems will be installed or maintained, but
whether and how their use will be regulated.
B. Current Legal Regulation of Public Camera Surveillance
Meaningful legal strictures on government use of public
surveillance cameras in Great Britain, Canada, and the United
States are non-existent. Great Britain's Code of Practice sets out
operating standards “but has no mechanism for accountability
or enforcement.”96 Similarly, while governments in Ontario,
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97. GUIDELINES FOR USING VIDEO SURVEILLANCE CAMERAS IN PUBLIC PLACES
(2001), available at http://www.ipc.on.ca/english/pubpres/papers/video-gd.pdf. These
guidelines were promulgated by the Information and Privacy Commissioner,
Ontario, Canada. The introduction to the Guidelines state that “[t]hese Guidelines
build on those developed by” the governments of British Columbia and Alberta,
Canada. Id. For the most part, they are a good model for CCTV regulation.
Further, in section 8, they provide for “regular audits” to “address the
institution's compliance with the operational policies and procedures.” Id. They
also state that “[a]n external body may be retained in order to perform the audit”
and that “[a]ny deficiencies or concerns identified by the audit must be addressed
immediately.” Id. But there are no provisions regarding sanctions if the audit
reveals misconduct.
98. Remarks of John Firman (Director of Research for the International
Association of Chiefs of Police), SIA & IACP Meeting, supra note 62, at 32 (“the
massive amount of policies, procedures and guidelines in place with eighteen
thousand law enforcement agencies all over the country are voluntary”). The
bigger problem is the complete lack of rules in many jurisdictions. The IACP
survey indicated that 53% of the respondents had no formal written guidelines or
policies governing use of CCTV. IACP Brief, supra note 26, at 9.
99. See GUIDELINES FOR CLOSED CIRCUIT TELEVISION (CCTV) FOR PUB. SAFETY
AND COMMUNITY POLICING (Proposed Official Draft No. 9, 2000), available at
http://www.securitygateway.com/E/E3_2.html (calling for an internal “system of
review or audit”); Remarks of Lessing Gold (Moderator), SIA & IACP Meeting,
supra note 62, at 19 (describing framework for developing IACP Guidelines on
CCTV); see also Remarks of Barry Steinhardt (Associate Director and Chair of
Cyber-Liberties Task Force, ACLU), SIA & IACP Meeting, supra note 62, at 33
(“Voluntary guidelines are cold comfort to someone who has their rights violated
and who wants to go to court to have those rights enforced.”).
100. ARIZ. REV. STAT. §§ 13-3019 (2001)
101. Id.
102. Id. It also exempts surveillance of people who have given written consent to
the surveillance, but not, somewhat surprisingly, presumptively consensual video
of activities such as family gatherings and the like when conducted by people who
are involved in the gathering. Id.
231
British Columbia, and Alberta, Canada, have adopted very ex-
tensive guidelines governing camera and tape use, storage,
training, and the like–all of which are framed in terms of what
governments “must” or “should” do–ultimately they are merely
precatory; no administrative, civil or criminal sanctions attach
if they are breached.97 A few American cities have adopted
“guidelines” as well, again none of them enforceable.98 In a re-
cent meeting of the International Association of Police Chiefs,
relatively comprehensive model rules were drafted, but the
premise of the meeting was that “voluntary guidelines” are suf-
ficient.99
The one American statute that deals specifically with video
surveillance of public activities comes from Arizona.100 That law
makes it a misdemeanor for a person to use video “surveillance”
in a public place without prominently and legibly posting notice
that such surveillance is taking place.101 The statute exempts
journalists from this prohibition, but not law enforcement.102 As
the language indicates, however, if notice of the surveillance is
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103. Id.
104. Remarks of Thomas Lambert (Attorney), SIA & IACP Meeting, supra note
62, at 50 (“there really isn't currently any statute that expressly deals with CCTV
use”). In 2002, the Virginia legislature considered a statute that would require a
judicial order for the use of facial recognition technology outside of correctional
institutions. See HB 454 Gen. Assem., Reg. Sess. (Va. 2002)(seeking to add
§§ 19.2-70.4 et seq. to the Virginia statutes). California law prohibits attempts to
capture the image of a person “engaging in a personal or familial activity under
circumstances in which the plaintiff had a reasonable expectation of privacy,
through the use of a visual or auditory enhancing device, regardless of whether
there is a physical trespass, if this image, sound recording, or other physical
impression could not have been achieved without a trespass unless the visual or
auditory enhancing device used was use of cameras to record a person.” CAL. CIV.
CODE. § 1708.8(b) (1999). A number of other states have similar laws, but
“[o]verhelmingly, . . . this protection does not extend to the public space.” Lance
E. Rothenberg, Re-Thinking Privacy: Peeping Toms, Video Voyeurs, and the
Failure of Criminal Law to Recognize a Reasonable Expectation of Privacy in the
Public Space, 48 AM. U. L. REV. 1127, 1145 (2000).
105. See, e.g., United States v. Mesa-Rincon, 911 F.2d 1433, 1437 (10th Cir.
1990)(holding “the general fourth amendment requirements are still applicable to
video surveillance” of the home); Ricks v. State, 537 A.2d 612, 620 (Md.
1988)(discussing applicability of Fourth Amendment to video surveillance of the
home). Cf. Kyllo v. United States, 533 U.S. 27 (2001)(holding that use of a
thermal imaging device to discern the contents of the home is a Fourth
Amendment search). But see infra text accompanying notes 233-34.
106. See, e.g., United States v. Jackson, 213 F.3 1269, 1281 (10th Cir.
2000)(covert video cameras on a telephone pole overlooking outside of defendants'
residences); U.S. v. Reed, No. 99-16439, 2000 U.S. App. LEXIS 22684, *8 (9th Cir.
2000)(covert video of shared hallway of an apartment complex); United States v.
McIver, 186 F.3d 1119 (9th Cir. 1999) (unmanned video in national forest);
Rodriguez v. United States, 878 F.Supp. 20, 24 (S.D.N.Y.1995)(covert video
surveillance of activities on public street); Vermont v. Costin, 720 A.2d 866, 867
(Vt. 1998)(covert video of private but unposted fields 150 yards from defendant's
house); State v. Augafa, 992 P.2d 723, 732-33 (Haw. Ct. App. 1999)(video of
defendant on public sidewalk using camera on a pole nearby); McCray v. State,
581 A.2d 45, 47-48 (Md. App. 1990)(covert video of defendant crossing the street).
See also, Vega-Rodriguez v. Puerto Rico Tel. Co. 110 F.3d 174, 181 (1st Cir.
posted then the law is not violated, and no other strictures are
placed on the operation of the cameras or on access to surveil-
lance results.103 Apparently no other states or municipalities
have adopted anything similar to this relatively undemanding
law.104
A principal reason for the virtually unanimous resistance to
a tougher stance on public video surveillance in the United
States is the assumption that courts are not likely to find unreg-
ulated public camera viewing inimical to the Constitution or
any other established body of law. Video surveillance of the
home interior and similar areas is probably governed by the
Fourth Amendment.105 But all courts that have considered ap-
plication of the Fourth Amendment to cameras aimed at public
streets or other areas frequented by a large number of people
have declared that such surveillance is not a search, on the
ground that any expectation of privacy one might have in these
areas is unreasonable.106 A few courts have noted that particu-
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1997)(covert video of workers in an “open and undifferentiated work area”);
Michigan v. Lynch, 179 Mich. App. 63, 445 N.W.2d 803 (1989)(covert video of
common area of restroom); Young v. State, 849 P.2d 336, 340-42 (Nev.
1993)(covert video of doorless bathroom stall); Sponick v. City of Detroit Police
Dept., 49 Mich.App. 162, 211 N.W.2d 674 (1973)(covert video of defendant talking
in public bar); State v. Bailey, 2001 WL 1739445, *2-3 (Del. Super. Ct. 2001)
(surveillance of commercial storage facility). Even video surveillance of the
curtilage may not implicate the Fourth Amendment. See United States v.
McMillon, 350 F. Supp 593 (D.D.C. 1972)(video of backyard not a search); People
v. Wemette, 728 N.Y.S.2d 805, 805 (N.Y. App. Div. 2001) (videotaping defendant
on his open front porch exposed to plain view of public did not infringe any
reasonable expectation of privacy); State v. Holden, 964 P.2d 318, 320-22 (Utah
Ct. App. 1998)(videotape of front yard from neighbor's window not a search). But
see U.S. v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1986) (prolonged video
surveillance of backyard is a search).
107. See, e.g., Costin, 720 A.2d at 870 (“this is not a case where video
surveillance is aimed indiscriminately at public places and captures lawful
activities of many citizens in the hope that it will deter crime or capture what
crime might occur”); Augafa, 992 P.2d at 737 n.14 (after noting that the camera's
zoom capacity probably did not play a major role in defendant's arrest, stating
“there may be circumstances under which video camera surveillance, even in a
public place, may constitute an unconstitutional intrusion violative of our state
constitution's guarantee against unreasonable searches, seizures, and invasions of
privacy.”)
108. See, e.g., United States v. Torres, 751 F.2d 875 (7th Cir. 1984).
109. See cases cited supra note 106.
233
larly intrusive public surveillance might implicate the Fourth
Amendment, but all have shied away from so holding.107 Simi-
larly, some courts have held that Title III, which governs elec-
tronic eavesdropping, applies (with some modifications) to video
surveillance of the home and similarly private locations,108 but
none has held that it also applies to surveillance of public activi-
ties.
It is worth noting that no court has considered a Fourth
Amendment challenge to a CCTV system, and that most of the
decisions holding that the Fourth Amendment does not apply to
shorter-term, spot surveillance have involved covert, rather
than overt, camera use.109 But the bottom line is that legisla-
tures have not enacted meaningful regulation of public video
surveillance by the government, and the courts have been un-
willing to nudge them in that direction. That should change.
II. THE RIGHT TO PUBLIC ANONYMITY
Suppose that the local police in a particular jurisdiction were
to decide to station a police car at the entrance to the parking
lot of a well-patronized bar from 5:30 p.m. to 7:30 p.m. every
business day for the purpose of making a list of the license
plates of cars that were driven in and parked in the lot during
that time. . . . If we assume that the bar has the necessary li-
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234 MISSISSIPPI LAW JOURNAL [VOL. 72
110. William H. Rehnquist, Is An Expanded Right of Privacy Consistent with
Fair and Effective Law Enforcement? Or: Privacy, You've Come a Long Way, Baby,
23 KAN. L. REV. 1, 9 (1974).
111. Id. at 14. Rehnquist also states, “I think almost all of us would regard this
as simply not the kind of governmental interest that ought to rate high in a free
society.” Id. at 11.
112. Id. at 9.
quor license to sell drinks, that nothing more is known about
the individuals patronizing the bar than that they happen to
drive into its parking lot at this hour, and that there are no
other special circumstances present, I would guess that the
great majority of people who might have the question posed to
them would say that this is not a proper police function. . . .
[T]here would be an uneasiness, and I think a justified uneasi-
ness, if those who patronized the bar felt that their names
were being taken down and filed for future reference. . . . [T]his
ought not to be a governmental function when the facts are as
extreme as I put them.110
These words were written by William Rehnquist, soon after
he was appointed to the United States Supreme Court in 1972.
He is right that overt police monitoring of the comings and
goings of individuals for no apparent reason is not an appropri-
ate government function; as he says later in his article, the “in-
terest in not having public activities observed and recorded may
prevail in the absence of any governmental justification for the
surveillance.”111 The only thing wrong about the passage set out
above is that the hypothesized facts are not “extreme.” They
describe a practice that would be quite feasible and even routine
with any video surveillance system that openly records public
activity.
Rehnquist also asserted that the individual interest in-
volved in this situation, although deserving of protection, is not
“privacy,” because the observed action “is not intended to be
concealed or confidential and is not in fact concealed or
confidential.”112 It is true that no particular trip to the bar is
concealed. But it is also true that those who make trips to the
bar think that their observers either will not know or care who
they are, or will be acquaintances or other bar patrons readily
distinguishable from impersonal government observers bent on
collecting information. Those who patronize bars or any other
establishment both expect, and normally can count on, conceal-
ment from the latter type of observation. If the “uneasy” reac-
tion to which Rehnquist refers is not based on a sense of privacy
invasion, it stems from something very close to it–a sense that
one has what I will call “a right to public anonymity.”
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113. WEBSTER'S NEW COLLEGIATE DICTIONARY 47 (1977)(defining anonymous as
“having or giving no name”).
114. The right might also give way to prevent harm to others that is not
criminal (e.g., an impending accident), or when a person needs medical attention,
etc.
115. ALLAN F. WESTIN, PRIVACY AND FREEDOM 31 (Bodley Mead 1967).
116. Id.
235
Anonymity, literally, means nameless.113 The right to public
anonymity provides assurance that, when in public, one will
remain nameless–unremarked, part of the undifferentiated
crowd–as far as the government is concerned. The right is sur-
rendered only when one does or says something that merits gov-
ernment attention, which most of the time must be something
suggestive of criminal activity.114
The association of public anonymity with privacy is not
new. In his seminal study of privacy, Peter Westin years ago
described anonymity as a “state of privacy” that “occurs when
the individual is in public places or performing public acts but
still seeks, and finds, freedom from identification and surveil-
lance.”115 Westin continued:
He may be riding a subway, attending a ball game, or walking
the streets; he is among people and knows that he is being ob-
served; but unless he is a well-known celebrity, he does not
expect to be personally identified and held to the full rules of
behavior and role that would operate if he were known to those
observing him. In this state the individual is able to merge into
the “situational landscape.”116
While most would probably agree with the intuitions of
Rehnquist and Westin that we expect some degree of anonymity
in public, the burden of this article is to establish a constitu-
tional right to such anonymity. I will do so from three perspec-
tives. First, I show how indiscriminate technological public sur-
veillance seriously undermines the way we would like our soci-
ety to function, because of its effect on public anonymity. Sec-
ond, I argue that a number of constitutional principles, while
not explicitly recognizing a right to public anonymity, provide
solid groundwork for it. Finally, I report the results of an empir-
ical study that suggests that American citizens feel public cam-
era surveillance by the government is more intrusive than a
variety of other police actions that the Supreme Court has la-
beled a “search” or “seizure,” a finding that bolsters the case for
folding the right to anonymity into the Fourth Amendment's
protections.
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236 MISSISSIPPI LAW JOURNAL [VOL. 72
117. See IV THE WORKS OF JEREMY BENTHAM 37-172 (John Bowring ed.,
1962)(1838-43).
118. Id. at 60-64.
119. See generally M
ICHAEL FOUCAULT, DISCIPLINE AND PUNISH 195-229 (Alan
Sheridan, trans., Vintage Books 2d ed. 1995)(1978)
120. Id. at 202-03. See also, id. at 187 (“It is the fact of being constantly seen, of
being able always to be seen, that maintains the disciplined individual in his
subjection.”).
121. Id. at 201.
A. The Impact of Losing Public Anonymity
Anonymity in public promotes freedom of action and an
open society. Lack of public anonymity promotes conformity and
an oppressive society. These sentences summarize the conclu-
sions of a host of thinkers about public privacy.
1. The Panopticon Analogy
The antithesis of public anonymity is the Panopticon, a
model prison first imagined by Jeremy Bentham.117 The
Panopticon is circular, with the prison cells and walkways
placed around the perimeter and the guard station perched on
top of a tower in the middle, an arrangement which enables a
large number of prisoners to be watched by just a few guards.118
In theory, every movement of every convict could be monitored
in such a building.
But the genius of this construction is that the guards, who
are hidden by venetian blinds, do not actually have to watch in
order to enforce order. The mere knowledge that one could be
observed converts every prisoner into his or her own warden.
This latter observation is a key point of emphasis for Michel
Foucault, the renowned philosopher and historian, who elabo-
rated extensively on the modern implications of the
Panopticon.119 As he recognized, “[h]e who is subjected to a field
of visibility, and who knows it, assumes responsibility for the
constraints of power; . . . he becomes the principle of his own
subjection.”120
Of course, prisoners are subject to rigid rules of discipline,
violation of which can result in serious punishment. “Self-subjec-
tion” might not work as well when those in charge of the sur-
veillance do not have reprisal power analogous to prison offi-
cials. Foucault asserted, however, that modern society increas-
ingly functions like a super Panopticon, one which “assures the
automatic functioning of power,” by rendering “its actual exer-
cise unnecessary.”121 As both public and private entities pour
more resources into methods of monitoring people and architec-
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122. See id. at 170-176 (discussing how “the exercise of discipline presupposes a
mechanism that coerces by means of observation” in military camps, hospitals,
schools and workshops and factories); id. at 205 (“The Panopticon . . . must be
understood as a generalizable model of functioning; a way of defining power
relations in terms of the everyday life of men.”).
123. Id. at 209; see also id. at 202 (in a panoptic regime “it is not necessary to
use force to constrain the convict to good behaviour, the madman to calm, the
worker to work, the schoolboy to application, the patient to the observation of the
regulations.”).
124. Id.
125. 405 U.S. 156, 164 (1972).
126. Papachristou, 405 U.S. at 164.
127. Id. at 164 (noting Whitman's “Song of the Open Road,” Vachel Lindsay's “I
Want to Go Wandering,” and an excerpt from Henry David Thoreau about the
“successful saunterer”).
237
ture that facilitates it, Foucault felt, ordinary citizens aware of
this monitoring are likely to feel increasing pressure to conform
to whatever norms the observers are perceived to endorse.122
For Foucault, this “panopticism” is not necessarily a bad
thing. He described it as “a functional mechanism that . . .
improve[s] the exercise of power by making it lighter, more
rapid, more effective,” than the older, balder ways of ensuring
appropriate conduct.123 Through the “subtle coercion” of
panopticism, people can be led to be more productive, efficient
members of society.124 In the workplace, hospital or school, the
types of situations Foucault had in mind, one can see some logic
in this conclusion. In those locations, specific rules govern peo-
ple's actions, rules that might be enforced most efficiently
through surveillance.
To the extent such “subtle coercion” operates on those in the
public byways, however, it can only do damage to cherished val-
ues. To see why, consider first Justice Douglas' comments in
Papachristou v. Jacksonville125 about public vitality in America:
Walk[ing] and stroll[ing] and wander[ing] . . . are historically
part of the amenities of life as we have known them. . . . These
unwritten amenities have been in part responsible for giving
our people the feeling of independence and self-confidence, the
feeling of creativity. These amenities have dignified the right
of dissent and have honored the right to be nonconformists and
the right to defy submissiveness. They have encouraged lives
of high spirits rather than hushed, suffocating silence.126
Quoting Walt Whitman and Henry David Thoreau, among oth-
ers, Douglas painted a picture of a society that thrives on free-
spiritedness in public.127
Now consider, in contrast, some of the effects that Foucault
ascribes to the “discipline” that he says comes from
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128. Foucault, supra note 119, at 218.
129. Id. at 219.
130. Id.
131. SHOSHANA ZUBOFF, IN THE AGE OF THE SMART MACHINE: THE FUTURE OF
WORK AND POWER 344- 45 (1988).
132. Jeffrey H. Reiman, Driving to the Panopticon: A Philosophical Exploration
of the Risks to Privacy Posed by the Highway Technology of the Future, 11 SANTA
CLARA COMPUTER & HIGH TECH. L. J. 27, 38 (1995). Reiman goes on to say: “To
the extent that a person experiences himself as subject to public observation, he
naturally experiences himself as subject to public review. As a consequence, he
will tend to act in ways that are publicly acceptable.” Id. at 41.
133. As Roger Clarke states, “[l]eaders of demonstrations in the future should
expect . . . their locations to be transparent to the police.” Roger Clarke, While
You Were Sleeping . . . Surveillance Technologies Arrived, 73 AUSTRALIAN
QUARTERLY 1 (2001), available at http://www.anu.edu.au/people/Roger.Clarke/DV/
AQ2001.html.
134. These latter kinds of activities are apparently routinely spied upon by
camera operators. See DeGregory, supra note 28, at 1D (quoting camera operator
as saying, “I've seen it all. Some things are really funny, like the way people
dance when they think no one's looking. Others, you wouldn't want to watch.”);
NORRIS & ARMSTRONG, supra note 44, at 129 (“10 percent of all targeted
surveillances on women, and 15 percent of operator-initiated surveillance were for
apparently voyeuristic reasons, outnumbering protective surveillance by five to
panopticism. He tellingly calls this discipline “an anti-nomadic
technique.”128 Because it inhibits behavior, it “arrests or regu-
lates movements [and] dissipates compact groupings of individ-
uals wandering about the country in unpredictable ways. . . . ”129
It also can “neutralize the effects of counter-power that spring
from [the multiple organizations in society] and which form a
resistance to the power that wishes to dominate it: agitations,
revolts, spontaneous organizations, coalitions–anything that
may establish horizontal conjunctions.”130 These effects are in-
consistent, to put it mildly, with Douglas' vision of the condi-
tions that a democratic, open society wants to nurture in its
public spaces.
2. The Effects of Being Watched
How, more specifically, does panopticism undermine public
openness? Foucault does not answer this question in detail.
Others have, in ways that are directly relevant to public camera
surveillance. Shoshana Zuboff writes about the phenomenon of
“anticipatory conformity” among persons who believe they are
being watched.131 Similarly, philosopher Jeffrey Reiman states
that “[w]hen you know you are being observed, you naturally
identify with the outside observer's viewpoint, and add that
alongside your own viewpoint on your action. This double vision
makes your act different, whether the act is making love or tak-
ing a drive.”132 These observations suggest that any number of
individuals–ranging from political demonstrators,133 to couples-
in-love and carefree teenagers134–could be inhibited by the
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one.”); see also, id. at 130 (“The `appreciation' of such public displays [of sex in
cars] was a regular feature of the night shift in one of our suites and not just
confined to those with access to the monitors. Many such encounters could be
found on the `shaggers alley greatest hits tape' which was compiled and replayed
for the benefit of those who missed the `entertainment.'”).
135. Richard Wasserstrom, Privacy: Some Arguments and Assumptions, in
PHILOSOPHICAL DIMENSIONS OF PRIVACY 325-26 (Ferdinand David Schoeman, ed.,
Cambridge Univ. Press 1984); cf. United States v. White, 401 U.S. 745, 788
(1971)(Harlan, J., dissenting)(“Authority is hardly required to support the
proposition that words would be measured a good deal more carefully and
communication inhibited if one suspected his conversations were being
transmitted and transcribed. Were third-party bugging a prevalent practice, it
might well smother that spontaneity–reflected in frivolous, impetuous,
sacrilegious, and defiant discourse–that liberates daily life.”).
136. See Daniel J. Solove, Conceptualizing Privacy, 90 CAL. L. REV. 1087, 1154
(2002) (“What makes this problem [of information collection through surveillance]
significant is the fact that this information is aggregated, that it can be used to
make important decisions about people's lives, that it is often subjected to a
bureaucratic process lacking much discipline and control, and that the individual
has scant knowledge of how the information is processed and used.”).
137. Nicholas C. Burbules, Privacy, Surveillance, and Classroom Communication
on the Internet, available at http://faculty.ed.uiuc.edu/burbules/ncb/papers/privacy.
html (last visited Oct. 25, 2002).
138. See, e.g., ANITA ALLEN, UNEASY ACCESS: PRIVACY FOR WOMEN IN A FREE
SOCIETY 124 (1988)(stating that public “anonymity is wrongfully disturbed if
uninvited attention is paid or drawn to another person without justification,”
because that disturbance “impedes individual tasks and purposes”); Stanley I.
Benn, Privacy, Freedom, and Respect for Persons, in NOMOS XIII: PRIVACY 26 (J.
Ronald Pennock & J.W. Chapman eds., 1971) (The observed “becomes aware of
himself as an object, knowable, having a determinate character [and] is fixed as
something–with limited probabilities rather than infinite, indeterminate
239
knowledge their actions may be captured on camera.
“Double vision” is even more likely when the surveillance
involves not just observation but recording of one's activities.
For then, Professor Richard Wasserstrom notes, “[n]o matter
how innocent one's intentions and actions at any given
moment . . . persons would think more carefully before they did
things that would become part of the record. Life would to this
degree become less spontaneous and more measured.”135 As Pro-
fessor Daniel Solove has noted, the behavioral impact of surveil-
lance is heightened by the reasonable surmise that one's re-
corded actions are easily susceptible to aggregation and use by a
faceless bureaucracy.136 Professor Nicolas Burbules similarly
notes that “[a]s people accept the inevitability of being observed
and recorded, their habits change; they change.” He goes on to
assert that these changes are even more pervasive than we
might think, because “people carry many of the attitudes and
self-imposed restrictions of activity from the surveyed public
into their private life.”137
The stultifying effect of public surveillance has been noted
by many others.138 But spontaneity is not all that could be
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240 MISSISSIPPI LAW JOURNAL [VOL. 72
possibilities.”); cf., LAWRENCE LESSIG, CODE AND OTHER LAWS OF CYBERSPACE 152-
53 (1999) (“Privacy, or the ability to control data about yourself . . . disables the
power of one dominant community to norm others into oblivion”).
139. Richard H. McAdams, Tying Privacy In Knotts: Beeper Monitoring and
Collective Fourth Amendment Rights, 71 VA. L. REV. 297, 322 (1985).
140. Disa Sim, The Right to Solitude in the United States and Singapore: A Call
for a Fundamental Reordering, 22 LOYOLA L.A. ENT. L. REV. 443, 468
(2002)(noting that “[i]n a crowded society, we are often driven to find peace and
solace in public parks, pubs, and other public places,” and asserting that this
practice would be inhibited by wide-open public photography).
141. JEFFREY ROSEN, THE UNWANTED GAZE: THE VIOLATION OF OUR PRIVACY 16
(2000)(citing ERVING GOFFMAN, BEHAVIOR IN PUBLIC PLACES: NOTES ON THE SOCIAL
ORGANIZATION OF GATHERINGS 84-85, 116 (1963)).
142. Id.
143. The best research in this regard comes from Carl Botan. In one study,
based on the responses of 465 workers in the communications industry, he found
that “[e]mployees who are surveilled . . . experience several panoptic effects,
including a reduced sense of privacy, increased uncertainty [as to job security],
and reduced communication.” Carl Botan, Communication Work and Electronic
Surveillance: A Model for Predicting Panoptic Effects, 63 COMM. MONOGRAPHS 293,
hindered by routine public surveillance. Richard McAdams
notes, “[t]he problem drinker who goes to an Alcoholics Anony-
mous meeting, the patient who drives to his psychiatrist's office,
the homosexual who visits a gay bar, the spouse who has a ren-
dezvous with another lover, the teenager or adult who skips
school or work to go fishing, would all be exposed if someone
constantly tracked their public movements.”139 The practice of
seeking secret solace in parks and other public places may also
be circumscribed.140 None of these activities are illegal, but it is
easy to imagine why those who engage in them might want to
keep them secret.
In addition to its effect on behavior, CCTV might trigger a
number of unsettling emotional consequences. Relying on the
work of Erving Goffman, Jeffrey Rosen notes that “it's consid-
ered rude to stare at strangers whom you encounter in pub-
lic.”141 Staring, whether it occurs on an elevator, on public trans-
portation or on the street, violates the rules of “civil inatten-
tion.”142 The cyclopian gaze of the camera eye may be equally
disquieting, and perhaps more so given the anonymity of the
viewer and the unavailability of normal countermeasures, such
as staring back or requesting the starer to stop.
The small amount of social science research specifically
aimed at assessing the impact of concerted surveillance tends to
verify that these and other psychological and behavioral effects
can occur. For instance, empirical investigations of the work-
place–one of the contexts Foucault thought might benefit from
panopticism–indicate that even there surveillance has a down-
side. Monitored employees are likely to feel less trusted, less
motivated, less loyal, and more stressed than employees who
are not subject to surveillance.143 Whether these findings would
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308-09 (1996). The main conclusions of a second study based on the same survey
results, conducted with Professor Vorvoreanu, were as follows:
[T]he overwhelming meta-message that surveillance seems to send to
employees is that they are distrusted. . . . In a closely related
interpretation, many employees see surveillance as setting someone,
possibly themselves, up for dismissal or discipline. . . . Many subjects also
perceive surveillance as implying that management feels they deserve to
be treated as children, . . . and heavily surveilled employees reported
reduced motivation to do more quantity of work . . . and reduced
motivation to do higher quality work . . . . Finally, heavily surveilled
subjects reported reduced loyalty to the organization, increased stress at
work, and reduced enthusiasm about even going to work, all of which are
supported by qualitative comments . . . .
Carl Botan & Mihaela Vorvoreanu, “What Are You Really Saying to Me?”
Electronic Surveillance in the Workplace (June 2000)(unpublished manuscript, on
file with author).
144. Surveys asking what people think of CCTV routinely produce
overwhelmingly positive results. See infra note 264-65 and accompanying text. But
no survey, outside of the one reported here, see infra text accompanying notes
272-84, has focused on CCTV's panoptic effects (and even the study reported here
does so only indirectly). Further, the way survey questions about CCTV have been
framed apparently distorts the results obtained. See Jason Ditton, Public Support
for Town Centre CCTV Schemes: Myth or Reality?, in SURVEILLANCE, CLOSED
CIRCUIT TELEVISION AND SOCIAL CONTROL, supra note 73, at 227 (finding that
positive question-framing increased CCTV's acceptance by 20%, and that if that
proportion were subtracted from the 69% positive response in previous
professional surveys, “we have a minority–albeit a very large minority–but only a
minority finding open street city centre CCTV acceptable.”).
145. Roger Clarke, Information Technology and Dataveillance, 31 COMM. ACM
498 (May 1988) available at http:// www.anu.edu.au/people/Roger.Clarke/DV/
CACM88.html).
241
be duplicated in the public surveillance context is not clear.144
But one could plausibly infer from them that citizens on the
street who are subject to camera surveillance might experience
less confidence in their overall freedom to act, as well as some-
what diminished loyalty to a government that must watch its
citizens' every public movement. Roger Clarke also calls atten-
tion to the latter possibility in his study of the effects of wide-
spread surveillance. Among the many consequences of
“dataveillance,” as he calls it, are a prevailing climate of suspi-
cion, an increase in adversarial relationships between citizens
and government, and an increased tendency to opt out of the
official level of society.145
To capture the core of these disparate observations, con-
sider again Rehnquist's bar example. The people entering the
bar will feel less trusted, and more anxious, and may even stop
going there. Or try another simple thought experiment. Virtu-
ally all of us, no matter how innocent, feel somewhat unnerved
when a police car pulls up behind us. Imagine now being
watched by an officer, at a discreet distance and without any
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146. Quoted in News, CCTV TODAY, May, 1995, at 4.
147. Simon Davies, Welcome Home Big Brother, WIRED, May, 1995, at 58-62,
cited in Graham, supra note 77, at 101.
148. Michael McCahill, The Surveillance Web: The Rise and Extent of Visual
Surveillance in a Northern City (unpublished Ph.D. thesis, Hull University), cited
in Norris, supra note 40, at 28 (using this term); see also Alice Wakefield,
Situational Crime Prevention in Mass Private Property, in E
THICAL AND SOCIAL
PERSPECTIVES ON SITUATIONAL CRIME PREVENTION 125, 133 (Andrew von Hirsch et
al. eds., 2000)(reporting 578 persons excluded from shopping and arts centers
during a five-week period as a result of CCTV-based security system).
other intrusion, every time you walk through certain streets.
Say you want to run (to catch a bus, for a brief bit of exercise or
just for the hell of it). Will you? Or assume you want to obscure
your face (because of the wind or a desire to avoid being seen by
an officious acquaintance)? How about hanging out on the street
corner (waiting for friends or because you have nothing else to
do)?
In all of these scenarios, you will probably feel and perhaps
act differently than when the officer is not there. Perhaps your
hesitancy comes from uncertainty as to the officer's likely reac-
tion or simply from a desire to appear completely law-abiding;
the important point is that it exists. Government-run cameras
are a less tangible presence than the ubiquitous cop, but better
at recording your actions. A police officer in Liverpool, England
may have said it best: A camera is like having a cop “on duty 24
hours a day, constantly taking notes.”146
3. The Government's Use of Surveillance
All of these inhibitory consequences can be produced simply
by setting up a camera system. If the government acts on what
the camera sees, those effects can be significantly enhanced. Of
course, that is all to the good if the result is prevention of seri-
ous criminal behavior. But sometimes government uses surveil-
lance to achieve more ambiguous ends. Many of the crimes
“solved” through CCTV in England are very minor offenses that
are highly subject to discriminatory prosecution, such as litter-
ing, urinating in public, traffic violations, drunkenness, loiter-
ing, failing to pay parking meters and even underage smok-
ing.147 Indeed, camera use in publicly accessible malls in that
country triggers law enforcement interventions even when there
is no infraction of the criminal law; rather, the decision is often
based on “commercial considerations” that characterize certain
people (beggars, buskers, and groups of youth) as “flawed con-
sumers.”148 Research suggests that, in other public areas as
well, the impact of surveillance tends to be the straightforward
exclusion of disfavored groups rather than apprehension or de-
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149. See Alan Reeve, The Panopticisation of Shopping: CCTV and Leisure
Consumption, in SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND LOCAL CONTROL,
supra note 73, at 78 (reporting that town center managers wanted to use CCTV
primarily to discourage “anti-consumer” people and activities from entering the
center, and that a quarter wanted to exclude political gatherings, youth who want
to “hang out” and beggars); Roy Coleman & Joe Sim, “You'll Never Walk Alone”:
CCTV Surveillance, Order and Neo-Liberal Rule in Liverpool City Centre, 51 BRIT.
J. SOC. 623 (2000)(reporting a study leading the authors to conclude that “[t]he
activities targeted, the gathering of intelligence and its dissemination is focused
on recurring categories: youth, `known and potential' shoplifters, the homeless and
licensed and unlicensed street traders.”); Liberty: Who's Watching You? Video
Surveillance in Public Places 1 (London Briefing Paper No. 16, 1989)(on file with
author)(asserting that cameras are designed to deter “large groups, usually young
single people [whose] mere presence is a nuisance to people who want to use the
streets and shopping centres in more conventional ways.”).
150. Jeffrey Rosen, A Watchful State, N.Y. TIMES MAG., Oct. 7, 2001, at 38.
151. Id. See also, Taylor, supra note 48, at ¶ 31 (reporting that soon after
installation of cameras in Newcastle local residents attacked the community
center, in the belief it housed the camera monitoring room).
152. See generally Dorothy E. Roberts, Foreword: Race, Vagueness, and the
Social Meaning of Order-Maintenance Policy, 89 J. CRIM. L. & CRIMINOLOGY 775
(1999)(exploring how order maintenance policies reinforce and are reinforced by
preconceived notions of African-American criminality).
153. Jon Bannister et al., Closed Circuit Television and the City, in
SURVEILLANCE, CLOSED CIRCUIT TELEVISION AND LOCAL CONTROL, supra note 73,
at 24-32. These authors conclude that CCTV “as an urban management tool . . .
is part of the wider urban malaise.”
By employing such techniques, by closing ourselves to difference, we run
the unintended and perverse risk of further weakening our capacity to
manage difference. Difference becomes even more threatening. Public
sociability is weakened. Spaces become the responsibility of urban
managers, order becomes a good to be accessed through consumption.
Id. at 36.
154. Taylor, supra note 48, at ¶ 23 (“Shopping malls and city centres are
becoming increasingly purified and privatised to the extent that the limits of
acceptable behaviour are being driven by the forces of consumerism. Public spaces
are becoming increasingly less public.”)
243
terrence of criminals.149
Thus, Professor Jeffrey Rosen concludes, CCTV's primary
use in Great Britain today is not to thwart serious crime but “to
enforce social conformity.”150 One consequence, he reports, is
that the cameras are “far less popular among black men than
among British men as a whole.”151 That should be no surprise to
those familiar with the American experience with loitering
laws, stop and frisk practices, and “aggressive patrolling.”152
Others view CCTV as one of the most powerful forces pushing
toward the “purification” of city spaces and their destruction as
a stage for the “celebration of difference” and disorder.153 The
end result of all of this is that public spaces are becoming less
public.154
Automated systems that do not depend on human operators
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155. Michalis Lianos & Mary Douglas, Dangerization and the End of Deviance:
The Institutional Environment, 40 BRIT. J. CRIMINOLOGY. 261, 266 (2000)(“It is the
first time in history that we have the opportunity to experience forms of control
that do not take into account any category of social division. . . . [A]utomated
environments . . . cannot discriminate among users on other grounds than their
quality as users.”).
156. Amy Herdy, They Made Me Feel Like a Criminal, ST. PETERSBURG TIMES,
Aug. 8, 2001, at 1B (recounting story of police confronting a man erroneously
identified by Tampa's facial recognition system as someone wanted for child
abuse).
157. Norris, supra note 40, at 40-41.
158. See, e.g., Orwell, supra note 3, at 6-7 (the telescreen “could be dimmed, but
there was no way of shutting it off completely. . . . [It] received and transmitted
simultaneously. . . . You had to live–did live, from habit that became instinct–in
the assumption that every sound you made was overheard, and, except in
darkness, every movement scrutinized.”). Harry Strub, The Theory of Panoptical
Control: Bentham's Panopticon and Orwell's Nineteen Eighty-Four, 25 J. HIST.
BEH. SCI. 40, 44 (1989)(“The telescreen . . . provided a nearly continuous,
permanent record of virtually all of an individual's actions, however trivial, and
thereby represents the consummation of the panoptical ideal of being able to
observe everything.”).
159. See, e.g., Orwell, supra note 3, at 19-20:
Whether he wrote DOWN WITH BIG BROTHER, or whether he refrained
from writing it, made no difference . . . The Thought Police would get
him just the same. . . . Thoughtcrime, they called it. Thought-crime was
have been hailed as a method of avoiding these biases.155 But
they do not necessarily eliminate racist and other undesirable
tendencies, since discretion is still exercised once the alarm is
triggered. Facial recognition systems that are based simply on
whether a person has previously been labeled a “shoplifter” or
“car thief” (sometimes erroneously156) are likely to exacerbate
these tendencies. If one tries to remove the impact of human
flaws through full automation (as with the motion detection sys-
tems described earlier), the result is even more alarming. Such
systems are based on rigid categorizations of behavior. As
Norris notes, “they utilize no other logic than whatever is pro-
grammed into their software, and the end point of such process-
ing is the creation of a binary system of classification: access is
either accepted or denied; identity is either confirmed or re-
jected; behavior is either legitimate or illegitimate.”157
The implications of these various considerations should not
be overstated. Contrary to the dire predictions of some privacy
advocates, the potential effects of public surveillance are not
Orwellian in magnitude. A principal feature of the society de-
picted in George Orwell's novel 1984 was the ever-present
“telescreen” that relayed citizens' words and conduct back to an
omniscient “ministry.”158 But the dread that was rampant in
Orwell's fictional Oceania resulted primarily from the percep-
tion that the government was obsessed with severely punishing
amorphously defined “thoughtcrimes” and “facecrimes,” often
with death.159 In the real world today, in contrast, the norms
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not a thing that could be concealed forever. . . . In the vast majority of
cases there was no trial, no report of the arrest. People simply
disappeared, always during the night. . . . You were abolished,
annihilated: vaporized was the usual word.
See also, Strub, supra note 158, at 44 (“In [the telescreen's] all-seeing function, it
was vastly more sensitive, surpassing the Panopticon's potential of achieving
power over minds: one was aware that even the presence of a forbidden thought
(“thoughtcrime”) was detectable, betraying the individual by a small gesture or
grimace (“facecrime”), or by more minute emotional signals of guilt such as
respiratory and heartbeat changes.”).
160. In an ideal world, perhaps, people would not succumb to these
underenforced norms, implemented solely through the process of being watched
and recorded. But, Professor Reiman notes, “[e]ven if people should ideally be able
to withstand social pressure in the form of stigmatization or ostracism, it remains
unjust that they should suffer these painful fates simply for acting in unpopular
or unconventional ways.” Reiman, supra note 132, at 36.
161. Foucault's writings predict this result. The cameras will affect our behavior
and attitudes, and then both their effect and their existence will fade from our
consciousness. We would be changed without realizing how or why. See Burbules,
supra note 137 (noting that, consistent with Foucault's thesis, “few people even
notice any longer how frequently they are monitored through partially hidden
video cameras,” despite the fact that this surveillance inhibits “all sorts of
activities–and not only illegal activities”).
245
likely to assume importance because of camera surveillance
(aside from standard criminal prohibitions), come from the con-
science of the mainstream and the business class, the imagina-
tion of pedestrians and the calculations of technicians, and they
are more likely to result in exclusion from certain areas than
any significant formal punishment.
At the same time, in a society that wants to promote free-
dom of action, camera surveillance–more specifically, concerted,
overt public surveillance using cameras with recording capac-
ity–is clearly not an unalloyed good, even if it does significantly
reduce crime. People who know they are under government sur-
veillance will act less spontaneously, more deliberately, less
individualistically, and more conventionally; conduct on the
streets that is outside the mainstream, susceptible to suspicious
interpretation, or merely conspicuous–even if perfectly harm-
less–will diminish and perhaps even be officially squelched.
Some people subject to public camera surveillance, perhaps in
particular those from minority groups, will feel significant anxi-
ety and discomfort although innocent of any crime, and some
may react with disdain for government, again despite and prob-
ably because of their innocence.160 Public camera surveillance
undermines an open society because it circumscribes
unordinary behavior and makes everyone–including the ordi-
nary–more conscious of the government's presence, at least un-
til behavior is suitably conformed and the cameras can be for-
gotten.161 In short, CCTV accelerates the “disappearance of dis-
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162. Kevin D. Haggerty & Richard V. Ericson, The Surveillant Assemblage, 51
BRIT J. SOC. 605, 619 (2000)(“The coalescence of [data collection] practices into the
surveillant assemblage marks the progressive `disappearance of disappearance'–a
process whereby it is increasingly difficult for individuals to maintain their
anonymity, or to escape the monitoring of social institutions.”).
163. Lawrence Tribe, Seven Deadly Sins of Straining the Constitution Through a
Pseudo-Scientific Sieve, 36 HASTINGS L.J. 155, 165 (1984).
164. Id.
165. U.S CONST. amend. I (“Congress shall make no law . . . abridging the
freedom of speech, or of the press; or the right of the people peaceably to
assemble . . . “).
166. See supra text accompanying notes 125-27.
appearance.”162
B. The Constitution and Public Camera Surveillance
Do the potential effects of public camera surveillance on
public anonymity raise constitutional concerns, or are they
merely subconstitutional matters that policymakers can take
into account, or dismiss, at their discretion? Camera surveil-
lance is certainly not as physically intrusive as an arrest or
stop, or as invasive as a search of houses or belongings, the
paradigmatic government actions addressed by the Fourth
Amendment. But its aggregate impact can be equally signifi-
cant, because it affects a much larger number of people. It also
evokes a particularly powerful image, a panoptic approach to
government interaction with its citizens that involves observing,
recording, and categorizing every movement in public.
As Lawrence Tribe has emphasized, the Constitution
should be interpreted with the “constitutive dimension of gov-
ernment action” in mind.163 We should think about the issues
raised by public camera surveillance “in terms of what they say
about who and what we are as a people and how they help to
constitute us as a nation.”164 As it turns out, not just the Fourth
Amendment but a number of other provisions in the Constitu-
tion are relevant to that endeavor.
1. Freedom of Speech and Association
The First Amendment guarantees freedom of speech and
association.165 Recall Justice Douglas' words in Papachristou
linking wandering and strolling with the right to dissent, non-
conformity, and defiance of submissiveness.166 Building on that
language, one might argue for a First Amendment right to be
free of the inhibiting effects of camera surveillance in public
unless the government can proffer some justification for it.
Under the Supreme Court's caselaw, however, neither the
speech or association guaranties are likely to provide a basis for
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167. If cameras are equipped with parabolic audio capacity, so that they can
pick up “private” conversations on the street, their use would probably require a
warrant under both the Fourth Amendment, see infra note 280 and accompanying
text, and Title III, see 18 U.S.C. § 2510(2)(2002)(protecting oral communications
“by a person exhibiting an expectation that such communication is not subject to
interception under circumstances justifying such expectation”). If audio recording
capacity were used openly, Title III might not be violated, but the types of
arguments made below concerning the “chilling” effect of surveillance would be
apposite.
168. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
169. Stanglin, 490 U.S. at 25 (“we do not think the Constitution recognizes a
generalized right of `social association' that includes chance encounters in dance
halls. . . . . Griswold [v. Connecticut, 381 U.S. 479 (1965)] . . . recognizes nothing
more than that the right of expressive association extends to groups organized to
engage in speech that does not pertain directly to politics.”).
170. 408 U. S. 1 (1972).
247
constitutional regulation of most public surveillance, at least
when it is visual only.167 While conduct alone can be expressive,
the type of conduct normally captured by cameras apparently
does not fit in this category. As the Court stated in City of
Dallas v. Stanglin, “[i]t is possible to find some kernel of expres-
sion in almost every activity a person undertakes–for example,
walking down the street, or meeting one's friends at a shopping
mall–but such a kernel is not sufficient to bring the activity
within the protection of the First Amendment.”168 Similarly,
government inhibition of association is generally not a violation
of the First Amendment unless the group is engaged in some
type of speech activity.169
However, if public conduct is expressive–for instance, a
speech at a park rally–and public associations are speech-re-
lated–such as joining the rally–then the First Amendment
should be implicated by camera surveillance. That is because, as
the previous section suggested, such surveillance can chill con-
duct, even though it takes place in public and is meant to be
seen by others.
Admittedly, the Supreme Court rejected a similar claim in
Laird v. Tatum.170 There the plaintiffs contended that their an-
tiwar activities were inhibited by knowledge that the Army was
constructing dossiers on those involved, allegedly as a means of
averting potential civil disorder. Construing the question to be
“whether the jurisdiction of a federal court may be invoked by a
complainant who alleges that the exercise of his First Amend-
ment rights is being chilled by the mere existence, without
more, of a governmental investigative and data-gathering activ-
ity that is alleged to be broader in scope than is reasonably nec-
essary for the accomplishment of a valid governmental pur-
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171. Tatum, 408 U.S. at 10.
172. Id. at 13-14 (“Allegations of a subjective `chill' are not an adequate
substitute for a claim of specific present objective harm or a threat of specific
future harm”).
173. Meese v. Keene, 481 U.S. 465, 478 (1987)(finding standing to argue that
government labeling of a film as propaganda chilled the showing of the films, but
ultimately finding no First Amendment violation because the labeling “neither
prohibits nor censors the dissemination of advocacy materials”).
174. Tatum, 408 U.S. at 6.
175. Id. at 9 (Respondents “freely admit that they complain of no specific action
of the Army against them. . . . So far as is yet shown, the information gathered
is nothing more than a good newspaper reporter would be able to gather by
attendance at public meetings and the clipping of articles from publications
available on any newsstand.”)
176. Id. at 13-14 n.7 (“[R]espondents . . . have also cast considerable doubt on
whether they themselves are in fact suffering from any . . . chill. . . . [I]f
respondents themselves are not chilled, . . . respondents clearly lack that
`personal stake in the outcome of the controversy' essential to standing.”).
177. Id. at 11.
178. For instance, in Lamont v. Postmaster General, 381 U.S. 301 (1965), the
Court struck down a government regulation requiring individuals to make a
special written request to the Post Office for delivery of mail containing
communist literature. According to a unanimous Court, under such a regulation,
any addressee is likely to feel some inhibition in sending for literature
which federal officials have condemned as “communist political
propaganda.” The regime of this Act is at war with the “uninhibited,
robust, and wide-open” debate and discussion that are contemplated by
the First Amendment.
Lamont, 381 U.S. at 307; see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58
(1963)(finding the First Amendment violated when the city government sent
letters that identified certain books as “objectionable,” stated it would turn its list
pose,”171 the Court dismissed the case. According to the five-
member majority, the plaintiffs had no standing because they
failed to allege any specific, foreseeable harm, other than an
inchoate fear that the information would somehow be used
against them.172
The Court has since indicated, however, that a government
action the sole effect of which is to chill speech is justiciable un-
der some circumstances.173 Tatum thus does not necessarily
foreclose a First Amendment argument against camera surveil-
lance. The latter method of data collection is quite different
from the government's efforts in Tatum. Most of the “surveil-
lance” in Tatum consisted of perusing published material and
public records, and the rest involved undercover agents who
attended meetings;174 furthermore, the plaintiffs in Tatum al-
leged no specific acts by the Army against them,175 and may not
have been “chilled” in any event.176 In short, Tatum did not in-
volve overt surveillance. The conspicuous presence of cameras
aimed at participants engaging in First Amendment activity, in
contrast, is closer to the type of “present[] . . . compulsion[]”177
directed at speech that has concerned the Court in cases where
it has found violations of the First Amendment.178 Although
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of distributors of those books over to police, and sometimes sent police officers to
see whether distributors took any action with respect to the books). In both
Lamont and Bantam Books the First Amendment wrong was the government's
suggestion that the speech activity was inappropriate. In the absence of any other
justification (such as public safety), the presence of government-run cameras at a
political event strongly suggests that the government dislikes the message being
transmitted, and will likely inhibit those involved in the observed activity. See
supra notes 125-29 & 133 and infra note 180.
179. See, e.g. Donohoe v. Duling, 465 F.2d 196 (4th Cir. 1972) (finding no
justifiable controversy where police conducted surveillance of demonstrations and
public vigils and photographed demonstrators); Phila. Yearly Meeting of the
Religious Society of Friends v. Tate, 519 F.2d 1335, 1337-38 (3d Cir. 1975)(no
justiciable controversy where police photographed public meetings and
disseminated information to other law enforcement agencies).
180. See Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518 (9th Cir.
1989) (distinguishing Tatum because church suffered diminished membership as a
result of surveillance); Olagues v. Russoniello, 797 F.2d 1511 (9th Cir.
1986)(distinguishing Tatum because plaintiffs here were targets of surveillance);
cf., U.S. v. Montemarano, 1987 WL 13729 (S.D.N.Y. 1987), where the court stated:
It should be noted that the intrusion upon the spiritual and psychological
milieu preceding or following the services was minimized by the lack of a
discernible law enforcement presence, the photographs having been taken
from a concealed location. This is not a situation where uniformed
government personnel impliedly, or expressly, menaced churchgoers.
Id. at *1.
181. Tate, supra note 179, at 1338.
182. 310 N.L.R.B. 1197 (1993).
183. Woolworth, 310 N.L.R.B. at 1197.
184. Id. See also, Nat'l Steel v. N.L.R.B., 156 F.3d 1268 (D.C. Cir. 1998); Road
Sprinkler Fitters Local Union No. 669 v. N.L.R.B., 681 F.2d 11, 19 (D.C. Cir.
249
many lower courts have nonetheless been hostile to First
Amendment claims directed at camera surveillance (at least
when it consists solely of photography),179 several have upheld
standing claims when such surveillance targets individuals,
intimidates them, or causes a fall-off in attendance or member-
ship,180 or when the results of the surveillance are released to
non-law enforcement entities.181
The chilling phenomenon has also long been recognized in
other settings, particularly in labor cases involving suits under
the National Labor Relations Act (NLRA) against employers
who have photographed or videotaped employees engaging in
authorized strikes and demonstrations. In F.W. Woolworth
Co.,182 a representative example, the National Labor Relations
Board concluded that “absent proper justification, the photo-
graphing of employees engaged in protected concerted activities
violates [rules under the NLRA against employer actions that
have a “tendency to coerce”] because it has a tendency to intimi-
date.”183 More so than mere observation, “pictorial
recordkeeping tends to create fear among employees of future
reprisals.”184
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250 MISSISSIPPI LAW JOURNAL [VOL. 72
1982)(citing cases); Waco, Inc., 273 N.L.R.B. 746, 747 (1984).
185. David Feldman, Secrecy, Dignity or Autonomy? Views of Privacy as Civil
Liberty, 41 C.L.P. 41, 61 (1994)(overt surveillance “carries with it a clearly
implied threat that the fruits of the surveillance may be used for purposes
adverse to the interests of the person being watched. This is calculated to
undermine people's commitment to their own plans and values.”).
186. Talley v. California, 362 U.S. 60, 64 (1960)(striking down a ban on
anonymous handbills, noting that “[p]ersecuted groups and sects from time to
time throughout history have been able to criticize oppressive practices and laws
either anonymously or not at all.”)
187. Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 200 (1999)
(holding that Colorado's requirement requiring petition solicitors to wear an
identification badge “discourages participation in the petition circulation process
by forcing name identification without sufficient cause.”).
188. NAACP v. Alabama ex. Rel Patterson, 357 U.S. 449, 462 (1958)(“It is hardly
a novel perception that “compelled disclosure of affiliation with groups engaged in
advocacy may constitute [an] effective . . . restraint on freedom of association.”);
see also, Shelton v. Tucker, 364 U.S. 479, 490 (1960)(prohibiting compelling
teachers to disclose group memberships).
189. 514 U.S. 334 (1995).
190. McIntyre, 514 U.S. at 341-42.
As this last statement indicates, these holdings are bound
up with the notion that employers have power over the employ-
ees. But that fact does not distinguish the labor cases from the
public surveillance context. By definition, employer reprisals
against those who engage in “protected concerted activities” are
prohibited; yet the law recognizes that, regardless of “actual im-
pact,” photography can have an intimidating effect on employ-
ees so engaged. The same is true of speech and association in
public. These are protected activities that should not result in
government reprisal. But, understandably, people might not
believe that is so when they know or think government cameras
will be trained on them if they participate: If the activities are
protected, why does the government need cameras?185
A second way in which public camera surveillance trenches
on First Amendment rights of speech and association is its facil-
itation of the government's ability to pierce the anonymity of
those engaging in expressive conduct. The Court has declared
that, absent a significant government justification, a person
who writes a pamphlet186 or is involved in collecting signatures
for a petition187 cannot be required to reveal his or her name. It
has also held that membership lists of organizations need not be
revealed.188 As Justice Stevens stated in McIntyre v. Ohio Elec-
tions Commission,189 whether “[t]he decision in favor of anonym-
ity [is] motivated by fear of economic or official retaliation, by
concern about social ostracism, or merely by a desire to preserve
as much of one's privacy as possible . . . [it] is an aspect of free-
dom of speech protected by the First Amendment.”190
People who engage in expressive conduct in public know
they will be observed. But they may choose, like the pamphle-
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191. McAdams, supra note 139, at 322.
192. Reporters Comm. for Freedom of the Press v. A.T.T., 593 F.2d 1030 (D.C.
Cir. 1978)(“[P]hysical surveillance consistent with Fourth Amendment protections
and in connection with a bona fide law enforcement investigation does not violate
First Amendment rights, even though it may be directed at communicative or
associational activities, and even though it may inhibit those activities.”)(emphasis
added); see also Grayned v. City of Rockfort, 408 U.S. 104, 115 (1972) (“the right
to use a public place for expressive activity may be restricted only for weighty
reasons”); Alliance to End Repression v. Chicago, 627 F. Supp. 1044, 1056
(1985)(“Without any reasonable suspicion of criminal conduct, the court cannot
conceive of any remotely compelling interest the City has in recording which
political activities an individual chooses to involve herself in . . .”).
193. Williams v. Fears, 179 U.S. 270, 274 (1909).
194. 357 U.S. 116 (1958).
251
teer or the petitioner, not to reveal their identity, for all sorts of
reasons. Camera surveillance virtually nullifies that effort. Be-
cause the camera's recorded images are far better than an in-
former's memory, it vastly improves government efforts to link
visages with names. Furthermore, as one commentator points
out, “surveillance of a person's movements could, over time, re-
veal associational tendencies as thoroughly as a membership
list.”191 These facts can only inhibit the public conduct of those
who want to remain anonymous.
There is little doubt that public camera surveillance can
infringe First Amendment values. When those values are impli-
cated, government should have to justify the presence of the
cameras on a meaningful law enforcement ground; even those
cases that reject First Amendment arguments against camera
surveillance seem to find the existence of a legitimate govern-
ment objective important.192 Again, however, that conclusion
only provides constitutional protection for expressive conduct, a
category that the Court has defined rather narrowly. Other
caselaw broadens that protection considerably.
2. Freedom of Movement and Repose
Derived from the Due Process Clause, the right to travel is
another fundamental right that might be compromised by public
camera surveillance. As far back as the turn of the twentieth
century, the Supreme Court stated: “Undoubtedly the right of
locomotion, the right to remove from one place to another ac-
cording to inclination, is an attribute of personal liberty, and
the right, ordinarily, of free transit from or through the territory
of any state is a right secured by the 14th Amendment and by
other provisions of the Constitution.”193 This sentiment was ech-
oed over a half century later in Kent v. Dulles,194 a case that
dealt with restrictions on travel overseas but uses language rel-
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195. Kent, 357 U.S. at 126 (quoting ZECHARIAH CHAFEE, JR., THREE HUMAN
RIGHTS IN THE CONSTITUTION OF 1787 197 (1956)); see also Shapiro v. Thompson,
394 U.S. 618, 629 (1969)(“our constitutional concepts of personal liberty unite to
require that all citizens be free to travel throughout the length and breadth of
our land uninhibited by statutes, rules, or regulations which unreasonably burden
or restrict this movement.”).
196. See Williams v. Fears, 179 U.S. 270, 274 (1900)(referring to the right to
move from place to place as the “right of locomotion”).
197. Kent, 357 U.S. at 126.
198. Saenz v. Roe, 526 U.S. 489, 502-503 (1999).
199. 527 U.S. 41 (1999).
200. Morales, 527 U.S. at 53-54 (citations omitted).
201. Id., at 64; Kolender v. Lawson, 461 U.S. 32 (1983)(invalidating California
evant to domestic travel as well:
Freedom of movement across frontiers in either direction, and
inside frontiers as well, was a part of our heritage. Travel
abroad, like travel within the country, may be necessary for a
livelihood. It may be as close to the heart of the individual as
the choice of what he eats, or wears, or reads. Freedom of
movement is basic in our scheme of values. . . . [O]utside areas
of plainly harmful conduct, every American is left to shape his
own life as he thinks best, do what he pleases, go where he
pleases.195
As this language suggests, the “right of locomotion” is not
limited to expressive actions.196 In contrast to the First
Amendment, this right is important for economic and social rea-
sons as well as political ones. The Kent Court went on the state
explicitly that “[f]reedom of movement also has large social val-
ues,” including support of activities “close to the core of personal
life [such as] spending hours with old friends.”197 The right to
travel was recently reaffirmed as a guarantee implicit in the
Privileges and Immunities Clause of the Fourteenth Amend-
ment.198
Closely related to the right to freedom of public movement
is the right to repose, or stasis, in public. In Chicago v.
Morales,199 a four-member plurality of the Court stated that
the freedom to loiter for innocent purposes is part of the
`liberty' protected by the Due Process Clause of the Fourteenth
Amendment. . . . Indeed, it is apparent that an individual's
decision to remain in a public place of his choice is as much a
part of his liberty as the freedom of movement inside frontiers
that is “a part of our heritage,” or the right to move “to whatso-
ever place one's own inclination may direct” identified in
Blackstone's Commentaries.200
The Court has been emphatic about striking down vagrancy
statutes that trench on this right to repose.201
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statute requiring individuals who loiter or wander the streets to present police
officers with identification upon request); Papachristou v. Jacksonville, 405 U.S.
156 (1972)(invalidating Jacksonville vagrancy ordinance); Coates v. Cincinnati, 402
U.S. 611 (1971)(invalidating Ohio ordinance making it unlawful for three or more
people to assemble in certain public areas in a manner annoying to others).
202. Roe v. Wade, 410 U.S. 179, 213 (1973)(Douglas, J., concurring).
203. 714 So.2d 1149 (Fla. Dist. Ct. App.1998).
204. Goosen, 714 So.2d at 1150.
205. No. 92-3198, 1995 WL 78289 (Wis.Ct.App.1995).
206. Baumann, 1995 WL 78289, at *2; see also Pro-Choice Network of Western
New York, 799 F.Supp. 1417, 1437-39 (W.D.N.Y.1992)(cautioning that if defen-
dants continue to use cameras to intimidate women entering abortion clinics, the
court would not hesitate to restrict defendants' use of cameras); Planned Parent-
hood v. Aakhus, 17 Cal. Rptr.2d 510, 515 (Cal. Ct. App. 1993 (photographing and
videotaping abortion clinic clients violated the right to privacy under the Califor-
nia Constitution); Chico Feminist Women's Health Ctr. v. Scully, 256 Cal. Rptr.
194, 196-97 (Cal. Ct. App. 1989)(upholding an injunction against abortion protest-
ers photographing license plates and people entering or leaving an abortion
clinic). Although these decisions were based on varying considerations, including,
as in Aakhus, informational privacy, the immediate harm was the unjustifiable
inhibition of the plaintiffs' ability to go about their business.
207. 924 F.Supp. 1413 (E.D.Pa.1996).
208. Wolfson, 924 F. Supp. at 1420; see also Galella v. Onassis, 533 F.Supp.
1076 (S.D.N.Y. 1982)(“under certain circumstances, surveillance may be so
`overzealous' as to render it actionable. It does not strain credulity or imagination
to conceive of the systematic `public' surveillance of another as being the imple-
mentation of a plan to intrude on the privacy of another”)(citing Nader v. General
253
How might these interests in locomotion and stasis–the
“freedom to walk, stroll, or loaf”202–be affected by the panoptic
eye of the camera? Although no courts have directly addressed
this issue, the few that have dealt with analogous facts are
wary of camera use that affects these interests, at least when
there is also proof of some animus. In Goosen v. Walker,203 for
instance, a Florida court enjoined the defendant from further
videotaping of his neighbors (with whom he had previously had
altercations), concluding that his videotaping of them in their
yard and adjoining areas, on two to four occasions over a four
month period, constituted “stalking.”204 In State v. Baumann et
al.,205 the court upheld an order that permanently enjoined
thirty-two individuals from photographing or videotaping people
entering and leaving an abortion clinic under circumstances
that exhibited “an intent to harass, intimidate or interfere with
any person seeking access to or departing from such facility.”206
Even the media, normally left unrestrained by courts con-
cerned about freedom of the press, can go too far. In Wolfson v.
Lewis,207 for instance, the court held that “a persistent course of
hounding [by reporters], even if conducted in a public or semi-
public place, may nevertheless rise to the level of invasion of
privacy based on intrusion upon seclusion.”208 It then issued an
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Motors Corp., 255 N.E.2d 765, 771, 772 (1970)).
209. Wolfson, 924 F.Supp. at 1432-33.
210. See Goosen, 714 So.2d at 1149 (appellant “argues that the injunction is
unconstitutional because it violates the First Amendment”); Baumann, 1995 WL
78289, at *4 (“Appellants claim that the `non-blockading' provisions of the
injunction are `invalid content-based regulations not narrowly drawn to serve the
compelling state interest' and, therefore, violative of rights guaranteed under the
First Amendment.”); Wolfson, 924 F.Supp. at 1415 (“Defendants contend that they
did not invade plaintiffs' privacy and that their conduct investigating the salaries
of U.S. Healthcare executives is protected by the First Amendment to the United
States Constitution.”).
211. Goosen, 714 So.2d at 1150 (“While the First Amendment confers on each
citizen a powerful right to express oneself, it gives the [citizen] no boon to
jeopardize the health, safety, and rights of others”)(alteration in original)(quoting
Bouters v. State, 659 Sol2d 235, 237 (Fla. 1995); Baumann, 1995 WL 78289, at *7
(“[n]o matter how public the setting or the subject, there is no First Amendment
right to use a camera as a tool of intimidation”); Wolfson, 924 F.Supp. at 1433 (“A
reasonable jury would likely conclude that it is difficult to understand how
hounding, harassing, and ambushing the Wolfsons would advance the newsworthy
goal of exposing the high salaries paid to U.S. Healthcare executives or how such
conduct would advance the fundamental policies underlying the First Amendment
which include providing information to `enable members of society to cope with
the exigencies of their period.'”).
injunction against investigative news reporters who had repeat-
edly sought to videotape and eavesdrop on a business executive
and his family in and outside their home and place of work.209
In Goosen the videotaping inhibited repose (in the targets'
backyard), in Baumann it inhibited movement (to and from the
abortion clinic), and in Wolfson it inhibited both (around the
house and workplace and going to and from those locations). In
all three, the videotaping was actionable. That suggests that
public surveillance, even when targeting actions not protected
by the First Amendment, can infringe interests in locomotion
and stasis to a legally cognizable degree.
At the same time, all three courts required proof that those
who wielded the cameras intended to harass. That type of moti-
vation will usually be absent when government watches with
public surveillance cameras. Using the terminology of these
cases, to say that the government's camera surveillance of peo-
ple walking the streets constitutes the malicious-sounding acts
of “stalking,” “intimida[tion] or interfere[nce],” or “a persistent
course of hounding” will normally be an exaggeration.
A crucial fact about each of these three cases, however, is
that all of the defendants were raising First Amendment claims.
That is, they were asserting that camera-users, whether lay or
press, have a First Amendment right to videotape public
events,210 an assertion that the courts in these cases accepted.
Given the nature of the right the injunctions would infringe, the
courts had to find a compelling justification for
them–illegitimate harassment.211 If, on the other hand, public
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212. See William A. Stuntz, The Distribution of Fourth Amendment Privacy, 67
GEO. WASH. L. REV. 1265, 1277 (1999)(noting that stakeouts “sometimes do involve
monitoring the movements of a given suspect . . . over an extended period of
time,” which is “roughly the equivalent of being stalked.”).
213. Aptheker v. Secretary of State, 378 U.S. 500, 507-08 (1964)(quoting NAACP
v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964)). Aptheker went on to find
unconstitutional the State Department's revocation of passports held by members
of the Communist Party because “[t]he prohibition against travel is supported
only by a tenuous relationship between the bare fact of organizational member-
ship and the activity Congress sought to proscribe.” Id. a 514.
214. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES
785, 790 (2d ed. 2002)(noting these differing bases for the privacy right).
255
videotaping were not considered a First Amendment activity,
such proof would not be considered necessary.
The latter observation has significant implications for
government-run CCTV. Unlike its citizens, the government does
not have a First Amendment right to train cameras on the pop-
ulace. Accordingly, an absence of ill-will on the part of govern-
ment agents who operate the cameras should not immunize
them from scrutiny. Instead, the issue should be,
straightforwardly, whether government camera surveillance
trenches on the right to movement or repose.
It clearly does, for reasons stated in Part I. People ogled by
cameras may choose to walk rather than run; move on rather
than loiter; even avoid going where they would like to go alto-
gether. While government surveillance may not amount to in-
tentional stalking or hounding, it is not innocuous. Indeed,
whatever its intent, it can have a similar effect to stalking, given
its inhibition of public locomotion.212
That conclusion does not dictate that such surveillance be
prohibited, of course. It simply requires, again, that the govern-
ment demonstrate a legitimate reason for its actions. As the
Supreme Court has said, “restrictions on the right to travel . . .
may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms.”213
3. The Right to Privacy
A third constitutional basis for regulating CCTV comes
from the general right to privacy which is found, depending
upon the decision announcing the right, in the penumbras of the
First, Third, Fourth and Fifth Amendments, the Fourteenth
Amendment's Due Process Clause, or the Ninth Amendment's
reservation of rights to the states.214 The Supreme Court has
relied on this right (which in the caselaw is often subsumed un-
der a “due process right to liberty”) in striking down laws ban-
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215. Roe v. Wade, 410 U.S. 113, 153 (1973)(“[The] right to privacy, whether it be
founded in the Fourteenth Amendment's conception of personal liberty and
restrictions upon state action, as we feel it is, or, . . . in the Ninth Amendment's
reservation of rights to the people, is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy.”).
216. Loving v. Virginia, 388 U.S. 1, 12 (1967)(stating that antimiscegenation
laws “surely . . . deprive all the State's citizens of liberty without due process of
law”).
217. Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)(holding that a law which
prohibited sale of contraceptives to unmarried people was unconstitutional
because, “[i]f the right to privacy means anything, it is the right of the
individual, married or single, to be free from unwarranted governmental intrusion
into matters so fundamentally affecting a person as the decision whether to bear
or beget a child”); Griswold v. Connecticut, 381 U.S. 479, 485 (1965)(holding that
a law which prohibits sale and use of contraceptives infringes “penumbral rights
of privacy and repose”).
218. See generally CHEMERINSKY, supra note 214, at 768-827.
219. Jed Rubenfeld, The Right Of Privacy, 102 HARV. L. REV. 737, 752-54 (1989).
220. Id. at 783-87 & 794 (“The point is not to save for the individual an abstract
and chimerical right of defining himself; the point is to prevent the state from
taking over, or taking undue advantage of, those processes by which individuals
are defined in order to produce overly standardized, functional citizens.”).
221. Andrew E. Taslitz, The Fourth Amendment in the Twenty-First Century:
Technology, Privacy, and Human Emotions, 65 LAW & CONTEMP. PROBS. 125, 152
(2002).
222. Id.
ning abortion,215 interracial marriage,216 purchase and use of
contraceptives,217 and the like.218 As with the rights to freedom
of movement and repose, the right to privacy is not limited to
protection of expressive conduct.
There are at least two versions of the right to privacy, one
focusing on protection-of-personhood and the second on
freedom-from-normalization. The personhood version views the
right to privacy as a means of ensuring individuals are free to
define themselves. It protects against state interference in deci-
sions that are “central to the personal identities of those singled
out.”219 The anti-normalization version, in contrast, focuses on
the extent to which the government action standardizes life-
styles.220
The manner in which public camera surveillance affects our
ability to define ourselves has already been suggested, but a
recent article by Andrew Taslitz fleshes out the analysis. Pri-
vacy, Taslitz notes, enables us to present to others only those
parts of our selves that we want them to see.221 That in turn
enables us to put forth different versions of our selves in differ-
ent contexts, with those at the job seeing one side, those at
home seeing another, and those at social events or athletic com-
petitions seeing still another.222 Even in public, we expect pri-
vacy to play its role as a facilitator of self-definition. Taslitz
quotes Michael Riesman's observation that “[p]eople may look,
but they are expected to look at those parts that the owner of
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223. Id. at 169 (quoting Michael Reisman, Law in Brief Encounters 31 (1999)).
224. Id.
225. Id. at 171.
226. Id. at 171-72.
227. Cf. Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984)(anonymity
“safeguards the ability independently to define one's identity that is central to any
concept of liberty”); see generally Lee Tien, Who's Afraid of Anonymous Speech:
McIntyre and the Internet, 75 ORE. L. REV. 117, 120 (1996)(“anonymity is useful
for constituting individual and group identity in interaction.”); Robert Post, The
Social Foundations of Privacy: Community and Self in the Common Law of Tort,
77 CAL. L. REV. 957, 964 (1989)(“An intrusion on privacy is intrinsically harmful
because it is defined as that which injures social personality.”).
257
the exoself wants them to look at, at appropriate times and fol-
lowing certain procedures.”223 Ogling, staring, or merely paying
more than fleeting attention to strangers in public is considered
impolite and uncivil, because it crosses personal boundaries and
requires revelation of more than we are used to revealing.224
Such conduct prevents us from retaining control over how we
present ourselves.
Thus, Taslitz summarizes, “[w]ho looks at us, how, how
long, and for what purposes matter.”225 With respect to camera
surveillance in particular, he concludes:
[w]hen technology enables the government to stare with an
ever-vigilant and suspicious eye, the boundaries of the self
may partly dissolve, reconstructed in the image chosen by Le-
viathan. . . . Regulation [of this technology] preserves the idea
of a diverse, noisy America, where citizens are free to get lost
in the crowd and where their sense of self stems from their
chosen affiliations and actions rather than from the all-seeing
gaze of the state.”226
As this last statement suggests, because a substantial part of
our personality is developed in public venues, through rituals of
our daily lives that occur outside the home and outside the fam-
ily, cameras that stultify public conduct can stifle personality
development.227
The second version of the right to privacy, championed by
Jed Rubenfeld, pushes toward the same conclusion, but from a
different direction. Rubenfeld debunks the personhood version
of privacy–again, the notion the Court's privacy decisions should
be construed as means of preserving an enclave of
decisionmaking (such as abortion or marriage) that allows the
individual to develop one's identity and exercise one's auton-
omy. Rather, he argues that these types of cases deal with “the
fundamental freedom not to have one's life too totally deter-
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228. Rubenfeld, supra note 219, at 784.
229. Rubenfeld, supra note 219, at 788-91.
230. Rubenfeld, supra note 219, at 791-92.
231. Rubenfeld, supra note 219, at 784.
232. Rubenfeld, supra note 219, at 775.
233. Davies, supra note 38, at 144 & n.1.
234. See supra text accompanying notes 131-137.
mined by a progressively more normalizing state.”228 A prohibi-
tion on abortion and use of contraceptives is unconstitutional,
he says, not because decisions about those issues are necessary
to self-definition, but because together they force women to be
mothers;229 a prohibition on interracial marriages is unconstitu-
tional not because it infringes one's autonomy to do what one
wants, but because it coerces people into having homogenous
children.230 The “danger” of such laws, Rubenfeld states,
is a particular kind of creeping totalitarianism, an unarmed
occupation of individuals' lives. That is the danger of which
Foucault as well as the right to privacy is warning us: a society
standardized and normalized, in which lives are too substan-
tially or too rigidly directed. That is the threat posed by state
power in our century.231
Note in particular Rubenfeld's use of Foucault. Here
Rubenfeld is referring to the same Foucaultian concerns identi-
fied earlier in this article about the modern state's ability,
“through expanded technologies and far more systematic meth-
ods of acculturation, . . . to watch over and shape our lives, to
dispose and predispose us, and to inscribe into our lives and
consciousnesses its particular designs.”232 Although Rubenfeld
does not speak of government surveillance directly, his argu-
ment that the right to privacy has been and should be ranged
against government actions that promote “normalization” has
significant implications for that particular type of state action.
As Simon Davies commented in describing the effect of CCTV
and other forms of technological surveillance, “[t]he society we
are developing now . . . is a Brave New World dominated not so
much by tyranny as by a deadening political and cultural phe-
nomenon that Ralph Nader calls `harmony ideology' [the coming
together of opposing ideologies and beliefs into manufactured
consensus].”233 If CCTV contributes to that effect–and the litera-
ture linking panopticism and anticipatory conformity suggests it
does234–it impinges directly on the privacy right that Rubenfeld
believes the Court's decisions establish, and should be regulated
accordingly.
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235. 389 U.S. 347 (1967).
236. Katz, 389 U.S. at 353.
237. See, e.g., Silverman v. United States, 365 U.S. 505, 510 (1961)(stating that
its holding that use of a spike mike inserted in defendant's wall is a search was
“based upon the reality of an actual intrusion into a constitutionally protected
area”); Olmstead v. United States, 277 U.S. 438, 464 (1928)(in holding that
wiretapping is not a search, stating that “[t]he evidence was secured by the use of
the sense of hearing and that only. There was no entry of the houses or offices of
the defendants.”).
238. Katz, 389 U.S. at 351.
239. Id.
240. United States v. Knotts, 460 U.S. 276, 285 (1983)(“A police car following
Petschen at a distance throughout his journey could have observed him leaving
the public highway and arriving at the cabin owned by respondent, with the drum
of chloroform still in the car.”).
241. See supra note 106.
259
4. Freedom from Unreasonable Searches and Seizures
None of these arguments about a constitutional basis for
regulating government camera surveillance rely directly on the
Fourth Amendment. Surely if CCTV implicates the First
Amendment, the due process rights to movement and repose, or
the general right to privacy, it ought to implicate the Fourth
Amendment as well. Yet the Supreme Court's caselaw constru-
ing the scope of that amendment leaves little purchase for such
a position.
In Katz v. United States,235 the seminal decision defining
the threshold of the Fourth Amendment, the Supreme Court
held that government agents who bugged a phone booth had
engaged in a Fourth Amendment search.236 Even though previ-
ous cases had held that the Fourth Amendment is not impli-
cated unless a trespass occurs on a “constitutionally protected
area” (i.e., a house, person, paper or effect),237 and even though
the bugging in this case involved neither a trespass or a pro-
tected area, the Court reasoned that “what a person seeks to
preserve as private, even in an area accessible to the public,
may be constitutionally protected.”238
The majority opinion also stated, however, that “what a
person knowingly exposes to the public . . . is not a subject of
Fourth Amendment protections.”239 This is the sentiment upon
which the Court relied in Knotts when it held that use of a
beeper to monitor movement on the public highway is not a
search.240 As the lower court caselaw previously surveyed indi-
cated, application of this formulation to CCTV is likely to pro-
duce the same result.241 One could perhaps argue that one did
not “know” certain public conduct was exposed to the camera,
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242. Smith v. Maryland, 442 U.S. 735, 744 (1979)(holding that police did not
carry out a search when they obtained phone numbers dialed by Smith from
phone company because, by dialing the numbers, Smith “assumed the risk that
the company would reveal to police the numbers he dialed.”).
243. See, e.g., Bond v. United States, 529 U.S. 334, 337 (2000)(in holding that
feeling soft luggage was a search, Court stated “[p]hysically invasive inspection is
simply more intrusive than purely visual inspection”); Dow Chem. Co. v. U.S. 476
U.S. 227, 237 (1986)(in holding that EPA photography of a chemical plant's
curtilage from a plane was not a search, stating that “[a]ny actual physical entry
by EPA into any enclosed area would raise significantly different questions”);
California v. Ciraolo, 476 U.S 207, 213 (1986)(in holding that looking into a
backyard from an airplane is not a search, stating “[t]he observations took place
within public navigable airspace . . . in a physically nonintrusive manner”).
244. See Dow Chem., 476 U.S. at 236-37 (upholding aerial surveillance of
business curtilage); Ciraolo, 476 U.S. at 213 (noting that not all police observation
of the area within curtilage is disallowed).
245. 533 U.S. 27 (2001).
246. Kyllo, 533 U.S. at 40.
247. Id. (“Where . . . the Government uses a device that is not in general public
use to explore details of the home that would previously have been unknowable
without physical intrusion, the surveillance is a search.”). I have pointed out that
this language could be read to mean “that if the activity observed could be seen
with the naked eye without physical intrusion into the constitutionally protected
areas of home or curtilage, then police may exploit any technology–generally used
or not–without implicating the Fourth Amendment.” Christopher Slobogin, Peeping
Techno-Toms and the Fourth Amendment: Seeing Through Kyllo's Rules Governing
Technological Surveillance, 86 MINN. L. REV. 1393, 1419 (2002).
but that strategy is unlikely to work under most circumstances.
First, we are talking about overt, not covert, camera use, accom-
panied by signs announcing its presence. Second, the Court has
indicated that government need not show actual knowledge of
exposure to nullify Fourth Amendment protection. If a target
should have known public exposure might occur, the Court has
held, one assumes the risk of such exposure and loses Fourth
Amendment protection.242
That's not all. Time and again, the Court has emphasized
the distinction between mere observation and physical intru-
sion.243 Thus, police observation from a public vantage point is
not a search, even if the area observed is the curtilage, tradi-
tionally considered to be part of the home.244 Indeed, even if the
target is the home itself, the degree of physical intrusion plays
an important role. In the Court's recent decision in Kyllo v.
United States,245 the Court held that use of a thermal imager to
detect heat sources inside a house is a search, whether or not
the government agent using the imager is on public property.246
However, in dictum the Court exempted from Fourth Amend-
ment protection naked eye surveillance of the home that does
not require “physical intrusion into a constitutionally protected
area,” as well as any technological surveillance that merely rep-
licates what such naked eye viewing would observe.247 To the
extent CCTV merely replicates what naked observation from a
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248. Terry v. Ohio, 392 U.S. 1, 20 n. 16 (1968).
249. Michigan v. Chesternut, 486 U.S. 567, 569 (1988).
250. See Chesternut, 486 U.S. at 574 (holding police car driving alongside
defendant not a seizure); California v. Hodari, 499 U.S. 621, 629 (1991)(police
chase of defendant not a seizure).
251. Sim, supra note 140, at 470-71; see also, Andrew J. McClurg, Bringing
Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public
Places, 73 N.C. L. REV. 989, 1041-44 (1995).
252. 343 U.S. 747 (1952).
253. On Lee, 343 U.S. at 753 (the defendant “was talking confidentially and
indiscreetly with one he trusted, and he was overheard . . . . due to aid from a
transmitter and receiver, to be sure, but with the same effect on his privacy as if
agent Lee had been eavesdropping outside an open window.”).
254. United States v. Caceres, 440 U.S. 741 (1979).
261
public vantage point could view, it is unlikely to merit Fourth
Amendment protection apparently even when it allows viewing
of the interior of the home.
Similarly, despite CCTV's inhibition of the right to move-
ment, it is unlikely to amount to a Fourth Amendment “seizure”
under the Court's cases. Such a seizure occurs when the govern-
ment, “by means of physical force or show of authority, has in
some way restrained the liberty of a citizen,”248 or at least when
“a reasonable person [would not be] at liberty to ignore the po-
lice presence and go about his business.”249 Although the latter
formulation could in theory contemplate the effects of CCTV,
which may well retard people's ability to go about their busi-
ness, the Court has twice held that police do not effect a seizure
if they conspicuously follow or chase an individual without
bringing the individual to a stop.250 Under this caselaw, it would
be difficult to argue that monitoring an individual with a cam-
era is a seizure.
But what about the fact that CCTV allows recording of
one's public activity? It has been argued that even if we assume
the risk that others will view our public conduct, we do not as-
sume the risk that our public actions will be reduced to a photo-
graph or film that can be “scrutinized indefinitely and dissemi-
nated to an unintended audience” and that “allows the viewer to
discern details that would not have been apparent to a casual
observer.”251 This argument too is plausible, but once again the
Court's cases are very unhelpful as support. In On Lee v. United
States,252 the Supreme Court held that the Fourth Amendment
is not implicated when the government overhears and records
an individual's conversation with an informer through a body
bug worn by the informer,253 a holding it later affirmed.254 If we
have to assume the risk that our acquaintances are secretly re-
cording our conversations, we probably also have to assume the
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255. See, e.g., Scott E. Sundby, “Everyman”'s Fourth Amendment: Privacy or
Mutual Trust Between Government and Citizen?, 94 COLUM. L. REV. 1751 (1994)
(arguing that inculcation of trust between citizens and government, not privacy,
should be the core interest protected by the Fourth Amendment); William J.
Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV.
1016 (1995) (arguing that coercion, not privacy, should be the principal focus of
Fourth Amendment protection); Tom Clancy, What Does the Fourth Amendment
Protect: Property, Privacy, or Security?, 33 WAKE FOREST L. REV. 307 (1998)
(arguing that the Fourth Amendment protects security); see also R. v. Duarte, 1
S.C.R. 30, paras. 25, 26 (1990), where the Canadian Supreme Court held that
reasonable expectations of privacy are to be defined by standards of privacy that
persons can expect to enjoy in a “free society,” not by assumption of risk analysis.
256. But see supra text accompanying note 109.
257. Katz v. United States, 389 U.S. 347, 361 (Harlan, J., concurring).
258. WAYNE R. LAFAVE, 1 SEARCH AND SEIZURE: A TREATISE ON THE FOURTH
AMENDMENT 384 (3d ed. 2002)(“[L]ower courts attempting to interpret and apply
Katz quickly came to rely upon the Harlan elaboration as ultimately did a
majority of the Supreme Court.”).
risk that overt CCTV will be recording our public conduct.
There are at least three lines of attack against this view of
the Fourth Amendment's (non) application to CCTV. The first,
of course, is to show that the Court's public expo-
sure/assumption of risk approach to the Fourth Amendment is
misguided. That approach has already produced intriguing
scholarship (which the Court unfortunately has ignored),255 and
no such effort will be made in this article. The second method of
undermining the apparent judicial acquiescence to unregulated
public surveillance is to accept the Court's formulation of the
Fourth Amendment's threshold, but to distinguish its caselaw
by insisting, for instance, that CCTV does effectuate a “seizure”
because of its effect on movement, or that it does constitute a
“search” when it creates a record because that is not a risk we
assume when we go out in public. The likely futility of this line
of argument has already been suggested, and in any event will
not be pursued here.256
The third line of attack, which I do undertake here, is to
take seriously the Court's admonition that the Fourth
Amendment's scope is ultimately defined by “expectations of
privacy society is prepared to recognize as reasonable.” This
language, first found in Justice Harlan's concurring opinion in
Katz257 and since elevated to litmus test status (superceding
even the “knowing exposure” language),258 suggests an empirical
inquiry into society's views about privacy. If the Court really
means to equate Fourth Amendment protections with the expec-
tations of privacy that society is prepared to recognize as rea-
sonable, it should not ignore society's views on that topic. The
next section briefly describes one effort at such an inquiry,
which resulted in findings that support the Fourth
Amendment's application to CCTV.
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259. See supra text accompanying notes 203-10.
260. See also, William L. Prosser, Privacy, 48 CAL. L. REV. 383, 391-92 (1960)
(asserting that the tort of privacy invasion is not implicated when one takes a
photograph of a person in a public place, “since this amounts to nothing more
than making a record, not differing essentially from a full written description, of
a public sight which any one present would be free to see”); Sheldon Halpern, The
Traffic in Souls: Privacy Interests and the Intelligent Vehicle-Highway Systems, 11
SANTA CLARA COMPUTER & HIGH TECH. L. J. 45, 59-60 (1995)(noting that “to the
limited extent that . . . observation per se, absent publication . . . has been
deemed actionable, it has been surreptitious and offensively intrusive”).
261. See supra notes 100-02 and accompanying text.
262. See, e.g., statutes cited supra note 104; see also State Hidden Camera
Statutes at http://www.rcfp.org/handbook (listing eleven other states that
“expressly prohibit the unauthorized installation or use of cameras in private
places.”).
263
C. An Empirically-Based Case for Fourth Amendment
Regulation of CCTV
Basing Fourth Amendment protection on society's expecta-
tions of privacy requires answering several questions. First,
how can we discover these expectations? Second, what are they?
Third, in what sense are they relevant to Fourth Amendment
analysis?
1. Sources of Society's Privacy Expectations Vis-a-vis CCTV
How does one determine society's views about whether
CCTV threatens privacy? One source is the positive law govern-
ing public camera surveillance by entities other than the gov-
ernment. If such surveillance is a crime or a tort, then it might
be said to infringe on expectations of privacy considered impor-
tant by society.
At first glance, both case law and statutory law appear to
indicate quite the opposite. As noted previously,259 the court de-
cisions that address overt videotaping of public activity by pri-
vate actors generally require a significant degree of malicious-
ness before relief will be granted.260 Statutory law regarding
public camera use is also sparse. Recall that only Arizona has a
statute specifically dealing with public videotaping by private
parties,261 in contrast to the many states that prohibit or signifi-
cantly limit use of cameras to capture activities within the
home.262
This paucity of positive law regulating public camera use
probably says little about society's attitudes toward CCTV, how-
ever. That is because there is no real private analogue to
government-run CCTV. No entity other than the government
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263. Somewhat analogous to such regulation is the federal government's effort to
limit private companies' accumulation of data about habits and personal
characteristics from credit reports, government records, driver's licenses, video
rentals, student records, health records, children's Internet activities, and
banking, insurance, and investment company records. Although these statutory
efforts at regulation are not particularly effective, they represent a desire to
restrict the extent to which private entities can obtain information that we have
disclosed to people outside our immediate circle and that sometimes are even a
matter of “public record.” See generally Daniel J. Solove, Privacy and Power:
Computer Databases and Metaphors for Information Privacy, 53 STAN. L. REV.
1393, 1440-44 (2001) (describing the legislation and its flaws).
264. A Harris poll conducted in the United States in October, 2002, did indicate
that 63% of those surveyed were in favor of “increased video surveillance” of
public places like airports. Ken Kaye, High Tech Security Gets Tests at Airports,
FT. LAUDERDALE SUN-SENTINEL, Jan. 20, 2002, at A1.
265. See Taylor, supra note 48, ¶ 16 (reporting polling results that found
between 69 and 95% in favor of the cameras). But see supra note 144, describing
a study leading the author to question the higher figures on the ground that
those surveyed were usually plied with positive statements about CCTV
beforehand.
266. Davies, supra note 38, at 152 (describing a British Home Office survey
conducted in 1992).
267. Id.
engages in concerted, overt surveillance of the public streets
using cameras. If private companies or individuals began film-
ing public spaces twenty-four hours a day using zoom and
nightvision capacity in an effort to discern, say, people's shop-
ping, exercise, eating and drinking patterns, both tort and stat-
utory regulation would probably be forthcoming.263
A second source of information about society's views con-
cerning the intrusiveness of CCTV comes from polls directly
asking about attitudes toward CCTV. Although to date there
are few polls of that type in the United States,264 researchers in
the United Kingdom have conducted several. All of them show
significant public support for CCTV, well-above 60%.265 Yet the
most sophisticated poll of this type also indicated some concern
about the practice, despite its prevalence in that country. More
than 50% of the respondents felt that some entity other than
the government or private security firms should be responsible
for the installation of CCTV in public places, 72% agreed that
“these cameras could easily be abused and used by the wrong
people,” 39% believed that the people in control of these systems
could not be “completely trusted to use them only for the public
good,” and 37% felt that “in the future, cameras will be used by
the government to control people.”266 More than 10% of the re-
spondents believed that CCTV cameras should be banned.267
Americans, who tend to be more concerned about government
power than the British, would probably be even more hostile to
CCTV.
More importantly, poll results showing favorable attitudes
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268. See supra note 95.
269. See Christopher Slobogin, Let's Not Bury Terry: A Call for Rejuvenation of
the Proportionality Principle, 72 ST. JOHN'S L. REV. 1053, 1072 (1998)(asserting
that using balancing analysis to define search or seizure “is barred by the
language of the Fourth Amendment itself. That provision's prohibition on
`unreasonable searches and seizures' applies the reasonableness test only after
something has been labeled a search or seizure.”).
270. Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of
Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at
“Understandings Recognized and Permitted by Society,” 42 DUKE L. J. 727 (1993).
271. Id. at 738-39 (Table 1).
265
toward CCTV fail to distill feelings about intrusiveness from
feelings about security. Those who say they do not mind govern-
ment camera surveillance may be allowing its perceived effec-
tiveness at preventing crime to submerge their discomfort about
being watched. That attitude makes sense; indeed, if the threat
of harm to be prevented is high, a wide range of people will wel-
come policing techniques much more intrusive than camera sur-
veillance, as reactions to the events of September 11 have
shown.268 Under the Fourth Amendment, however, that type of
balancing/reasonableness calculus is not supposed to inform the
initial question of whether something is a search or seizure, but
rather only whether something that is a search or seizure is
justified.269
To isolate the intrusiveness question more cleanly with re-
spect to CCTV, I used a methodology that Joseph Schumacher
and I developed in a previous study about the Fourth Amend-
ment's threshold.270 In that study we asked people how they
rated the intrusiveness of a number of police investigative tech-
niques. That approach permits a better assessment of how peo-
ple feel about the effect each technique has on privacy, because
it produces a hierarchy of perceived intrusiveness; even people
who are willing to sacrifice most or all of their privacy interests
to fight crime evaluate the privacy-invading impact of different
crime fighting techniques differently. Thus, for instance, on av-
erage our subjects rated a body cavity search as the most intru-
sive of the scenarios and a search of a public park as the least,
and a search of a bedroom as more intrusive than a frisk.271
From these types of results, one can draw useful conclusions
about the relative magnitude of people's expectations of privacy
with respect to a given technique such as CCTV.
Unfortunately, the fifty scenarios in the Slobogin &
Schumacher study did not include any involving camera surveil-
lance. The study reported here fills that gap.
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272. The survey actually contained twenty-five scenarios but the results
pertaining to several of them (involving, e.g., searches of personal diaries and car
trunks) do not add appreciably to the discussion and are not reported here.
273. See supra note 47 and accompanying text
274. The survey forms are on file with the author and the Mississippi Law
Journal.
275. Slobogin & Shumacher, supra note 270, at 736.
276. See, e.g., Florida v. Bostick, 501 U.S. 429, 438 (1991)(“the `reasonable
person' test presupposes an innocent person”); Florida v. Royer, 460 U.S. 491, 519
n.4 (1983)(Blackmun, J., dissenting) (“The fact that [respondent] knew the search
was likely to turn up contraband is of course irrelevant; the potential
intrusiveness of the officers' conduct must be judged from the viewpoint of an
innocent person in [his] position”).
277. Slobogin & Schumacher, supra note 270, at 736.
2. The Study
The survey form developed for this study was similar to the
form used in the original Slobogin and Schumacher study with a
few notable exceptions. First, it contained only twenty relevant
scenarios,272 not fifty. Second, it included two or three scenarios
(depending upon which of three survey versions the subject re-
ceived) describing various forms of camera surveillance. The
three basic camera surveillance scenarios were police use of
cameras with zoom capacity at national monuments, police use
of cameras with zoom capacity at airports and other transporta-
tion centers, and police use of cameras with zoom capacity at
300-yard intervals along a public street. The latter scenario had
two variations: overt versus hidden cameras, and destruction of
records within 96 hours versus indeterminate retention of re-
cords which could be released to government agencies and the
media as needed. Also new with this survey form were scenarios
involving other types of technological surveillance (i.e., beepers
and “see-through” devices273) and a scenario describing a police
officer following an individual on the public street.274
The survey was completed by 190 people called for jury duty
in Gainesville, Florida. Because Florida jury pools are randomly
selected from voter registration lists, this sample was a rela-
tively diverse group of people. As in the earlier study,275 the sub-
jects were told to assume that, in each scenario, the police were
looking for evidence of crime but that the target of the police
action had not engaged in any criminal activity. In other words,
the subjects were told to assume the individuals in the scenarios
were innocent, an assumption that is consistent with the Su-
preme Court's definition of “search” and “seizure” for Fourth
Amendment purposes.276 Then, as in the earlier study,277 the
subjects were told to rate each scenario in terms of “intrusive-
ness” on a scale of 1 to 100, with 1 representing “not intrusive”
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278. Some of the scenarios in this study that were very similar to those used in
the previous one received significantly different means. For example, the coal
mine inspection scenario yielded a mean of 25 in this study versus a mean of 52
in the previous one; the patdown scenario a mean of 68 in this study and of 55 in
the previous one; the border body cavity search scenario a mean of 75 in this
study and of 90 in the previous one. Comparisons are problematic, however,
because the previous study incorporated many variations that were not present in
this study. See id. at 733-36. Also, the patdown scenario in the present study
stated that the officer “was feeling for weapons,” whereas the previous study
merely stated he patted down the outer clothing. Nonetheless, with the exception
of the first two examples given, the hierarchy produced by the two studies is very
similar.
279. For explication, see id. at 745 n.67. The confidence intervals are larger for
the camera surveillance scenarios because, given the desire to test variations of
those scenarios, there were fewer surveys completed for each.
267
and 100 representing “very intrusive.”
Using these ratings, an average intrusiveness rating for
each scenario was calculated, along with the standard deviation
so that the statistical significance of any differences between
averages could be computed. As with the previous study, several
such differences resulted. Table 1 reports the mean intrusive-
ness rating of the twenty scenarios,278 together with their confi-
dence intervals (a figure which, when added to or subtracted
from the mean, indicates the extent to which a given difference
between means is statistically significant279). The following dis-
cussion will focus on those findings most relevant to under-
standing what the subjects thought about camera surveillance.
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280. Searches of bedrooms and eavesdropping on “private” conversations carried
out in public clearly require probable cause. Chimel v. California, 395 U.S. 752,
768 (1969)(holding non-exigent search of bedroom requires warrant); Katz v.
United States, 389 U.S. 347, 361 (1967) (holding warrantless bugging of phone
booth conversation unconstitutional because even though “booth is `accessible to
the public' at other times, . . . it is a temporarily private place whose momentary
occupants' expectations of freedom from intrusion are recognized as reasonable.”).
Although the Supreme Court has avoided addressing the Fourth Amendment
implications of body cavity searches, U.S. v. Montoya-Hernandez, 473 U.S. 531,
541 n.3 (1985), other courts have long required probable cause for such searches
even when conducted at the border. See, e.g., Blackford v. U.S., 247 F.2d 745, 753
(9th Cir. 1957)(body cavity search at border permissible upon probable
cause–“precise knowledge of what, and how much was where”–if conducted
TABLE 1
Mean Intrusiveness Ratings of Twenty Scenarios
Scenario Mean Confidence
Interval
1. Looking in foliage in park 8 ±4
2. Heath & safety inspection of factory 14 ±4
3. Monitoring cameras at national monuments 20 ±7
4. Monitoring cameras at government
buildings, airports, train stations 20 ±7
5. Inspection of a coal mine 25 ±5
6. Monitoring cameras at convenience
and retail stores 26 ±8
7. Stopping drivers at roadblock for 15 seconds 35 ±5
8. Monitoring covert street cameras with
zoom capacity 42 ±9
9. Flying helicopter 400 feet over backyard 50 ±5
10. Police officer noticeably following
person down street 50 ±5
11. Going through garbage cans at curbside 51 ±5
12. Search of a junkyard 51 ±5
13. Monitoring overt street cameras;
tapes destroyed after 96 hours 53 ±8
14. Monitoring a beeper on a car for three days 63 ±5
15. Use of device that can see through
clothing to detect outline of items 67 ±5
16. A patdown of outer clothing, feeling for weapons 68 ±5
17. Use of a video camera to overhear
a conversation on the street 70 ±5
18. Same as 13, but tapes not destroyed 73 ±8
19. Body cavity search at border 75 ±5
20. Search of bedroom 76 ±5
The most important finding of the study for purposes of this
article was the relative rating of the scenario involving cameras
overtly positioned at 300-yard intervals along the street. As can
be seen from Table 1, that scenario (#13) received an average
intrusiveness rating of 53 (M=53). This rating was significantly
lower (as a statistical matter) than the ratings for bedroom
searches (M=76), body cavity searches (M=75) and electronic
eavesdropping on conversations in public (M=70), which require
probable cause,280 and also significantly lower than the rating
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reasonably).
281. Terry v. Ohio, 392 U.S. 1, 27 (1968)(holding patdown requires reasonable
suspicion). The legality of electronic frisks has yet to be taken up directly, but
because they reveal items underneath one's clothing, they presumably would
require at least reasonable suspicion. See ABA STANDARDS, supra note 16, at 82-
96 (discussing standards regulating “detection devices”).
282. Donovan v. Dewey, 452 U.S. 594, 603 (1981)(requiring that inspection
programs for coal mines provide “a constitutionally adequate substitute for a
warrant); Marshall v. Barlow's, Inc. 436 U.S. 307, 324 (1978)(requiring
administrative warrant for nonconsensual factory inspections); Martinez-Fuerte,
428 U.S. 543, 556 (1976)(“It is agreed that checkpoint stops are `seizures' within
the meaning of the Fourth Amendment.”). Note also that the public camera
surveillance rating was similar to the rating received for the scenario involving
the junkyard search, which is also governed by the Fourth Amendment. New
York v. Burger, 482 U.S. 691 (1987)(applying Dewey to inspections of junkyards
for stolen auto parts).
283. Florida v. Riley, 488 U.S. 445 (1989)(helicopter 400 feet above backyard);
Michigan v. Chesternut, 486 U.S. 567 (1988); California v. Greenwood, 486 U.S.
35 (1988)(searching garbage separated from other garbage).
269
for either a traditional (M=68) or electronic frisk (M=67), which
require reasonable suspicion.281 At the same time, it was signifi-
cantly higher than the average intrusiveness ratings for a
health and safety inspection of a factory (M=14), an inspection
of a coal mine (M=25), and a 15-second stop at a roadblock
(M=35), all government actions that the Supreme Court has
declared are governed by the Fourth Amendment.282
The intrusiveness ratings for the other scenarios involving
cameras fell within the range demarcated by the latter three
scenarios, with one exception. While camera surveillance of na-
tional monuments (M=20), transportation centers (M=20) and
stores (M=26) received relatively low intrusiveness ratings, co-
vert camera surveillance of the public streets (M=42) received a
significantly higher rating. At the same time, that rating is sig-
nificantly lower than the rating for overt camera surveillance.
Apparently, as suggested throughout this article, knowledge
that cameras are present triggers a greater feeling of intrusion
than knowledge that cameras might be present.
Also of note are the intrusiveness ratings of three govern-
ment actions the Court has declared are not searches: helicopter
overflights 400 feet above the backyard (M=50), being followed
by a police officer (M=50), and curbside searches of garbage
(M=51).283 These three scenarios were perceived to be as intru-
sive, statistically speaking, as public camera surveillance, and
significantly more intrusive than the administrative inspections
and the roadblock.
Should these three findings call into question the Court's
determinations that administrative inspections and roadblocks
are Fourth Amendment events, or instead lead us to question
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284. See supra text accompanying notes 243-47.
285. Slobogin & Schumacher, supra note 270, at 743-51.
286. Slobogin & Schumacher, supra note 270, at 744.
287. Katz v. United States, 389 U.S. 347, 361 (1967)(Harlan, J., concurring).
the holdings that helicopter overflights, garbage scavenging and
police tailing (and, by implication, public camera surveillance)
are not? Consistent with the thesis of this article, I believe we
should be more concerned about the second conclusion. While,
as noted earlier,284 the Court seems to place all police actions
that are not physically invasive and that occur outside the home
outside the Fourth Amendment as well, the subjects were ap-
parently more attuned to the offensive nature of government
helicopters hovering over one's yard, agents going through one's
intimate, albeit abandoned, items, and officers stalking citizens.
At the same time, the lower ratings the survey participants as-
signed to business safety inspections and brief car detentions
are not inconsistent with the view that the Fourth Amendment
is implicated by these actions, as they are still significantly
higher than searching through foliage in a public (M=8). Put
simply, the participants are better than the Court at identifying
expectations of privacy society is prepared to recognize as rea-
sonable.
3. The Relevance of Empirical Findings
As Professor Schumacher and I noted in connection with
the previous study, there are several potential methodological
problems with this kind of survey.285 These “internal validity”
and sampling issues will not be rehearsed here. It suffices to say
that, despite some reservations, we concluded in the earlier
work that this type of survey “accurately measured how people
rank the intrusiveness of various search and seizures.”286
Assuming the same conclusion can be reached about the
present study, it is still important to revisit one central issue:
Why should we care, for constitutional purposes, what ordinary
people think about the intrusiveness of various police actions?
One easy answer is the one already given: the Court has told us
society's views are relevant by defining the Fourth Amendment
in terms of “expectations of privacy society is prepared to recog-
nize as reasonable.”287
But perhaps this language should not be interpreted liter-
ally. There are a number of reasons why it may be a bad idea to
do so. These reasons are all complicated, and will only be briefly
described here. I will respond to these objections in an equally
brief, and I have to admit, incomplete fashion.
One reason to avoid a literal reading of Katz is the variabil-
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288. See, e.g, Sundby, supra note 255, at 23 (stating the “overall decline in the
Amendment's protections . . . will only worsen as the inevitable march of
government regulation further blurs the notion of what is private and as
technological advances enable the government to invade privacy in more
pervasive, but physically less intrusive, ways.”); Shaun B. Spencer, Reasonable
Expectations and the Erosion of Privacy, 39 SAN. DIEGO L. REV. 843
(2002)(pointing out that the “embedded imprecision” of the privacy concept and
the incremental “internalization” of new privacy norms dictated by technological
and other innovations operate together to erode privacy boundaries); Duarte v. R.,
1 S.C.R. 30, para 24 (1990)(“The very efficacy of electronic surveillance is such
that it has the potential, if left unregulated, to annihilate any expectation that
our communications will remain private.”).
289. Monahan and Walker argue that methodologically sound research that is
relevant to a given legal issue should not only be considered by the courts, but
should operate as “social authority,” just as caselaw and statutes are considered
legal authority. John Monahan & Laurens Walker, Social Authority: Obtaining,
Evaluating, and Establishing Social Science in Law, 134 U. PA. L. REV. 477, 488
(1986). On that assumption, if the relevant social science changes, the law based
on it should change as well.
Like legal precedent, research findings can become outdated as
circumstances change. A survey of the kinds of films that members of a
community found “patently offensive” in the 1950's, for example, might
have little value in the context of an obscenity prosecution in the 1980's.
A third way, therefore, that courts could evaluate a piece of social science
research would be to gauge the extent to which the people and situations
271
ity and manipulability of public attitudes. As many commenta-
tors have pointed out,288 technology and modern social practices
are rapidly reducing everyone's privacy and everyone's expecta-
tions thereof, with the result that a literal construction of Katz
would produce an ever-shrinking Fourth Amendment. Resort to
empirical data about society's attitudes in defining the Fourth
Amendment's scope would probably only accelerate that trend,
and destabilize search and seizure law at the same time.
Research such as that described here, however, only pro-
vides information about relative intrusiveness in society's eyes.
It does not tell the Court where to position the Fourth Amend-
ment threshold. The decision as to what level of privacy expecta-
tions is accorded constitutional protection can still be a judicial,
normative one that has precedential impact. Nor are society's
views likely to change once the Court sets the Fourth Amend-
ment threshold, because the Court's pronouncement will rein-
force those views. If, however, those views nonetheless change
substantially–for instance, if twenty years from now,
government-run CCTV is seen as much less intrusive than
searching foliage in a public park, or much more intrusive than
a frisk–then Fourth Amendment analysis should probably
change with them. After all, that is what happened when Katz
declared that non-trespassory electronic surveillance is a search
after forty years of precedent saying otherwise.289
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studied in the research resemble those involved in the controversy at
issue, and the extent to which the passage of time may have attenuated
the findings.
Id. at 507 (footnote omitted).
290. See supra text accompanying notes 239-253.
291. See infra text accompanying notes 421-422.
292. Anonymous Account of the Boston Massacre, at http://odur.let.rug.nl/~usa/D/
1751-1775boston~/anon.htm (stating that “the challenging of the inhabitants by
sentinels posted in all parts of town . . . occasioned many quarrels and
uneasiness”); see also Westin, supra note 115, at 57-58 (noting that “[t]he whole
network of American constitutional rights . . . was established to curtail the
ancient surveillance claims of governmental authorities.”); Don B. Kates, The
Second Amendment and the Ideology of Self-Protection, 9 CONST. COMMENTARY 87,
103 (1992)(stating that, for the Founders, “the very idea of empowering
government to place an armed force in constant watch over the populace was
vehemently rejected as a paradigm of abhorrent French despotism,” and noting
that organized police forces were resisted in colonial times). In correspondence
with the author, Professor Davies, who has closely studied the Fourth
Amendment's history, emphasized the last fact, noting that, other than “snooping”
by British informers (which occasioned hostility among the colonists), there was
no one available to conduct surveillance: “the constable had better things to do
(trying to make a living) than stand around looking for hints of crime.” E-mail
from Thomas Davies, Professor of Law, University of Tennessee School of Law, to
Christopher Slobogin, Professor of Law, the University of Florida School of Law
(July 8, 2002, 2:16 PM CST)(on file with author). Davies also noted the lack of
surveillance technology in colonial times and pointed out that “surveillers would
have had more difficulty blending into the smaller, closer social settings of that
time.” Id.
293. See generally David Sklansky, The Fourth Amendment and the Common
Law, 100 COLUM. L. REV. 1734 (2000):
[A]nchoring the Fourth Amendment in common law will do little to make
it more principled or predictable, in part because common-law limits on
searches and seizures were thinner, vaguer, and far more varied than the
Court seems to suppose. What the common law has of value to offer
A second objection to a literal interpretation of Katz's expec-
tation of privacy language is that, at the margins, it might ren-
der nugatory the language and history of the Fourth
Amendment. Consider CCTV as an example. One could argue,
as suggested earlier,290 that regardless of its relative intrusive-
ness according to the community, CCTV does not constitute ei-
ther a “search” or a “seizure” of “persons, papers, houses and
effects” as those terms are normally understood. One could also
plausibly contend that it is not the type of government activity
that even remotely concerned the framers. Yet, as developed
further in Part IV,291 close scrutiny of a person, whether in pub-
lic or private, can easily be called a “search.” And while it is true
that physical searches, particularly of homes, were the main
concern of the framers, surveillance of the streets by British
soldiers was a major irritant for the colonists.292 Ultimately,
however, the strength of this second objection depends upon
how important “plain meaning” and original intent are to
Fourth Amendment analysis and upon what these phrases
mean, topics well beyond the scope of this article.293
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Fourth Amendment law is what it has to offer constitutional law more
generally: not its rules but its method.”).
Id. at 1734.
294. Miller v. California, 413 U.S. 15, 24 (1973)(whether a work appeals to the
“prurient interest” is to be defined by “community standards”); see also Atkins v.
Virginia, 122 S.Ct. 2242, 2244 (2002)(ruling that the definition of cruel and
unusual punishment under Eighth Amendment is dependent upon consensus of
public, judges, legislators and scholars).
295. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966).
296. See, e.g., Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503
(1969).
297. See, e.g., Illinois v. Gates, 462 U.S. 213 (1983).
298. Cf. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638
(1943)(“One's right to life, liberty, and property, to free speech, a free press,
freedom of worship and assembly, and other fundamental rights may not be
submitted to vote; they depend on the outcome of no elections.”).
299. I have argued, for instance, that public opinion is of very limited relevance
in designing provisions of the substantive criminal law. Christopher Slobogin, Is
Justice Just Us? Using Social Science to Inform Substantive Criminal Law, 87 J.
CRIM. L. & CRIMINOLOGY. 315 (1996).
300. Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087 (2001).
301. Id. at 2087, 2087-92, 2096-98.
302. Id. at 2092.
273
A related and final objection to taking Katz literally is that
courts should consider only these latter types of factors because
courts are, by tradition if not by definition, nonmajoritarian in-
stitutions. While some constitutional issues–the definition of
obscenity comes to mind294–are largely determined by commu-
nity views, most such issues–compulsion for Fifth Amendment
purposes,295 speech under the First Amendment,296 probable
cause for Fourth Amendment purposes297–are not.298 At the
least, shouldn't the courts ignore community norms that are
inconsistent with principles derived from other sources when
determining the scope of core constitutional concepts?
This question is also huge and difficult, and the answer de-
pends much upon context.299 A recent article by Robert Post, a
noted scholar on privacy issues, provides the beginning of a re-
sponse, a response pertinent to the other two objections as well.
Post describes three possible “concepts of privacy”: privacy as
the control of knowledge; privacy as a protector of dignity; and
privacy as a means of implementing freedom.300 The first con-
cept, he argues, does not really raise a privacy question at all,
because it has more to do with disclosure of information rather
than with intrusion, and the third he sees as “an argument for
liberal limitations on government” such as those imposed by
cases like Roe v. Wade.301 The form of privacy he views as most
relevant to Fourth Amendment issues is privacy as dignity,
which grounds privacy “in social forms of respect that we owe
each other as members of a common community,”302 and “locates
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303. Id. at 2094.
304. Id.
305. Slobogin & Schumacher, supra note 270, at 753 (footnote omitted)(relying
on David L. Faigman, “Normative Constitutional Fact-finding”: Exploring the
Empirical Component of Constitutional Interpretation, 139 U. PA. L. REV. 541, 581-
88 (1991)).
306. Id.
307. Note, however, one difference between a right to anonymity and the other
rights. Each of the other rights could be said to be inhibited by crime at least as
much as by cameras (consider in particular the right to movement and repose).
Thus, one could argue they are infringed if government does not install CCTV, at
least in high crime areas. See infra Part IIIA. The right to anonymity is more
clearly independent of the fear of crime; it is always implicated by CCTV.
privacy in precisely the aspects of social life that are shared and
mutual.”303 He asserts that, when privacy “is understood as a
form of dignity, there can ultimately be no other measure of pri-
vacy than the social norms that actually exist in our civiliza-
tion.”304 If that is so, then Fourth Amendment privacy depends
upon measurements of societal norms regarding privacy expec-
tations, which is what the surveys described above attempt to
measure.
There is also an institutional reason to align Fourth
Amendment expectations of privacy with society's views on the
matter. As stated in the article describing the first study,
“[a]ssuming valid data showing that the community and the
Court think differently, the Court's continued adherence to its
own views, through what has aptly been called normative con-
stitutional fact-finding, would further strain its credibility.”305
Ultimately, ignoring such data and the community views it rep-
resents “undermines the Court's legitimacy.”306
D. Summary
A good case can be made for the conclusion that overt CCTV
operated by the government in public spaces ought to be subject
to constitutional regulation. The source of such regulation could
be the First Amendment, the right to travel found in the Due
Process Clause, the general right to privacy, or the Fourth
Amendment. CCTV can intimidate those engaging in political
expression, inhibit public movement and repose, affect one's
public personality, accelerate normalization and, if the empiri-
cal study reported here is any indication, be as intrusive as po-
lice actions which the Supreme Court has said implicate the
Fourth Amendment. Although the interests infringed by CCTV
are somewhat disparate, they can all be subsumed under the
umbrella interest in public anonymity–the right to be free of
intensive government scrutiny even in public, absent suspicious
conduct.307
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308. Albright v. Oliver, 5120 U.S. 266, 273 (1994)(“[W]here a particular
amendment provides an explicit textual source of constitutional protection' against
a particular sort of government behavior, `that Amendment, not the more
generalized notion of `substantive due process,' must be the guide for analyzing
these claims'” (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)).
309. See generally C
HEMERINSKY, supra note 214, at 764-768
310. Id.
275
Of the various constitutional bases that could implement
this right to anonymity, I prefer the Fourth Amendment, for two
related reasons. First, it is the amendment that traditionally
has been applied to police investigation techniques, and CCTV
is such a technique. The Court has suggested that when two or
more constitutional provisions are implicated, the one most di-
rectly implicated should apply.308 Second, Fourth Amendment
analysis provides a better framework for regulating CCTV than
the other constitutional doctrines. If a government action in-
fringes the First Amendment, the Due Process Clause, or the
general right to privacy, its permissibility depends upon
whether the government has a “compelling” or “substantial”
interest in pursuing the action, concepts that are very ill-de-
fined.309 Depending upon the interest involved, the action's legit-
imacy may also depend on how “necessary” it is to accomplish
that interest, again a nebulously defined inquiry.310 Although
essentially the same analysis occurs under the Fourth Amend-
ment, its greater flexibility and its better-developed substantive
and procedural rules provide a more concrete regulatory tem-
plate, as Part III demonstrates.
III. IMPLEMENTING THE RIGHT TO PUBLIC ANONYMITY
I propose that constitutional regulation of government ef-
forts to pierce public anonymity through CCTV consist of four
components. First, law enforcement should have to justify both
the establishment of a particular camera system and its use to
scrutinize particular individuals. Second, it should have to de-
velop policies regarding the procedure for conducting camera
surveillance. Third, it should have to develop policies regarding
storage and dissemination of recorded materials to other enti-
ties. Finally, and most importantly, it should be accountable to
entities outside law enforcement when it fails to follow these
three requirements.
Even this barebones description of the regulatory scheme
sounds decidedly legislative in nature, and therefore arguably
something the judiciary is not equipped to fashion. But, as the
following discussion will make clear, the judicial objective
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311. Erik Luna, Constitutional Roadmaps, 90 J. CRIM. L. & CRIMINOLOGY. 1125,
1193 (2000).
312. Id. at 1185-87.
313. Id. at 1193.
314. Id. at 1200-06.
315. See generally Christopher Slobogin, Technologically-Assisted Physical
Surveillance: The American Bar Association's Tentative Draft Standards, 10 HARV.
J. L. & TECHNOLOGY 383 (1997)(describing the membership and work of the Task
Force and the Standards Committee in developing the Standards).
should be merely to establish the regulatory framework; law
enforcement agencies and the political process can fill in the
details. Erik Luna has described the phenomenon of “constitu-
tional roadmapping,” in which the courts, in striking down gov-
ernmental laws or censoring conduct of government agents, sug-
gest constitutionally permissible alternative courses of action.311
The idea behind such decisions is to engage in a dialogue with
other decision-makers in the executive and legislative branches,
as well as with the citizenry.312 As Luna says, “[r]oadmaps
openly share constitutional concerns with those institutions
charged with making and enforcing law, refracting issues with
judicial insight rather than merely reflecting them back to the
political branches.”313 Although Luna believes that judicial re-
sort to such roadmaps should be rare, he also states that they
are most likely to be useful in individual rights cases involving
new practices where the need for clear rules is high, a scenario
which resonates with the advent of CCTV.314 The discussion be-
low tries to set out a constitutional roadmap for public camera
surveillance, relying on Fourth Amendment precedent for guid-
ing principles and the ABA's Standards Relating to
Technologically-Assisted Physical Surveillance for slightly more
specific recommendations.315
A. Justification
The government should be required to justify its use of cam-
eras at two different levels. First, it should have to justify the
placement of the cameras it seeks to install. Second, it should
have to account for any use of the camera to individualize its
inspection of particular individuals. Precedent for requiring
both types of justifications comes from the Supreme Court's
cases on roadblocks, which, it will be remembered, were viewed
by the subjects in the study reported above to be significantly
less intrusive than CCTV.
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316. See supra note 94; see also Davies, supra note 38, at 150 (observing that
every year between 230 and 450 million dollars is spent on CCTV in the United
Kingdom, despite its uncertain effectiveness).
317. Note that, given the intrusiveness ratings of the coal mine and factory
inspection scenarios, see supra p. 277 Table 1, another source of precedent would
be the closely regulated industry cases. See C
HARLES H. WHITEBREAD &
CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES &
CONCEPTS § 13.03(a) (4th ed. 2000)(describing the cases). But these decisions deal
with specific industries, not the public at large, so roadblocks provide a closer
analogue to CCTV. It is worth noting, however, that the pervasively regulated
industry cases require the government to show a “substantial” interest in the
activity being regulated, and also require limitations on when and how searches
can be carried out that provide “a constitutionally adequate substitute for a
warrant.” Dewey v. Donovan, 452 U.S. 594, 602-03 (1981).
318. 428 U.S. 543, 566-67 (1976).
319. 496 U.S. 444, 455 (1990).
320. 440 U.S. 648, 657 (1979).
321. Prouse, 440 U.S. at 663 (“This holding does not preclude the State of
Delaware or other States from developing methods for spot checks that involve
less intrusion or that do not involve the unconstrained exercise of discretion.
Questioning of all oncoming traffic at roadblock-type stops is one possible
alternative.”).
322. 531 U.S. 32 (2000).
277
1. Justifying Camera Location
One might think that the cost of camera systems, alone,
would keep CCTV from spreading beyond those areas with the
highest crime rates. But, if Great Britain's experience is any
indication, cameras are likely to be seen as a cheap, effective
method of deterring and detecting crime, whether or not that is
actually the case.316 Thus, their proliferation beyond the most
dangerous areas is inevitable, unless limitations are imposed.
The precedent for that limitation comes from an unlikely
source, the Supreme Court's roadblock jurisprudence.317 In the
four cases in which the court has pronounced on the constitu-
tionality of roadblocks, the government has prevailed three
times. In United States v. Martinez-Fuerte,318 the Court upheld
checkpoints established near the Mexican border that were de-
signed to deter and detect illegal immigration. In Michigan v.
Sitz,319 it sanctioned roadblocks to deter drunken driving. And
in Delaware v. Prouse,320 it indicated in dictum that license
checkpoints would be constitutional as well (in the course of
holding that random license checks of individual cars are uncon-
stitutional).321
In a case decided just last term, however, the Court drew
the line at roadblocks that are set up merely to help the govern-
ment catch more criminals. In Edmond v. Indianapolis,322 in an
opinion by Justice O'Connor, the Court held unconstitutional a
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323. Edmond, 531 U.S. at 41.
324. Id. at 38.
325. Id. at 43.
326. Id. at 39.
327. Id. at 43-44.
328. Id. at 44.
329. Id. at 42. The same Term the Court struck down a drug-testing policy
aimed at pregnant women, in large part because the “primary purpose” of the
program was “the threat of arrest and prosecution in order to force women into
treatment.” Ferguson v. City of Charleston, 532 U.S. 67, 84 (2001).
“narcotics checkpoint,” stating “[w]e have never approved a
checkpoint program whose primary purpose was to detect evi-
dence of ordinary criminal wrongdoing.”323 Martinez-Fuerte,
O'Connor stated, was grounded on the “formidable law enforce-
ment problems” connected with “effectively containing illegal
immigration at the border,” the “impracticality of the particular-
ized study of a given car to discern whether it was transporting
illegal aliens,” and the traditional leeway given the govern-
ment's efforts at protecting the “integrity of the border.”324 The
sobriety checkpoints in Sitz were permissible because they were
aimed at reducing “the immediate vehicle-bound threat to life
and limb” posed by the presence of drunk drivers on the high-
ways.325 And license checkpoints of the type discussed in Prouse,
O'Connor stated, are meant to maintain highway safety through
ensuring that drivers are qualified and that their vehicles are
fit for safe operation.326 None of these roadblock variants, the
Edmond majority emphasized, are established to further the
government's “general interest in crime control.”327 In the latter
situation, an “individualized suspicion” requirement prevails.328
Otherwise, “the Fourth Amendment would do little to prevent
such intrusions from becoming a routine part of American
life.”329
There is no doubt that the “primary purpose” of CCTV is to
implement the government's general interest in crime control. If
we assume, as concluded above, that CCTV is regulated by the
Fourth Amendment, Edmond could be read to prohibit govern-
ment use of cameras, unless it first develops individualized sus-
picion. That would effectively eliminate CCTV as a deterrent
and seriously limit its usefulness as an investigative device,
except in those rare instances when individualized suspicion is
developed in other ways and cameras are needed to provide cor-
roboration or help nab a suspect who has eluded police.
More generously, Edmond could be interpreted to permit
suspicionless public camera surveillance if the government
meets the requirements imposed by Martinez-Fuerte or Sitz. In
other words, only where it can be shown that there are “formi-
dable law enforcement problems” associated with using tradi-
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330. Sitz, 496 U.S. at 455.
331. Martinez-Fuerte, 428 U.S. at 546 (“The `point' agent standing between the
two lanes of traffic visually screens all northbound vehicles, which the checkpoint
brings to a virtual, if not a complete, halt. Most motorists are allowed to resume
their progress without any oral inquiry or close visual examination.”).
332. Prouse, 440 U.S. at 659-60.
333. Id. at 663.
279
tional methods of investigation (as in the case of discerning ille-
gal immigrants in cars) or an “immediate hazard to life and
limb” posed by a specified group of potentially dangerous people
(as with drunk drivers) should CCTV be permissible.
Where might such circumstances exist? Areas with a high
magnitude of serious crime are the best candidates. A signifi-
cant amount of crime suggests that traditional methods are not
working, and if much of the crime being committed is violent or
similarly serious, it presents an immediate hazard proportion-
ate to that posed by drunk drivers.
Taking a cue from the Court's cases, it is possible to get
even more specific about the degree of harm necessary to justify
brief suspicionless surveillance. In Sitz the Court gave as one of
the reasons the checkpoint in that case was reasonable the fact
that 1.6% of the drivers who went through the roadblock in that
case were drunk, and also noted that .12% of those stopped at
the checkpoint in Martinez-Fuerte were illegal immigrants.330
The latter percentage might presumptively be considered the
threshold at which government can act, for two reasons. First, it
justified only the barest of seizures, one that lasted at most five
seconds and that often consisted merely of getting the vehicle to
slow down so that border agents could look inside.331 Anything
less intrusive would probably not have implicated the Fourth
Amendment at all; anything more should require at least as
much justification as the government proffered in Martinez-
Fuerte. Second, the Court has indicated it is leery of
suspicionless seizures that inconvenience large numbers of indi-
viduals for very little gain. In finding unconstitutional the ran-
dom license checks at issue in Prouse, it noted that “[i]t seems
common sense that the percentage of all drivers on the road who
are driving without a license is very small and that the number
of licensed drivers who will be stopped in order to find one unli-
censed operator will be large indeed.”332 Although Prouse went
on to sanction nonrandom roadblocks for license check
purposes,333 this type of seizure, Edmond held, is permitted only
when it is directly related to highway safety, and not set up
with the primary purpose of crime control. In the latter in-
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334. It might be noted that the “hit rate” for the checkpoint declared
unconstitutional in Edmond was much higher. Edmond, 531 U.S. at 35 (9% of
those who were stopped at roadblock were guilty of some crime). But it appears
that the crimes detected by the Edmond checkpoint were primarily low-level drug
violations, not violent offenses. Id.
335. See id. at 44 (“the Fourth Amendment would almost certainly permit an
appropriately tailored roadblock set up to thwart an imminent terrorist attack or
to catch a dangerous criminal who is likely to flee by way of a particular route”).
Cameras might also be set up in certain areas, but switched off except during
particular times or events. See Testimony of Charles H. Ramsey, Chief of Police,
D.C. Metropolitan Police Department, at Hearing on Privacy vs. Security:
Electronic Surveillance in the Nation's Capital, before House Comm. on Gov't
Reform, Subcomm. on Dist. Colum., March 22, 2002, at 3 (on file with author):
Access to outside systems is controlled by the agency that operates the
cameras, not the Metropolitan Police Department. The only way the MPD
will be able to access the [schools'] video system is if school officials ask
us to do so, and then provide the `key' to grant us access.
336. Cf. Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107, 1173 (2000)
(“Criminologists have offered geographic theories of target hunting, fugitive
migration, crime trips, escape routes, and repeat location victimization, as well as
theories of aggregate behavior based on market distribution, crime displacement,
and police-crackdown effects.”).
337. Sitz, 496 U.S. at 453.
338. Id. at 453-54.
stance, Prouse and Edmond in combination would seem to say
that hit rates lower than those obtained in Martinez-Fuerte can-
not justify searches or seizures by the government.
In somewhat arbitrary terms, then, CCTV might only be
permitted in areas where more than one person in 1000 will
commit violent or similarly serious crime.334 It might also be
permissible in more idiosyncratic circumstances. For instance,
cameras could perhaps be positioned in areas that are not par-
ticularly dangerous, but are predicted to be because of some im-
minent threat to life and limb, such as terrorism.335 Study of
crime patterns might also identify some locales that are particu-
larly likely to attract certain types of serious criminal activity or
harbor dangerous criminals.336
A corollary question is: Who decides whether crime in a
given area is of sufficient magnitude to warrant CCTV–a court,
a legislature, the police or the public? In rejecting a judicial de-
termination of a roadblock's “effectiveness” at dealing with
drunk driving, the Court in Sitz stated it would not “transfer
from politically accountable officials to the courts the decision as
to which among reasonable alternative law enforcement tech-
niques should be employed to deal with a serious public dan-
ger.”337 It went on to conclude that, “for purposes of Fourth
Amendment analysis, the choice among such reasonable alter-
natives remains with the governmental officials who have a
unique understanding of, and a responsibility for, limited public
resources, including a finite number of police officers.”338
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339. The commentary to the ABA Standards sets out in more detail reasons to
involve politically accountable decisionmakers:
First, these decisionmakers are more representative of the public than is
a supervisor or field officer. In addition a decision which is likely to affect
large numbers of people for a long period of time should not be made by
a low-level official, regardless of the latter's expertise and knowledge of
local conditions. Finally, only at the departmental level are the relevant
statistics necessary for documenting a crime problem likely to be
available.
ABA STANDARDS, supra note 16, at 69.
340. William J. Stuntz, Implicit Bargains, Government Power, and the Fourth
Amendment, 44 STAN. L. REV. 553 (1992).
341. Id. at 588.
281
While this language appears to leave quite a bit up to police
discretion, it also endorses two significant limitations on that
discretion. First, courts are not left out of the picture entirely.
They are still permitted to intervene when the alternative cho-
sen by the police is not “reasonable.” Second, decisionmaking
authority is not delegated to any or every officer, but rather only
to “politically accountable” officials who have “responsibility for
limited public resources.” In other words, the chief of the de-
partment ought to be responsible for these decisions. That con-
clusion makes sense, given that official's better access to the
relevant statistics and the number of people affected by the de-
cision.339
This last observation also raises the issue of whether the
public should be involved in the decisionmaking to any extent.
The Court has not specifically addressed this question. But Wil-
liam Stuntz has argued that Sitz stands for the proposition that
the public should be directly involved in such cases.340 More spe-
cifically, he posits that Sitz indicates the Court's willingness to
abandon both the individualized suspicion and special needs
models of the Fourth Amendment in favor of what he calls a
“politics model” when searches or seizures affect large groups of
people, because a group, unlike the solitary suspect who is usu-
ally the target of searches and seizures, can “throw the rascals
out” if it does not like a particular technique.341
If Stuntz is right about the Court's underlying motivation in
Sitz, the practical problem becomes how to implement this “pol-
itics model.” The typical electoral process, which is likely to in-
volve many issues, is not an effective way for the group to make
its attitudes toward a particular police action known. A more
satisfactory implementation of the model would be to require
direct input on the establishment of camera systems from those
who will enjoy the benefit and bear the brunt of the surveil-
lance. Such input can also provide the police with information
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342. One question raised by this comment is whether the public can “force” the
installation of cameras when it is not warranted under the foregoing analysis.
Professors Meares and Kahan argue that when “the community has internalized
the burden that a particular law imposes on individual freedom” courts “should
presume that the law does not violate individual rights.” Tracey L. Meares & Dan
M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago
v. Morales, 1998 U. Chi. Legal F. 197, 209. But the “community” is hard to
gauge. Compare Remarks of Joseph Dunne, supra note 86, at 21 (“Virtually every
housing development in New York City has requested a CCTV monitoring
program”) with Burrows, supra note 56, at 1082 (describing how cameras were
installed when long-term, largely elderly residents became concerned about crime
as black and hispanic individuals moved nearby). And while arguments can be
made that community views are dispositive on the privacy issue, see supra text
accompanying notes 286-306, it is clear that Fourth Amendment reasonableness is
ultimately a judicial matter. Nonetheless, if a “well-informed” community (cf.
supra note 144), clearly favors cameras, a (rebuttable) presumption in their favor
may be a workable approach.
343. See, e.g., Remarks of Lessing Gold, supra note 99, at 19 (stating “we must
form a coalition or partnership with law enforcement, city council, citizens groups
and private sector”); Jerry Semper (Maryland Police Trainer), at SIA & IACP
Meeting, supra note 62, at 55 (stating “community inclusion is the most
important aspect of what we've got going on here”).
344. ABA STANDARDS, supra note 16, at 16 (Standard 2-9.3(b)(i)).
345. ABA STANDARDS, supra note 16, at 14-15 (Standard 2-9.2(d)).
346. ABA STANDARDS, supra note 16, at 16 (Standard 2-9.3(b)(ii)).
about specific crime problems and the type of surveillance that
might prove most useful.342 It is instructive that several partici-
pants at the International Association of Police Chiefs meeting
on CCTV were adamant about involving the affected community
in decisions involving cameras.343
The American Bar Association's Standards on
Technologically-Assisted Physical Surveillance address all of
these concerns about the decision to establish cameras. They
state that CCTV “is permissible when a politically accountable
governmental authority concludes that the surveillance will not
view a private activity or condition and will be reasonably likely
to achieve a legitimate law enforcement objective.”344 The latter
phrase is defined to require “articulable reasons” for concluding
that the surveillance will lead to the detection, deterrence or
prevention of crime345 which, after Edmond, should require a
demonstration that a significant violent crime problem will be
addressed by the surveillance. The Standards also require that
“where deterrence rather than investigation is the primary ob-
ject, the public to be affected by the surveillance . . . [should
have] the opportunity, both prior to the initiation of the surveil-
lance and periodically during it, to express its views of the sur-
veillance and propose changes in its execution, through a hear-
ing or some other appropriate means.”346 These are the kinds of
general guidelines the courts can fashion based on Fourth
Amendment principles.
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347. NORRIS & ARMSTRONG, supra note 44, at 150.
348. Sitz, 496 U.S. at 451.
349. Martinez-Fuerte, 428 at 564 n.17.
350. Id. at 547.
351. See supra notes 167 & 280.
352. See supra text accompanying notes 245-47.
283
2. Justifying Individualization of Surveillance
If the Edmond standard is met for a particular area, then
CCTV cameras can be established there consistent with the
Fourth Amendment. Randomly panning the camera to scan the
streets ought to be permissible on the same showing, just as the
brief initial stops in Martinez-Fuerte and Sitz were permitted
without any individualized suspicion. But what if the camera
operators want to record or closely observe a particular person's
actions, using zoom capacity, or simply through prolonged or
repeated surveillance? For instance, the only comprehensive
study of CCTV operator behavior found that in approximately
600 hours of observation almost 900 “targeted surveillances” of
more than a minute occurred, with roughly three out of ten last-
ing between two minutes and six minutes, and one-quarter last-
ing longer than six minutes.347
Here again, the roadblock cases lead the way. In Sitz, the
Court cautioned that it was addressing “only the initial stop of
each motorist passing through a checkpoint and the associated
preliminary questioning and observation by checkpoint officers.
Detention of particular motorists for more extensive field sobri-
ety testing may require satisfaction of an individualized suspi-
cion standard.”348 Similarly, in Martinez-Fuerte, the Court felt it
important to note that the percentage of illegal immigrants dis-
covered at the “secondary checkpoint” to which motorists were
sent after the initial stop was close to 20%,349 a figure that dem-
onstrates a relatively high level of suspicion associated with this
seizure, which amounted to a five-minute document check.350
These cases suggest that something more than an inchoate
hunch ought to form the basis for intense scrutiny of individu-
als. Certainly use of audio capacity to eavesdrop on private con-
versations on the street ought to be based on individualized sus-
picion, presumably at the probable cause level.351 Likewise, if
the camera is used to intrude into the interior of the home,
probable cause should be required.352
Short of these two situations, determining precisely when
surveillance progresses from random scanning or casual surveil-
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353. See WHITEBREAD & SLOBOGIN, supra note 317, § 3.02 (describing cases
defining arrest) & § 11.02 (describing cases defining “seizure”).
354. ABA STANDARDS, supra note 16, at 12 (Standards 2-9.1(c)(ii)(E) & (F)).
355. See supra text accompanying notes 44-47.
356. See supra text accompanying notes 5-10.
357. The beeper scenario received a mean intrusiveness rating of 63, while the
frisk was rated at 68. See Table 1, supra, p. 277 .
lance to observation intense enough to warrant individualized
suspicion may be difficult. But it will not be any more difficult
than defining when a nonseizure becomes a seizure, or deter-
mining when a stop requiring reasonable suspicion becomes an
arrest requiring probable cause, issues with which the Supreme
Court has grappled–not always satisfactorily–on several occa-
sions.353 Two factors that ought to be relevant here, according to
the ABA Standards, are “the extent to which the surveillance
technology enhances the law enforcement officer's natural
senses” and “the extent to which the surveillance of subjects is
minimized in time and space.”354 If the camera's zoom or record-
ing capacity allows operators to obtain information that would
be difficult for an observer on the street to discern (such as a
title on a book cover, or a biometric match with official records),
then reasonable suspicion ought to be required; the same stan-
dard ought to be met if the cameras intentionally follow an indi-
vidual for a prolonged period of time (say, more than the five
minutes involved at the secondary checkpoint in Martinez
Fuerte) or on several separate occasions (analogous to
Rehnquist's bar example). Even a targeted surveillance lasting
only a minute should require an articulated reason beyond mere
curiosity (such as a signal from one of the automated systems
described earlier355). The amount of individualized scrutiny per-
mitted should be roughly proportionate to the amount of indi-
vidualized suspicion the government has developed.
These latter proposals may appear to contradict the Court's
decision in Knotts, upholding suspicionless tracking of public
movements, using a beeper.356 But the beeper only indicates the
location of an object or person; video surveillance provides gov-
ernment with much more. More importantly, unlike the beeper,
CCTV is overt, and thus generates a much greater panoptic ef-
fect. In any event, the results of the study reported earlier indi-
cate that using a beeper to monitor travel was rated as almost
as intrusive as a frisk,357 suggesting that members of the public
believe that prolonged tracking with a beeper is much more in-
vasive than the Court seems to think.
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358. Zuckerman, supra note 32 (quoting Simon Davies as saying that, in the
United Kingdom, “with 1.5 million cameras about, the signs would be a public
nuisance. So there's a general acceptance that wherever you go, you will have
cameras pointed at you.”).
359. Martinez-Fuerte, 428 U.S. at 559.
360. Id.
361. 489 U.S. 656 (1989).
362. Von Raab, 489 U.S. at 672 n. 2 (citing Delaware v. Prouse, 440 U.S. 648,
657 (1979)).
285
B. Execution Issues
The traditional search or seizure must not only be justified,
but must also be executed in a reasonable manner. Based on the
Court's caselaw, three execution issues associated with CCTV
might rise to the constitutional level. They concern notice of the
surveillance, the types of individuals to be observed, and termi-
nation of the surveillance.
1. Notice
If the point of CCTV is deterrence, as its advocates claim,
then notification of those subject to camera surveillance is im-
perative.358 Independently of this government interest, the
Fourth Amendment also imposes a notice requirement. One of
the primary reasons the Court gave in Martinez-Fuerte for find-
ing the intrusion associated with the roadblocks in that case
“minimal” was that, given the signs announcing their existence,
motorists were “not taken by surprise;” further, because of this
notification, they “know, or may obtain knowledge of, the loca-
tion of the checkpoints and will not be stopped elsewhere.”359
The Court also stated that the intrusion was further minimized
because the checkpoints appeared to be “duly authorized,”360
another function signs can carry out.
Other Court decisions upholding suspicionless government
actions have reaffirmed that notice is an important means of
meeting Fourth Amendment requirements. For instance, in Von
Raab v. United States,361 involving drug testing of people who
applied and worked for the customs service, the Court empha-
sized that “[e]mployees are . . . notified in advance of the sched-
uled sample collection, thus reducing to a minimum any `unset-
tling show of authority' [citing Prouse] that may be associated
with unexpected intrusions on privacy.”362 In Wyman v. James,
permitting suspicionless welfare inspections of the home, the
Court reasoned that providing a welfare recipient with advance
notice of the inspection minimized the intrusion on privacy occa-
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363. Wyman, 400 U.S. 309, 320-21 (1971).
364. See, e.g., United States v. Knights, 122 S. Ct. 587, 591-92 (2001)(“The
probation order [allowing suspicionless searches of probationers] clearly expressed
the search condition and Knights was unambiguously informed of it”); United
States v. Biswell, 406 U.S. 311, 316 (1972)(in holding that warrantless,
suspicionless searches of gun dealers are permissible, stating “[w]hen a dealer
chooses to engage in this pervasively regulated business and to accept a federal
license, he does so with the knowledge that his business records, firearms, and
ammunition will be subject to effective inspection.”).
365. NORRIS & ARMSTRONG, supra 44, at 150.
366. Id. They also reported that 30% of targeted surveillances on black people,
but only 13% of targeted surveillances on whites, lasted nine minutes or more,
id., and that blacks, teens and males were much more likely to be targeted for
“no obvious reason” compared to other groups. Id. at 113-16 (Tables 6.5, 6.7,
6.9)(68% of blacks, compared to 35% of whites; 65% of teens, compared to 38% of
ages 20-29; and 21% of ages 30-39; 47% of males, compared to 16% of females
were targeted for “no obvious reason”).
367. 517 U.S. 806 (1996).
368. Whren, 517 U.S. at 813 (“We of course agree with petitioners that the
Constitution prohibits selective enforcement of the law based on considerations
such as race.”).
369. See generally, David A. Harris, When Success Breeds Attack: The Coming
Backlash Against Racial Profiling Studies, 6 MICH. J. RACE & L. 237
sioned by the visit.363 A number of Court cases also suggest that
suspicionless searches are more palatable when the targets “con-
sent” to them ahead of time, which is impossible without some
sort of notice.364
2. Avoiding Discriminatory Surveillance
The second execution issue of possible constitutional signifi-
cance is the selection of people to be observed by the cameras.
Because no suspicion is required for camera surveillance as it is
practiced today, and because even in the regime proposed here
discretion as to whom to target is considerable, significant po-
tential for discrimination exists. Indeed, research in the United
Kingdom indicates that bias against minority groups is wide-
spread among camera operators. Norris and Armstrong report,
for instance, that the CCTV practices they observed involved a
“massively disproportionate targeting of young males, particu-
larly if they are black or visibly identifiable as having
subcultural affiliations.”365 This differentiation, they concluded,
was “not based on objective behavioural and individualised cri-
teria, but merely on being categorised as part of a particular
social group.”366
Such practices are probably unconstitutional. In Whren v.
United States,367 for instance, the Supreme Court signaled that
searches and seizures that result from intentional racial dis-
crimination could violate the Fourteenth Amendment's equal
protection clause.368 Although proof of such intent is notoriously
difficult,369 every step possible should be taken to assure that, in
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(2000)(detailing difficulties of proving violations of anti-discrimination laws).
370. ABA STANDARDS, supra note 16, at 12 (Standard 2-9.1(d)(i)).
371. Martinez-Fuerte, 428 U.S. at 546-47.
372. Sitz, 496 U.S. at 444.
373. 470 U.S. 675 (1985).
374. Sharpe, 470 U.S. at 686. Although the Court firmly rejected a bright-line
20-minute limitation on Terry stops as “clearly and fundamentally at odds with
our approach in this area,” id. at 686, it went on to justify the 20-minute stop in
Sharpe on the ground that the defendant's evasions were in part responsible for
the delay, and in part on the ground that the officer made diligent efforts to
expedite the detention. Id. at 686-87.
375. ABA STANDARDS, supra note 16, at 12 (Standard 2-9.1(d)(ii)).
376. One objection to this rule is that, once made known to the citizenry (see
infra text accompanying notes 415-16), it will be manipulated by perpetrators who
will simply wait five minutes before engaging in any suspicious activity. However,
the five-minute period need not start when the subject enters the camera area
(and in fact shouldn't start at all unless something suspicious occurs, see supra
text accompanying notes 347-57), which can be made clear in the rule
disseminated to the public. Such a rule could simply read: “Camera operators will
287
the words of the ABA Standards, “[t]he subjects of the surveil-
lance [are] not . . . selected in an arbitrary or discriminatory
manner.”370
3. Termination of the Surveillance
The final execution issue that might trigger constitutional
analysis concerns the termination of individual surveillance.
The Supreme Court has emphasized the importance of
durational limitations in many of its decisions defining the
scope of the Fourth Amendment. In upholding the checkpoints
in Martinez-Fuerte, it pointed out that the initial stop was ex-
tremely brief and that the secondary documentary check lasted
only about five minutes.371 In Sitz as well it found the initial
stop, which averaged twenty-five seconds, to be a “minimal” in-
trusion, as “measured by the duration of the seizure and the
intensity of the investigation.”372 The Court has also suggested,
in United States v. Sharpe,373 that stops based on reasonable
suspicion should not last longer than fifteen minutes or twenty
minutes in the absence of extenuating circumstances.374
When it comes to CCTV, these cases suggest that, in the
ABA's language, the “surveillance should be limited to its autho-
rized objectives and be terminated when those objectives are
achieved.”375 And these cases could be mined for even more spe-
cific guidelines. Parallel to Martinez-Fuerte and consistent with
the discussion concerning individualization of surveillance, cam-
era operators could be required to terminate surveillance of a
particular individual after five minutes unless reasonable suspi-
cion develops.376 In cases where such suspicion develops they
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not focus on individuals unless they engage in activity indicative of criminal
intent or are in need of aid, and will not continue surveillance unless criminal
intent or harm is confirmed.”
377. Norris & Armstrong found that somewhere around 12% to 15% of all
targeted surveillances lasted over nine minutes (although that percentage
increased to 25% for blacks), and that close to 40% lasted between two and six
minutes. NORRIS & ARMSTRONG, supra note 44, at 150. Deployment resulted in
only 5% of targeted surveillances, and arrest occurred in only 24% of
deployments. Id. at 168.
378. See supra text accompanying note 264-67 (showing, inter alia, that 72%
believed that cameras “could easily be abused and used by the wrong people”).
379. See Blackmail Concern as CCTV Video Sex Footage Goes on Sale, THE
HERALD (Glasgow), Nov. 27, 1995, at 5 (recounting sale of CCTV clips and public
release of tapes showing a prostitute providing oral sex to a businessman and a
man in a Santa hat stripping and then masturbating); WILLIAM G. STAPLES,
EVERYDAY SURVEILLANCE: VIGILANCE AND VISIBILITY IN POSTMODERN LIFE 61-62
(2000)(describing the “potential market for tapes,” and the high sales of the
“Caught on Tape” and “Really Caught on Tape” videos).
380. See supra Table 1, supra p. 277 .
381. 526 U.S. 603 (1999).
could be required, parallel to Sharpe, to cease surveillance if
probable cause doesn't develop within the next fifteen minutes,
unless extenuating circumstances are present. These rules
would have significant impact, since research indicates that
CCTV surveillance can last well over five minutes even in cases
where no deployment or arrest results.377
C. Storage and Dissemination of Recordings
A principal feature of CCTV that distinguishes it from ordi-
nary, non-technological surveillance is the capacity to record
observations. That capacity, plus the potential for abuse of the
information so generated, is apparently of major concern to the
public. The British survey quoted earlier indicated that many of
the people questioned were very worried about misuse of the
images recorded on CCTV,378 an anxiety that is well-founded.379
In the study conducted for this article, the scenario in which the
tapes are not destroyed and instead are made available to the
media and other government agencies “as needed” received a
much higher intrusiveness rating (M=73) than the scenario in
which tapes are destroyed within 96 hours (M=53).380 Indeed,
the former rating is statistically indistinguishable from the rat-
ings associated with a body cavity search at the border and
search of a bedroom, actions which require probable cause.
The Supreme Court has never addressed this particular
type of privacy invasion as a Fourth Amendment matter. It
came close in Wilson v. Layne,381 where it held that the Fourth
Amendment was violated by a “media ride-along” in which a
newspaper reporter and photographer accompanied police on a
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382. Wilson, 526 U.S. at 614.
383. 429 U.S. 589 (1977).
384. Whalen, 429 U.S. at 601 (“There is no support in the record, or in the