Video Surveillance, Public Spaces and Privacy

Considering how the commonality of video surveillance in US society continues to grow, it is natural to be concerned about the impact it has on the right to privacy.  The legality of the widespread use of cameras by law enforcement has also come under increasing scrutiny in recent years. This paper will examine some of the legal issues related to the use of video surveillance by law enforcement.  It will also examine why this surveillance is expanding. Finally, it will review how legal is the use of such surveillance.

As most video surveillance cameras are placed in public spaces (such as in the workplace), the first issue relates to the right to privacy in such spaces.  There is much legal precedent showing that privacy in a public space is not a guarantee.  Indeed, in Katz v. United States, 389 U.S. 347 (1967), the court interpreted privacy to relate only to spaces where an individual has a reasonable expectation of it (Ray 1443). This right may, but not necessarily, hold in one’s own home, in a latrine in public facility, or in a department store dressing room.  Any behavior which is exposed in a public space is not protected by the right to privacy. The only exception might be if attempts were made as to concealment of the behavior.

An example of such a clarification is from the automobile exception cases.  In United States v. Ross, 456 U.S. 798 (1982), a criminal defendant attempted to have evidence seized from a vehicle he owned, thrown out.  The argument was that the search was in violation of his right to privacy. However, the court decided that, unlike a private home, automobiles have a lower expectation of privacy since they are in full view of any passerby.

The notion of privacy is very old one and dates back to English common law to the case of Semayne (1603). In this case it was decided private citizens were protected from the illegal entry of their homes by officials representing the King.  In its original conception, both in England and early US, privacy was conceived to protect private citizens from unlawful searches and seizures.  This conception relates to the aphorism “a man’s home is his castle” and it was formulated to protect private citizens’ property from illegal search and seizure by official law enforcement.  As such many legal scholars do not read an explicit right to privacy in the US Constitution (Heffernan 9-12).   This notion of privacy originated in the fourth amendment reference to a citizen being secure in their “houses, papers, effects.”  But with the evolution of US society and the tremendous expansion in video surveillance technology, this idea of what is private has been developed.  It is now considered that privacy, rather than being limited to protection from illegal searches and seizures by law enforcement officials, as in the 18th century, revolves around any context dependent activity associated with the individual in society. 

A related issue concerns how much courts desire to limit the ability of law enforcement to carry out proper investigations and apprehend criminals.  Courts do walk a fine line in privacy matters.  There is the problem of restricting law enforcement’s surveillance prerogative and possibly allowing criminals to escape detection and arrest.  Or allowing law enforcement too much freedom and dangerously restricting the rights of individual citizens.  The consensus, in cases of this type, has been to support law enforcement’s request for more tools with which to carry out successful investigations and apprehensions with restrictions such as probable cause and warrants. 

An example, is the great expansion of the surveillance state in the wake of the 9/11 terrorist attacks on New York City and Washington, D.C. In the name of counter-terrorism, the infrastructure of the surveillance and security state has expanded tremendously in the U.S. It’s notable that many Americans are willing to give up some freedoms in exchange for greater security and safety.  Accompanying this expansion has been some easing on the government’s limitation to use electronic surveillance to monitor citizens (Liptak, “Criminal law changed”). 

Where the expansion of the surveillance state has some benefit in non-counter terrorism cases, has been in its use in identifying and tracking criminal suspects.  Video now allows law enforcement to more efficiently follow such suspects across fairly large distances and periods of times and observe their behavior in various contexts - such as in the case of Korryn Gaines.  Where video was not available, it is likely that any information obtained was less reliable and accurate, as it may have depended upon eye-witness accounts.  Such accounts are notoriously faulty the further from the initial encounter a witness is asked to remember what was witnessed.  This may sometimes lead to the arrest of the wrong individual.  In Katz v. United States, 389 U.S. 347 (1967), The test of reasonableness holds that whatever an individual exposes to the public, even at home, is not protected by privacy.  While if an individual attempts to conceal something from view, even if in a public space, that is protected from privacy (Ray 1443).   

A related case is the use of electronic surveillance in other contexts.  Recent years have seen cases where police have used GPS devices to track the movements a suspect’s automobile. Legal challenges to such methods have centered around whether police needed to obtain a warrant first.  In one such case, it was decided that police violated the Constitution by attaching a GPS device to a suspect’s vehicle and following his movements for nearly a month (Liptak, “Justices Say”).  

A similar case involving electronic surveillance of a suspect’s home, involved the use of sophisticated listening devices which enable police to monitor conversations, without ever entering the home to install wiretaps. Courts have decided in Katz that if a wiretap is applied outside of a physical location, with the individual inside, then this does not count as a warrantless search or seizure (Laba 1443-1444).  This decision applies to, for instance, the monitoring of cordless phone conversations.  As long as the technology use in question passes the two-part test.  The first person of this test is, of course, whether the individual in question has a reasonable expectation of privacy.  But the second part of the test is whether this expectation is one that society recognizes as reasonable.  The conclusion from the Katz decision is that invasive techniques used by police to conduct investigations do not count as searches. 

In sum, privacy may be one of the most contentious of rights.  Its original conception related to protecting citizens from the power and harassment of an overbearing government. It has grown, over two centuries of US history, to a right that protects private citizens from observation in contexts that don’t directly involve law enforcement.  However, even in such contexts it is important to point out that, protected spaces are fairly limited ones and relate only to situations where a reasonable expectation of privacy exists. This reasonableness does not extend to public spaces that are accessible to anyone such parks, mass transit, public streets, unless an individual has taken measures to protect himself from public observation. 

Even so, although troubling, video surveillance by law enforcement is not prohibited in public contexts.  And in fact, it has been shown to serve a purpose that enjoys the assent of a large portion of the voting public. Where it will continue to be proscribed is in the inappropriate use or broadcast of such surveillance.   

Works Cited

Heffernan, William C. “Fourth Amendment Privacy Interests.” The Journal of Criminal Law and Criminology, vol. 92, No. 1/2 (Autumn 2001 – Winter 2002), p. 1-126.

Liptak, Adam. “Criminal law changed surprisingly little after the attacks. How law was enforced is another matter.” The New York Times, Sept. 7, 2011. Apr. 2013. http://www.nytimes.com.

Liptak, Adam. “Justices Say GPS Tracker Violated Privacy Rights.” The New York Times, Jan. 23, 2012. Apr. 2013. http://www.nytimes.com.

Ray, Kent S. “Overextending the Automobile Exception to Justify the Warrantless Search of Closed Containers in Cars.”  The Journal of Criminal Law and Criminology, vol. 73, no. 4 (Winter 1982), p. 1430-1451.