Open to all? Regulating open street cctv and the case for "symmetrical surveillance"

Criminal Justice Ethics

Volumn 25, Issue 1, 2006, Pages 3-17

  Goold, Benjamin J ^a,b  

^a SOMERVILLE COLLEGE   (United Kingdom)

^b UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 43949126578     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2006.9992191     Document Type: Article

References (77)

1. From the Fox TV show The Simpsons, episode Homer Badman, quoted in Nie Groombridge, Crime Control or Crime Culture TV?" Surveillance and Society 1, no. 1 (2002): 30.
2. See also M Peelo and K Soothhill, "The Place of Public Narratives in Reproducing Social Order," Theoretical Criminology 4 no. 2 (2000): 131.
3. David Brin, The Transparent Society (Reading, MA: Perseus Books 1998), 14.
4. According to Stephen Kinzer of the New York Times, there are approximately 2000 police-run CCTV cameras currently operating in Chicago, with a further 250 due to come on line in Spring 2006. In New York, plans are now underway to add over 500 new public area CCTV cameras to the existing network of 1000 subway cameras, with a view to creating an automated Ring of Steel in lower Manhattan. See Stephen Kinzer, Chicago Moving to 'Smart' Surveillance Cameras, New York Times, September 21, 2004;
5. and Alison Gendar and Michael Saul, "New Yorkers, Get Ready for Your Closeup, New York Daily News, March 22, 2006.
6. See also Quentin Burrows, Scowl Because You're on Candid Camera: Privacy and Video Surveillance," Valparaiso University Law Review 31 (1997): 1083.
7. For an account of the development and extent of CCTV in the United Kingdom,
8. see: Benjamin J. Goold, CCTV and Policing (Oxford: Oxford University Press, 2004);
9. and Michael McCahill and Clive Norris, CCTV in Britain: Urban Eye Project Working Paper No. 3," Urban Eye Project: On the Threshold to Urban Panopticon? Analyzing the Employment of CCTV in European Cities and Assessing its Social and Political Impacts (Centre for Technology and Society, Technical University, Berlin 2002).
10. United States v. Knotts, 460 U.S. 276, 276 (1983).
11. Katz v. United States, 389 U.S. 347 (1967). For subsequent cases,
12. see in particular, United States v. Jackson, 213 F.3 1269, 1281 (10th Cir. 2000);
13. Rodriguez v. United States, 878 F. Supp. 20, 24 (S.D.N.Y. 1995);
14. Vermont v. Costin, 720 A. 2d 866, 867 (Vt. 1998);
15. and McCray v. State, 581 A. 2d 45, 47-48 (MD App. 1990).
16. In a notable exception to the general trend, the court in State v. Augafa, 992 P. 2d 723 (App. 1999) observed at 737 that 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 (quoted in Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, Mississippi Law Journal 72 (2002): 213, 232 n. 107).
17. Kinzer, Chicago Moving to 'Smart' Surveillance Cameras.
18. In part, this is because cities frequently see themselves as competing with each other, and regard CCTV and anything else that supposedly enhances public safety as good for tourism and investment.
19. See Goold, CCTV and Policing chapters 1 and 3.
20. Benjamin J. Goold, Privacy Rights and Public Spaces: CCTV and the Problem of the 'Unobservable Observer', Criminal Justice Ethics 21, no. 1 (2002): 21.
21. Clearly, the legal and regulatory arguments presented in this article are capable of being sustained independently of one another. Even if the courts are not prepared to view CCTV surveillance as a violation of an individual's constitutional right to privacy, it does not mean that regulation is unnecessary. Equally, the extension of existing privacy laws to cover the use of surveillance cameras in public spaces will not necessarily guarantee that those responsible for running the systems are held to account or that their procedures are sufficiently transparent. Yet while it is true that arguments in favor of legal restrictions and calls for external regulation may be separable, given that the aim of this article is to consider how best to control the use of surveillance technologies like CCTV in public spaces, both approaches to the problem will be considered.
22. See, for example, Simon Davies, Big Brother: Britain's Web of Surveillance and the New Technological Order (London: Pan Books, 1996);
23. and Simon Davies, "The Case Against: CCTV Should Not Be Introduced," International Journal of Risk, Security & Crime Prevention 1, no. 4 (1996): 327.
24. According to Schocken, the prospect of anonymity is crucial to the very idea of the city: [T]he city is a place that allows human beings to form relationships with others at various levels of intimacy while remaining entirely anonymous. A successful city is one in which, when exiting a private domain into the public domain, a person should see people around him but know nothing about them. Hillel Schocken, Intimate Anonymity: Breaking the Code of the Human Genome, INTBAU 1 (2003), available at http://-www.intbau.org/essay5.htm (last accessed Aug. 5, 2006).
25. Alan F. Westin, Privacy and Freedom (New York: Atheneum, 1967), 31.
26. Andrew von Hirsch, "The Ethics of Public Television Surveillance," in Andrew von Hirsch et al. (eds), Ethical and Social Perspectives on Situational Crime Prevention (Oxford: Hart, 2000), 59.
27. Von Hirsch, "The Ethics of Public Television Surveillance," 63-64.
28. This is a point that has been well made by Christopher Slobogin, who notes, 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 altogether. While government surveillance may not amount to intentional stalking or hounding, it is not innocuous."
29. See Slobogin, "Public Privacy," 253.
30. Goold, "Privacy Rights and Public Spaces," 24.
31. The importance of anonymity to the development of the self is something that, to a limited extent, has been recognized by the courts for some years. According to the decision in Roberts v. United States Jaycees, 468 U.S. 609, 619 (1984), anonymity is valuable because it protects the ability independently to define one's identity that is central to any concept of liberty. For a discussion of the place of anonymity in the law,
32. see in particular: Lee Tien, "Who's Afraid of Anonymous Speech? McIntyre and the Internet, 75 Oregon Law Review 75 (1996): 117.
33. Andrew E. Taslitz, The Fourth Amendment in the Twentyfirst Century: Technology, Privacy, and Human Emotions, Law & Contemporary Problems, 65 (2002): 125, 152, quoted in Slobogin, Public Privacy, 255.
34. This concern, however, needs to be offset against the potential benefits of public area surveillance, both in terms of its effects on crime and public feelings of safety. Although there is a considerable body of evidence to suggest that CCTV is far from a silver bullet, research conducted in the United States and elsewhere has shown it to be effective in reducing certain types of crime-particularly car crime and shoplifting; and many law enforcement agencies continue to regard it as an essential tool in the fight against terrorism. In addition, given that hundreds of millions of dollars have already been spent on establishing systems around the country, it is highly unlikely that objections based on privacy would ever lead to a wholesale suspension of CCTV surveillance. As a consequence, this article assumes that any form of restriction is likely only to be partial and regulatory in nature.
35. For a discussion of CCTV and the First Amendment,
36. see Slobogin, "Public Privacy, 245-49. As Slobogin notes, the decision in City of Dallas v. Stranglin appears to close the door on any possibility that the First Amendment can be used as a basis for restricting the use of surveillance cameras in public, primarily because the court was not prepared to regard activities carried out in public as protected speech: It is possible to find some kernel of expression 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.
37. See City of Dallas v. Stranglin, 490 U.S. 19, 25 (1989).
38. See, for example, the decision in Katz v. United States, 389 U.S. 347 (1967).
39. Ken Gormley, One Hundred Years of Privacy, Wisconsin Law Review (1992): 1345;
40. Andrew Jay McClurg, "Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places," 'North Carolina Law Review 73 (1995): 989, 1021.
41. See also Jennifer Mulhern Granholm, "Video Surveillance on Public Streets: The Constitutionality of Invisible Citizen Searches, University of Detroit Law Review 64 (1987): 694;
42. Gary C. Robb, Police Use of CCTV Surveillance: Constitutional Implications and Proposed Regulations, University of Michigan Journal of Law Reform 13 (1980): 582.
43. Goold "Privacy Rights and Public Spaces," 21.
44. It is worth noting that, according to Slobogin, the Fourth Amendment is most likely to provide a basis for the regulation of CCTV because it is the amendment that traditionally has been applied to police investigation techniques, and CCTV is such a technique. Furthermore, he notes that grounding any regulation of CCTV in the Fourth Amendment avoids many of the problems associated with the due process protections guaranteed by the First Amendment, or with derivative rights to privacy more generally: If a government action infringes 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 illdefined. Slobogin, Public Privacy," 272-73.
45. United States v. Knotts, 460 U.S. 276, 284 (1983).
46. See Slobogin, Public Privacy, 215-16.
47. Katz v. United States, 389 U.S. 347 (1967) at 361 (Harlan, J. concurring);
48. quoted in Slobogin, Public Privacy, 260.
49. Robert C. Post, Three Concepts of Privacy, Georgia Law Journal 89 (2001): 2087, 2092,
50. quoted by Slobogin, Public Privacy, 272. It is perhaps worth noting that Slobogin also believes that the credibility of the Court rests in part on its willingness to consider public attitudes to privacy when determining the limits of the Fourth Amendment: There is also an institutional reason to align Fourth Amendment expectations of privacy with society's view on the matter. As stated in the article describing the first study of public attitudes to surveillance, [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 constitutional fact finding, would further strain its credibility. Ultimately, ignoring such data and the community views it represents undermines the Court's legitimacy.
51. See Slobogin, "Public Privacy, 272. Here the included quotes are taken from an earlier article: Christopher Slobogin and Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at 'Understandings Recognized and Permitted by Society', Duke Law Journal 42 (1993): 727.
52. In his study of public perceptions of intrusiveness, Slobogin presented his subjects with a range of scenarios and then asked members of the public to rate them in terms of their relative intrusiveness. Unsurprisingly, the scenarios search of bedroom and body cavity search at border were regarded as extremely intrusive. Monitoring by overt street cameras was seen as by most as reasonably intrusive, and certainly more so that flying helicopter 400 feet over backyard and going through garbage cans at curbside. What is particularly interesting about the study is the suggestion that members, of the public actually find overt CCTV cameras considerably more intrusive than covert ones. For full details of the survey,
53. see Slobogin, "Public Privacy," 264-67.
54. Aside from the fact that a number of cases have stretched the notion of what constitutes a physical search to breaking point-Florida v. Riley, 488 U.S. 485 (1989) being one notable example-as Slobogin rightly points out, surveillance of the streets by British soldiers was a major concern to the framers of the constitution.
55. See Slobogin, "Public Privacy," 270-71. In this light, regarding CCTV surveillance as some sort of special case outside of the ambit of the Fourth Amendment is not only unsustainable in the face of changing public attitudes and the decision in Katz, but also at odds with the original intent of the Amendment itself.
56. Slobogin, Public Privacy, 270.
57. Ronald Dworkin, Terror and the Attack on Civil Liberties, New York Review of Books 50, no. 17 (2003).
58. See also Cass Sunstein, The Laws of Fear: Beyond the Precautionary Principle (Cambridge, U.K.: Cambridge University Press, 2005).
59. This is certainly the case in the United Kingdom, where the ubiquitous presence of CCTV cameras has come to be regarded by many as a fact of modern life. As a result, there is often little or no public resistance to the establishment of new schemes, nor is there any serious discussion about the implications for privacy of open street video surveillance. Although it could be argued that the US and UK positions are substantially different given that the English courts have historically been quite hostile to the idea of a defined and judiciable right to privacy, the incorporation of the European Convention on Human Rights into UK domestic law in 1998- and with it a substantive right to privacy under Article 8 of the Convention-means that the situation regarding general notions of privacy in the United Kingdom is in fact now much closer to that in the United States. Based on the decision of the European Court of Human Rights in Friedl v Austria, it is unclear, however, as to whether the right to privacy set out in Article 8 gives rise to any expectation of privacy in public places.
60. See Friedl v. Austria, 21 European Human Rights Reports 83 (ECtHR, Jan. 31, 1995).
61. Slobogin, "Public Privacy," 270.
62. Robert C. Post, Three Concepts of Privacy, 2094 (quoted in Slobogin, Public Privacy, 272).
63. On the regulation in CCTV France and Germany,
64. see Goold, CCTV and Policing (2004), chapter 1. For the UK position,
65. see Nick Taylor "State Surveillance and the Right to Privacy, Surveillance & Society 1, no. 1 (2002): 66;
66. and Goold, CCTV and Policing, chapter 4. 38 Slobogin, "Public Privacy," 292.
67. See Clive Norris and Gary Armstrong, The Maximum Surveillance Society: The Rise of CCTV (Oxford: Berg, 1999);
68. and Goold, CCTV and Policing. 40 Slobogin, "Public Privacy," 293.
69. American Bar Association, Standards for Criminal Justice: Electronic Surveillance, Section B: Technologically-Assisted Physical Surveillance, 3rd edn. (Washington, D.C.: ABA 1999).
70. Slobogin, "Public Privacy," 311.
71. Goold Privacy Rights and Public Spaces," 25.
72. As a number of writers have suggested, modern CCTV surveillance is far less about conjuring up Orwellian ideas of totalitarianism and social control. Instead, what makes it a special threat to privacy and personal autonomy is the danger that it will turn public spaces into Kafkaesque corridors of surveillance and fear. As Solove has observed: The Trial captures an individual's sense of helplessness, frustration, and vulnerability when a large bureaucratic organization has control over a vast dossier of details about one's life... The problem is not simply a loss of control over personal information, nor is there a diabolical motive or plan for domination as with Big Brother. The problem is a bureaucratic process that is uncontrolled.
73. See Daniel J. Solove, The Digital Person: Technology and Privacy in the Information Age (New York: New York University Press 2004), 9.
74. Janet Semple, Bentham's Prison: A Study of the Panopticon Penitentiary (London: OUP 1993), 142.
75. The quotation used by Semple in this passage is taken from Jeremy Bentham, The Works of Jeremy Bentham, ed. John Bowring (London: W. Tait, 1838-43), vol. 4, 46.
76. Groombridge, supra at 45.
77. The idea that those responsible for surveillance should themselves be open to broad scrutiny is one that has already started to gain considerable purchase in other areas of public life. On November 27, 2002, a columnist from the San Francisco Weekly published personal information about John Poindexter-the then director of the Information Awareness Office (IAO)-in an effort to highlight the dangers of routine surveillance and the decline in privacy as a result of recent federal legislation. This information was quickly reproduced and circulated via the internet and is now regarded by many privacy activists as one of the first and most influential examples of inverse surveillance. Clearly, symmetrical surveillance represents a significant step beyond resistance techniques such as inverse surveillance. Whereas advocates of inverse surveillance typically encourage individuals to make use of everyday technology-such as cameras and mobile phones- to monitor and record the activities of public officials, the idea of symmetrical surveillance goes one step further: it demands that transparency be built into the very surveillance structures of the state; the operative presumption for any surveillance system should be that everything that is monitored or recorded will be available to all.