Angelo J. Pompano
Most people who have found themselves the unwilling subject of hidden video cameras have found that they have little recourse because there are no federal regulations, no state statutes, and no labor laws covering video surveillance. A U.S. Senate bill that would require employers to inform workers about cameras in bathrooms or locker rooms was attacked by the business community and stymied by Congress. "This is all leading to a total-surveillance society," says Craig Cornish, of the National Employment Lawyers Association.
The same holds true for police surveillance videos. "The law, as it exists today, would appear to allow the use of any of this new technology by police without the prospect of any judicial supervision."
The critics not withstanding, video surveillance devices in public do not seem to violate any constitutional principles. If these devices were set up to gaze into a private dwelling, however, that would be a different story.
The United States Supreme has decided in a long line of cases, most notably in
Katz v. United States
389 U.S. 347, 88 S.CT.507 (1967), that there is no expectation of privacy in a public place. The Court ruled that the limits of Fourth Amendment protections against an illegal search did not stop at a physical trespass into a constitutionally protected area. However, some protection is suggested in that the court set forth two tests that since 1967 have been the reference point for other decisions. The first test is expectation of privacy and the second is reasonableness of government search. Neither test is explicitly in the 4th Amendment. However, the 4th Amendment does speak of unreasonable searches and seizures.
Up until this case in 1967 the court used to focus heavily on property rights. Charles Katz had been convicted in federal district court of bookmaking based on an eavesdropping device attached to the outside of a public telephone booth without a warrant. The Supreme Court threw out his conviction. Justice Potter Stewart writing for the majority declared, "The Fourth Amendment protects people, not places." Katz holds that "What a person knowingly exposes to the public,” is not a subject of Fourth Amendment protection. But what he “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Therefore it would follow that a person in public cannot have a reasonable expectation of privacy from video surveillance cameras.
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If it's done in a public place, and it's there purely for public safety purposes, it's not a problem," says George Trubow, a professor at John Marshall Law School in Chicago and director of the school's Center for Information Technology and Privacy Law.
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Still, some people question whether the use of video surveillance cameras in public areas is reasonable police action vs. unreasonable police infringement of the 4th Amendment. There is enough concern that the American Bar Association has issued standards that take into consideration the authorization, purpose, and duration of the surveillance, the notification of the community, and use of the images. Sheldon Krantz, a Washington, D.C. attorney, chaired the task force that developed the standards. Under ABA standards, video surveillance cameras and other detection devices can only be used to "see" into a particular area if the Fourth Amendment allows a traditional search of the area.
Under those standards, the use of such devices would be permitted if they are reasonably likely to achieve a legitimate law enforcement objective, have been approved by a politically accountable public official, and have been presented to the public, which must be given an opportunity for comment.
The standards have been published in a volume titled ABA Standards for Criminal Justice Electronic Surveillance Third Edition, Section B: Technological-Assisted Physical Surveillance.
Still, if you consider surveillance a search, it is one thing to be searched electronically if there is probable cause. But the indiscriminate surveillance of the general public seems to violate the constitutional right to privacy as interpreted by the Fourth Amendment.
John Henry Hingson III is a criminal defense lawyer in Oregon City, Oregon, and a past president of the National Association of Criminal Defense Lawyers. He claims that the rights of the innocent are being sacrificed in the name of law enforcement.
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"The weapons of war are now being used against American citizens for civilian law enforcement," he says. "And the casualties of this war are the constitutional rights of the innocent."
This may not be the case for long, however. Even if the right of privacy from unauthorized videotaping is not covered by the Constitution, a right may be protected by statutory means. Florida lawmakers have passed a bill which creates criminal penalties for secretly videotaping, recording or filming people where they have an expectation of privacy.
This is a step in the right direction and will protect people in places such as restrooms. However, it does not protect citizens who do not realize they are being videotaped when they are in a public place, which is where most surveillance takes place.
