Valparaiso University Law Review
SURVEILLANCE
SUMMARY:
... "It looks like we're getting out of the surveillance business
. . . . The risk in terms of privacy is too high." ... This Section
will analyze exploitative video camera usage by individuals as
compared with video camera usage by police officers, thereby
exploring the potential for abuse by police departments when video
surveillance is used continuously on public streets. ... Therefore,
based upon prior cases, it seems unlikely that the Court would
characterize police video surveillance on the street as a "search,"
because the Court has stated that no reasonable expectation of
privacy exists on public streets. ... As federal courts have stated,
"video surveillance is more invasive of privacy than audio
surveillance, 'just as a strip search is more invasive than a
pat-down search'"; but Congress has not made this distinction. ...
In interpreting FISA, Title Nine of the United States Attorney's
Manual states that when justifiable expectations of privacy exist,
judicial authorization is needed to conduct video surveillance of
foreign agents. ... In this case, a video surveillance camera
captured two boys leading a two-year-old child from a Liverpool,
England shopping mall. ... One famous privacy case arose from a
photograph taken of a couple sitting together at their ice cream ...
TEXT:
[*1079]
I. INTRODUCTION
"It looks like we're getting out of the surveillance business . . .
. The risk in terms of privacy is too high." n1 This declaration
came from Commissioner Randy Morris who spearheaded a move to get
rid of a street surveillance system in Orlando, Florida, in 1996.
Morris warned that the video surveillance system could be used to
spy on people in their cars, on the streets and in nearby homes
because no guidelines or restrictions existed for its use. n2
Orlando's deviation is the start of a counter-revolution in the
street surveillance movement. However, while that city rejected
street video surveillance as an invasion of privacy, fifteen other
cities are currently using the systems to watch citizens.
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n1 Robert Perez, County to Turn off Roadside Cameras Because of
Concerns About Privacy, ORLANDO SENTINEL, June 19, 1996, at A1.
n2 Id.
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Across America and around the world, individuals are constantly
subjected to covert video surveillance. n3 This surreptitious
surveillance manifests itself in the form of crime prevention,
safety systems, productivity monitoring and outright voyeurism. n4
The most difficult problem facing governments which use modern video
surveillance technology involves two competing values: safety and
privacy. However, privacy seems to be fighting a losing campaign as
more towns turn to video surveillance to protect their streets from
crime. n5
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n3 Ken Gormley, One Hundred Years of Privacy, 1992 WIS. L. REV.
1335, 1345; Jennifer Mulhern Granholm, Video Surveillance on Public
Streets: The Constitutionality of Invisible Citizen Searches, 64 U.
DET. L. REV. 687 (1987); Kent Greenfield, Comment, Cameras in Teddy
Bears: Electronic Visual Surveillance and the Fourth Amendment, 58
U. CHI. L. REV. 1045 (1991); Andrew Jay McClurg, Bringing Privacy
Law Out of the Closet: A Tort Theory of Liability for Intrusions in
Public Places, 73 N.C. L. REV. 989, 1021 (1995); Nancy J. Montroy,
United States v. Torres: The Need for Statutory Regulation of Video
Surveillance, 12 NOTRE DAME J. LEGIS. 264 (1985); Gary C. Robb,
Police Use of CCTV Surveillance: Constitutional Implications and
Proposed Regulations, 13 U. MICH. J.L. REFORM 571 (1980); Denise
Troy, Video Surveillance - Big Brother May Be Watching You, 21 ARIZ.
ST. L.J. 445 (1989).
n4 See infra notes 180-338 and accompanying text.
n5 See infra notes 180-227 and accompanying text.
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Indeed, the video camera has been compared with the six-shooter of
the West as being the "great equalizer." n6 Some of the more famous
examples of video camera usage include George Holiday's videotape of
Los Angeles police
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n6 McClurg, supra note 3, at 1022.
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officers beating Rodney King, and rock legend Chuck Berry, who was
sued for installing a video camera in the bathroom of a friend's
restaurant. n7 In 1963, Abraham Zapruder preserved the assassination
footage of President Kennedy on eight millimeter film, but if that
assassination occurred today, twenty different angles would likely
be filmed. n8 Moreover, technological advances are revolutionizing
the surveillance systems of the future. Today the technology exists
for people to receive instantaneous images of activity in their
homes through their mobile phones and laptop computers. n9 The
system can be set up so that movement within the video camera range
sends a signal to the homeowner, who can then use her computer to
see what is happening and determine if the police need to be
summoned. n10 Furthermore, technicians with computers can use sound
wave and microwave technology to transform the data from computer
imaging systems into realistic visual images of the inside of a
home. n11 Today, a pinhole camera lens can be the diameter of less
than one- eighth of an inch. n12
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n7 Id. Berry taped more than 250 women using the rest room, and some
were only six year old girls. Id.
n8 Howard Kleinberg, Video Cameras Turn the Tables on Big Brother,
L.A. DAILY J., Mar. 22, 1991, at 6 (claiming that we are a society
that has become accustomed to instant replay).
n9 Matthew May, Stills that Show Movement, THE TIMES, Aug. 5, 1995,
at 2.
n10 Id.
n11 Greenfield, supra note 3, at 1048.
n12 Id.
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Video surveillance technology was first introduced in 1956, n13 but
never has the intrusion been so pervasive as today. n14 Citizens
certainly realize the possibility that in a shopping mall, in a
bank, at an ATM machine, or in a convenience store, authorities or
security guards may be monitoring their activities. n15 Specific
site deterrence programs, such as those in department stores, have
been in existence for a number of years. n16 Americans begrudgingly
accept these surveillance devices, but few citizens expect the same
surveillance on the public streets or in every private activity
outside the home. A limited amount of information exists about video
surveillance intrusions because street camera facilities are so new
to the United States. One particular surveillance program was
instituted in Dade County, Florida in 1982. n17 The
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n13 THE CAMBRIDGE FACT FINDER 526 (David Crystal ed., 1994).
n14 McClurg, supra note 3, at 1021. The video camcorder was
introduced in 1985, and over fourteen million camcorders have been
sold in the United States. Id. The camcorder has the potential to
become the "greatest leveler of human privacy ever known." Id.
n15 Granholm, supra note 3, at 687; Robb, supra note 3, at 572;
Maureen O'Donnell, Cameras Around Every Corner, SUN-TIMES (Chi.),
Feb. 18, 1996, at 2.
n16 Raymond Surette, Video Street Patrol: Media Technology and
Street Crime, 13 J. POLICE SCI. & ADMIN. 78, 78 n.1 (1985).
n17 Id. at 78.
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[*1081]
video surveillance program was designed to make a small city police
department more efficient in its prime retail shopping district
without the addition of more police personnel. n18 In this
particular Miami Beach location, video cameras were placed on
traffic lights in order to blanket the area with video surveillance.
n19 The specific project included placing 100 video camera
compartments along the two retail shopping areas of the city. n20
However, the system designers planned that only twenty-one video
cameras would actually be placed in the 100 compartments at any
given time. n21 The video cameras were to be moved from one
compartment to another by the police so that criminals could not
determine which compartments contained a camera. n22
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n18 Id. at 79. The police department indicated that to provide the
same level of police coverage to the retail area would have required
doubling the amount of police assigned to this area. Id.
n19 Id. The two stated goals of the program were "(1) to accomplish
a reduction in elderly fear of street crime and (2) to create
anxiety and a sense of paranoia among the criminal element in that
they [will] fear that their activities may be televised and recorded
by police . . . ." Id.
n20 Id. A sign was mounted on each video housing that stated "Police
Television." Id.
n21 Id.
n22 Id.
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The Dade County cameras were monitored by local volunteers on a
twenty-four hour basis. n23 The camera operation consisted of
portable wireless cameras that were controlled from a distant point
source. n24 The unit had a self-contained power source that
collected video images which were then transferred by microwave to a
television monitor. n25 The video receiver then conveyed the
microwave to a monitoring screen located in a central command
center. n26 The cameras even had pan and tilt capabilities and
telescopic zoom lenses. n27
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n23 Id.
n24 Id. at 79 n.2. Different cities use different types of transfer
technology. For instance, the Saint Louis, Missouri Police
Department broadcasts on the 2.5 GHz educational TV band. A
PRACTICAL GUIDE TO MATV/CCTV SYSTEM DESIGN AND SERVICE 42-43 (1974).
The police disseminate internal police subjects like on-the- spot
accident documentation to the city's eight police stations. Id. at
43.
n25 Surette, supra note 16, at 79 n.2.
n26 Id. In contrast to CCTV, broadcast television is limited to a
single form of standardized signal. 4 MCGRAW-HILL ENCYCLOPEDIA OF
SCIENCE & TECHNOLOGY 30 (7th ed. 1992) [hereinafter MCGRAW-HILL]. A
television receiver uses the National Television Systems Committee
(NTSC) standards. Id. Closed-circuit television systems are not
required to use NTSC signals, but many do for economic reasons. Id.
n27 Surette, supra note 16, at 79 n.2. The usual closed-circuit
television picture display device is a television receiver that uses
a cathode-ray tube to produce a visible image. MCGRAW-HILL, supra
note 26, at 29. In recent years, other devices such as
liquid-crystal displays have become more common. Id.
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[*1082]
The impetus for the city adopting the surveillance plan denotes a
few of the disturbing problems present with utilizing street
surveillance systems. The City of Miami Beach had traditionally been
a low-income, elderly, retirement community. n28 However, long-term
residents became concerned when lower-income black and hispanic
refugees became attracted to the inexpensive housing and then came
to reside in the city. n29 The elderly residents began to
continually demand additional police services because of an
increased fear of crime. n30 "The business people told the research
team that they were leary of young black and hispanic citizens who
lived and worked in the area. They stated that they felt that each
was a potential criminal and that they greatly feared that they
would be victims." n31
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n28 Surette, supra note 16, at 81.
n29 Id.
n30 Id.
n31 Id.
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Based upon these fears, the surveillance project targeted the
highest crime areas in the city. n32 However, the project operations
were not entirely successful, and several modifications were needed.
The project was originally supposed to utilize in-house police
employees, but community employees, mostly elderly, were used
instead. n33 The prototype project called for the camera locations
to be switched every ninety days to confuse criminals, but the
cameras remained in the target area permanently. n34 Equipment
failures resulted in a period of time when only three of the cameras
were operational. n35 In interviews, some local residents indicated
that they felt that the cameras had no deterrent effect. n36 Another
problem was that the project designers had hoped to make a profit
off of the footage produced from the video surveillance cameras.
However, the developers later identified the idea of selling video
"action footage" for newscasts as a large error. n37 As a result of
these problems, the Dade County video surveillance project was
discontinued in May of 1984, after failing to catch a single
criminal. n38
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n32 This area experienced the majority of the homicides, aggravated
assaults, rapes, and robberies. Id.
n33 Id. at 82 tbl.1. This change was based in part upon the federal
government funding that required direct community involvement. Id.
n34 Id.
n35 Id. at 82.
n36 Id. at 82 n.3.
n37 Id. at 83.
n38 Id. at 84 n.7.
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[*1083]
Unsettling as it may seem, several American cities in recent years
have begun instituting video surveillance systems on public streets.
The exact same types of street camera facilities that were used in
Dade County now operate in Anchorage, Baltimore, Boston, Camden, Ft.
Lauderdale, n39 Los Angeles, Memphis, Tacoma, n40 and Virginia
Beach. n41 Furthermore, many cities are turning to "photo-cop
systems" to deter speeders, traffic light offenders and toll
evaders. n42 Unfortunately, the United States Supreme Court has, on
numerous occasions, refused to extend the "right of privacy" n43 to
public streets. n44 Moreover, Congress has never directly addressed
the use of video surveillance on public streets. n45 The general
conception of lower courts has been that no right of privacy exists
in places accessible to the public or open to public view. n46
However, this Note seeks to explore an expanded right of privacy so
that citizens will be protected from constant surreptitious video
surveillance intrusions by police departments and local governments
on public streets. n47
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n39 Nicole Sterghos, Keeping an Eye on You, Use of Video
Surveillance Cameras Is on the Rise, SUN SENTINEL (Fla.), Jan. 29,
1996, at 1A.
n40 David R. Anderson, Police May Aim Cameras at Crime, THE
OREGONIAN, Feb. 2, 1996, at B1.
n41 20/20: The Eyes of the Law (ABC television broadcast, Sept. 8,
1995, transcript 1536) at 6. In 1993, Virginia Beach set up
surveillance cameras along the boardwalk to reduce crime. Id. at 9.
CCTV For Public Safety 52 (Security Industry Association Report
1996) [hereinafter 1996 Report].
n42 See Eric Zorn, Just Scowl, You're on Tollway Camera, CHI. TRIB.,
Sept. 15, 1991, at 1; Photo-Cop Is an Expensive Monster, SALT LAKE
TRIB., Aug. 29, 1995, at A8. But see Joe Mooney, Federal Way Says No
to Photo Cop, SEATTLE POST- INTELLIGENCER, Jan. 5, 1995, at B2. For
a comprehensive discussion of photo radar, consult Lisa S. Morris,
Note, Photo Radar: Friend or Foe?, 61 UMKC L. REV. 805, 805 (1993)
(explaining that photo radar uses a beam to determine the speed of
the vehicle and simultaneously photographs the vehicle, its license
plate, and its driver). Cities are beginning to realize that several
problems exist with photo radar including who the ticket is mailed
to, the shifting of the burden of proof, and the question of proper
speed detector settings. Id.
n43 Privacy is a relatively recent development in the evolution of
civilization. Clifford S. Fishman, Technology Enhanced Visual
Surveillance and the Fourth Amendment: Sophistication, Availability
and the Expectation of Privacy, 26 AM. CRIM. L. REV. 315 (1988). Our
ancestors lived in small tribal groupings where anything one did or
possessed was visible to the entire community. Id. at 316. Today,
technology has made our original conceptions of privacy obsolete.
Lisa Ann Wintersheimer, Comment, Privacy Versus Law Enforcement-Can
the Two be Reconciled?, 57 U. CIN. L. REV. 315, 315 (1988). Privacy
law was originally rooted in the belief that an invasion could only
occur through actual physical intrusion by the police or a criminal
element. Id. However, technology has proven that privacy invasions
stem from tort law, constitutional law, criminal procedure, civil
procedure, family law, and contracts. ROBERT ELLIS SMITH, THE LAW OF
PRIVACY EXPLAINED 4 (1993).
n44 See infra notes 77-95 and accompanying text.
n45 See infra section II.D.
n46 Gormley, supra note 3, at 694; McClurg, supra note 3, at 991-92.
But see Erznoznik v. Jacksonville, 422 U.S. 205 (1975) (finding a
limited privacy interest for persons on public streets). See infra
section IV.A.
n47 See infra notes 374-460 and accompanying text.
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[*1084]
This Note will analyze the competing privacy and crime prevention
interests as they relate to video surveillance technology utilized
by the police and local governments. n48 Section II of this Note
will provide a historical background of the diminishing right of
privacy by surveying Supreme Court decisions, lower federal court
cases and Congressional statutes. n49 Section III will examine
several foreign approaches to video surveillance to determine which
approach individual states should embrace when confronted with video
surveillance proposals. n50 Section III will also discuss the
specific operations of numerous cities that have begun using video
surveillance cameras on public streets. n51 This Section will
analyze exploitative video camera usage by individuals as compared
with video camera usage by police officers, thereby exploring the
potential for abuse by police departments when video surveillance is
used continuously on public streets. n52 Section IV will appraise
several state approaches to privacy rights in public spaces in an
age of "new federalism" that promises an expansion of rights through
state constitutions. n53 This Section also examines the potentially
favorable and negative consequences inherent when towns establish
video surveillance systems. n54 Finally, Section V of this Note
proposes a model state statute that extends the right of privacy.
This extension will thwart perpetual street video surveillance
systems based upon the fundamental privacy right to be free from
constant video surveillance intrusions. n55 This model state statute
contains public disclosure requirements, a compelling governmental
interest balancing test, specificity and duration requirements, an
exclusionary rule to suppress improperly obtained information, and
criminal and civil penalties for any violations of the model
statute. n56
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n48 See infra notes 340-425 and accompanying text.
n49 See infra notes 57-154 and accompanying text.
n50 See infra notes 155-79 and accompanying text.
n51 See infra notes 180-227 and accompanying text.
n52 See infra notes 180-251 and accompanying text.
n53 See infra notes 252-338 and accompanying text.
n54 See infra notes 339-425 and accompanying text.
n55 See infra notes 426-55 and accompanying text.
n56 See infra Section V.
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II. A HISTORY OF THE RIGHT TO PRIVACY
The existence of the right to privacy has been debated by American
scholars as far back as the 1800s. n57 Samuel Warren and Louis
Brandeis were pioneers in authoring The Right to Privacy, n58 which
became the seminal article
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n57 See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy,
4 HARV. L. REV. 193 (1890). Future Justice Brandeis called the right
to privacy, "the right to be let alone." Id. at 195. He also
indicated that what is whispered in closets should not be proclaimed
from house-tops. Id.
n58 Id. Warren and Brandeis were law partners and scholars who stood
first and second in the Harvard Law School class of 1877. J. THOMAS
MCCARTHY, THE RIGHTS OF PUBLICITY AND PRIVACY 1.3(B), at 1-12
(1987).
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[*1085]
recognizing a right of privacy that had not previously existed. n59
Warren and Brandeis were concerned with the new technological
invasions of the camera, the printing press, tabloid papers, and the
telephone. n60 Subsequently, President Woodrow Wilson appointed
Brandeis to the United States Supreme Court in 1916, where he
endeavored to lay a foundation for future privacy law. n61 The
traditional view, espoused by Professor William Prosser, has been
that The Right to Privacy article was a direct response by Samuel
Warren to unfair and prying treatment of the press into his
daughter's wedding. n62 Thus, following a series of state law
decisions in the early 1900s, Professor Prosser also became a
significant figure in the privacy metamorphosis by advocating a four
category approach to privacy that the Restatement of Torts
subsequently adopted. n63 However, several critics disliked
Prosser's "pigeon-holing" of privacy into only four areas, n64 and
as a result, numerous scholars have undertaken the task of
rebuilding privacy law. n65 Thus, the legal community is split on
the definitional
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n59 Gormley, supra note 3, at 1335, 1345. Warren and Brandeis mainly
used English and Irish court cases. Id. The two scholars presented
the law as they believed it should be and became catalysts for the
evolution of privacy law in America. Id. at 1345-48. Significantly,
Warren and Brandeis were writing in the late nineteenth century
during a period of the worst "yellow journalism" ever in the United
States. Id. at 1350. See also, SMITH, supra note 43, at 4. The term
"yellow journalism" derived from a cartoon character called "The
Yellow Kid" created by Morrill Goddard. MCCARTHY, supra note 58, 1.3
(B) n.15. After the "Yellow Kid" appeared in Joseph Pulitzer's World
and William Randolph Hearst's Journal, the term "yellow journalism"
was born. Id.
n60 SMITH, supra note 43, at 8. "The individual is entitled to
decide whether that which is his shall be given to the public."
Warren & Brandeis, supra note 57, at 199.
n61 Gormley, supra note 3, at 1357. See Olmstead v. United States,
277 U.S. 438, 471 (1928) (Brandeis, J., dissenting). Brandeis
believed that technology's impact on privacy would become very
profound, and interestingly, his working file on Olmstead included
an Associated Press clipping from 1928 which described the new
invention of television. Gormley, supra note 3, at 1361.
n62 MCCARTHY, supra note 58, 1.3(B), at 1-11. Prosser observed that
the wedding of Samuel Warren's daughter was the face that launched a
thousand lawsuits. Id. However, this has no basis in fact, because
Warren's daughter was only seven years old at the time, and she was
not married until fifteen years after the article was written. See
id. 1.3(C), at 1-13.
n63 SMITH, supra note 43, at 14. The four torts were described by
Dean Prosser as the public disclosure of private facts, false light,
intrusion, and appropriation. Id. at 14-24. See RESTATEMENT (SECOND)
OF TORTS 652b-652e (1977). The acceptance of Dean Prosser's views by
the Restatements is not surprising because Prosser served as
Reporter for the project and prepared all of the drafts pertaining
to the subject. McClurg, supra note 3, at 998 n.40. Most states
recognize the four torts but do not receive them favorably. Id. at
999.
n64 Edward J. Bloustein, Privacy as an Aspect of Human Dignity: An
Answer to Dean Prosser, 39 N.Y.U. L. REV. 962 (1964); SMITH, supra
note 43, at 46-47; McClurg, supra note 3, at 1036-57. Prosser's
premises are flawed because they do not draw a distinction between
observing a person in a public place and taking her photograph. Id.
at 1036.
n65 The foremost scholars of the twentieth century, including Roscoe
Pound, Paul Freund, Erwin Griswold, Carl J. Friedrich, Alan Westin,
Laurence Tribe, and Melville Nimmer, all have attempted to tackle
the right to privacy concept. Gormley, supra note 3, at 1336-37. The
paradigm method has been for an author to examine a
previously-favored definition of privacy, expose its fallacies and
create a new contender for the privacy crown. Id. at 1338.
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[*1086]
approach to privacy, and only by pulling apart privacy to
acknowledge the many threads that bind it can one explore how
privacy relates to video surveillance. n66
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n66 Id. at 1339. The "tiger has chased its tail" with respect to a
definition of privacy only because privacy is inherently not a
static concept. Id. at 1342.
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Privacy law is confusing because its sources stem from tort law,
constitutional law, criminal procedure, civil procedure, family law,
and contracts. n67 Moreover, privacy is difficult to define because
it means strikingly different things to different people. n68
Privacy in a constitutional sense is defined from the conception
that the Bill of Rights is applicable to the states as incorporated
through the Fourteenth Amendment. n69 The United States Supreme
Court has found a limited "right to privacy" stemming from a
combination of the First, n70 Third, n71 Fourth, n72 Fifth, n73
Ninth, n74 and Fourteenth
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n67 SMITH, supra note 43, at 4. There are more than 800 state and
federal laws that affect confidentiality and privacy. Id. at 5.
n68 Id. at 45. Privacy has taken on so many connotations that it has
ceased to convey any single coherent concept. MCCARTHY, supra note
58, 1.1(B)(1), at 1-3. Most people agree that they should have a
right of privacy, but the rights that people attach to the
definition of privacy vary from secrecy in credit bureau
computerized records, to unreasonably intrusive searches by the
police, to snooping by neighbors and the press. Id.
n69 Wolf v. Colorado, 338 U.S. 25, 27 (1949) (holding that the right
of privacy protected in the fourth amendment also applied to the
states through the due process clause). See also Aguilar v. Texas,
378 U.S. 108 (1964). "We have held that the Due Process Clause of
the Fourteenth Amendment incorporates most of the Bill of Rights
against the States." Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 847 (1992).
n70 The First Amendment provides: Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances. U.S. CONST.
amend. I.
n71 The Third Amendment provides: "No solider shall, in time of
peace be quartered in any house, without consent of the Owner, nor
in time of war, but in a manner to be prescribed by law." U.S.
CONST. amend. III. This right to privacy in the home evolved from
the founding fathers' rebellion against King George III's
requirement that British soldiers be given lodging in colonists'
homes. Gormley, supra note 3, at 1358. Video surveillance cameras
can perhaps be seen as providing a type of permanent lodging in the
home without consent. Justice Douglas stated that a statute
authorizing electronic surveillance "in effect, places an invisible
policeman in the home." Berger v. New York, 388 U.S. 41, 65 (1967)
(Douglas, J., concurring).
n72 The Fourth Amendment provides that: The right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized. U.S. CONST. amend. IV. The
Fourth Amendment developed in response to the use of general
warrants and writs of assistance by British officials and soldiers
who conducted broad searches of colonists' homes and private
affairs. Gormley, supra note 3, at 1359.
n73 The Fifth Amendment provides in relevant part that: "No person
shall . . . be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property,
without due process of law . . . ." U.S. CONST. amend. V. The Fifth
Amendment alone would not provide protection against video
surveillance because it typically only applies when the government
forces a defendant to utter incriminating words or to perform
incriminating acts. Granholm, supra note 3, at 689 n.18.
n74 The Ninth Amendment "retained rights clause" provides: "The
enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." U.S.
CONST. amend. IX.
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Amendments. n75 However, in recent years certain members of the
Court have sought to restrict privacy expansions. n76 Therefore, the
Supreme Court's privacy jurisprudence must be examined to determine
what precedents the Supreme Court would rely upon in deciding a
video surveillance case. Through detailed examination of these
decisions, it can be determined whether a video surveillance privacy
argument is likely to be successful before the United States Supreme
Court.
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n75 The Fourteenth Amendment provides in relevant part: No State
shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. U.S. CONST. amend. XIV. See Roe v.
Wade, 410 U.S. 113, 152-53 (1973). In Paul v. Davis, 424 U.S. 693
(1976), the Court found that no privacy right existed when the
police disclosed that the respondent was arrested on a shoplifting
charge. Id. at 713. The Court declined to enlarge its substantive
privacy decisions because the personal right must be a guarantee
that is "fundamental" or "implicit in the concept of ordered
liberty." Id. The Court found that the activities detailed were very
different from ordered liberty matters relating to marriage,
procreation, contraception, family relationships, child rearing and
education. Id.
n76 See infra notes 82-124 and accompanying text.
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A. Fourth Amendment Privacy
Present day conceptions of privacy frequently stem from criminal
procedure cases that interpret the Fourth Amendment. n77 One of the
first times the Supreme Court examined privacy in an electronic
surveillance case, the Court stated that the Fourth Amendment
"protects people not places." n78 In Katz v. United States, n79 the
Court held that the government's activities in electronically
listening to and recording the defendant's words spoken in a
telephone booth
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n77 Gormley, supra note 3, at 1358.
n78 Katz v. United States, 389 U.S. 347, 351 (1967). The Court held
that a warrant should have been obtained before the FBI placed an
electronic bug in a telephone booth which they knew Katz was about
to use. Id. at 353. "What he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally
protected." Id. at 351. See also Berger v. New York, 388 U.S. 41
(1967).
n79 389 U.S. 347 (1967).
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violated the privacy upon which he justifiably relied. n80 Justice
John M. Harlan's concurrence in Katz subsequently became the Supreme
Court's two-prong test for determining when a reasonable expectation
of privacy exists: "first that a person have exhibited an actual
(subjective) expectation of privacy and, second that the expectation
be one that society is prepared to recognize as 'reasonable.'" n81
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n80 Id. at 353. Katz may have resulted from J. Edgar Hoover's
excessive use of wiretaps as the high profile director of the
Federal Bureau of Investigation. Gormley, supra note 3, at 1362.
Moreover, President Lyndon B. Johnson in his 1967 State of the Union
Address stated that: We should protect what Justice Brandeis called
the "right most valued by civilized men" the right to privacy. We
should outlaw all wiretapping public and private wherever and
whenever it occurs, except when the security of the nation is at
stake and only then with the strictest governmental safeguards. And
we should exercise the full reach of our Constitutional powers to
outlaw electronic "bugging" and "snooping." Id. at 1364 (citing Text
of Message by President Johnson to Congress on State of the Union,
N.Y. TIMES, Jan. 11, 1967, at A16).
n81 Katz, 389 U.S. at 360-61 (Harlan, J., concurring). Electronic as
well as physical intrusion into a place that is in this sense
private may constitute a violation of the Fourth Amendment, because
any limitation on such protection would be both bad physics and bad
law. Id. at 360, 362. See Terry v. Ohio, 392 U.S. 1, 9 (1968);
California v. Ciraolo, 476 U.S. 207, 211 (1986) (accepting the two
part test as the touchstone of Fourth Amendment analysis). Professor
Bruce Berner and most commentators agree that the Supreme Court is
answering the question wrong, but Professor Berner also believes
that the Court is answering the wrong question. Bruce G. Berner, The
Supreme Court and the Fall of the Fourth Amendment, 25 VAL. U. L.
REV. 383, 384 (1991). Furthermore, Berner believes that the focus
should not be on reasonable "expectations" because if the police
announced every night on the radio that they intended to break into
your house once a month and search your belongings, the expectation
portion of the test clearly breaks down. Id. at 394-96.
Unfortunately, this early formulation of privacy under the Fourth
Amendment was weakened by later Court decisions which seemed to
indicate that when an individual leaves home, he or she only has an
extremely limited expectation of privacy in the public view. n82 For
example, the Court has held that taking aerial photographs of an
industrial plant complex from navigable airspace is not a search
prohibited by the Fourth Amendment. n83 The Court also concluded
that the use of artificial illumination by police officers does not
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n82 McClurg, supra note 3, at 991-92. See Erznoznik v. City of
Jacksonville, 422 U.S. 205, 212 (1975) (indicating a limited privacy
interest of persons on the public streets). The Court seemed to
revert to an earlier philosophy that in an "open field" the
government is not searching. Hester v. United States, 265 U.S. 57
(1924).
n83 Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986). Dow
Chemical became aware of the aerial photography because it
maintained elaborate security around the complex and investigated
any low-level flights by aircraft over the facility. Id. at 229-30.
The Court found that the Environmental Protection Agency's aerial
observation of Dow's plant complex did not exceed the EPA's
investigative authority. Id. at 229.
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constitute a search under the Fourth Amendment. n84 Furthermore, the
Court determined that the reasonableness of a particular government
activity does not turn on the existence of alternate, less intrusive
means. n85
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n84 Texas v. Brown, 460 U.S. 730, 740 (1983). In Brown, the Fort
Worth police force set up a routine driver's license checkpoint and
stopped Brown's car. Id. at 733. A police officer shined his
flashlight into the car and saw Brown drop a green balloon onto the
floor of the car. Id. Since narcotics are frequently packed in
balloons, the police officer asked Brown to step out of the car and
the officer seized the balloon which contained heroin. Id. at
734-35. The Court upheld the conviction and the use of the
flashlight, because it was not necessary that the officer possess
near certainty as to the seizable nature of the items. Id. at 742.
n85 Illinois v. LaFayette, 462 U.S. 640, 647 (1983).
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Indeed, the Court has examined a long list of privacy cases outside
of the home and found no expectation of privacy when the police
examine bags of garbage placed outside the curtilage. n86 The Court
has held that no privacy could be anticipated from state agents in
an open field, n87 and that citizens have a reduced privacy interest
in a car on a public highway. n88 Moreover, no reasonable
expectation of privacy exists when police retrieve phone numbers
recorded by a pen register, n89 and no privacy exists when
conversations are recorded by wired informants. n90 The Court has
been particularly harsh in curtailing a citizen's reasonable
expectation of privacy in drug cultivating and drug possession
cases. n91 For instance, the Court held that no privacy exists in
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n86 California v. Greenwood, 486 U.S. 35, 37 (1988). The "curtilage"
originally referred to the land and outbuildings immediately
adjacent to the castle that were in turn surrounded by high stone
walls; today, its meaning has been extended to include any land or
building immediately adjacent to a dwelling, and usually it is
enclosed some way by a fence or shrubs. BLACK'S LAW DICTIONARY 384
(6th ed. 1990). The protection afforded the "curtilage" is "a
protection of families and personal privacy in the area intimately
linked to the home, both physically and psychologically. . . . "
California v. Ciraolo, 476 U.S. 207, 213 (1986).
n87 Oliver v. United States, 466 U.S. 170, 176-77 (1984). When the
police are in an open field, it does not matter how unreasonable
their actions become; so long as they remain in an unprotected
place, they remain invisible to the Fourth Amendment. Berner, supra
note 81, at 390.
n88 United States v. Knotts, 460 U.S. 276, 281-85 (1983). In this
case, the police placed a beeper in a container of chemicals that
the defendant placed in his car. Id. at 278. A beeper is a radio
transmitter which emits periodic signals that can be picked up by a
radio receiver. Id. at 277. The court held that a person travelling
in an automobile on public streets has no reasonable expectation of
privacy in his movements from one place to another. Id. at 281.
Justice Rehnquist reasoned that "[n]othing in the Fourth Amendment
prohibited the police from augmenting the sensory faculties bestowed
upon them at birth with such enhancements as science and technology
afforded them in this case." Id. at 282.
n89 Smith v. Maryland, 442 U.S. 735, 745-46 (1979). A pen register
chronicles all calls made to and from a certain number. Id. at 736
n.1. The Court held that this was not a search and the police did
not need a warrant because many people have access to the
information. Id. at 742-43.
n90 United States v. White, 401 U.S. 745, 751 (1971).
n91 Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2391 (1995)
(finding that a "special need" existed for the drug testing of
public school athletes). Florida v. Riley, 488 U.S. 445, 451-52
(1989) (permitting aerial surveillance of a greenhouse through
missing panels in the roof from a helicopter hovering at 400 feet);
United States v. Dunn, 480 U.S. 294, 305 (1987) (finding that drug
enforcement agents' actions were reasonable in crossing several
fences in order to use a flashlight to look into a barn); New Jersey
v. T.L.O., 469 U.S. 325, 346- 47 (1985) (holding that a student's
purse could be searched for marijuana and cigarettes); Oliver v.
United States, 466 U.S. 170, 173, 179-81 (1984) (reasoning that
narcotics agents could walk around a gate marked with a "No
Trespassing" sign to locate a field of marijuana); United States v.
Place, 462 U.S. 696, 707, 710 (1983) (holding that a sniffing test
by a dog to discover cocaine was not unreasonable, but that holding
the luggage for ninety minutes was unreasonable).
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[*1090]
one's backyard. n92 In the backyard case, the Court upheld police
use of a private plane to engage in a warrantless aerial observation
of marijuana cultivation from 1000 feet. n93
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n92 California v. Ciraolo, 476 U.S. 207, 215 (1986). In this case
the defendant had a six foot outer fence and a ten foot inner fence,
and the Court held that since a police man could have perched
himself on the top of a truck or a two- level bus, the defendant had
no expectation of privacy. Id. at 211. The Court reasoned that
simply because an individual took measures to restrict some views of
his activities, it did not preclude an officer's observations from a
public vantage point. Id. at 213.
n93 Id. at 213-14. In the same vein, the Supreme Court recently
decided that police departments may use sobriety checkpoints to
detect drunk drivers and help eliminate alcohol-related deaths.
Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990). In
Sitz, the Michigan Department of State Police established
checkpoints at selected sites along state roads and examined all
drivers that passed through the checkpoints for signs of
intoxication. Id. at 447. During the 75 minute operation, 126
vehicles passed through the checkpoint and two drivers were detained
for field sobriety tests. Id. at 448. One other driver did not stop,
and he was pulled over and arrested for driving under the influence.
Id. The Court held that "where a Fourth Amendment intrusion serves
special government needs, beyond the normal need for law
enforcement, it is necessary to balance the individual's privacy
expectations against the Government's interests to determine whether
it is impractical to require a warrant or some level of
individualized suspicion in the particular context." Id. at 449-50
(quoting Treasury Employees v. Von Raab, 489 U.S. 656, 665-66
(1989)).
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Therefore, based upon prior cases, it seems unlikely that the Court
would characterize police video surveillance on the street as a
"search," because the Court has stated that no reasonable
expectation of privacy exists on public streets. n94 Thus, the
Fourth Amendment alone will not provide a basis for germane
protection against video surveillance intrusions on the streets.
Although privacy in a police context tends to rely on fourth
amendment jurisprudence, privacy concerns also stem from fundamental
rights privacy decisions. n95
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n94 Gormley, supra note 3, at 1370; Granholm, supra note 3, at 694;
Robb, supra note 3, at 582.
n95 See infra notes 96-124 and accompanying text.
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B. Fundamental Rights Privacy
In Griswold v. Connecticut, n96 the Court changed the field of
privacy, holding that a Connecticut law forbidding the distribution
of contraceptives
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n96 381 U.S. 479 (1965).
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[*1091]
violated the right of marital privacy. n97 Justice William O.
Douglas wrote the opinion for the Court, describing the right of
privacy as being imputed from the "zones of privacy" or "penumbras"
n98 of the First, Third, Fourth, Fifth, and Ninth Amendments. n99
Although other Justices disagreed with the source of this "right to
privacy," a majority protected the privacy of the marital bedroom.
n100 The Griswold decision sparked a new type of privacy that
resulted from a combination of technological advancements in birth
control and the personal choice to exercise privacy rights in this
area. n101
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n97 Id. at 485-86.
n98 Id. at 484-85. A "penumbra" is a body of rights held to be
guaranteed by implication in a civil constitution. MERRIAM WEBSTER'S
COLLEGIATE DICTIONARY 860 (10th ed. 1994). Penumbra is an umbrella
term that encompasses a broad range of rights that are explicit and
implicit in the Constitution. Justice Holmes first spoke of
penumbras in relation to privacy in Olmstead v. United States, 277
U.S. 438, 469 (1928) (Holmes, J., dissenting). But the original use
of the term was by Justice Field in Montgomery v. Bevans, 17 F. Cas.
628 (C.C.D. Cal. 1871) (No. 9735). For a detailed history of
penumbra, see Henry T. Greely, A Footnote to "Penumbra" in Griswold
v. Connecticut, 6 CONST. COMMENTARY 251 (1989).
n99 See supra notes 70-75 for the text of these amendments.
n100 Gormley, supra note 3, at 1392.
n101 Id. at 1396.
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However, critics of Justice Douglas' theory of penumbral rights,
like Chief Justice William H. Rehnquist and Judge Robert Bork, have
attempted to re-mold the constitutional privacy field. n102
Examining the critics' approaches to the right to privacy
demonstrates why a video surveillance privacy argument is unlikely
to succeed before the Supreme Court in a fundamental rights context.
For example, Chief Justice Rehnquist has stated that if the
constitutional balance is struck in favor of privacy, other societal
values will suffer. n103 Moreover, Rehnquist seemed to squarely
reject the right to privacy in a public place when tipped against an
interest in law enforcement. n104 In the end, Rehnquist advocated
the use of a rational basis test when appraising privacy issues in
order to achieve limited interference with law enforcement. n105
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n102 Paul v. Davis, 424 U.S. 693, 713-14 (1976). See also SMITH,
supra note 43, at 40-42 (citing examples where Justice Rehnquist
attempted to curb the right to privacy during his tenure on the
Court).
n103 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 (1974). Id. at 2.
With an almost eerie foreshadowing for how his Court would later
attempt to change privacy, Rehnquist declared that the Supreme Court
had "not spoken the last word on this subject," but he would not
"predict the contours of future developments." Id. at 5. "To my mind
there can be no question that driving an automobile down a public
street and into a parking lot of a bar, which is itself open to the
general public, is not in any normal sense of the word a 'private'
act." Id. at 9.
n104 Id. at 13. "Since those attending the rally realized that they
were going to be in a public place, their interest in 'dictionary'
privacy is, it seems to me, nil." Id.
n105 Id. at 20. Justice Rehnquist also believes that the privacy
battle should be fought in Congress rather than in the courts. Id.
at 22.
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Turning to the next major fundamental privacy case, Justice Harry A.
Blackmun helped usher in twenty-four years of abortion debate with
the Court's perpetually-controversial decision in Roe v. Wade. n106
Roe established that the constitutional right of privacy protects a
woman's decision to have an abortion. n107 In establishing this
branch of privacy, Roe seemed to rely more on the concept of ordered
liberty in the Fourteenth Amendment than upon the penumbral spheres
of privacy. n108 Roe has been dramatically altered by Planned
Parenthood of Southeastern Pennsylvania v. Casey, n109 but the Court
clings to Roe as being good law. n110 The Court held that Casey fits
comfortably into the framework of prior Court decisions, including
Skinner v. Oklahoma, n111 Griswold v. Connecticut, n112 Loving v.
Virginia, n113 and Eisenstad v. Baird, n114 "which are 'not a series
of isolated points'" but rather a "rational continuum." n115 In
dissent, Justice Rehnquist attempted to halt the expansion of this
new right of privacy by describing privacy as a cluster under the
Fourteenth Amendment of matters related to family, child rearing,
education, marriage, procreation, and contraception. n116
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n106 410 U.S. 113 (1973).
n107 Id. at 154.
n108 Id. at 152. Ordered liberty is limitation of the area where the
states have power to substantively regulate conduct. Paul v. Davis,
424 U.S. 693, 713 (1976). Ordered liberty was first described in
Palko v. Connecticut, 302 U.S. 319, 325 (1937).
n109 505 U.S. 833 (1992).
n110 "It must be stated at the outset and with clarity that Roe's
essential holding, the holding we reaffirm, has three parts." Id. at
846. The Court probably did not want to directly overrule Roe
because of the negative connotations the news media would attach to
such a decision. Justice Antonin Scalia sarcastically called this
"keep-what-you-want-and-throw-away-the-rest" stare decisis. Id. at
993 (Scalia, J., concurring and dissenting).
n111 316 U.S. 535 (1942). In this case the Court found that a
criminal sterilization act violated equal protection when a person
convicted three times of petty larceny could be sterilized, but an
embezzler could not. Id. at 537-43. But see Buck v. Bell, 274 U.S.
200, 207 (1927) (upholding a sterilization law applicable only to
mental defectives in state institutions).
n112 381 U.S. 479 (1965). See discussion supra notes 96-101 and
accompanying text.
n113 388 U.S. 1, 12 (1967) (finding that a state statute that
prevented marriages between persons solely on the basis of racial
classifications violated the Fourteenth Amendment).
n114 405 U.S. 438, 454-55 (1972) (overturning a conviction based
upon a Massachusetts law making it a felony to distribute
contraceptive materials, except in the case of registered physicians
and pharmacists furnishing the materials to married persons). "If
the right of 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." Id. at
453.
n115 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833,
858 (1992).
n116 Id. at 964 (Rehnquist, J., concurring and dissenting) (stating
that the fundamental right standard of Roe must be rejected, and
that the new undue burden test is created largely out of whole
cloth). See also Paul v. Davis, 424 U.S. 693, 712-13 (1975)
(refusing to find a right to privacy under the Fourteenth Amendment
when flyers listing the plaintiff as an active shoplifter were
erroneously circulated by a police department). Some commentators
believe that Roe and Griswold were used to "plug gaps" in the
existing social contract. Gormley, supra note 3, at 1399. The social
contract is an actual or hypothetical agreement among individuals
forming an organized society or between the community and the ruler
that defines and limits the rights and duties of each. MERRIAM
WEBSTER'S COLLEGIATE DICTIONARY 1114 (10th ed. 1994). The "gap
plugging" theory establishes that fundamental privacy is necessary
when broad constitutional language clashes with unexpected
inventions or altered societal conditions. Gormley, supra note 3, at
1399. Thus, this same reasoning could apply to video surveillance
technology which was previously unheard of and seldom used. However,
with the current make-up of the Court, such a forthcoming opinion
seems unlikely. Justice Scalia indicated in a recent lecture that
the Constitution should not simply be considered to contain every
ingredient that a person desires as in the television commercial for
"Prego Spaghetti Sauce." Chelsea Morse, Justice Argues
Constitutional Interpretation, THE TORCH (Valparaiso University,
Ind. student newspaper), Jan. 26, 1996, at 1. Justice Scalia
believes that merely because a person feels strongly that a
particular fundamental right should be in the Constitution does not
mean "it's in there." Id. Justice Scalia said jokingly: "You want
the right to die? It's in there. You want the right to an abortion?
It's in there." Id. Seemingly, Scalia would feel the same about the
right to be free from video surveillance. However, Justice Scalia
and Justice Rehnquist are not alone, and several critics believe
that the Supreme Court would not decide a video surveillance case
based upon a fundamental right to privacy on public streets. Mark
Silverstein, Note, Privacy Rights in State Constitutions: Models for
Illinois?, 1989 U. ILL. L. REV. 215, 225. The Court has forcefully
halted the right to privacy expansion by exercising judicial
restraint. Id. The two principle obstacles in using the right to
privacy are the lack of a justiciable controversy and the narrow
scope of the constitutional right to privacy. Granholm, supra note
3, at 689-90 n.18; DARIEN A. MCWHIRTER & JON D. BIBLE, PRIVACY AS A
CONSTITUTIONAL RIGHT 12, 181 (1992). With the appointments to the
Supreme Court by Presidents Bush and Reagan, the Supreme Court is
considerably more conservative than the average citizen. Id. at 181.
Critics of the Court specifically look to the appointment of Justice
Clarence Thomas to fill the seat vacated by Justice Thurgood
Marshall as the turning point in the privacy balance. Id. at 12.
Justice Harry A. Blackmun, a moderate, has since been replaced by
Justice Stephen G. Breyer, and Justice Byron White, appointed by
President Kennedy, was replaced by Justice Ruth Bader Ginsburg. See
WILLIAM B. LOCKHART ET AL., CONSTITUTIONAL LAW 329 (7th ed. 1991 &
Supp. 1995). Therefore, the balance seems to have remained the same
with seven republican appointments and two democrat appointments.
CRAIG R. DUCAT & HAROLD W. CHASE, CONSTITUTIONAL INTERPRETATION
A17-A19 (5th ed. 1992).
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Along the lines of Rehnquist's dissent, the Supreme Court refused to
expand personal privacy doctrines on two inauspicious occasions.
First, in Bowers v. Hardwick, n117 the Court decided that sexual
activity in the home, in violation of sodomy laws, was not protected
by privacy rights. n118 Ironically, former Justice Lewis Powell Jr.,
who cast the deciding vote in the case, later
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n117 478 U.S. 186 (1986).
n118 Hardwick was charged under Georgia's sodomy statute for
engaging in homosexual activity with another male in his bedroom.
Although the District Attorney decided not to present the matter to
a grand jury, Hardwick brought suit in Federal District Court
because he asserted that he was in imminent danger of arrest as a
practicing homosexual. LOCKHART ET AL., supra note 116, at 528 n.2.
John and Mary Doe were also plaintiffs in the action, and they
alleged that they wished to engage in oral sex which was also
prohibited by the sodomy statute. Id. However, the Court of Appeals
affirmed that the Doe's did not have standing to bring a claim
because they had not sustained a direct injury, and they were not in
immediate danger of sustaining a direct injury from the enforcement
of the statute. Id.
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[*1094]
told law students that "I think I probably made a mistake in that
one." n119 However, this type of privacy decision, which allows
police and local governments to determine what conduct may occur in
the home, clearly seems to have negative implications for an
expansion of the privacy doctrine to encompass video surveillance.
Furthermore, the Court in Laird v. Tatum n120 held that an alleged
"chilling effect" to free speech resulting from surveillance was
insufficient alone to enable political activists to maintain
judicial standing. n121 The Laird Court refused to enjoin military
surveillance of a political group because the group was unable to
show specific present harm or a threat of specific future harm. n122
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- - - - - -
n119 Ruth Marcus, Powell Regrets Backing Sodomy Law, WASH. POST,
Oct. 26, 1990, at A3; Linda Greenhouse, When Second Thoughts in Case
Come Too Late, N.Y. TIMES, Nov. 5, 1990, at 14.
n120 408 U.S. 1 (1972). In Laird, a group of political activists
wanted an injunction to prohibit the Army from further covert
surveillance of their lawful and peaceful civilian activities. The
Court noted that the information gathered was nothing more than a
good newspaper reporter would be able to gather by attending public
meetings. Id. at 7.
n121 To invoke judicial power the individual must show that he has
sustained or is in immediate danger of sustaining direct injury as a
result of action that was not common to all members of the public.
Ex Parte Levitt, 302 U.S. 633, 634 (1937).
n122 Laird, 408 U.S. at 13-14. No current case or statute prevents
law enforcement officers from photographing people in public places.
Robb, supra note 3, at 597 n.103.
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Thus, in two personal privacy instances, the Court permitted police
and the military to trump the privacy rights of the individual.
Under the current privacy philosophy, it seems unlikely that an
individual could successfully bring a video surveillance privacy
argument before the United States Supreme Court. n123 The penumbral
right of privacy doctrine would be of little use to a plaintiff
seeking to enjoin police video surveillance in public areas. n124
Therefore, other sources of federal and state privacy doctrines must
be examined to help fill a video surveillance privacy void left by
the United States Supreme Court.
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n123 Gormley, supra note 3, at 1406; McClurg, supra note 3, at
990-92.
n124 Granholm, supra note 3, at 689-90 n.18; Robb, supra note 3, at
593- 96; MCWHIRTER & BIBLE, supra note 116, at 12, 181.
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C. Other Federal Courts
Although the lower federal courts generally attempt to follow the
privacy pattern set by the Supreme Court, many surveillance
decisions have resulted in perplexing court divisions. For example,
the federal district court of Hawaii held that FBI agents invaded an
individual's privacy when they used a telescope to detect the
material that the individual was reading, without obtaining a
[*1095]
warrant. n125 The court reasoned that the government may not use
surveillance simply because peeping toms abound in society. n126 In
United States v. Torres, n127 the Seventh Circuit Court of Appeals
recognized that television surveillance is exceedingly intrusive and
could be grossly abused to eliminate personal privacy, as understood
by modern western nations. n128 In Torres, the United States
District Court for the Northern District of Illinois had authorized
the FBI to make surreptitious entries into apartments to install
electronic bugs and television cameras in every room. n129 Judge
Posner, speaking for the Seventh Circuit, indicated that this area
cries out for congressional attention, but the federal appellate
court held that television surveillance of suspected criminals is
not unconstitutional per se. n130
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n125 United States v. Kim, 415 F. Supp. 1252 (D. Haw. 1976). "It is
inconceivable that the government can intrude so far into an
individual's home that it can detect the material he is reading and
still not be considered to have engaged in a search." Id. at 1256.
See United States v. Taketa, 923 F.2d 665, 668 (9th Cir. 1991)
(reversing convictions based upon the admission of videotaped
evidence that violated the Fourth Amendment). See also Doe v. B.P.S.
Guard Serv. Inc., 945 F.2d 1422, 1427 (8th Cir. 1991) (upholding
damages against guards who filmed models changing clothes with
surveillance cameras).
n126 Kim, 415 F. Supp. at 1256. The court held that as the
technological capabilities of law enforcement increase, the Fourth
Amendment protections must grow in response. Id. at 1257. Government
intrusions of this sort violate basic foundations of privacy,
security and decency which distinguish free societies from
controlled societies. Id.
n127 751 F.2d 875 (7th Cir. 1984).
n128 Id. at 882. Judge Posner described electronic visual
surveillance as "inherently indiscriminate." Id. Posner employed a
reasonableness balancing test that imposed a heavy burden on the use
of video surveillance, but in this instance because the surveillance
was used to investigate terrorist organizations who were building
bombs, the court upheld its use. Id. at 883.
n129 Id. at 877. The court made reference to the irony of the
Seventh Circuit making such a decision in the year 1984. Id.
n130 Id. at 883, 886.
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Other similar federal court decisions have upheld the use of
surreptitious video surveillance by law enforcement agencies. n131
In United States v. Mesa-Rincon, n132 the Tenth Circuit Court of
Appeals upheld a video surveillance order that authorized the secret
filming of a counterfeiting operation in a Kansas building. n133 The
court held that the interception of oral communication was
substantially similar to video surveillance, even though video
surveillance can be vastly more intrusive. n134 The court found that
the government had an elevated burden to meet because there was a
"medium" expectation of privacy
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- - - - - -
n131 United States v. Ianniello, 808 F.2d 184, 186 n.1, 195 (2d Cir.
1986) (affirming convictions without addressing the use of
electronic audio and video surveillance).
n132 911 F.2d 1433 (10th Cir. 1990).
n133 Id. at 1435-36. In this case the Secret Service installed
television cameras at the authorized location and observed and
recorded the defendants counterfeiting United States currency. Id.
n134 Id. at 1437.
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[*1096]
in the building. n135 The court upheld the use of the video
surveillance evidence even though in the process of filming, the
Secret Service observed an unknown male masturbating. n136 The court
found that the expectation of privacy in this business premises was
low enough as to be outweighed by the government's specific showing
of a need for video surveillance. n137
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n135 Id. at 1443.
n136 Id. at 1435. The use of a video camera is an extraordinarily
intrusive method of searching because no other technique would have
recorded, in graphic detail, an innocent individual engaging in this
very personal and private behavior. Id. at 1442. However, the court
held that the pressing need for video surveillance outweighed the
expectation of privacy in this business premises. Id. at 1445.
n137 Id. The court found that at least two of the government's goals
could not be achieved through the use of audio surveillance or
standard visual surveillance. Id. at 1444.
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These cases delineate an important distinction between the
government targeting a specific subject and the government targeting
the entire public at large. Most cases seem to wrestle with the
concept of video surveillance and its intrusive nature, but the
police and the agents in these cases listed specific targets or
operations and specific reasons for filming. n138 Therefore, a large
differentiation must be seen between narrow surveillance activities
with specific targets and general public surveillance. n139 In order
to properly understand how the federal courts are interpreting
specific video surveillance requirements, an analysis of
congressional statutes which authorize surveillance activities is
required.
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n138 United States v. Biasucci, 786 F.2d 504, 512 (2d Cir. 1986)
(holding that the specific facts in the affidavit supported the
necessity of video surveillance). United States v. Torres, 751 F.2d
875, 883 (7th Cir. 1984) (finding that video surveillance was
necessary to investigate terrorist organizations who were building
bombs). In re Order Authorizing Interception of Oral Communications
& Videotape Surveillance, 513 F. Supp. 421, 422 (D. Mass. 1980)
(holding that the supporting affidavits presented compelling
evidence of probable cause to believe that ongoing violations of
Title 21 were occurring within the dwelling).
n139 See infra section V for a proposal of how to eliminate general
surveillance and still permit targeted surveillance, if specific
guidelines are followed.
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D. Congress and Video Surveillance
Congress has refused to pass a statute protecting citizens from
constant video surveillance intrusions. In reaction to the Katz oral
surveillance decision, Congress passed Title III of the Omnibus
Crime Control and Safe Streets Act of 1968, which regulates the
interception of electronic, wire, and oral communication, but not
video surveillance. n140 Under Title III, law enforcement officials
must apply for a court order to intercept communications
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- - - - - -
n140 18 U.S.C. 2510-2521 (1994). See Andrew Miller, Electronic
Surveillance, 80 GEO. L.J. 1037 (1992); Wintersheimer, supra note
43, at 330.
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[*1097]
in connection with the investigation of certain enumerated crimes.
n141 A Title III search warrant must contain four requirements to be
valid: (1) probable cause, (2) particularity, (3) necessity, and (4)
minimization. n142 However, the federal appellate courts differ in
applying Title III to video surveillance, and Congress has never
clarified the issue. n143 Some federal courts apply portions of the
four requirements of Title III in the use of silent video
surveillance, n144 while other courts do not find Title III
applicable to video surveillance. n145 Therefore, an inconsistency
exists because video surveillance is unregulated by Title III, even
though video is arguably more intrusive than aural (audio)
surveillance. n146 As federal courts have stated, n147 "video
surveillance is more invasive of privacy than audio surveillance,
'just as a strip search is more invasive than a pat-down search'";
but Congress has not made this distinction. n148
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n141 18 U.S.C. 2516-2518 (1994). Suspicion of virtually any felony
will provide adequate grounds for an application for surveillance.
Id. 2516(3). See Troy, supra note 3, at 445.
n142 Troy, supra note 3, at 456-61.
n143 Id. at 445.
n144 United States v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990);
United States v. Cuevas-Sanchez, 821 F.2d 248 (5th Cir. 1987);
United States v. Biasucci, 768 F.2d 504 (2d Cir. 1986); United
States v. Torres, 751 F.2d 875 (7th Cir. 1984).
n145 United States v. Taketa, 923 F.2d 665, 675 (9th Cir. 1991)
(stating that silent video taping does not fall under Title III
because no aural (audio) communications were intercepted).
Mesa-Rincon, 911 F.2d at 1436-38 (using the general Title III
warrant requirements but resolving that the two defendants could be
convicted by visual surveillance evidence). In re Order Authorizing
Interception of Oral Communications & Videotape Surveillance, 513 F.
Supp. 421, 423 (D. Mass. 1980) (stating that Title III is not
"formally applicable to video surveillance"). At the state level,
see People v. Teicher, 422 N.E.2d 506 (N.Y. 1981), and Sponick v.
City of Detroit Police Dept., 211 N.W.2d 674 (Mich. Ct. App. 1973).
n146 People who are afraid of audio surveillance may mute or mask
their conversations, move their conversations or communicate in
non-verbal ways, but this is not possible with video surveillance.
Greenfield, supra note 3, at 1047.
n147 Torres, 751 F.2d at 885; Messa-Rincon, 911 F.2d at 1442-43.
n148 Thomas M. Messana, Ricks v. State: Big Brother Has Arrived in
Maryland, 48 MD. L. REV. 435, 452 (1989) (quoting Torres, 751 F.2d
at 885). Equally complex issues surface when the government attempts
to obtain a warrant to conduct roving surveillance operations. See
Lyle D. Larson, Note, An End-Run Around the Fourth Amendment: Why
Roving Surveillance Is Unconstitutional, 28 AM. CRIM. L. REV. 143
(1990). Larson finds that roving surveillance orders are
unconstitutional because the orders are too broad and the orders
require the officials conducting the search to determine if probable
cause exists, rather than a neutral magistrate. Id. at 150.
Furthermore, the orders fail to deter overzealous government
conduct, and the need for the roving surveillance orders is
illusionary. Id. Many of the same problems may be attributed to use
of street surveillance cameras which furnish no judicial check.
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Congress has continued to expand other surveillance statutes, but it
has not addressed police use of videosurveillance in specific target
operations or in general street camera surveillance operations.
Paradoxically, Congress established a Federal Intelligence
Surveillance Act (FISA) which provides
[*1098]
standards for video surveillance of foreign agents, but not for
surveillance of American citizens. n149 FISA also provides for
suppression proceedings, in-camera review of video tapes, and the
destruction of unintentionally acquired information. n150 In
interpreting FISA, Title Nine of the United States Attorney's Manual
states that when justifiable expectations of privacy exist, judicial
authorization is needed to conduct video surveillance of foreign
agents. n151 However, police and federal agents do not need to
follow the safeguards of Title III or the FISA when conducting video
surveillance activities because the statutes do not list any
requirements for video surveillance of American citizens on public
streets. n152
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n149 50 U.S.C. 1801 (1994).
n150 Id. 1806.
n151 UNITED STATES DEP'T OF JUST., U.S. ATTORNEYS' MANUAL, Title 9
at 9- 7.1010 (1984). UNITED STATES DEP'T OF JUST., U.S. ATTORNEYS'
MANUAL, Title 9 at 9- 60.401 et seq. (1992).
n152 Montroy, supra note 3, at 271.
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Thus, legislation at the state and federal level is needed because
the current law is inconsistent, ineffective, and it creates
divergent court opinions in the absence of congressional
clarification. n153 As more video surveillance problems surface, the
need for comprehensive policies becomes clear, but the Supreme Court
and Congress have simply sidestepped the problem. n154 Therefore, an
examination of how foreign nations have managed the surveillance
explosion may provide insight as to what polices the United States
could develop in this field. If the privacy violations inherent in
video surveillance are not addressed, America may soon resemble
these foreign nations.
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n153 138 CONG. REC. E81-02 (extension of remarks Jan. 24, 1992)
(statement of Rep. Lee H. Hamilton). "The Congress and the President
must devise a better framework for safeguarding privacy rights in an
era of rapid technological innovation." Id. at E82. Covert video
surveillance is not covered by federal wiretapping statutes and
bills that have been introduced to amend Title III have been
rejected. 136 CONG. REC. E2297-01, E2298 (July 11, 1990) (statement
of Rep. Don Edwards). Although Representative Kastenmier introduced
a bill in 1984 to extend Title III protection to video surveillance,
it did not pass by the end of the 98th Congress, and it has never
been resubmitted. H.R. 6343, 98th Cong. (1984). Representative
Kastenmier declared that this bill would apply to both private and
public sources in closing the video loopholes of Title III. 130
CONG. REC. E4107-08 (daily ed. Oct. 1, 1984) (statement of Rep.
Kastenmier).
n154 Montroy, supra note 3, at 264-74.
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III. ANALYSIS OF FOREIGN COUNTERPARTS AND THE AMERICAN EXPERIENCE
A. Foreign Counterparts
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. . . . He tried to squeeze out
[*1099]
some childhood memory that should tell him whether London had always
been quite like this. n155
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n155 GEORGE ORWELL, 1984, at 6-7 (Signet Classic ed., Penguin Books
1992) (1949). The Orwellian nightmare of the "Thought Police" and
"Big Brother," written 48 years ago, has several disturbing
similarities to the current widespread use of video surveillance in
London.
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The irony of this George Orwell quote is not lost on present day
England, which currently boasts upwards of 150,000 professionally
installed cameras that operate in British cities to "prevent crime."
n156 These cameras are incredibly powerful, and most have the
capacity to pan 360 degrees as well as zoom in from one-half mile
away. n157 The surveillance revolution is rapidly flourishing, and
at the present rate, England will have 10,000 more "spy cameras"
over the next three years. n158 Moreover, most people in Britain are
simply unaware of the presence and magnitude of video surveillance
in their society. n159 About ninety-five percent of local
governments in Britain are considering establishing closed circuit
television (CCTV) n160 systems, and over seventy-five English cities
have already installed the systems. n161 The British began relying
on video surveillance in response to rising street crime; however,
without a written constitution or a common law right to privacy,
nothing protects average citizens from being observed twenty-four
hours a day, seven days a week. n162
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n156 Simon Davies, True Stories: Last Post Sounds for Americans, An
Infringement of Civil Liberties or a Necessary Weapon to Fight
Crime?, THE INDEPENDENT, Nov. 2, 1994, at 2. The number of cameras
in British cities is increasing by 500 per week. Id.
n157 20/20, supra note 41, at 8. If it rains, each camera even has a
windshield wiper that allows for uninterrupted filming. Id.
n158 John Deane, CCTV Boost Follows Crime-Fighting Success, Press
Association Newsfile, Oct. 13, 1995, available in LEXIS, World
Library, ARCNWS File.
n159 John Naughton, Video Eyes Are Everywhere: "Big Brother" in
Britain, THE OBSERVER, Nov. 13, 1994, at 13.
n160 ALAN F. WESTIN, PRIVACY AND FREEDOM 71 (1970). CCTV is the most
useful device in visual surveillance because it provides a
continuous picture and allows for an instant response to any
activity. Id. The cameras send a picture of a room or a street to a
remote receiver located several blocks away. Id. The cameras can
even take photographs of completely dark areas by utilizing infrared
technology. Id. at 72.
n161 Davies, supra note 156, at 2. For example, the city of
Bournemouth has 103 cameras, some of which overlook a local beach
and have infrared nighttime surveillance capabilities. Id. These
cameras have incredible clarity, and they have the resolution to
read a pack of cigarettes from 100 meters (328 feet) away. Id.
n162 Steve Coll, Crime Busters: In England Video Cop on Patrol,
INT'L HERALD TRIB., Aug. 10, 1994, available in LEXIS, World
Library, ARCNWS File. The accountability of the camera operators,
who are mostly private security guards, is a concern for citizens of
England. Id. Although a majority of the society supports the use of
the cameras to stop crime, four out of ten people believe that the
cameras will be used to spy on people. Id.
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[*1100]
The European crime problem resulted in a warm reception for
innovative methods to combat crime. n163 Thus, by using video
surveillance technology, residents in Europe have simply traded
privacy for protection. n164 The harshest realization of the lack of
privacy protection occurred recently in England when Barrie Goulding
released a film entitled "Caught in the Act," which compiled the
"juicy bits" from street video surveillance cameras. n165 The spy
camera footage shows sexual acts taking place in doorways, as well
as harassments, muggings, car crimes, burglaries, and street fights.
n166 The video portrays innocent victims, as well as the
lawbreakers, whose images are captured and then exploited for
profit. Even more disturbing is the supposition that every
surveillance video operator has their personal top twenty clips
which are then sold as bootleg films on the pornography market. n167
Barrie Goulding's "Caught in the Act" video exists because England
does not require any regulation of camera use or the collection of
images. n168 Europeans simply go about daily routines being watched
and recorded by an unknown audience in distant control rooms. n169
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n163 Davies, supra note 156, at 2; John Arlidge, Welcome, Big
Brother, THE INDEPENDENT, Nov. 2, 1994, at 2.
n164 Oliver Bennett, Here's Looking at You; Closed-Circuit TV Is Now
a Part of the Street Furniture. The Police (and the Pornographers)
Are Watching Your Every Move. In Our Surveillance Culture, Is
Nothing Private?, THE INDEPENDENT, Dec. 3, 1995, at 3; Nuala
Haughey, Should Electronic Eyes Be Watching Over Us?, THE IRISH
TIMES, Apr. 18, 1995, at 7. As more autonomy slips away, city
inhabitants in Europe must constantly update address changes with
the police. TONY LESCE, THE PRIVACY POACHERS 19 (1992).
n165 Blackmail Concern as CCTV Video Sex Footage Goes on Sale, THE
HERALD (Glasgow), Nov. 27, 1995, at 5 [hereinafter Blackmail
Concern]. Mr. Goulding claims that he wanted to fuel public debate
and was quoted as saying: "It's voyeuristic, I wouldn't deny that.
It is a commercial film and I will make money from it. But there is
a message who watches the watcher?" Id.
n166 Nicholas Hellen, Councils Sell Camera Monitor Footage for Sex
and Crime Video, SUNDAY TIMES (London), Oct. 8, 1995, at 1. The
clips were sold by local councils and security firms and include
footage from hidden street cameras, shopping mall cameras and
cameras in public toilets. Id. Barrie Goulding is a millionaire
video maker who in 1995 also released a film entitled "Executions"
which portrayed twenty-one execution style deaths. Id.
n167 Bennett, supra note 164, at 3. This bootleg footage includes a
prostitute providing oral sex to a businessman and a man in a Santa
hat stripping and then masturbating. Id.
n168 Patrick Matthews, Somebody's Watching You, THE INDEPENDENT,
Aug. 29, 1994, at 21. No law currently forbids the selling of
videotapes from CCTV in England, and Barrie Goulding plans on
releasing thousands more hours of street camera footage. Blackmail
Concern, supra note 165, at 5.
n169 Bennett, supra note 164, at 3. The effect on British society
has been to consider public spaces as unacceptable places to be. Id.
The English government is trying to introduce a barn closing code of
practices to cover the use of material from closed circuit
television cameras; unfortunately the proverbial horses are long
gone. Rowan Dore, Minister Promises Curbs on Sale of CCTV
Videotapes, Press Association Newsfile, Nov. 30, 1995, available in
LEXIS, World Library, ARCNWS File.
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[*1101]
European video surveillance received world-wide attention through
the infamous Jamie Bulger case. In this case, a video surveillance
camera captured two boys leading a two-year-old child from a
Liverpool, England shopping mall. n170 However, this case
demonstrates that one of the largest problems in confronting video
surveillance evidence is the conflicting views on its success. n171
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n170 CNN: Loss of Innocence (CNN television broadcast, Nov. 27,
1993). Jamie's body was found beaten to death with bricks, rocks and
an iron rod. Id. The child was discovered on a railroad track cut in
half by a train. Id. See also Arlidge, supra note 163, at 2
(indicating that people assume that because cameras helped to
convict the guilty in the Bulger case, they must be a good thing).
n171 Research in Newcastle showed that video surveillance improved
police response times and resulted in more than 700 arrests. Deane,
supra note 158. Another benefit is that most people caught on camera
plead guilty, which results in fewer expensive trials. Davies, supra
note 156, at 2. Although the public tends to support video
surveillance, civil liberty groups urge that blind faith in video
surveillance will lead to an Orwellian society. Id. Moreover, the
converse side to most people pleading guilty is that a person who
merely looks like the perpetrator is quickly arrested and assumed to
be guilty because of the video tape evidence. See Tim Moynihan,
Police Apology 'Would Not Be Enough', Press Association Newsfile,
Sept. 19, 1994, available in LEXIS, World Library, ARCNWS File
(indicating that because of the surveillance footage, Colin Stagg
was wrongly held in prison for thirteen months as a murderer). The
British civil rights group, Liberty, disputes the deterrent value of
video surveillance because most of the CCTV schemes are accompanied
by a package of security initiatives. Haughey, supra note 164, at 7.
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Although England may well be considered the surveillance capital of
the world, n172 many other countries have incorporated surveillance
into their societies. For instance, France gives police broad power
to install cameras for street video surveillance, including
installations in building entrances. n173 In Australia, video
surveillance system use is on the rise, and one particular downtown
business district contains at least 200 cameras. n174 In Ireland,
video
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n172 Matthews, supra note 168, at 21. Ray Hilton, a marketing
manager for Philips Security Systems, acknowledges that "in other
countries, you just don't see the number of installations, the
number of cameras" as in England. Id.
n173 French Deputies Agree Tough New Police Powers, Reuters World
Service, Oct. 11, 1994, available in LEXIS, World Library, ARCNWS
File. Similar systems are planned throughout France as part of the
Interior Minister's plan to curb the growing crime rate. Adam Sage,
French Unease Grows Over Spread of Secret Surveillance, THE TIMES
(London), Aug. 11, 1994, available in WESTLAW, 1994 WL 9156259.
n174 Robert Wainwright, Australia: Candid Cameras Already Watching
Us, SYDNEY MORNING HERALD, Apr. 15, 1995, at 2. As in England,
privacy laws do not cover the use of the camera footage in
Australia, and reporters have discovered surveillance video tape
footage that included segments where the camera zooms in on
underwear and cleavage. Julie Delvecchio, Australia: Big Brother's
Eyes See All, SYDNEY MORNING HERALD, July 8, 1994, at 9. Australia
has its share of privacy concerns and problems because virtually no
controls exist with respect to the filmed material. Jake Niall,
Australia: Smile, Someone Is Always Watching, REUTER TEXTLINE SUNDAY
AGE (Melbourne), June 18, 1995, at 6. The Victorian Council for
Civil Liberties stepped in to halt a local council's plans to
install surveillance cameras in public toilets. Id. Australian
television recently broadcast secretly filmed footage of police
officers engaged in sex with prostitutes, cocaine consumption, and
the delivery of child pornography. Peter Lynch, Revelations of
Police Graft Shock Nation, BUSINESS TIMES, Dec. 19, 1995, at 12.
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[*1102]
surveillance has occurred since the mid-1980s without public
consent, and several new government plans include expanded street
surveillance. n175 Scotland also faces many video surveillance
privacy problems. n176 In contrast to these European Countries,
Canada has taken the lead in protecting privacy rights for its
citizens under Section Eight of its Charter. n177 The Canadian
Supreme Court used a reasonable expectation of privacy test in
determining that police who installed audio-visual recording
equipment in an apartment violated the Canadian Charter. n178
Examining other countries' problems and solutions to video
surveillance provides valuable insight into America's growing
surveillance propensity. The United States should learn a precious
lesson from the voyeurism and exploitation that necessarily occurs
when privacy is not properly protected. n179
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n175 Haughey, supra note 164, at 7.
n176 Severin Carrell, Split Over 'Spy' Camera Controls, THE
SCOTSMAN, Dec. 14, 1995, at 4. Protests recently erupted in Scotland
over the sale of footage from private surveillance cameras that
captured couples making love, people making faces in shop windows,
and people undressing in changing rooms. Id. However, this public
outcry has not deterred the Scottish government, which plans on
installing 1000 new CCTV cameras in the next three years. Id. In
fact, the Minister of Home Affairs was quoted as saying: "At the
moment we've no immediate proposals for statutory controls." Id.
n177 Monique Rabideau, Duarte v. R.: In Fear of Big Brother, 49 U.
TORONTO FAC. L. REV. 171 (1991). On January 25, 1990, the Supreme
Court of Canada rendered an important surveillance decision in Mario
Duarte v. The Queen [1990] D.L.R. 4th 240 [hereinafter Duarte]. Id.
at 171. Justice LaForest, who wrote the opinion of the Court,
described the right to privacy as: "the right of the individual to
determine for himself when, how, and to what extent he will release
personal information about himself." Id. at 177. The interpretations
by the Court of Canada's Charter is analogous to when the United
States Supreme Court interprets the Constitution.
n178 Id. at 175-82. The Duarte case was an investigation into drug
trafficking where the police rented an apartment for an informer who
was working with an undercover police officer. Id. at 175. The
apartment was equipped with audio-visual recording equipment, and
the accused was charged with conspiracy to import a narcotic. Id.
The Court found the evidence to be admissible because the police
acted in good faith, but the police in Canada are now put on notice
that subsequent violations will not be tolerated. Id. at 182. The
Canadian Supreme Court's decision represents a significant shift in
the balance between individual privacy and the state's need to
pursue the administration of justice. Id. at 185. Canada is now
"less susceptible to the watchful eye of Big Brother." Id.
n179 "It was terribly dangerous to let your thoughts wander when you
were in any public place or within range of a telescreen." ORWELL,
supra note 155, at 54. This note advocates a privacy shift similar
to that of the Canadian government before public street surveillance
cameras and private video surveillance cameras become as prevalent
and as intrusive in the United States as they are in Britain.
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B. The American Experience
Police first used video surveillance to monitor the public streets
in Hoboken, New Jersey, n180 and Olean, New York. Both systems,
however, were dismantled because they were ineffective. n181 In
1971, New York installed a video surveillance system in the City of
Mt. Vernon, which was also dismantled after it produced no
convictions. n182 In 1973, the New York Times and several local
businesses installed a $ 15,000 video surveillance system in Times
Square. n183 After the system resulted in fewer than ten arrests in
twenty-two months, it was dismantled and dubbed one of the biggest
flops the city had ever seen. n184 In 1982, Miami Beach, Florida,
set up its surveillance program based upon the fears of the elderly
citizens that low income blacks and hispanics were invading the
city. n185 As previously indicated in the Introduction, the Miami
Beach video surveillance project was discontinued in May of 1984
after police were unable to apprehend a single criminal using the
system. n186 However, as technology improved and memories began to
lapse, the United States moved into the 1990sand a video revolution.
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n180 Granholm, supra note 3, at 687. In Hoboken, the camera system
was dismantled because it only produced one arrest during the five
years it was in place. Id. at 688.
n181 Robb, supra note 3, at 572 n.5. Police began surveillance in
1968, but Olean dismantled its system after only one year because of
the high costs of maintenance. Id. at 574 n.11.
n182 Id. at 573 n.7; Granholm, supra note 3, at 688.
n183 Robb, supra note 3, at 574. Newspapers at the time stated that
most people did not mind the cameras, and the cameras even made them
feel a little safer. Id. at 575 n.15.
n184 O'Donnell, supra note 15, at 16.
n185 Surette, supra note 16, at 81.
n186 Id. at 84.
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In Anchorage, Alaska, video images from street surveillance cameras
are not transferred to a police department; instead, they are sent
to private residents' home computers. n187 The Alaska program has
been in operation since 1990, and the funding for the program comes
from private and public grants. n188 The impetus for the Alaska
program came when the Alaskan pipeline project brought after-hours
gambling, drug dealers, drinking establishments and prostitutes to
the city of Anchorage. n189 The video patrol operates every night
with the cameras being controlled by residents who can videotape
close-ups of suspects. The residents then produce hard copies of the
photos which are circulated in paper form to business owners and
police in the neighborhood. n190 The video
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n187 1996 Report, supra note 41, at 15.
n188 Id. at 14. The community patrol is based upon grants from both
the Anchorage business community and the state of Alaska. Id. at 15.
n189 Id. at 14.
n190 Id. at 15. By digitizing images on home computers and editing
the video frame by frame, residents are able to produce high quality
close-ups of suspects. John F. Kirch, Northern Exposure, SECURITY
MGMT., Mar. 1995, at 15.
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[*1104]
watchers even put together a newsletter with photos of lawbreakers
"to be on the look-out for." n191
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n191 1996 Report, supra note 41, at 15. In addition, license plates
of suspected criminals were also recorded and stored in computer
databases. Kirch, supra note 190, at 15.
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In January 1996, a Baltimore, Maryland, community group petitioned a
non-profit organization to run a surveillance experiment. n192 The
city installed sixteen cameras in the downtown area that watch and
record sixteen downtown blocks. n193 The video screens are monitored
by a cooperative effort of police and private civilians. n194 The
program carried a bill of $ 58,000 that was funded by private grants
and the department of transportation. n195 This is just the first
stage of the Baltimore program which will eventually have over 200
cameras that cover 200 blocks from fifteen separate monitoring
sites. n196 The city of Baltimore also hopes to enlist private
security guards and private civilians to monitor the cameras. n197
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n192 1996 Report, supra note 41, at 17.
n193 Id. at 18. The downtown area has signs indicating that the city
is under surveillance. Id. See Bill Glauber, T.V. Keeps Eye on
British Streets, BALTIMORE SUN, Jan. 29, 1996, at 1A.
n194 1996 Report, supra note 41, at 18. One police officer claimed
that he can get as much done from his cozy outpost as eight police
officers out walking the beat. Bill Straub, TV Cameras Taking Place
of Policemen in Baltimore, ROCKY MOUNTAIN NEWS, March 10, 1996,
available in LEXIS, News Library, CURNWS File. The mini-police
station contains four video monitors stacked on top of each other,
displaying a panoramic view of eight busy downtown streets in
Baltimore. Id.
n195 1996 Report, supra note 41, at 19. Peter Hermann, Safety vs.
Big Brother, MILWAUKEE J. SENTINEL, Jan. 28, 1996, at 11. The
rhetoric is already flying that: "If you are not doing anything
wrong, what do you have to worry about?" Id.
n196 1996 Report, supra note 41, at 19.
n197 Michael Schneider, Cameras Being Set up in Baltimore to Keep
Eye out for Crime, ATLANTA J.-CONST., Jan. 20, 1996, at E1.
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The state of New Jersey has five separate cities that have
instituted video monitoring programs. In Camden, New Jersey, the
police use street surveillance cameras to monitor the Westfield
Acres Housing Projects. n198 The cameras are housed in bullet proof
domes because individuals have tried taking shots at the cameras to
bring them down. n199 The city plans to reduce the burden on police
monitoring by allowing residents to operate the cameras. n200 In
Dover, four cameras were installed in 1993 to watch the downtown
area on a twenty-four hour basis. n201 The Dover cameras have a 360
degree rotation
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n198 1996 Report, supra note 41, at 23. Officials claim that the
cameras are designed not to see inside homes or private areas. Id.
n199 Id. at 23-24. The criminals actually fought back and disabled
the cameras by shooting at them, which forced the city to move to
ballistic (bulletproof) domes that are impervious to most gunfire.
Id. at 71.
n200 Id. at 24.
n201 Id. at 25.
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[*1105]
and 180 degree vertical motion along with zoom capabilities. n202 In
Garfield, thirty-three cameras are videotaping housing complexes
around the clock. n203 The program was instituted by the Garfield
Housing Authority. The Garfield project is unique in that the
cameras are not monitored, they are only taped and then reviewed for
suspicious behavior. n204 The video tapes are then forwarded to the
police and the FBI. n205 However, the city plans to allow resident
volunteers to monitor the cameras in the near future. n206 In South
Orange, the municipality installed seven video surveillance cameras.
n207 The cameras are located in bubble-like housings twenty- five to
thirty feet off the ground and they allow police station personnel
to "monitor a bank of screens and to zoom in and videotape almost
anybody and anything in the camera's view." n208 Finally, in
Heightstown, New Jersey, ten cameras monitor trouble spots within
housing projects. n209
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n202 Id. at 72. The Dover system is viable because of the
compactness of the downtown business area coupled with the close
proximity of the police station. Id.
n203 Id. at 27.
n204 Id. at 28.
n205 Id. The police in Bridgewater Township recently installed a $
4000 video camera in one of its patrol cars to aid officers in
prosecuting drunk drivers. Angela Stewart, Video Cameras Stir
Privacy Concern, STAR-LEDGER, Aug. 19, 1996, available in 1996 WL
7961910. However, the police conceded that the camera will also be
used to film routine motor vehicle stops. Id.
n206 1996 Report, supra note 41, at 28.
n207 Id. at 42.
n208 Id. at 43.
n209 Id. at 62. The town of Boonton is also trying to calm safety
concerns by installing three cameras which will operate on a
twenty-four hour basis at the cost of $ 38,000. Stewart, supra note
205.
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In Los Angeles, California, an entirely privately funded video
surveillance program is in operation. n210 Landlords have mounted
video cameras on their apartment buildings to conduct surveillance
of the streets, after which certain footage is turned over to
police. n211 The Los Angeles Police support the community program
which uses volunteers to monitor the cameras. n212 One
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n210 1996 Report, supra note 41, at 31. The police in Redwood City,
California have also begun using sophisticated hidden listening
devices to patrol high-crime areas. Claude Lewis, Police Will Eye
Crime with Hidden Surveillance, CALGARY HERALD, Feb. 18, 1996, at
A7, available in 1996 WL 5068489. The devices are so sensitive that
gunfire can be traced to within ten yards of its origin. Id. In
addition, authorities are also installing cameras that can monitor a
sixteen block area on a twenty-four hour basis. Id.
n211 1996 Report, supra note 41, at 31.
n212 Id. at 32. Deputies in California have also begun to wear
"CopCam." Kelly Thornton, Deputies Will Wear Tiny Video Cameras, SAN
DIEGO UNION-TRIB., Dec. 13, 1996, available in 1996 WL 12581755.
This tiny video camera attaches inconspicuously to the shirt so that
officers may record interactions with the public. Id. The device
sends pictures and sound through a wireless belt transmitter to an
antenna mounted on a police cruiser. Id. The signal is broadcast on
a small television screen inside the police car and recorded by a
VCR in the trunk. Id. Once the tape is inserted, it can be removed
only by a supervisor's key. Id.
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[*1106]
property owner who was a catalyst in implementing the system
proclaimed: "[y]ou can't commit crimes if you know Big Brother is
watching you." n213
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n213 1996 Report, supra note 41, at 33.
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In Virginia Beach, Virginia, the city has installed ten video
cameras on the busiest beach front area. n214 The cameras are
mounted on existing signal devices and street light poles, and they
are enclosed in weather-proof spheres with tinted domes. n215 The
cameras can be rotated 360 degrees, and they are equipped with
motorized pan and tilt devices and zoom lenses. n216 The color
cameras are low light sensitive so they can produce high quality
video images in darkness. n217 The $ 240,000 project was funded
through local business contributions, a drug asset forfeiture fund
and the city's reserve fund. n218 The city plans to add seven more
cameras with the backing provided by local businesses. n219
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n214 Id. at 50. In 1993, Virginia Beach set up surveillance cameras
along the boardwalk to help reduce crime. 20/20, supra note 41, at
10.
n215 1996 Report, supra note 41, at 50.
n216 Id. at 50. A fiber optic cable sends a picture to a police
station, where a single officer can watch the 10 television monitors
that survey 27 blocks. Tom Curley, Police Video Cams Hook up, USA
TODAY, Dec. 27, 1995.
n217 1996 Report, supra note 41, at 90.
n218 Id. at 50.
n219 Id. at 51.
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Similar surveillance camera systems are also in use in Orange
County, California; Tacoma, Washington; and Boston, Massachusetts.
n220 Kinston, North Carolina has installed twenty video cameras on
utility poles that will be monitored on a twenty-four hour basis.
n221 The City of Memphis, Tennessee currently has ten cameras
operating, but the surveillance plan includes an expansion to
seventy-two cameras. n222 In San Diego, California, five cameras
operate in Balboa Park. n223 Across the country in Tampa, Florida,
the city installed eight cameras in the Ybor City District which
allows the police to monitor the tens of thousands of people who
come to the city every weekend. n224 Despite camera abuses and
surveillance failures, many towns are
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n220 Id. at 21, 44; Sterghos, supra note 39, at 1A.
n221 1996 Report, supra note 41, at 29. The New Bern Police
Department also plans to use a $ 40,000 federal grant to place four
cameras in the downtown area. Jerry Allegood, New Bern Debates Use
of Street Cameras, NEWS & OBSERVER, Aug. 28, 1996, at A3, available
in 1996 WL 2894263. The cameras would be attached to utility poles
and they will transmit video images to dispatchers. Id.
n222 1996 Report, supra note 41, at 35-36.
n223 Id. at 37-38.
n224 Id. at 46-47. The city plans to install eight additional
cameras in 1997. Id. at 48. The Tampa City Council was originally
unsure about approving the $ 62,000 budget for the surveillance
cameras on east seventh avenue. Ivan J. Hathaway, Decision Delayed
on Video Surveillance in Ybor, YBOR TRIB., May 24, 1996, at 1.
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[*1107]
still using video surveillance or considering video surveillance
technology. n225 For instance, Portland, Oregon police are currently
in the process of appraising the use of cameras to rid the downtown
area of street crime. n226 Seemingly destined to repeat the British
Government's errors, Portland plans to hire private security firms
and security guards to watch the cameras. n227
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n225 The City of Chicago has also tried smaller versions of video
surveillance systems in the past. Robb, supra note 3, at 571 n.2.
See also, Robert Davis, City Graffiti Vandals Snared By Cops with
Hidden Cameras, CHI. TRIB., Aug. 19, 1994, at 4. Under the direction
of Mayor Richard Daley, the Chicago Police set up a graffiti sting
operation where a building was chosen and cleaned of all graffiti,
and then police used cameras to catch spray paint vandals in the
act. Id. Daley indicated that the sting operation was so successful,
it was likely to be repeated throughout the city. Id. Moreover,
officials from Illinois recently visited King's Lynn, England to
inspect the British video surveillance operations. Coll, supra note
162.
n226 Anderson, supra note 40, at B1; 1996 Report, supra note 41, at
60-61.
n227 Anderson, supra note 40, at B1. See supra notes 165-69 and
accompanying text discussing Barrie Goulding's "Caught in the Act"
video. To Portland's credit, the city claims to be sensitive to the
issue of privacy, and it advocates "a comprehensive system of
procedures and guidelines to ensure that privacy rights of citizens
are respected and inappropriate use of the video system will not
occur." 1996 Report, supra note 41, at 95.
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Although limited information exists about the use of video
surveillance tapes from American street surveillance systems, a
helpful analogy may be to examine similar operations where private
actors use and abuse video cameras. America is fascinated with the
potential of video cameras to invade privacy, as evidenced by the
abundance of "reality" television shows that appeared in the 1990s
such as COPS, I- Witness Video, Firefighters, Real Stories of the
Highway Patrol, Emergency Response, and Rescue 911. n228 However, in
the United States, camera crews follow police and emergency
personnel as well as use video surveillance cameras mounted on poles
and buildings. n229 The effect is
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n228 McClurg, supra note 3, at 1013. McClurg believes that the
aspiration of these programs is to compact as much human suffering
and embarrassment as possible into a 30 or 60 minute telecast. Id.
n229 Another growing trend is the mounting of cameras on police cars
and in police cars. C. Ron Allen, Boca Police Put Motorists on
Candid Camera, SUN- SENTINEL (Ft. Lauderdale), May 15, 1995, at 3B.
In Florida, these mounted cameras are used in conjunction with
microphones worn by the police officers when they pull over a car.
Id. The cameras are typically used to help document drunk driving
arrests. Id. Although the police do not need to let the people know
that they are being filmed, the officers inform the motorists that
they are being filmed and audiotaped. Id. This seems slightly
different than street surveillance cameras because the person
already knows the officer is observing them, and they are also
informed that a video and audio tape is being made. The police in
California have also installed cameras in 36 patrol cars as a result
of the Rodney King beating in 1991. Patrick McGreevy, Chief Wants
Squad-Car Cameras Kept on During Specific Operations, L.A. DAILY
NEWS, July 15, 1995, at N3. The video cameras are to be turned on
during pursuits, traffic stops, and traffic-related investigations
for evidence purposes and to help reduce conflicts between officers
and citizens. Id. See also Haymond v. Dep't of Licensing, 872 P.2d
61, 63 (Wash. Ct. App. 1994) (upholding the use of a video camera
during a traffic stop without the driver's consent).
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[*1108]
frequently the same when individuals are filmed suffering a heart
attack, being subjected to a search warrant in the middle of the
night, or humiliating themselves during sobriety tests. n230
Reminiscent of "Caught in the Act," produced by Barrie Goulding, the
executive producer of COPS, John Langley, recently began selling a
"too hot" for television version of COPS that the "censors would not
let you see." n231 The most graphic portions of the video show a man
who hung himself in his garage, a drive-by shooting victim dying in
a car, a man running from his house on fire and the slaughtered
bodies of an entire family including a baby in a crib. n232
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n230 McClurg, supra note 3, at 1014.
n231 COPS: Too Hot For TV, Volume I, (Barbour/Langley Productions
1995). This video includes footage of drunk drivers humiliating
themselves, women and men engaged in prostitution, women offering
police sexual favors, and full frontal nudity of men and women. The
video also includes at least five requests by different individuals
to "get the camera out of here," which the camera-operators totally
ignore. Moreover, many people are shown without the face distortion
technique often used on the television show.
n232 Id.
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Another "reality" show placed a hidden microphone on a paramedic who
aided a critically injured woman. n233 The woman can clearly be
heard moaning and begging to be allowed to die. n234 Currently, the
woman, who is permanently paralyzed, is suing because she does not
believe her family's tragedy is suitable viewing for public
entertainment. n235 These "reality" videos are frighteningly similar
to the CCTV films from England which display the most gruesome and
titillating aspects of a person's life for the pleasure of the
viewing audience. Moreover, news tabloid shows and other news
programs constantly use hidden cameras and microphones to expose
individuals and businesses. n236 The use of hidden cameras has
dramatically increased from the already staggering statistics taken
ten years ago indicating that sixty-four percent of television
stations were using hidden investigation techniques. n237 However, a
simple supply and demand concept dictates that if these shocking and
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n233 Gail Diane Cox, Privacy Frontiers At Issue: Unwilling Subjects
of Tabloid TV Are Suing, 16 NAT'L L.J. 1 (1993).
n234 Id.
n235 Id.
n236 McClurg, supra note 3, at 1014. Don Hewitt, the executive
producer of 60 Minutes, recently stated that: "It's a small crime
versus the greater good. . . . If you can catch someone violating
'thou shall not steal' by violating 'thou shall not lie,' that's a
pretty good trade-off." Id. at 1015 n.129 (citing Howard Kurtz,
Hidden Network Cameras: A Troubling Trend? Critics Complain of
Deception as Dramatic Footage Yields High Ratings, WASH. POST, Nov.
30, 1992, at A1).
n237 McClurg, supra note 3, at 1015. Several recent law suits may
curtail some future hidden camera news segments. Barry Meier & Bill
Carter, Juries Slap Down TV Journalists' Methods, PITTSBURGH
POST-GAZETTE, Dec. 24, 1996, at D1, available in 1996 WL 12105658.
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[*1109]
voyeuristic shows did not sell, they would cease to exist. n238 The
voyeurism revolution endures because we have the means and the
market for taping ordinary people living their lives. n239
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n238 McClurg, supra note 3, at 1017 (placing the responsibility
squarely on the willing American consumers).
n239 Cox, supra note 233, at 1. Lawsuits that are filed by
individuals are long shots because the victims usually did not
suffer great injuries. McClurg, supra note 3, at 1080. See also Mark
Levy, Of Laws and Lenses, VIDEOMAKER (Magazine), Dec. 1995, at 76. A
person does not have the absolute right to include even true
statements about another in a video without permission. Id. at 78.
Videotaping a person's private conversations or his family and
business activities without permission constitutes an invasion of
privacy. Id. Public interest should not be the standard by which the
courts judge the acceptability of privacy intrusions. McClurg, supra
note 3, at 1080.
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If more American cities do turn to video surveillance, it probably
will not take long before some entrepreneur, like John Langley or
Barrie Goulding, tries to use the footage from the cameras for a new
television show. As indicated earlier, Alaska permits its private
citizens to view the street surveillance footage in the comfort of
their own homes on their personal computers. n240 The developers of
the failed Dade County, Florida, video surveillance project openly
admitted their intent to sell video "action footage" for newscasts.
n241 Furthermore, several cities allow private citizens to decide
what to watch and who gets filmed. In other circumstances the tapes
are reviewed after filming to decide what gets sent to the police.
n242 As Orlando, Florida, discovered recently when it shut down its
surveillance operation, no guidelines or restrictions exist for the
use of the street surveillance cameras. n243 To realize the inherent
danger created, Americans only need to turn to newspaper headlines
replete with tales of voyeurism and video camera abuses. n244
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n240 1996 Report, supra note 41, at 15.
n241 Surette, supra note 16, at 83.
n242 The program instituted by the Garfield Housing Authority
provides that the tapes are forwarded to the police and the FBI
after viewing. 1996 Report, supra note 41, at 28.
n243 See supra notes 1-3 and accompanying text.
n244 In Missouri, several fashion models were shocked to learn that
security guards filmed them while dressing and undressing back stage
in a convention center. Doe v. B.P.S. Guard Serv. Inc., 945 F.2d
1422 (8th Cir. 1991). In Washington, male pool staff taped and
flaunted footage to friends of female lifeguards and pool patrons
changing clothes in a locker room. Karl Vick, Videotaped Lifeguard
Wins Lawsuit, WASH. POST, Dec. 12, 1995, at E3. In Milwaukee, a
public school teacher was arrested after he video taped girls
changing clothes for a school play the teacher directed. Alleged
Taping Leads to Teacher's Arrest, MILWAUKEE J. SENTINEL, May 4,
1995, at 3B. In one particular case, a physician made secret video
tapes of his patients as they undressed. Kimberly D. Kleman,
Insurance Fund Sues to Cancel Dubin's Policies, ST. PETERSBURG
TIMES, Nov. 3, 1987, at 2. A recurring scenario is fashion models
filmed back stage or in dressing areas by hidden video cameras. See
Snakenberg v. Hartford Cas. Ins. Co., 383 S.E.2d 2, 4 (S.C. Ct. App.
1989); USA TODAY, Nov. 25, 1991, at 8A (discussing a law suit by
three models against a photographer who secretly video taped them
changing in his studio). In one disturbing case, a sixteen year old
model was filmed changing clothes. South Bay: Arrest Warrant Issued
in Nude Photo Case, S.F. CHRON., Dec. 9, 1992, at A24. In yet
another case, the defendant was accused of taping his fifteen-
year-old godson having sex with the nineteen-year-old nanny. Zachary
R. Dowdy, McNeil, Pleading Guilty Receives 7 1/2 to 9 Year Term For
Bribery, BOSTON GLOBE, Mar. 5, 1993, at 80.
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[*1110]
Even towns that only employ police officers to monitor the cameras
still face the dangers of unauthorized use. To facilitate an
understanding of the potential for police and security firm abuses,
an overview of voyeurism cases involving police officers proves
valuable. One particular defendant, who happened to be a police
officer, was charged after filming two women during sexual
intercourse and then showing the surreptitiously taped sex act to
fellow officers. n245 In another suit against police officers, a
woman claimed that police investigators installed a camera in her
daughter's hospital room and recorded her sleeping and changing
clothes. n246
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n245 Patricia Nealon, Weymouth Officer Charged with Secretly Taping
Sex, BOSTON GLOBE, Sept. 25, 1992, at 21.
n246 Check with Judge Should Have Come First, OMAHA WORLD-HERALD,
Feb. 3, 1996, at 8.
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In Michigan and Oregon, police officers placed cameras above the
stalls in public restrooms to catch males engaging in homosexual
relations. n247 In several cases men were arrested for masturbating
or engaging in consensual sex with other men. n248 The acts were
caught on videotape by police who were spying on the innocent and
the guilty alike. n249 When police officers freely film these
extremely private activities, it becomes clear that many other
potentially embarrassing situations could be filmed by street
surveillance cameras. In comparison, a recent interview with a
security guard video monitor in Glasgow produced the following
conversation:
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n247 Jeanette R. Scharrer, Comment, Covert Electronic Surveillance
of Public Restrooms: Privacy in the Common Area?, 6 COOLEY L. REV.
495 (1989). See also Oregon v. Owczarzak, 766 P.2d 399 (Or. Ct. App.
1988). In reaction to these decisions, some commentators have
expressed a belief that a public restroom occupant should be
shielded from public eyes the same way that a telephone booth
occupant in Katz was shielded from public ears. William O'Callaghan,
Cameras in the Restroom: Police Surveillance and the Fourth
Amendment, 22 HASTINGS CONST. L.Q. 867, 881 (1995); Scharrer, supra,
at 510. Michigan v. Dezek, 308 N.W.2d 652 (Mich. Ct. App. 1988),
held that a bathroom stall is like a temporary private place. But
see Michigan v. Hunt, 259 N.W.2d 147 (Mich. Ct. App. 1977), where a
man and a woman were charged for having sex in a men's restroom, and
the court found that they did not have a reasonable expectation of
privacy when the restroom was not locked and the pair occupiedthe
men's room for 30 minutes making audible moans. Id. at 148-49.
n248 O'Callaghan, supra note 247, at 869.
n249 Id. at 878. In one case the wrong man was charged after his
brother- in-law borrowed his car and visited a rest area to engage
in homosexual relations. Scharrer, supra note 247, at 495. Police
officers set up video cameras at a highway rest stop and, under a
gross indecency statute, arrested 42 homosexual males for engaging
in a variety of sexual acts. Id. at 503. Initially, the police
placed one camera above the entrance to the bathroom and another
camera below the sinks. Id. at 502. Tapes from these cameras were
then used to show the probable cause necessary to install two
additional cameras in the ceiling above the toilet stalls. Id. at
502-03.
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[*1111]
Lynn Sherr: Do you ever see women that you're interested in and
follow them and try to get their number? Video Monitor: It's hard
not to pick up on things. I mean you might see this beautiful woman
walking down the street and I will think boy, she's not bad. But I
wouldn't abuse the system like that. Lynn Sherr: You sure? Video
Monitor: Yeah, well, no. n250
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n250 20/20, supra note 41, at 9-10.
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Thus, the United States has not yet learned the lessons of voyeurism
inherent in the use of street video surveillance systems.
Voyeuristic television shows have succeeded in America and England
based on video camera footage from cameras on public streets, and
there is no reason to think that "America's Funniest Street
Surveillance Videos" would not be a hit. n251 Regardless, several
video surveillance systems have been set up, and more will be set up
in American cities unless regulation takes place. Therefore, since
Congress and the Supreme Court have not addressed the video
surveillance problem, the states must.
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n251 McClurg believes that if a television network began
broadcasting secretly filmed footage of a couple having sex in their
bedroom, the ratings would probably be extraordinary. However,
public interest should not be the standard by which the courts judge
the acceptability of privacy intrusions. McClurg, supra note 3, at
1080. In fact, there currently exists a show called "America's
Dumbest Criminals," which displays footage from surveillance cameras
with narration and comedy music.
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IV. THE STATE LABORATORIES
Justice Brandeis coined the term "state laboratories" by proclaiming
that "[i]t is one of the happy incidents of the federal system that
a single courageous State may, if its citizens chose, serve as a
laboratory; and try novel social and economic experiments without
risk to the rest of the country." n252 Justice Brandeis meant that
because of the sovereign power that states enjoy from federal law,
the states may expand upon rights guaranteed by the Federal
Constitution, or a particular state can create new rights for its
own citizens. Therefore, a proposal to stop video surveillance may
stem from state constitutional privacy rights expressed in a model
state statute. n253 This type of solution has been validated by
several instances where the Supreme Court has limited a particular
constitutional expansion, and the states have reacted by
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n252 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
n253 See infra section V.
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[*1112]
expanding rights guaranteed under the state's own constitution. n254
Since 1970, over 300 published opinions of state supreme courts have
restricted government actions more severely than parallel provisions
in the United States Constitution, thereby expanding the rights of
the citizens of the state. n255 The state constitutional law
movement began in response to the perceived conservative decisions
of the Burger and Rehnquist Courts, as compared with the perceived
liberal approach of the Warren Court. n256 Indeed, some Supreme
Court Justices have encouraged state courts to take a broader
approach to privacy rights under their own constitutions. n257 The
state constitutional law movement has been dubbed "new federalism,"
n258 and the states may eventually become the "privacy laboratories"
that Justice Brandeis envisioned. n259
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n254 For example, in Arcara v. Cloud Books, Inc., 478 U.S. 697
(1986), the Court held that the closure of an adult book store did
not require First Amendment analysis because the enforcement of the
public health regulation was one of general application. Id. at 705.
On remand, the New York Court of Appeals held that in the absence of
showing a no broader than necessary application of the health
regulation, the forced closure would unduly impair the bookseller's
right of free expression under the New York State Constitution.
People ex rel Arcara v. Cloud Books, Inc., 503 N.E.2d 492, 494-95
(N.Y. 1986). See also Burrows v. Superior Court of San Bernardino
County, 529 P.2d 590 (Cal. 1974). The California Supreme Court found
that the state constitution provided greater coverage of the right
of privacy than the Fourth Amendment. Id. at 594-95.
n255 Silverstein, supra note 116, at 215 n.3. For an expansive
discussion of the development of privacy doctrines in Alaska,
Arizona, California, Florida, Hawaii, Louisiana, Montana, South
Carolina, and Washington, see id. at 228-58.
n256 Gormley, supra note 3, at 1420. Many articles address the
replacement of federal rights with expanding state constitutional
law. See William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 HARV. L. REV. 489 (1977);
Developments in the Law-The Interpretation of State Constitutional
Rights, 95 HARV. L. REV. 1324 (1982); Stanley Mosk, State
Constitutionalism: Both Liberal and Conservative, 63 TEX. L. REV.
1081 (1985); Symposium, The New Judicial Federalism: A New
Generation, 30 VAL. U. L. REV. 421 (1996).
n257 Christ v. Bretz, 437 U.S. 28, 39-40 (1978) (Burger, C.J.,
dissenting); Michigan v. Mosley, 423 U.S. 96, 120 (1975) (Brennan,
J., dissenting); Brennan, supra note 256, at 491.
n258 Silverstein, supra note 116, at 217. The term "federalism" was
originally used to describe the ratification philosophy of the
Constitution's proponents. STEPHEN B. PRESSER & JAMIL S. ZAINALDIN,
LAW AND JURISPRUDENCE IN AMERICAN HISTORY 133 (3d ed. 1995) The
Federalists wanted a strong central government that preserved
individual liberty and confirmed state sovereignty. Id.
n259 Gormley, supra note 3, at 1422.
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Although state constitutions may provide greater protection than the
United States Constitution, a state must have adequate and
independent state grounds for its decision based upon state
constitutional law. n260 A state may examine federal cases for
guidance, but the state must make a plain statement in its
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n260 Michigan v. Long, 463 U.S. 1032 (1983). If jurisdiction rests
upon two grounds, one which is federal and one which is non-federal
in character, the Supreme Court's jurisdiction fails if the
non-federal grounds are independent of the federal grounds and
adequate to support the judgment. Fox Film Corp. v. Muller, 296 U.S.
207, 210 (1935).
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[*1113]
judgment that state law was used to decide the case. n261 Thus, if a
state follows a supplemental approach to its constitution, it can
effectively build an unreviewable body of state constitutional
jurisprudence. n262 Although a state may grant broader powers to its
citizens than the United States Constitution grants, the state
interpretation may not limit federal laws, because such an expansion
would violate the Supremacy Clause of the Constitution. n263
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n261 Long, 463 U.S. at 1040-41. The Supreme Court will refuse to
decide cases if there exists an adequate and independent state
ground, out of respect for the state courts and to avoid issuing
advisory opinions. Id. In Long, the officers performed a "Terry
search" and discovered marijuana protruding from under the armrest
of the front seat, and the police found 75 pounds of marijuana in
the trunk. Id. at 1036. The Court remanded the case back to the
Michigan Supreme Court to determine whether the trunk search was
permissible. Id. at 1053. A "Terry search" comes from the landmark
case of Terry v. Ohio, 392 U.S. 1 (1968), which provides the
parameters of stop and frisk requirements based upon reasonable
suspicion.
n262 Silverstein, supra note 116, at 217. In contrast to the
supplemental approach, states that follow a dual approach analyze
state and federal constitutional claims together, but these states
may be eventually reversed by the Supreme Court. Id.
n263 "This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof . . . shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding." U.S. CONST. art. VI. State court rulings may only
effectively serve to expand individual rights, because if a ruling
under the state constitution affords less protection than the United
States Supreme Court precedents, the rulings are subject to being
voided and should be essentially considered meaningless. WAYNE R.
LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 2.10(b), at 96 (2d ed.
1992).
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In the age of new federalism, the states have become the defenders
of the right to privacy, and several state constitutions explicitly
articulate a right to privacy. n264 For instance, Oregon rejected
the Katz reasonable expectation of privacy formula under its own
constitution and asserted that the Oregon Constitution protects
"privacy to which one has a right." n265 Furthermore, Pennsylvania
found that its constitution mandated a greater need for protection
from illegal government conduct that was offensive to the right of
privacy. n266
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n264 See infra notes 265-73.
n265 Oregon v. Campbell, 759 P.2d 1040, 1044 (Or. 1988). No Law
shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or
seizure; and no warrant shall issue but upon probable cause,
supported by oath, or affirmation, and particularly describing the
place to be searched, and the person or thing to be seized. OR.
CONST. art. I, 9. But see Pennsylvania v. Hernley, 263 A.2d 904, 907
(Pa. Super. Ct. 1970) (refusing to apply the Fourth Amendment when a
shop owner failed to place curtains on the windows).
n266 Pennsylvania v. Sell, 470 A.2d 457 (Pa. 1983). A Pennsylvania
court plurality also found that a defendant who spent a certain
portion of time at his fiancee's home had a reasonable expectation
of privacy at that dwelling. Pennsylvania v. Wagner, 406 A.2d 1026
(Pa. 1979). Moreover, in Pennsylvania v. Schaeffer, 536 A.2d 354
(Pa. Super Ct. 1987), the court held that a reasonable expectation
of privacy exists in what one speaks in the confines of his home,
and such conversation should be protected by the Pennsylvania
constitution regardless of what the United States Supreme Court
protected under the Fourth Amendment. Id. at 371.
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[*1114]
Alaska n267 and Hawaii n268 also decided to include a right to
privacy in their respective constitutions. Moreover, Montana adopted
a separate clause that guarantees its citizens the right to
individual privacy by subscribing to a strict scrutiny approach to
privacy. n269 Illinois secures the rights of citizens to be free
from warrantless searches and seizures and invasions of privacy,
n270 while the California Constitution provides that privacy ranks
among the inalienable rights. n271 Moreover, the highest courts of
Alaska, Florida, New Hampshire, Michigan, and Montana have all
rejected the Supreme Court's analysis in United States v. White,
n272 which upheld police use of wired informants without the
knowledge of the police targets. n273
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n267 ALASKA CONST. art. I, 22. "The right of the people to privacy
is recognized and shall not be infringed." Id.
n268 HAW. CONST. art. I, 7. "The right of the people to be secure in
their persons, houses, papers and effects against unreasonable
searches seizures, and invasions of privacy shall not be violated"
Id.
n269 MONT. CONST. art. II, 10. "The right of individual privacy is
essential to the well-being of a free society and shall not be
infringed without the showing of a compelling state interest." Id.
n270 ILL. CONST. art I, 6. "The people shall have the right to be
secure in their persons, houses, papers and other possessions
against unreasonable searches, seizures, invasions of privacy or
interceptions of communications by eavesdropping devices or other
means." Id.
n271 CAL. CONST. art. I, 1. "All people are by nature free and
independent and have inalienable rights. Among these are enjoying
and defending life and liberty, acquiring, possessing, and
protecting property, and pursing and obtaining safety, happiness,
and privacy." Id.
n272 401 U.S. 745 (1971).
n273 White provided that a government agent may wear a concealed
wire that transmits and records conversations about illegal activity
or proposed drug deals. Id. at 754. Gormley, supra note 3, at 1426.
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Unfortunately, not every state has a clear constitutional right to
privacy. Indeed, states without constitutional privacy jurisprudence
typically permit more intrusions into the zone of privacy. n274
However, other states endeavor to protect privacy when police desire
to use video cameras. n275 Thus, by examining states that protect
privacy and states that do not recognize a right to privacy, a
proper model state statute can be crafted to manage street camera
surveillance. n276
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n274 See infra notes 277-316 and accompanying text.
n275 See infra notes 317-38 and accompanying text.
n276 See infra notes 426-55 and accompanying text.
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A. States That Allow Privacy Intrusions
Several important state cases have permitted invasions of privacy
through the use of video surveillance technology and cameras. One
famous privacy case arose from a photograph taken of a couple
sitting together at their ice cream
[*1115]
stand in Los Angeles. n277 The picture portrayed the couple pressed
romantically close together with the man's arm around the woman, but
the article related to a discussion of divorce and love at first
sight. n278 The Supreme Court of California found that the mere
publication of the photograph alone did not invade the couple's
privacy because of the public interest in the dissemination of the
news. n279 The court found it significant that the photograph was
not surreptitiously taken on private grounds, but rather the
photograph was taken in public. n280 Some critics have disputed the
logic of the California Supreme Court's decision. n281 The
Restatement (Second) of Torts essentially provides that a plaintiff
who fully understands a risk of harm to himself, and who
nevertheless voluntarily remains there, cannot recover for harm
within that risk. n282 However, the wisdom of the California Supreme
Court breaks down if the romantic couple did not have any knowledge
of the risk in a meaningful sense. n283 To assume the risk, the
couple must have appreciated the danger itself of the particular
photograph being taken, not merely that the event was possible. n284
This same analysis applies to the use of video surveillance footage,
because subsistence in society requires that people spend a
considerable amount of time in places accessible to the public. n285
Therefore, at least one critic believes that the California Supreme
Court applies an all-or-nothing approach to privacy that is simply
unworkable. n286
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n277 Gill v. Hearst Publ'g Co., 239 P.2d 636 (Cal. 1952), reh'g
after remand, 253 P.2d 441 (Cal. 1953); Gill v. The Curtis Publ'g
Co., 239 P.2d 630 (Cal. 1952). Under the picture of the couple
appeared the caption: "love at first sight is a bad risk." Id. at
632. See also, De Gregorio v. CBS, 473 N.Y.S.2d 922 (N.Y. Sup. Ct.
1984). In the De Gregorio case, a male and female construction
worker were holding hands while walking on Madison Avenue. Id. at
923. A camera crew doing a story on romance filmed the couple and
broadcast the footage over protests of the male worker that he was
married and his companion was engaged. Id. The male worker sued CBS
and lost because romance was a matter of public interest. Id. at
926.
n278 Hearst Publ'g, 253 P.2d at 442-43. The plaintiffs alleged that
the photograph had been taken by a Hearst employee and the
plaintiffs had not consented to its publication. Id. at 442.
n279 Id. at 443. The court stated that the right of privacy is
determined by the norm of the ordinary man with ordinary
sensibilities. Id. at 444.
n280 Id. The court held that by their own voluntary actions, the
plaintiffs waived their right of privacy and the particular pose
became part of the public domain. Id. However, the court held that
if the publication of the picture had been shocking, revolting or
indecent, the case may have been different. Id. at 445.
n281 McClurg, supra note 3, at 1038-41.
n282 RESTATEMENT (SECOND) OF TORTS 496A (1977).
n283 McClurg, supra note 3, at 1039.
n284 Id.
n285 Id. Therefore, the Gill rationale provides that the only way to
avoid voluntary actions becoming part of the public domain is to
remain inside with the blinds tightly closed. Id. at 1040. This
would require individuals to not hold a job, go to the store, go to
school, or participate in any "public" relationships. Id.
n286 Id. at 1040-41.
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[*1116]
In one particular Alabama case, a plaintiff was able to recover for
a photograph taken of her at a "Fun House" when an air jet blew her
skirt over her head. n287 The photographer sold the picture of the
woman in her underwear to a newspaper which published the photograph
on the front page of its paper. n288 An important distinction is
that the intrusion occurred the moment the photograph was taken, not
when the photograph was published. n289 In contrast, a couple tried
to sue the publisher of World Guide to Nude Beaches and Recreation
after he published a photograph of them on a nude beach. n290 The
Appellate Court in New York held that the matter was of some public
interest, and the couple's picture was reasonably related to the
subject; therefore, the couple was not allowed to recover. n291 A
summary of these cases seems to imply that simply because people
understand the risk that they may always be photographed does not
confer the right to take a photograph of every potentially
embarrassing situation, especially when the embarrassing display was
unintentional.
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n287 Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964).
n288 Id. at 476. The court called the photograph a "wrongful
intrusion into one's private activities." Id.
n289 McClurg, supra note 3, at 1073. However, McClurg argues that to
discount the publication aspect of the privacy tort would be like
focusing on the pin prick in a person's arm when they are infected
with HIV through a blood transfusion instead of focusing on the
offensiveness and intrusiveness of infecting the person. Id. at
1075.
n290 Creel v. Crown Publishers, 496 N.Y.S.2d 219 (N.Y. App. Div.
1985). The book contained 200 close-up photographs of nudes. Id. at
220.
n291 Id.
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However, different courts address these types of photographs in
different manners, depending especially on the status of the person
photographed. A Georgia newspaper published photographs of a
murdered fourteen-year-old girl whose body was partially decomposed
and wrapped in chains. n292 A Georgia court held that the dead body
was newsworthy and the girl's family could not maintain a cause of
action. n293 In another case, a woman's former husband kidnapped
her, took her to an apartment, and stripped and raped her. n294 To
add to the horrifying experience, the police arrived with camera
crews, and although the woman attempted to cover herself with a dish
towel, her photograph was published the next day in a newspaper.
n295 A Florida
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n292 Waters v. Fleetwood, 91 S.E.2d 344 (Ga. 1956).
n293 Id.
n294 Cape Publications, Inc. v. Bridges, 423 So.2d 426 (Fla. 1982).
Hilda Bridges was abducted by her estranged husband who came to her
workplace and forced her at gunpoint to go with him to their former
apartment. Id. at 427.
n295 Id. The police heard a gunshot, stormed the apartment and
rushed Bridges outside to safety. Id.
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[*1117]
court denied the woman damages and held that the event was a
newsworthy, emotion-packed drama to which others are attracted. n296
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n296 Id. "At some point the public's interest in obtaining
information becomes dominant over the individual's right of
privacy." Id. at 427. A hypersensitive individual will not be
protected under an invasion of privacy. Id.
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A relatively new invasion of privacy tort area has been "ride-along"
cases or "reality show" cases where criminals and victims are
exposed to public scrutiny by camera crews following police and
paramedics. n297 In one particular case, camera crews from NBC
rushed into a house with paramedics who were attempting to save a
heart attack victim's life. n298 To the outrage of the family, the
death of fifty-nine-year-old Dave Miller was broadcast on television
several different times. n299 Unfortunately, the family soon learned
that the right to privacy is a personal right, and only the person
whose privacy is actually invaded may sue. n300 In contrast, another
court held that CBS did not have the right to follow police on a
search and seizure mission into a man's apartment. n301 The New York
Court held that the only reason CBS was present at the search was to
"titillate and entertain others." n302
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n297 See supra notes 228-39 and accompanying text.
n298 Miller v. National Broad. Co., 187 Cal. App. 3d 1463 (Cal. Ct.
App. 1986).
n299 Case reprinted in part by ELLEN ALDERMAN & CAROLINE KENNEDY,
THE RIGHT TO PRIVACY 176-88 (1995). Author/attorney, Caroline
Kennedy, the daughter of President John F. Kennedy, was involved in
a privacy suit of her own when she was a child. McClurg, supra note
3, at 1047. In Galella v. Onassis, 487 F.2d 986 (2d Cir. 1973),
Donald Galella filed suit against Jacqueline Onassis and three
Secret Service agents for false arrest, and Onassis counterclaimed
for several actions including invasion of privacy. McClurg, supra
note 3, at 1047. The suits arose from Galella constantly following
and photographing Onassis, John Kennedy Jr. and Caroline Kennedy.
Id. Onassis eventually dropped her claim for damages, but the court
enjoined Galella from further harassment of Onassis and her family.
Id. at 1048.
n300 ALDERMAN & KENNEDY, supra note 299, at 183. Thus, the relatives
of Dave Miller could not file the claim for invasion of privacy and
could only sue for the physical invasion into their home. Id. at
183-85. After six years in the pre- trial stage, the family finally
settled with NBC for an undisclosed amount. Id. at 187-88. The right
to privacy expires at death, unless a state statute or state common
law extends the right of publicity after death. SMITH, supra note
43, at 35. However the image of a famous individual such as Elvis
Presley or Bela Lugosi (as Count Dracula) may be protected by
statute. Id.
n301 Ayeni v. CBS, Inc, 848 F. Supp. 362, 368 (E.D.N.Y. 1994). The
case statedthat "CBS had no greater right than that of a thief to be
in the home." Id.
n302 ALDERMAN & KENNEDY, supra note 299, at 190.
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Certain state courts have allowed the use of surreptitious video
surveillance by police departments in homes and in public. In Ricks
v. Maryland, n303 the Baltimore City Police received an order
authorizing the use of audio and video
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n303 537 A.2d 612 (Md. 1988).
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[*1118]
surveillance of a drug processing house. n304 The police entered the
air ducts of the apartment through the roof, shaved away part of the
dry wall, and placed a miniature camera in the wall. n305 The police
recorded twenty-five hours of video tape and then arrested the
occupants of the house on drug charges. n306 The Court of Appeals
noted the Orwellian overtones of Big Brother watching, but the court
upheld the convictions. n307 In McCray v. Maryland, n308 the police
conducted their video surveillance of a false driver's license
operation without a court order or search warrant. n309 In McCray,
the police videotaped the defendant walking from his home across the
street to the Department of Motor Vehicles, and the prosecutor
subsequently used the video evidence in a jury trial. n310 The court
held that no justified expectation of privacy exists when walking
along a public sidewalk or standing in a public park. n311
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n304 The court held that sufficient probable cause existed to target
these members of the drug organization, because other methods of
searches and surveillance would not be successful. Id. at 615.
n305 Id. The court held that simply because Title III does not
authorize warrants for television surveillance, that does not mean
it forbids them. Id. at 617. See supra notes 140-48 (discussing
Title III).
n306 Ricks, 537 A.2d at 615.
n307 Id. at 616. Under the present state of the law, video
surveillance can only be conducted in Maryland under a search
warrant. Id. at 621.
n308 581 A.2d 45 (Md. Ct. Spec. App. 1990).
n309 Id. at 47. An undercover police officer made deliberate errors
on his written law test which the defendant corrected. Id. at 46.
The officer was not required to take an eye examination or provide
any proof of identification. Id. The police officer then paid five
hundred dollars in exchange for a permanent driver's license. Id.
n310 Id. at 47.
n311 Id. at 48. "[A]ny justified expectation of privacy is not
violated by the videotaping of activity occurring in full public
view." Id. See South Carolina v. Brown, 451 S.E.2d 888, 890 (S.C.
1994) (permitting police to conduct video surveillance of Brown's
apartment in order to obtain a search warrant for the apartment);
Sponick v. City of Detroit Police Dep't, 211 N.W.2d 674, 690 (Mich.
Ct. App. 1973) (upholding the use of video surveillance in a public
tavern because it merely made a permanent record of what any member
of the general public would see).
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The use of video surveillance technology has resulted in some
suppression of criminal activity. For instance, in New York v.
Teicher, n312 the court convicted a dentist of sexual abuse through
the use of video surveillance. In Avery v. Maryland, n313 a doctor
was convicted of assault and battery when he was observed on closed
circuit television touching the breasts of his patients. In another
case, a security guard filmed an employee's son in the act of
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n312 422 N.E.2d 506 (N.Y. 1981). Two female patients complained that
a male dentist made sexual advances toward them while they were
under the influence of anesthesia, and the police placed a video
camera in the dentist's office. Id. at 507-09.
n313 292 A.2d 728 (Md. Ct. Spec. App. 1972). In this case a 21 year
old woman claimed that her doctor offered to stop by her apartment
because she was having trouble sleeping. Id. at 734-35. Police
watched on CCTV as the doctor gave her an injection that rendered
her unconscious. Id. The court held that video surveillance was no
more intrusive than audio surveillance. Id. at 743.
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[*1119]
masturbating in the company parking lot and showed the video tape to
other employees. n314 The father became the target of harassment and
insults for several months and attempted to sue the company for
negligent infliction of emotional distress. n315 The court held that
although the acts of the security officers and plant personnel were
reprehensible in filming the plaintiff's son, he was unable to
recover for the publication of the tape contents. n316 In contrast
to the gritty reality of surveillance intrusions in particular
states, there are several states that have expanded their state
constitutions to protect citizens from varying degrees of privacy
encroachments.
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n314 Turner v. General Motors, 750 S.W.2d 76 (Mo. Ct. App. 1988).
n315 Id. at 78.
n316 Id. at 79-80. The court attached great significance to a sign
in the parking lot premises that stated that the grounds were
subject to video surveillance. Id. at 79 n.1.
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B. States That Protect Citizens
Several states have explicitly protected their citizens' rights to
privacy from electronic surveillance. n317 The Hawaii Supreme Court
has determined that Hawaii's constitutional provisions prohibit
undue government inquiry and regulation of a person's life, so that
individuality and human dignity can be insured. n318 The court
specifically held that the privacy provisions were added to the
state constitution in order to protect against extensive
governmental use of electronic surveillance techniques. n319 The
Hawaii Supreme Court found that Hawaii's constitution affords much
greater protection of privacy rights than the United States
Constitution. n320
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n317 Louis A. Smith II, Comment, Pennsylvania's Constitutional Right
to Privacy: A Survey of Its Interpretation in the Context of Search
and Seizure and Electronic Surveillance, 31 DUQ. L. REV. 557 (1993).
n318 Hawaii v. Lester, 649 P.2d 346, 352 (Haw. 1982).
n319 Hawaii v. Roy, 510 P.2d 1066, 1069 (Haw. 1973). In Roy, a
police officer, without a search warrant, misrepresented himself and
purchased marijuana from the defendant, but the court held that the
evidence should not be suppressed. Id. at 1067. The court
specifically looked to the Hawaii constitution to determine that
privacy was added to the constitution to protect citizens from the
use of electronic surveillance, not the misrepresentation of
government agents. Id. at 1069.
n320 Hawaii v. Kam, 748 P.2d 372, 377 (Haw. 1988).
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Additionally, in a recent landmark decision, the Hawaii Supreme
Court held that video surveillance of an employee break room without
a warrant must be suppressed as "fruits of a poisonous tree." n321
In this case, the Maui Police Department placed four video
surveillance cameras in the employees' break
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n321 Hawaii v. Bonnell, 856 P.2d 1265, 1273 (Haw. 1993). Fruit of
the poisonous tree means that evidence which is spawned by or
directly derived from an illegal search is generally inadmissible
against the defendant because of its original taint. BLACK'S LAW
DICTIONARY 670 (6th ed. 1990). Nardone v. United States, 308 U.S.
338, 341 (1939), first used the phase "fruit of a poisonous tree."
YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE 806 (8th ed. 1994).
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[*1120]
room for a full year before they tried to charge six defendants with
gambling violations. n322 The police officers accumulated fifty
videotapes with twelve hundred hours of footage of normal work
activities and one minute of conduct that might reflect gambling
activity. n323 Significantly, the court held that the Hawaii
Constitution protects the "'halo' of privacy" wherever a person
goes, and she can invoke a protectable right to privacy wherever she
may legitimately be, whether it be a public park or a private place.
n324 The court found that no amount of probable cause can justify a
warrantless search or seizure absent exigent circumstances. n325
Importantly, the court emphasized that the showing needed to justify
video surveillance was higher than other search and seizure methods,
including audio surveillance. n326 Overall, the court stated that
"[p]rivacy does not require solitude" n327 and any video
surveillance may provoke an immediate visceral reaction because it
is an exceedingly intrusive medium. n328
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n322 Bonnell, 856 P.2d at 1270.
n323 Id. at 1271.
n324 Id. at 1275. The court properly avoided a clash with the
federal Constitution by stating: "Because we resolve the present
appeal on state constitutional grounds, we need not (and do not)
decide whether a federal constitutional violation has occurred." Id.
at 1272.
n325 Id. at 1273.
n326 Id. at 1273 n.5. Because of the invasive nature of video
surveillance, the government must make a very high showing of
necessity to justify its use. Id.
n327 Hawaii v. Bonnell, 856 P.2d 1265, 1276 (Haw. 1993).
n328 Id. at 1277.
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The places where courts find privacy interests may also vary.
However, some state courts are recognizing a legitimate privacy
interest outside of the home. For example, a federal court of
appeals applying state law found a publishing company liable for a
tortious invasion of privacy after they published a photograph of an
auto accident victim. n329 In one particularly unusual Connecticut
case, the Connecticut Supreme Court found some legitimate
expectation of privacy in a homeless person's boxes under a bridge.
n330 In another case, ABC's "America's Funniest Home Videos" showed
an unauthorized video of professional musicians accidently falling
off stage during one of their public performances. A Louisiana
Appellate Court held that the allegations were sufficient to state a
cause of action for false light invasion of privacy. n331 Also, some
cases have found that a man masturbating in a public restroom stall
may have a reasonable expectation of privacy. n332 Therefore, an
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n329 Leverton v. Curtis Publ'g Co., 192 F.2d 974 (3d Cir. 1951)
(holding that the publication of the photo twenty months after the
accident in a generic article unrelated to the news event violated
the plaintiff's right to privacy). See also Ayeni v. CBS Inc., 848
F. Supp. 362 (E.D.N.Y. 1994).
n330 Connecticut v. Mooney, 588 A.2d 145 (Conn. 1991).
n331 Sharrif v. American Broad. Co., 613 So.2d 768 (La. Ct. App.
1993).
n332 State v. Limberhand, 788 P.2d 857 (Idaho Ct. App. 1990); State
v. Owczarzak, 766 P.2d 399 (Or. Ct. App. 1988).
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[*1121]
expansion of privacy law to protect the public from continuous
street video surveillance may be possible by looking to decisions
that find a zone of privacy in public spaces.
As previously mentioned, Montana rejected the Katz test n333 and
focused on a compelling government interest test to guarantee
privacy when government surveillance activity is excessively
intrusive. n334 Thus, Montana courts maintain an ideal strict
scrutiny approach n335 when state agents attempt to infringe upon
privacy. n336 In a similar vein, the Washington Supreme Court noted
that the scope of state constitutional protection should not be
diminished just because citizens know of technological developments
to enhance visual surveillance. n337 With this type of video
surveillance jurisprudence as a background, states may be able to
stop street camera surveillance plansbefore the recommendations
begin by simply adopting a model state statute. n338
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n333 See supra notes 78-81 and accompanying text for the Katz
reasonable expectation of privacy test.
n334 State v. Brown, 755 P.2d 1364, 1370 (Mont. 1988). In Brown, a
conversation was monitored and recorded without a warrant by using a
body wire transmitting device that was attached to a police officer.
Id. at 1366. The court found that there was no violation of
Montana's right to privacy when law enforcement officers perform
warrantless consensual monitoring of face-to-face conversations. Id.
at 1371. However, the court stressed that an individual is not left
without protection from all inappropriate electronic intrusions,
especially when no participants have given permission for the
surveillance. Id.
n335 JOHN E. NOWAK & RONALD D. ROTUNDA, ON CONSTITUTIONAL LAW 14.3,
at 573-78 (4th ed. 1991). Strict scrutiny is the strongest level of
constitutional protection that places the burden of proof on the
government to show a compelling government interest in the
regulation. Id. at 575-76. In comparison, the intermediate standard
of review only requires the government to show an important
governmental interest and that a substantial relationship exists
between the regulation and the government's goal. Id. at 576-78. The
lowest level of scrutiny is a rational basis test where the burden
of proof is on the plaintiff to show that no legitimate purpose
exists for the regulation. Id. at 574-75.
n336 MONT. CONST. art. II, 10. See supra note 269 for the text of
the constitutional provision.
n337 State v. Myrick, 688 P.2d 151, 156 (Wash. 1984) (holding
ultimately that police did not unreasonably intrude when they
conducted aerial surveillance at 1500 feet without visual
enhancement technology).
n338 See infra section V for a proposed model statute.
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C. A Brave New World: The Pros and Cons of Video Surveillance n339
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n339 ALDOUS HUXLEY, BRAVE NEW WORLD (Harper Perennial 1989) (1946).
Huxley created a version of futuristic Central London where modern
fertilization techniques created elite social classes. Id. at 2-6.
In this "Brave New World" learning is reinforced with electric
shocks so that children will learn to reject the evils of flowers
and books. Id. at 20-21.
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A citizen's fundamental right to privacy embraces the right to be
free from constant surreptitious video surveillance, and the lack of
comprehensive
[*1122]
legislation in this area causes uncertainty among the courts. n340
Consequently, the potential for abuse is immense because a violation
of privacy through the use of a video camera is not clearly defined.
n341 Indeed, by its very nature, surreptitious surveillance is not
intended to be discovered by those surveyed, and frequently, people
are unaware of their freedom being captured somewhere on a magnetic
tape. n342 Moreover, video surveillance is more intrusive than
federally regulated wiretapping because it is continuous. n343 Audio
surveillance is only an invasion when people are actually speaking,
but video surveillance is not limited to times of criminal activity
or speech. n344 To properly design a model state statute prohibiting
street video surveillance, the benefits of a city placing cameras on
the public streets must be examined. By considering the strongest
benefits provided by video surveillance, street camera proposals can
properly be challenged. Frequently it will be necessary to refer to
United States Supreme Court cases to support a particular
proposition, n345 but states obviously will have both similar and
divergent cases and principles based upon their own state
constitutions. n346 However, as previously indicated, states may
look to Supreme Court precedents without invoking Supreme Court
review, as long as the particular state has adequate and independent
state grounds for the decision that do not contravene the federal
Constitution. n347 Therefore, the pro-video surveillance position
needs to be analyzed to properly consider any realistic benefits of
video surveillance. n348 Following the positive aspects of video
surveillance will be a comprehensive discussion of the potential
drawbacks to video surveillance. n349
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n340 See supra notes 125-54 and accompanying text.
n341 See supra notes 153-54 and accompanying text.
n342 McClurg, supra note 3, at 1024.
n343 Montroy, supra note 3, at 269; Greenfield, supra note 3, at
1047.
n344 Montroy, supra note 3, at 269. On video surveillance missions,
every aspect of the person under surveillance is filmed, as compared
to wiretapping which tunes the eavesdroppers in as to when to begin
the interception. Id. at 269 n.53.
n345 See infra notes 350-425.
n346 See supra notes 252-73.
n347 Michigan v. Long, 463 U.S. 1032 (1983). See supra notes 260-62
and accompanying text (discussing the Long decision).
n348 See infra notes 350-73 and accompanying text. See also State v.
Bonnell, 856 P.2d 1265, 1272 (Haw. 1993).
n349 See infra notes 374-425 and accompanying text.
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1. Video Surveillance Benefits
Arguments made in defense of video surveillance focus on social
control and protection of the public. First, placing limits on law
enforcement only makes existing laws more difficult to enforce. n350
Those who break the laws must be detected, and society must use
surveillance to properly determine guilt
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n350 See supra notes 187-227 and accompanying text.
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[*1123]
or innocence. n351 The more society protects privacy, the more
society impedes law enforcement personnel striving to protect the
public from crime. Therefore, surveillance is the fundamental means
of social control, and extending amorphous concepts of privacy only
cripples local governments and police departments. n352
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n351 WESTIN, supra note 160, at 57.
n352 Id.
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Secondly, video surveillance is successful in apprehending
criminals. n353 In Norway, video surveillance helped to capture
thieves who purloined Edvard Munch's painting, "TheScream." n354
Although perhaps an incidental use of street surveillance in
Oklahoma City, film obtained from nearby building surveillance
cameras proved critical in apprehending the suspects involved with
the bombing of a federal building. n355 In the Bugler case, video
surveillance helped police apprehend the two boys that murdered a
two-year-old child, and without the surveillance cameras, the crime
may never have been solved, or perhaps it would have been repeated.
n356 In Europe, cities that have installed video surveillance
cameras claim dramatic reductions in crime rates. n357 One Boston,
Massachusetts, surveillance system saw an estimated thirty percent
drop in crime in housing projects. n358 The Camden, New Jersey,
system provided a half-dozen arrests in the first day alone. n359
Memphis, Tennessee, claims a ten percent drop in crime in the early
reports. n360 Furthermore, Tacoma, Washington, boasts fifty-five
arrests in the first four months of the video
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n353 See supra notes 187-227 and accompanying text.
n354 Oslo Trial Held On Theft of Munch's "The Scream," REUTERS WORLD
SERVICE, Aug. 30, 1995, available in LEXIS, World Library, ARCNWS
File. Two men climbed a ladder, smashed through a window, ran into
the gallery and stole the masterpiece in less than a minute. Id.
Footage from video surveillance cameras helped to capture the
criminals and two other accomplices three months later. Id. Agents
from Scotland Yard captured the men after posing as potential buyers
of the painting. Id.
n355 Film of Building Blast Scene Being Processed, REUTERS WORLD
SERVICE, Apr. 21, 1995, available in LEXIS, World Library, ARCNWS
File; Surveillance Video Links Timothy McVeigh with Oklahoma City
Bombing as McVeigh Receives New Court- Appointed Lawyer, (NBC News
television broadcast, May 8, 1995). Law enforcement officials claim
that they have a 22 second long surveillance video that shows
McVeigh in a Ryder truck 500 feet from the federal building a few
minutes before the explosion. Id. A surveillance camera in the
Regency Tower apartment building clicked every other second
recording the Ryder truck coming into view and stopping in front of
the Alfred P. Murrah Federal Building prior to the explosion. 1996
Report, supra note 41, at 62.
n356 See supra notes 170-71 and accompanying text for details of the
Bugler case.
n357 Deane, supra note 159. In Newcastle, England, research showed
an 11% drop in assaults, a 49% drop in burglary, and a 44% fall in
criminal damage. Id. Moreover, insurance rates for companies within
CCTV zones were reduced. Id.
n358 1996 Report, supra note 41, at 21.
n359 Id. at 24. The initial 90-day report indicates "no decrease in
arrests, and a significant decrease in domestic and violent crimes."
Id.
n360 Id. at 35.
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[*1124]
surveillance operation. n361 At the same time, video surveillance
helps to disprove false accusations of crime, and it frees up police
officers to patrol other areas. n362 The justice system will become
less clogged with video evidence aiding prosecutors in speedy trials
and plea bargains. n363 Surveillance footage proves to be a
devastating weapon when a witness denies guilt on the stand and then
watches her crimes revealed on surveillance tapes. n364
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n361 Id. at 44. Tacoma also used funds to add street lights, remove
graffiti and clean vacant lots. Id. at 45.
n362 Deane, supra note 158.
n363 See supra note 171 and accompanying text.
n364 Lynch, supra note 174, at 12.
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America needs to resort to innovative methods to protect the streets
when one violent crime occurs every seventeen seconds. n365 When
totaled, this produced 13,991,675 offenses in the United States in
1994 alone. n366 Video surveillance transfers fear from the victim
of the crime to the criminal, where it belongs. Moreover, public
support is high in towns that have tried video surveillance. n367
For instance, a recent survey in Scotland revealed that almost
ninety percent of people support public surveillance projects. n368
If it turns out that camera operators are peering into shops and
apartments, the cameras can be programmed to simply not register
those areas. Alternatively, a computer alarm could notify a
supervisor of the operator's activities. To discourage unauthorized
distribution of information, Baltimore, Maryland, destroys or
recycles tapes after 96 hours and Tacoma, Washington, does not even
use tapes. n369
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n365 CRIME IN THE UNITED STATES 1994, UNIFORM CRIME REPORTS 4-5
(1995).
n366 Id. Offenses are defined as murder, nonnegligent manslaughter,
forcible rape, robbery, aggravated assault, burglary, larceny-theft,
motor vehicle theft, and arson. Id.
n367 Arlidge, supra note 163, at 2.
n368 Id. at 2.
n369 1996 Report, supra note 41, at 10.
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Nothing should prohibit the police from simply augmenting the
sensory faculties bestowed upon them at birth with science and
technology. n370 The proposed video surveillance will take place on
the public streets where the Supreme Court has held time and again
that citizens have no reasonable expectation of privacy. n371 In
this way video surveillance is the best offense
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n370 United States v. Knotts, 460 U.S. 276 (1983) (holding that the
use of a beeper did not constitute a fourth amendment search). See
supra note 88.
n371 California v. Ciraolo 476 U.S. 207 (1986); Oliver v. United
States, 466 U.S. 170 (1984); United States v. Knotts, 460 U.S. 276
(1983). A person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties. California
v. Greenwood, 486 U.S. 35 (1988).
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[*1125]
in attacking what has truly become a "crime war." n372 Video
surveillance is proving to be an effective tool to assist law
enforcement agencies that are stretched to their limit in trying to
assure the safety and security of all Americans. n373 Conversely,
several detriments exist in the use of video surveillance systems.
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n372 Particularly in the context of felonies and crimes involving
threats to public safety, the law enforcement interest outweighs an
individuals interest. United States v. Hensley, 469 U.S. 221 (1985).
n373 1996 Report, supra note 41, at 5.
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2. Video Surveillance Detriments
Humans have a fundamental belief in the right to personal autonomy
which stems from dignity and individuality. n374 When the sphere of
autonomy is consistently violated, the shell of humanity erodes.
n375 If whenever an individual peers out a window, he sees a sign
stating "Big Brother is Watching You," society has become what
George Orwell imagined. n376 Perhaps the Big Brother reference has
become a cliche, but citizens will undoubtedly become chilled from
performing daily activities if video surveillance increases. n377 If
the proponents of video surveillance succeed, citizens will be
forced to engage in a perpetual paranoid shoulder check to consider
who is watching and who is following. n378 Privacy is a basic human
necessity, and it cannot simply be shed like some unneeded sweater
on a warm day at the front door of a home. n379
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n374 The security of one's privacy against arbitrary intrusion by
the police is basic to a free society. Wolf v. Colorado, 338 U.S. 25
(1949); Mapp v. Ohio, 367 U.S. 643 (1961).
n375 WESTIN, supra note 160, at 59.
n376 ORWELL, supra note 155, at 6.
n377 According to a recent Associates Poll, America is more
concerned about privacy than any time in the last twenty years.
Aurora M. Armstrong, Private Eyes, Private Lives, L.A. TIMES, July
19, 1990, at J10. People will uncontrollably ponder: "What will the
watcher think, if he sees me do that?" Therefore, Orwell's "thought
crime" ensues, when to merely think a wrongful act was the same as
committing the wrongful act itself. ORWELL, supra note 155, at 27.
n378 Although many people surveyed support video surveillance, the
attitude changes when people become aware they are being watched.
Naughton, supra note 159, at 13. One woman was asked how she felt
when a reporter commented that he had seen her, on video
surveillance, drop used cigarettes on the ground and she replied: "I
didn't think it would be used for that, but I suppose its still a
good thing to have." Id. But after looking worried for a second she
added: "You didn't see me doing anything else did you? I mean, not
that I was." Id.
n379 Granholm, supra note 3, at 696.
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Before electronic surveillance, locking doors, closing curtains, and
remaining quiet was sufficient to protect citizens from police
intrusions. n380 Today, the state and federal police are 600,000
strong, with an annual budget of thirty billion dollars. n381
Moreover, combining the police power with an
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n380 Greenfield, supra note 3, at 1046.
n381 LESCE, supra note 164, at 1.
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[*1126]
estimated 1.5 million people employed in the security industry
indicates that the right of privacy is facing extinction. n382 With
the power of video surveillance, some police will undoubtedly target
those likely to commit crimes and entrap those whom they believe are
predisposed to crimes. n383 The failed Miami Beach surveillance town
provided the ultimate example of this travesty. The elderly
residents resorted to video surveillance when lower-income black and
hispanic refugees came to reside in the city. n384 The business
people were leery of young black and hispanic citizens who lived and
worked in the area, and some even stated that they felt that each
was a potential criminal. n385
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n382 Id. The growth rate of the security industry is twice that of
law enforcement. Id. at 2.
n383 Id. at 8. With video technology, police will be unrestrained
from indiscriminately watching all young black men. Granholm, supra
note 3, at 698. Police officers identify the black man with danger.
Tracey Maclin, Black and Blue Encounters - Some Preliminary Thoughts
About the Fourth Amendment Seizures: Should Race Matter? 26 VAL. U.
L. REV. 243, 248 (1991).
n384 Surette, supra note 16, at 81.
n385 Id.
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With the use of surveillance, the information collected about
citizens will increase, and the police will be able to use cameras
to spot and arrest persons involved in political fringe groups and
"subversive" organizations. n386 In fact, researchers are already
working on technology called "computerized face recognition" which
would make the matching of faces with a list of names instantaneous.
n387 In this fashion, surveillance suppresses the constitutional
right to travel and associate, because people will no longer be able
to freely move through the streets speaking with whom they wish and
attending the meetings that they wish. n388 Clearly, the more
America moves toward a high surveillance society, the closer society
comes to Orwell's totalitarian state where individual liberties are
traded for order. The fact that law enforcement may be made more
efficient is never by itself a justification to disregard the
Constitution. n389
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n386 LESCE, supra note 164, at 11. Although "blacklists" are
allegedly illegal, the government is free to use them. Id. at 13.
n387 O'Donnell, supra note 15, at 16. The Defense Department is
interested in using such technology to screen people going in and
out of its building, but the use is unlikely to stop there. Id.
n388 LOCKHART ET AL., supra note 116, at 565-71. See Justice
Douglas' dissent in the Army surveillance case of Laird v. Tatum,
408 U.S. 1, 27 (1972): "Surveillance of civilians is none of the
Army's constitutional business . . . . This case involves a cancer
in our body politic. It is a measure of the disease which afflicts
us. Army surveillance, like Army regimentation, is at war with the
principles of the First Amendment. Those who already walk
submissively will say there is no cause for alarm. But
submissiveness is not our heritage."
n389 Mincey v. Arizona, 437 U.S. 385, 393 (1978).
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[*1127]
Another problem with surveillance footage stems from its
unreliability. Some individuals have been arrested and prosecuted
based on the iron-clad surveillance footage simply because they
resembled the criminal, only to later have the police realize that
they arrested the wrong person. n390 In fact, it is possible to
digitize an image such as the famous surveillance footage of Patty
Hearst entering a bank with a shotgun. n391 Through this
digitization technique, a criminal could be removed from a scene or
placed in a scene, and it becomes impossible even for experts to
tell a copy from an original master tape. n392 Another concern is
the spread of the digitized images across the Internet, especially
when cities like Anchorage, Alaska, allow citizens to access the
surveillance footage on their own personal computers. n393
Furthermore, studies show that surveillance cameras merely displace
crime rather than deter it. n394 Criminals simply move out of the
range of the camera eye and take the crime with them. n395 One video
surveillance proponent indicated that "[o]ur experience in many
cases is that the criminals tend to move their drug dealing to more
private areas." n396 Moreover, some criminals learn all of the
camera locations and simply focus their activities on other less
protected areas of the city. n397 In the same vein, police officers
become less efficient because they also do not want to be watched.
n398 Law enforcement personnel frequently spend more time watching
the cameras than watching the streets. n399 Although America may
have a crime problem, the greatest threats to our constitutional
freedom come in times of crisis. n400 But in such a time of crisis,
the government response should not be a hysterical overreaction.
n401 With the benefit of more efficient law enforcement mechanisms
comes the burden of
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n390 See Moynihan, supra note 171, at 1. One person was held in
prison for 13 months after being falsely accused of murder based on
the tapes. Id.
n391 America Undercover: Shock Video 2, The Show Business of Crime
and Punishment (HBO television broadcast, Nov. 26, 1996).
n392 Id. This digitization process was masterfully used in the film
"THE CROW" after the lead actor Brandon Lee was killed. Id.
n393 1996 Report, supra note 41, at 15.
n394 Granholm, supra note 3, at 689; 20/20, supra note 41, at 8;
Donna Reeves & Sacha Molitorisz, Australia: Cameras to Spy on People
in City Streets, SYDNEY MORNING HERALD, Apr. 6, 1995, at 3; Haughey,
supra note 164, at 7.
n395 20/20, supra note 41, at 8.
n396 1996 Report, supra note 41, at 70.
n397 20/20, supra note 41, at 8.
n398 Granholm, supra note 3, at 689. Ironically, police officers
were the first to complain and threaten legal action under a
violation of their right to privacy when a restroom at a station
house was placed under video surveillance to catch a thief or
vandals. Edna Buchanan, Police Put Camera Spy in Men's Room, MIAMI
HERALD, Dec. 3, 1983, at 1B. See also, Dean Congbalay, Turmoil
Divides Concord Police Department, S.F. CHRON., Dec. 15, 1989, at
B8.
n399 Granholm, supra note 3, at 689.
n400 Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2407 (1995)
(O'Connor, J., dissenting).
n401 Id.
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[*1128]
constitutional responsibilities, and the police cannot enjoy the
advantages without facing the serious consequences. n402
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n402 Arizona v. Evans, 115 S. Ct. 1185, 1195 (1995) (O'Connor, J.,
concurring).
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Statistics prove that very few cities have experienced a drop in
crime where video surveillance operations were installed, and most
video surveillance schemes are accompanied by a package of security
initiatives, so a clear figure of success is hard to calculate. n403
Professor Bennet of Cambridge University, a researcher of video
surveillance schemes, believes that surveillance camera success has
yet to accurately be tested. n404 Indeed, several cities such as New
York, Atlantic City, and Miami Beach have labeled the surveillance
cameras a failure and dismantled them. n405 The surveillance cameras
either did not produce a single conviction or they were considered
much too expensive to operate based on how relatively ineffective
they were. n406
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n403 Haughey, supra note 164, at 7.
n404 Id.
n405 O'Donnell, supra note 15, at 16. The New York Times Square plan
led to fewer than 10 arrests in the 20 months it was in operation.
Id.
n406 Granholm, supra note 3, at 688. Another problem is that the
cameras are targeted to protect suburban shoppers and sales receipts
in large shopping areas, rather than citizens in violent crime
areas. Id. at 706.
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Video surveillance is an unreasonable intrusion because it can track
a person from block to block without her knowledge to focus on a
letter she is reading, words she may be mouthing, or an itch she may
be scratching. n407 For instance, according to the Supreme Court, a
woman has a protected liberty interest in seeking an abortion, n408
but this right is infringed upon when someone invades the woman's
privacy by filming her entering a clinic from a superhuman vantage
point. n409 The intrusion becomes even greater if the images are
saved for some later use. n410 Furthermore, under the First
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n407 Id. at 695.
n408 Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833 (1992). In Casey, the Court
found it appropriate to allow information to be reported about the
women receiving abortions to state agencies, as long as the actual
identity of the women remained confidential. Id. at 899. However, by
being able to film all women entering a clinic, identity is
discernable and capturable along with other potentially embarrassing
personal information. This same example would hold true for a person
going to an Alcoholics Anonymous meeting or a substance abuse
clinic.
n409 See Planned Parenthood v. Aakhus, 17 Cal. Rptr. 2d 510, 515
(Cal. Ct. App. 1993) (finding that photographing and videotaping
clients violated the right to privacy under the California
Constitution). Chico Feminist Women's Health Ctr. v. Scully, 256
Cal. Rptr. 194, 196-97 (Cal. Ct. App. 1989) (upholding an injunction
against abortion protesters photographing license plates and people
entering or leaving an abortion clinic).
n410 O'Donnell, supra note 15, at 16. Recall that in Alaska
residents using home computers can create a news letter with still
photographs of potential criminals. 1996 Report, supra note 41, at
15.
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[*1129]
Amendment, an individual has the freedom to associate and attend a
KKK rally or an NAACP march, n411 but such activities will be
chilled when members of a group know that their activities will be
monitored and scrutinized. n412 The law should recognize the
difference between being seen in public and being closely
scrutinized by unknown watchers or recorded on videotape or film.
n413 Merely seeing someone is much different from photographing them
because of the permanent record produced. n414 Even more obtrusive
than photography is videotaping a person because much of the
person's personality is captured by the tape. n415 Simply because a
woman is wearing a skirt and prefers not to wear underwear in public
does not give a videographer or surveillance technician the right to
capture and exploit her image. n416
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n411 See Gibson v. Florida Legislative Investigation Comm., 372 U.S.
539, 557-58 (1963) (forbidding the government from demanding a
membership list from the NAACP). However, if government agents
wanted to identify the participants of a particular rally through
the use of video surveillance, the same membership list purpose
would be served. In NAACP v. Alabama ex rel Patterson, 357 U.S. 449,
462 (1958), Justice Harlan stated: "Inviolability of privacy in
group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group
espouses dissident beliefs."
n412 Under the Supreme Court regime, the plaintiff would have
difficulty proving the actual injury or likelihood of harm necessary
to prove a chilling effect by not attending a rally. See Laird v.
Tatum, 408 U.S. 1 (1972). Although camera crews may film the event
for television coverage, the effect is not the same because news
journalists are not checking names off a massive subversive list or
using computer technology to match who each and every person is.
n413 McClurg, supra note 3, at 1041.
n414 Id.
n415 Id. at 1043.
n416 Daily Times Democrat v. Graham, 162 So.2d 474 (Ala. 1964). See
supra notes 287-91 and accompanying text.
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Judge Posner of the Seventh Circuit recognized this same sentiment
in one of his right to privacy decisions:
Most people in no wise deformed or disfigured would nevertheless be
deeply upset if nude photographs of themselves were published in a
newspaper or book. They feel the same way about photographs of their
sexual activities, however "normal," or about a narrative of those
activities, or about having their medical records publicized.
Although it is well known that every human being defecates, no adult
human being in our society wants a newspaper to show a picture of
him defecating. The desire for privacy illustrated by these examples
is a mysterious but deep fact about human personality. It deserves
and in our society receives legal protection. . . . An individual,
and more pertinently perhaps the community is most offended by the
publication of intimate personal facts when the community, has no
interest in them
[*1130]
beyond the voyeuristic thrill of penetrating the wall of privacy
that surrounds a stranger. n417
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n417 Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1229, 1232 (7th
Cir. 1993).
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Beyond the legal privacy arguments, advocates of surveillance are
typically troubled by the fact that a video surveillance prohibition
would aid the criminal by protecting the privacy of the person who
is engaged in repugnant behavior. n418 Perhaps not enough is being
done to compensate or protect victims of crime, but trading
fundamental privacy rights can never be a solution. Victims of
constitutional violations must be compensated and protected,
especially since these victims receive harm at the hands of the
state or its employees. n419 A widespread criticism of such
protection proclaims that only the guilty are protected since the
innocent have nothing to hide. n420 However, people who have nothing
to hide want and deserve their privacy. n421 At some point in time,
a police intrusion becomes so great that the intrusion will never be
reasonable, n422 and video surveillance neatly fits this category.
n423 The rights protected by the United States Constitution and
state constitutions are for the innocent and the guilty alike. n424
Justice Clark summarized it best when he wrote, "[t]he criminal goes
free, if he must, but it is the law that sets him free," and the
government will be destroyed if it fails to protect citizens. n425
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n418 Citizens lament that the criminal is the only one protected by
privacy expansions and police frequently remark "[i]f you are not
doing anything wrong, what do you have to worry about?" Hermann,
supra note 195, at 11. However, video surveillance intrudes upon the
lives of average citizens as much as it does the lives of criminals.
Id.
n419 Bruce G. Berner, Fourth-Amendment Enforcement Models: Analysis
and Proposal, 16 VAL. U. L. REV. 215, 222 n.29 (1982). See infra
section V.
n420 Berner, supra note 419, at 233 n.50.
n421 Id.
n422 Among the most intrusive types of searches are body cavity
searches, United States v. Ogberaha, 771 F.2d 655 (2d Cir. 1985);
strip searches, United States v. Palmer, 575 F.2d 721 (9th Cir.
1973); and surgery to remove evidence, Winston v. Lee, 470 U.S. 753
(1985).
n423 "For many people, a government order allowing agents secretly
to tape intimate activities would be as shocking as a government
order to submit to surgery." Greenfield, supra note 3, at 1070. In
fact, it may be even more intrusive than the surgery order in
Winston, because surgery only occurs one time for one piece of
evidence as opposed to video surveillance which occurs over an
extended period of time and gathers information about a person's
health, life, and activities that have nothing to do with a criminal
investigation. Id. "The constitutional protection for the human body
is surely inseparable from concern for the mind and spirit that
dwell therein." Cruzan v. Missouri Dept. of Health, 497 U.S. 261,
343 (1990) (Stevens, J., dissenting).
n424 Illinois v. Gates, 462 U.S. 213, 290 (1983) (Brennan, J.,
dissenting) (quoting Draper v. U.S., 358 U.S. 307, at 314 (1959)
(Douglas, J., dissenting)).
n425 Mapp v. Ohio, 367 U.S. 643, 659 (1961).
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[*1131]
V. PROPOSAL TO CURTAIL VIDEO SURVEILLANCE
States in the age of "New Federalism" need to develop a model
statute with which to evaluate video surveillance plans proposed by
the police and local governments. n426 State supreme courts could
adopt the following statutory sections as model reasoning; however,
a model state statute based upon the state constitutional right to
privacy would more specifically protect citizens confronting street
video surveillance implementation. This model statute is intended to
address the above described pitfalls of privacy intrusion in a state
system and protect the fundamental right to privacy implicit or
explicit in a state constitution. n427 These statutory sections will
apply when police want to establish multi-camera street
surveillance. Although this proposal does not focus on video
surveillance in the private sector, certain alternative state
statutory safeguards are available, such as prohibiting stores from
monitoring dressing room areas, n428 and prohibiting private
voyeurism into homes. n429 Under the proposed model statute, the
police will be able to establish surveillance of one specific person
or of a particular crime ring if they follow the rigorous guidelines
provided. However, the police and local governments will not be able
to set up surveillance of an entire community. Thus, police are not
entirely estopped from surveillance; they are only curtailed from
blanket surveillance operations where the average citizen is
subjected to constant street camera
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n426 For almost every ruling of the Berger or Rehnquist Courts that
could be characterized as retracting from the thrust of a Warren
Court precedent, state courts have reached contrary rulings under
their respective state constitutions, and this is the essence of
"new federalism." LAFAVE & ISRAEL, supra note 263, at 95.
n427 See supra notes 268-69 for examples of relevant provisions in
the Montana and Hawaii Constitutions. This model statute is geared
to state courts rather than federal courts because the states have
broader constitutional guarantees and because a favorable federal
privacy expansion seems unlikely. See supra notes 77-154 and
accompanying text.
n428 MASS. GEN. LAWS ANN. ch. 93, 89 (West Supp. 1996) (emphasis
added): No person who owns or operates a retail establishment
selling clothing shall maintain in a dressing room a two-way mirror
or electronic video camera or a similar device capable of filming or
projecting an image of a person inside such dressing room. Whoever
violates the provision of this section shall be punished by a fine
of one hundred dollars. See also R.I. GEN LAWS 11-41-26 (1987). But
see Lewis v. Dayton Hudson Corp., 339 N.W.2d 857, 858 (Mich. Ct.
App. 1983) (denying a customer recovery from a retailer for invasion
of privacy when signs were clearly posted that the dressing area was
under surveillance).
n429 Indiana provides the following regulation of private voyeurism:
(a) A person who: (1) Peeps; or (2) Goes upon the land of another
with the intent to peep; into an occupied dwelling of another
person, without the consent of the other person, commits voyeurism,
a Class B misdemeanor. However, the offense is a Class D felony if
it is knowingly or intentionally committed by means of a camera, a
video camera, or any other type of video recording device. (b)
"Peep" means any looking of a clandestine, surreptitious, prying, or
secretive nature. IND. CODE ANN. 35-45-4-5 (Michie 1996) (emphasis
added).
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[*1132]
surveillance. Therefore, every proposed state video surveillance
activity should be required to conform with the following statutory
sections:
1 All surveillance operators must be trained, professional,
certified police or federal agents.
2 Operators should disclose to targets of surveillance that they are
under surveillance or were under surveillance along with a general
public disclosure of the video surveillance activities of police
departments to citizens who must be given an opportunity to
contribute written comment or comment at public hearings.
3 Operators must prove, by a showing of both probable cause and
compelling government interest to a neutral magistrate, that video
surveillance is necessary and that the least restrictive method of
surveillance will be employed.
4 To receive an order granting the use of video surveillance,
operators must delineate specific targets, times, and goals of the
surveillance. Upon the granting of an order to use video
surveillance, operators must report to a neutral magistrate every
ten days to prove by a showing of probable cause and compelling
government interest why continued surveillance is necessary.
5 Failure to comply in all respects with this statute will result in
the unilateral suppression of the use of all improperly obtained
video information in a judicial proceeding.
6 Failure to comply in all respects with this statute shall be
grounds for criminal penalties and employment discharge. Under no
circumstances shall the contents of any captured video images be
exploited for purposes of profit, publication, or distribution, and
any such violation will carry a mandatory fine and prison sentence.
7 Every person who, under color of any statute, ordinance,
regulation, custom or usage of any state or territory, subjects or
causes to be subjected any citizen to a deprivation of privacy
through video surveillance as secured by the state constitution
shall be liable to the party injured in an action at law, a suit in
equity, or other proper proceeding for redress.
[*1133]
Statutory Comments
1 All surveillance operators must be trained, professional,
certified police or federal agents.
Commentary
The professional officer requirement provides an administrative
check on camera operators by employing training and professional
responsibility requirements. This section will end the practices of
cities like Anchorage, Alaska, where video images from street
surveillance cameras are sent to private residents' home computers
rather than to a police station. n430 Also, California, Maryland,
New Jersey, and Oregon all currently allow unsupervised private
citizens to monitor the street video cameras. Based upon the abuses
inherent in such a system, this section will require at least
minimal training of police before they are allowed free reign over
the camera lens. Each state can establish its own certification
procedures, but operators should have at least a minimal
comprehension of the ethical, moral and fundamental privacy
ramifications of video surveillance. Video operators will need to
become familiar with this statute in order to follow the mandated
procedures. Operators should also be aware that deviations from this
statute could result in criminal and civil penalties. Thus, under
this section, cameras will no longer be operated by unaccountable
security guards and private citizens. n431
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n430 1996 Report, supra note 41, at 15.
n431 See supra notes 180-251 and accompanying text for security
guard problems.
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2 Operators should disclose to targets of surveillance that they are
under surveillance or were under surveillance along with a general
public disclosure of the video surveillance activities of police
departments to citizens who must be given an opportunity to
contribute written comment or comment at public hearings.
Commentary:
Although this section is phrased in a discretionary format, a
particular state legislature may choose to make the public
disclosure mandatory. The statutory provision provides a local
government with the flexibility of prior warnings such as
conspicuous signs stating that the streets are under surveillance,
or in the alternative, a state or federal agency must at least let
the target of the surveillance know at a later date that the
surveillance took place. The public hearings will provide an
opportunity for a possible community veto based upon
[*1134]
widespread objection to a surveillance operation. n432 Such
bureaucratic devices will clearly hamper the police use of video
surveillance technology, but the comment provisions will function in
the same fashion as when citizens are given an opportunity to
comment under proposed environmental regulations that dramatically
affect a town. n433 A disclosure of plans and specific targets will
largely eliminate the problem of uninformed citizens. n434
Furthermore, the success of such video operations can realistically
be established when the statistics from public disclosure reports
are printed and independently confirmed. Citizens will then be able
to accurately determine whether video surveillance has an effect on
crime. n435
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n432 Robb, supra note 3, at 601. Robb suggests a licensing scheme
that includes a "community veto," which would help prevent these
systems in the same fashion a community can veto a liquor
establishment. Id. at 601 n.116. Robb also suggests that in a
licensing system, a community could employ inspectors to make
unannounced visits to monitoring facilities to verify complaints.
Id. at 602.
n433 Federal environmental laws establish mandatory notice and
comment provisions under the Emergency Planning and Community Right
To Know Act of 1986. See 42 U.S.C. 11001-11050 (West 1995 & Supp.
1996).
n434 See supra notes 159, 378 and accompanying text.
n435 See supra notes 180-86 and accompanying text.
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3 Operators must prove, by a showing of both probable cause and
compelling government interest to a neutral magistrate, that video
surveillance is necessary and that the least restrictive method of
surveillance will be employed.
Commentary
Under the current status of the law, courts are unsure if warrant
requirements apply to video surveillance or if video surveillance is
less intrusive or more intrusive than audio surveillance. n436 This
section will essentially provide that a state needs to use the
protective provisions of Title III when confronting video
surveillance. n437 Through this proposed section, a court will
engage in a multifactor balancing of the compelling government
interest in crime prevention in comparison with the fundamental
right to privacy. n438 The fundamental right to privacy stems from
state constitutional language as previously discussed under "new
federalism." n439 The largest change this section will make to Title
III at a state level is the use of the compelling government
interest test that has become standard in Supreme Court
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n436 See supra notes 125-54 and accompanying text.
n437 See supra notes 140-48 and accompanying text.
n438 As Justice Thurgood Marshall recognized: "We are dealing in
factors not easily quantified and, therefore, not easily weighed one
against the other . . . each deserving of our most serious
attention." United States v. Robinson, 414 U.S. 218, 254 (1973)
(Marshall, J., dissenting).
n439 See supra notes 252-73 and accompanying text.
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[*1135]
jurisprudence. Therefore, all proposed street surveillance systems
must pass a strict scrutiny analysis. n440
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n440 See supra note 335 for different scrutiny tests.
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Second, the court will examine a police department's showing of
probable cause to justify each particular surveillance proposal.
n441 Probable cause has been defined as a standard where the facts
and circumstances are sufficient to warrant a reasonable person of
reasonable caution to believe that objects are located at the place
to be searched. n442 The probable cause and strict scrutiny tests
are both necessary because strict scrutiny, for example, would
require a showing that a compelling government interest exists in
prohibiting a specific drug trafficking problem and that this
interest outweighs an individual's fundamental right to privacy.
However, the probable cause test forces police to narrowly target
whom they want to film and describe what they reasonably believe
they will find. Therefore, by applying both tests, a police
department will need to overcome substantial constitutional hurdles
to conduct any type of general surveillance.
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n441 By using a probable cause determination, the video surveillance
can be seen as a "search." Hawaii v. Bonnell, 856 P.2d 1265, 1273
(Haw. 1993).
n442 C. WHITEBREAD, CRIMINAL PROCEDURE 5.03 (1990).
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The third part of this proposed statutory section provides for the
use of a neutral magistrate, thereby preventing the practice of a
police department using its own best judgment as to when video
surveillance is appropriate. n443 Finally, this section provides
that video surveillance should only be used when other methods are
clearly not practicable. This heightened standard of clearly
articulated necessity should increase in direct proportion to the
intrusiveness of the technology being used. n444
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n443 Allowing police officers, who are attempting to ferret out
crime, to make such a surveillance judgment destroys privacy
protection. Dunaway v. New York, 442 U.S. 200, 213 (1979). This
section is also supported by statutes like a Massachusetts statute
that prohibits the secret use of modern electronic surveillance
unless conducted under strict judicial supervision and limited to
the investigation of organized crime. MASS. GEN. LAWS ch. 272, 99
(1994).
n444 See United States v. Tortorello, 480 F.2d 764, 774 (2d Cir.
1973); United States v. Messa Rincon, 911 F.2d 1433 (10th Cir.
1990); Greenfield, supra note 3, at 1059. Moreover, when police make
the argument that they could have gotten the same view by merely
peeking over a fence, the government admits that video surveillance
is not necessary because conventional surveillance would have
sufficed. Id. at 1061.
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4 To receive an order granting the use of video surveillance,
operators must delineate specific targets, times, and goals of the
surveillance. Upon the granting of an order to use video
surveillance, operators must report to a neutral magistrate every
ten days to prove by a showing of probable cause and compelling
government interest why continued surveillance is necessary.
Commentary
This requirement will effectively rule out perpetual street camera
surveillance systems found in at least fifteen cities because it
will force the police to memorialize surveillance activities within
the four corners of a document. This section will also guarantee
that the government is not merely on a fishing expedition to
infiltrate subversive groups or inhibit free expression. n445 This
section will help eradicate the racist use of video surveillance as
a protection device against blacks, hispanics, and other minorities.
If the police only indicate a need to "spot crime," this clearly
will not be enough of a compelling government interest to override a
citizen's fundamental right to privacy. This prong establishes a
perpetual judicial check and provides for a reshowing of the
necessity and the likelihood of success each time the surveillance
order is renewed. As previously mentioned, the police will need to
meet both the strict scrutiny and the probable cause tests on a
continuing basis. Police officers, under this section, must stop the
video surveillance when the probable cause runs out or when the
government interest is no longer compelling. Overall, this section
seeks to eliminate egregious abuses of power as when a police
department watches and films suspects for over a year with only a
"hunch" as to potential illegal activity. n446
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n445 Greenfield, supra note 3, at 1063.
n446 Hawaii v. Bonnell, 856 P.2d 1265 (Haw. 1993). See supra notes
321-28 and accompanying text.
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5 Failure to comply in all respects with this statute will result in
the unilateral suppression of the use of all improperly obtained
video information in a judicial proceeding.
Commentary
This bright line rule establishes that if proper provisions were not
followed in obtaining judicial permission for a video surveillance
order, then all video evidence will be suppressed as fruit of a
poisonous tree when introduced in court. n447 This all or nothing
rule will create incredible motivation in the police
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n447 See supra note 321 (describing the fruit of a poisonous tree).
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[*1137]
to properly obtain permission to conduct any video surveillance.
n448 Although an exclusionary rule is currently being applied to
certain types of electronic surveillance, this section unambiguously
establishes that video surveillance evidence must always be excluded
if police do not follow the statutorily established guidelines. n449
An exclusionary rule will have three main effects: (1) it will deter
unreasonable use of video surveillance; (2) it will assure potential
victims of unlawful government conduct that the government will not
profit from its lawless behavior; and (3) it will create a dramatic
increase in the amount of search warrants used for video
surveillance in a field where nearly none were used before. n450
Certain jurisdictions may choose to extend a "good faith exception"
to situations where police officers acted properly and followed
every video surveillance guideline, but the magistrate made some
error. However, such an exemption is beyond the scope of this Note.
n451
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n448 An exclusionary rule provides powerful incentive to promptly
correct problems. Arizona v. Evans, 115 S. Ct. 1185, 1200 (1995)
(Ginsburg, J., dissenting). However, if police are not trying to
capture the person and introduce evidence, the exclusionary rule may
present some inherent problems, but no more so than its current
universal use under the Fourth Amendment. LAFAVE & ISRAEL, supra
note 263, at 107-08.
n449 One of the broad suppression applications of oral surveillance
under Title III is that the exclusionary rule applies to all
governmental judicial, quasi- judicial, and administrative
proceedings. KAMISAR ET AL., supra note 321, at 370. Such a rule for
video surveillance would also be appropriate.
n450 For a general discussion of the use of the exclusionary rule in
criminal procedure, see LAFAVE & ISRAEL, supra note 263, at 107-08.
n451 See generally United States v. Leon, 468 U.S. 897 (1984), for
use of the good faith exception.
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6 Failure to comply in all respects with this statute shall be
grounds for criminal penalties and employment discharge. Under no
circumstances shall the contents of any captured video images be
exploited for purposes of profit, publication, or distribution, and
any such violation will carry a mandatory fine and prison sentence.
Commentary
Although the police may be able to argue some qualified immunity
defense, this section places the police in a position where a
distribution violation could result in an officer's loss of
employment, savings and freedom. This should provide police
departments with enough incentive to develop some type of
administrative check on police video surveillance activities for
fear of vicarious tort liability and criminal sanctions. n452 This
section is also intended to stop illegal pirate surveillance videos
from surfacing. As statutory section one indicates, the surveillance
power must be taken away from the average citizen.
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n452 One possible check would be unannounced inspections to video
surveillance monitoring stations. See Robb, supra note 3, at 602.
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[*1138]
Once the surveillance devices are only controlled by trained
professionals, a municipality will be much better situated to
enforce guidelines about the distribution of surveillance tapes.
7 Every person who, under color of any statute, ordinance,
regulation, custom or usage of any state or territory, subjects or
causes to be subjected any citizen to a deprivation of privacy
through video surveillance as secured by the state constitution
shall be liable to the party injured in an action at law, a suit in
equity, or other proper proceeding for redress.
Commentary
This new tort will be similar to invasion of privacy torts for "ride
along" or "reality show" cases by establishing a clear zone of
privacy that surrounds the individual and cannot be pierced unless
the model statute's guidelines are explicitly adhered to. n453 This
section will also be similar to 1983 interpretations n454 so that a
municipality may rely upon civil rights jurisprudence in
establishing the operation of this provision. Overall, this
statutory exploitation provision will prevent opportunists from
using street surveillance footage for rapacious profit while
disregarding the privacy of innocent victims. n455
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n453 See supra notes 297-302 and accompanying text.
n454 42 U.S.C. 1983 (1994). Section 1983 is the codification of a
reconstruction era civil rights statute that gained its significance
in the landmark decision of Monroe v. Pape, 365 U.S. 167 (1961). The
Supreme Court has since vindicated the use of Section 1983 as an
independent federal remedy against acts violative of state law.
Several states have also incorporated a state civil rights statute
that operates in conjunction with Section 1983. Section 1983 has
become the most used statute in federal court when a person seeks a
private right of action for civil rights violations committed by
state actors.
n455 See supra notes 165-69 (discussing Barrie Goulding's "Caught in
the Act" video).
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VI. CONCLUSION
Over twenty years ago, Justice Rehnquist stated that there exists "a
rebuttable presumption that the government will know more about each
of us than it did fifty years ago and that in a very real sense we
will have much less privacy." n456 As the Rehnquist Court continues
to restrict privacy doctrine expansions, and a gridlocked Congress
refuses to address privacy issues, the potential for the prophecy
coming true is astounding. Justice Brandeis was equally prolific in
recognizing that the progress of science is not likely to stop with
wire-tapping, n457 and, indeed, the rapid expansion of technology
will likely
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n456 Rehnquist, supra note 103, at 15.
n457 Olmstead v. United States, 277 U.S. 438, 474 (1928) (Brandeis,
J., dissenting).
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[*1139]
result in even greater intrusions than video surveillance in the
future. As cities like Anchorage, Baltimore, Tacoma, and Virginia
Beach turn to video surveillance, the threat becomes even greater
that society is moving towards Huxley's and Orwell's nightmare. n458
The states need to be the leaders in the privacy protection
revolution by moving towards new federalism and adopting model state
statutes based upon explicit and inherent privacy rights in state
constitutions. n459
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n458 See supra notes 187-227 and accompanying text.
n459 See supra notes 252-73 and accompanying text.
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Privacy is a basic human need, and the states should adopt model
statutes to protect the fundamental liberty interest in privacy from
street video surveillance systems. Foreign examples and America's
own sordid experience establishes that street video surveillance
systems are exceedingly intrusive and inherently indiscriminate.
This area of the law cries out for attention before it becomes
impossible to correct the problem because the zones of privacy have
dissipated. The silent unblinking lens of the camera must be
stopped. n460
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n460 "But it was all right, everything was all right, the struggle
was finished. He had won the victory over himself. He loved Big
Brother." ORWELL, supra note 155, at 245.