January 2017
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Emerging video surveillance technology is changing the way police combat crime and the threat of terrorism. Many cities in the United States and elsewhere are installing large-scale closed circuit television (CCTV) camera systems to monitor and record individuals’ actions in public streets. Law enforcement’s hope is that it will be able to find - in such an extensive video record of public life - previously unavailable evidence crucial for investigating a crime, and perhaps stop unfolding criminal activity. Police departments are also now turning video cameras on themselves: Faced with many high-profile complaints about unjustified use of force, police departments are requiring officers to don “body-worn cameras” to record their interactions with the public. The hope is that officers can be accountable for abuses but can also be exonerated when confronted with false allegations. While offering benefits in safety and accountability, these technological developments raise interesting legal and policy questions about what measures courts, legislators, and administrators should take to assure that powerful forms of video surveillance do not undermine individuals’ privacy. This chapter briefly reviews both law enforcement use of such video surveillance technology and the still-evolving legal framework that governs it. It reviews the Fourth Amendment case law that courts have generated regarding when public video surveillance (or similar forms of surveillance in public) might constitute a Fourth Amendment “search” of the kind government can only conduct with a warrant based on probable cause and surveys some of the legislative, administrative, and policy proposals that city governments and police departments have adopted to govern CCTV surveillance systems and body-worn camera programs. It also looks at why such permanent and ongoing video surveillance may require courts to rethink old legal rules and assumptions, adopted in the many cases when only one or two video cameras have been temporarily installed by police to gather evidence in a specific investigation focused on a specific target. Introduction The U.S. Constitution, said the Supreme Court in 1948, places “obstacles in the way of a too permeating police surveillance.” One interesting question that has long occupied the Court is whether the technological sophistication of a police investigation might itself make it “too permeating.”.