May 23, 1997
Members
Public Safety Committee
Oakland City Council
One City Hall Plaza
Oakland, CA 94612
RE: Video Surveillance Cameras -- Questions & Concerns
Dear Council Members:
The ACLU greatly appreciates the Public Safety Committee's stated commitment to thoroughly researching the video surveillance issue before considering further action. We wholeheartedly endorse Chairperson Miley's comment that the City of Oakland needs to "do its homework" on this technology prior to making any decision.
In the hope that it will help expedite and focus the City's research effort, the ACLU offers a series of questions for your consideration. Based on our additional research, the ACLU now believes that our initial comments and concerns expressed during your hearing on April 29th and in our April 25th letter only scratched the surface of a very complex and troubling issue. Highly significant questions are outlined in the four key areas below __ Legal Issues, Impact on Public Safety, Fiscal Considerations, and the British Experience with Video Surveillance. Unless and until these questions are satisfactorily answered, Oakland should not recklessly gamble its precious right to privacy and its scarce financial resources by serving as a guinea pig for the proponents of video surveillance.
As the self-described "technologists" from Bay Alarm emphasized in their presentation on April 29th, they have just learned this technology in the last few months from the experts in the United Kingdom. In admirably frank comments, these technologists admitted that they "have no idea what to do with" the technology and emphasized that the societal, political and legal concerns stemming from its use in public places are for others to sort out. We strongly agree with Bay Alarm -- Big Brother's mechanic may be able to tell us what makes him tick, but it's up to all of us to carefully consider how his looming presence is likely to impact a free society. Towards that end, we offer the following questions and observations.
As we've emphasized before, the question for Oakland will be whether the California Constitution's explicit right to privacy would allow government video surveillance of innocent activity, movement and associations. The legal analysis must consider not only the mere presence of the cameras in public places but also the capabilities of both the cameras and their related technologies.
For example, is it legal for the government to be able to zoom in from over a 100 yards away to read and record the print on political flyers being distributed on public sidewalks? Can government mount cameras that can peer through the windows of private homes and businesses? Does the legal analysis change when cameras can capture, through infrared and other technology, images that are not perceptible or clear to the human eye?(1) Can government make a video-taped record of whom one may converse or associate with in a public place?
Even if the cameras were somehow programmed to not include windows in their field of view,(2) can the government legally make a video record of everyone going in and out of buildings absent any suspicion of illegal activity at that location? Does the analysis change depending on the nature of the buildings? Can the government spy on everyone going in and out of private homes, storefront political and community organizations, medical clinics, or places of entertainment (adult and otherwise)?
What can the government legally do with the recorded video images? Under what circumstances, may the government attempt to identify persons or vehicles captured by the surveillance systems? Can the government use Computerized Face Recognition (CFR) systems to automatically compare faces captured by the cameras with existing databases of facial images?(3) What databases and other records may the government use in attempting to identify individuals or vehicles? Does it matter that some databases, such as the massive Gang Reporting, Evaluations and Tracking (GREAT) database used by the Oakland Police Department to track alleged gang members, "associates" and "sympathizers," include images of individuals who have never been arrested or convicted of any crime? In what circumstances may government digitize and enter images captured by the camera into its own databases or records?
Both the State of California and the City of Oakland have relatively strong public records laws. If someone submits a public records request for routine surveillance tapes (prior to re-recording or destruction of the tapes), would Oakland be legally obligated to release them? Are there any specific exemptions to the California Public Records Act and the Oakland Sunshine Ordinance that would allow these tapes to be kept secret?
We are not aware of any court decisions that clearly resolve the public access legal questions. If Oakland cannot guarantee that the tapes could be kept out of the public domain, it should at least consider some of the possible consequences of creating publicly-available surveillance tapes. For example, if the tapes are public record, business competitors, political rivals, or ex-spouses/lovers could quickly and cheaply obtain high-quality tapes of who is going in and out of your front door at particular hours or whom you may be associating with in public places.
One should also consider how the broadcast news media and entertainment industry might make use of public access to government surveillance tapes. Given the spread of low-cost "real video" television programming and commercial ventures, one must assume that embarrassing or entertaining incidents captured by the surveillance cameras are likely to be broadcast or packaged for sale. Consider the sale of a video in the UK consisting of scenes captured by surveillance cameras __ including a scene of a couple having sex in an elevator.
"City of London police yesterday condemned the unauthorised use of a piece of their closed-circuit television footage in a controversial new commercial video, Caught in the Act."
Bruce George, Labour MP for Walsall South, ". . .said the Government should issue guidelines on what to do with CCTV recordings. . . . Mr. George also called for strict controls on so-called consultants who advised on the purchase of CCTV. He said: `Many of them are charlatans and others are tied to manufacturers.'"(4)
Even if Oakland could come up with a legal argument to support a policy of non-disclosure or selective non-disclosure, trying to keep the tapes secret raised additional policy questions and choices.(5) Would a non-disclosure policy make it more difficult to identify and deter abuses of the technology? If, in an effort to deter or capture criminals, Oakland wanted to release certain tapes to the news media, could or should it refuse to disclose the tapes to others in different circumstances?
Are there any federal or state statutes that control or limit the use of this new technology? In the absence of any statutory law, will local legislation be crafted and adopted to define what will be legal and illegal uses of video surveillance technology prior to cameras being used in Oakland? Will violations of these local laws be enforceable through both criminal sanctions and civil causes of actions?(6) In the absence of such legislation, how can the public __ the targets of the surveillance __ be assured that they'll be protected from abuses?
The proponents of video surveillance claim it will both deter crime and help catch criminals. As we indicated in our April 25th letter, the ACLU has seen no credible evidence that supports that hypothesis. In the past, several U.S. cities have tried surveillance cameras only to abandon them as ineffective and intrusive. If the presence of surveillance cameras for 22 months in Times Square led to only 10 arrests before they were dismantled, why would the cameras be more productive in Oakland? ("One of the greatest flops along the Great White Way," according to the New York Times.) If Atlantic City, N.J. abandoned their surveillance cameras after they had produced no arrests, why should Oakland invest in this technology? ("Score one against Big Brother," wrote the Philadelphia Inquirer.) If video surveillance cameras have been taken down in Miami Beach, Newark, White Plains, Mount Vernon and other cities, why should they go up in Oakland?
Even in the UK where the cameras are the most pervasive and technologically advanced, the government has concluded that there is no evidence they have significantly improved public safety. Consider the following report from the Telegraph(7) --
"Closed circuit television, hailed by the Government as a vital weapon against crime, is not the panacea its supporters had hoped. Research by the Home Office and by independent academics has raised questions about the long-term effectiveness of CCTV. . . .
A series of studies. . ., including one by the Home Office itself, suggest that in some towns it has merely pushed crime into other areas or that its initial impact fades rapidly. The patchy record of CCTV has emerged in the Home Office's Police Research Group examination of how the cameras have performed in Newcastle, Birmingham and King's Lynn. . . .
(I)n Newcastle, for example, the Home Office discovered that the deterrent effect waned. The research also showed that crime often fell in areas beyond the view of the cameras. . .
(In Birmingham), the technology also appears to have shifted some crimes, in particular robbery and thefts involving cars. . .
An independent study in the London borough of Sutton showed that the technology had little impact on crimes such as mugging. The research, carried out by the South Bank University in London, showed that while crime dropped by 13 per cent within the CCTV area, it fell by 18 per cent in areas not under watch. Some crimes increased in the monitored areas __ including theft (15 per cent) and robberies (33 per cent)."
In addition to the studies by the Scottish Centre for Criminology and the British Journal of Criminology referenced in our April 25th letter, the ACLU has since learned that a study by Brighton University's Health and Social Policy Research Centre has also concluded that video surveillance cameras have not had any deterrent effect on criminals. Will Oakland obtain and review these various studies on the impact of British video surveillance before investing in the underlying British technology?
In evaluating statistical claims about surveillance cameras, other variables affecting the rate of reported crime must be carefully analyzed as well. For example, are reported reductions in crime in areas where surveillance cameras exist, in fact, more likely attributable to larger statistical trends showing an overall decline in crime within a community or region? Are other anti-crime techniques being applied simultaneously with the cameras? For example, if new surveillance cameras are mounted at the same time that better lighting is erected or more officers deployed or neighborhood watch groups are re-vitalized, how can "success" be attributed to the cameras rather than these other variables? Are crime reductions within surveillance areas off-set by crime increases (or smaller rates of decline) in areas not covered by cameras?
What is the psychological impact of video surveillance on criminals? Does that impact change over time? Can the presence of cameras backfire?
"A study in the marketing department at UCLA in Los Angeles in the early 1980s showed that the more a retail store displays surveillance hardware the more some individuals see it as a challenge to shoplift. Police departments notice the same phenomenon. . . . `The criminals get used to the cameras and tend to move out of sight,' said a (Boston) police official."(8)
Finally, any effective crime fighting strategy must involve strategic responses tailored to the specific offenses and the neighborhood and geographic conditions being confronted. Obviously, jaywalking problems are addressed in different ways than armed robberies. Parks or forested areas pose different public safety problems than exposed sidewalks. Will part of the analysis over whether and where to mount surveillance cameras address which particular crimes may be at issue and what impact surveillance may have on those particular sorts of offenses? For example, even if overt video surveillance might deter sidewalk drug dealing along a commercial strip, the cameras are likely to merely push this particular type of criminal behavior beyond camera range into residential neighborhoods. Would this be considered "success?"
In analyzing the fiscal costs, the question is not merely how much a video surveillance system will cost but what other public safety strategies could be pursued with the same or less amount of money. Are video surveillance cameras the most cost-effective way to address the particular crime problems within the areas covered by the cameras? What other strategies or devices might be employed at less cost or with greater likelihood of success?
In addition to the cost of the cameras, monitors, video tape recorders, surveillance signs(9) and other equipment, the expected maintenance and upkeep costs need to be considered as well. How often will the system break down -- especially since the technology is very new to Bay Alarm? If the cameras are damaged or affected by acts of vandalism or civil disobedience, will the City of Oakland be responsible for any repair costs? Will there be increased costs associated with tree trimming or removal or other attempts to remove or relocate objects that obstruct the cameras' views? Will the City need to rent new space or extensively remodel existing space to accommodate the high-tech "studio" where the cameras will be controlled and images monitored? Could the City choose to relocate the cameras to different locations and, if so, at what cost?
Some have falsely implied that these cameras will involve only one-time "capital expenditures."(10) The video surveillance models being touted for Oakland involve personnel controlling and monitoring the cameras. The number of personnel will depend on the number of cameras that must be monitored and the times during which they'll be monitored. Assuming the goal, as discussed, was for 24 hours-a-day, seven days-a-week surveillance, it would appear that at least four or five new staff positions would be necessary. What are the costs __ recruitment, background checks, training, salary and benefits, supervision and oversight -- associated with these positions? What separate personnel costs will be associated with processing public access requests for the tapes?
Thus, even putting aside the significant capital expenditures necessary, the personnel costs do involve a choice between funding more cops on the beat or funding positions to support cameras on light poles. Even if these were civilian positions that are less expensive than police officer slots, how many police officers could be funded with the personnel costs associated with this project? For example, would the personnel costs of three civilian video surveillance monitors assigned to the "studio" be roughly the equivalent of one police officer on the street? How many civilian community policing coordinator or other public safety positions could be funded with the personnel costs associated with the video surveillance proposal?
If Oakland is being asked to be the first major city in California to experiment with intrusive video surveillance technology, it must expect that it might also be the target of litigation raising the privacy and public access issues addressed above. Who will cover the costs of defending the City in this litigation? Will Bay Alarm agree to cover the City's legal costs and to indemnify the taxpayers against any damages awarded from any use or misuse of this technology?(11) If not, why not?
Proponents of video surveillance have alluded to a possible "public-private" partnership in obtaining the necessary funding for the program. What businesses have been approached or will be approached as possible "partners?" Have they been told that their financial contributions and association with the program will be matters of public record? Will businesses want to be known as a "financial patron of Big Brother?" Will they be given the option of contributing to other, less controversial and more effective public safety initiatives? If not, why not?
Will making a contribution to the purchase of the cameras make it more likely the cameras will be mounted near someone's businesses? If so, is it appropriate for public safety resources to be allocated, in part, based on the financial ability or willingness to help pay for services? Should poorer neighborhoods or financially-strapped small businesses have less access to public safety programs because they can't afford to help pay for them?
As has been pointed out, Oakland has a very strong interest in ensuring that people feel safe to shop, do business and spend money in the City. During the Committee's initial hearing, Council Member Spees noted that while Oakland's downtown area is one of the safest in northern California. However, in attracting and retaining businesses, an area must not only be safe it must be perceived to be safe.
What will an extraordinary and unique (among major California cities) video surveillance program do the perception of public safety in Oakland? Won't the message to tourists, shoppers and businesses be, "Oakland is so dangerous that we have to spy on you to protect you?"
What will the presence of publicly-accessible video surveillance tapes do to television coverage of crime in Oakland? All communities suffer from some crime. Won't the sudden availability of dramatic videotape of actual criminal activity that otherwise would not be newsworthy (purse snatching, mugging, car radio thefts, etc.), make it much more likely that Oakland's crime would attract prominent and disproportionate coverage on local television news broadcasts? Even if a particularly responsible broadcast journalist were to try to temper the impact of such stories with an oral disclaimer about Oakland's overall crime rate, won't the visual image of a crime captured by video surveillance have a much stronger impact on the viewers' perception of public safety in Oakland than the reporter's words? If "visuals" are the most important factor in determining viewers' emotional responses to television news, how could Oakland's "crime captured in progress" videos packaged as "news" possibly improve Oakland's public image as a safe place to do business?
In their presentation on April 29th, Bay Alarm placed special emphasis on the experience of the United Kingdom over the last decade with video surveillance technology. In an aside, Bay Alarm's representative even idly noted that we could all better grasp the full potential of this technology if we could only see it "in action," as they had in England. While it may not be practical for us (at least for the ACLU), to observe British-style surveillance in person, we have pursued Bay Alarm's suggestion that we try to learn more about the British experience with this technology.
The ACLU agrees with Chairperson Miley's comment that it's "too early to determine the downsides" of video surveillance from the relatively new experiments in the U.S. in Baltimore and Honolulu.(12) While the overall relevance of the British experience to Oakland may be subject to debate, it is appropriate to consider what "downsides" have become apparent in the UK --
especially when the proponents are pointing to the UK as an alleged "success story." In addition to the abuses and studies showing little impact on public safety cited above, there are at least four other points about the British experience with video surveillance that Oakland should consider.
First, while we have no reason to believe that Bay Alarm was aware of this when they made their presentation, the ACLU has learned that, because of recently-expressed privacy concerns from the European Parliament, the future viability of the UK's video surveillance operations now appears to be in some doubt.__
"Britain's plan to make closed-circuit television a key part of the war on crime could fall foul of new European legislation aimed at protecting people's privacy....
A European Union directive which must become law in member states by October next year will prohibit criminal convictions based on video evidence alone. And a report for the European Parliament to be released in June, which could lead to further legislation, calls for Europe-wide limits to protect privacy....
The report for the European Parliament -- carried out by the parliament's technology assessment office -- says the use of CCTV should be addressed by the MEP's Committee on Civil Liberties and Internal Affairs, because the technology `facilitates mass and routine surveillance of large segments of the population.' Automated face or vehicle recognition software allows CCTV images to be digitally matched to pictures in other databases, such as the photographic driver licenses now planned in Britain. The unregulated use of such a system would amount to an invasion of privacy, says the report."(13)
Second, according to public opinion surveys, popular support for video surveillance cameras in the UK is shrinking. Citing "Scottish studies," a Brighton University study and surveys in London, Bradford and Manchester, Privacy International claims, "If these trends continue, the cameras will have minority support by 1998."(14)
Doubts about the utility and wisdom of video surveillance systems are even being openly expressed by leading law enforcement professionals. On the very same day your committee heard testimony about the alleged success of video surveillance in the UK, one of England's leading (and conservative) newspapers published the following opinion piece.
"I was a policeman for 33 years. . . .
I am no technological Luddite. I confess to a boyish delight at all forms of innovation. I am happy to agree that our lives have been enhanced considerably by the advance of information and other technologies. All I ask is that we are not blinded to the flip side of such developments. . . .
Even though I had started to realise the tremendous advantages which the computer age was about to bring, I did not foresee the inherent dangers which the all-seeing digital eye and all-knowing database would bring.
Take closed-circuit television. If you have nothing to hide, why be concerned that, given present trends, every aspect of your public and some of your private life will be recorded on video tape? Does it matter that there are no rules regarding its safekeeping or subsequent use? . . .
My prime concern is that its potential to steal our privacy, that important component of any civilised community, is either understated or ignored. This is especially so when the culprit is government, past or present, which seems to have made no attempt to look beyond the short term."(15)
If decorated and respected law enforcement executives in the UK are beginning to doubt their prior embrace of video surveillance, shouldn't Oakland learn from their mistakes?
Third, the decisions about who, in particular, "Big Brother" will choose to watch closely through powerful zoom lenses or via tracking or face recognition technologies has sadly but inevitably been effected by societal prejudices.
"In many instances, CCTV system operators routinely exercise their prejudices to discriminate against race, age, class or sexual preference. They openly proclaim that this is a necessary part of their duties. One camera operator in Burnley told a Granada documentary `people mainly with shirts and ties are OK. Most people you can tell just by looking at them.' Another said `I can tell by the hair.' A recent report by Hull University highlighted endemic discrimination against blacks, gays, minorities and young people....
CCTV is also used by authorities to track the movement of individuals `of interest,' and to monitor public meetings, marches and demonstrations."(16)
Fourth, our research suggests that video surveillance spread in the UK because of two, very significant public safety threats that simply are not present in Oakland. Over the years, the UK has faced -- and continues to face even with video surveillance cameras -- the ever-present threat of bombs and other terrorist attacks in public places. Without trivializing Oakland's crime problem, using video surveillance to fight people who "spin doughnuts" with their cars, "loiter," or commit "nuisance crimes"(17) is hardly the same thing as using this intrusive technology to deter terrorist bomb attacks. Also, the video surveillance wave was pushed along by British soccer fans whose riotous behavior in several tragic incidents produced large numbers of fatalities. Even the rowdiest behavior by fans of the Oakland Raiders pales in comparison to the intense violence of what is called football "hooliganism" in Europe.
Thank you again for your promise that these issues will be thoroughly researched. We hope this letter will facilitate that effort. Until these questions are fully addressed, the ACLU believes Oakland should not be asked to accept "Big Brother" into its family. Please do not hesitate to contact us with any questions.
Sincerely,
John M. Crew
Director
Police Practices Project
cc: Elihu Harris, Mayor
Members, City Council
Office of the City Clerk
Office of the City Attorney
Office of the City Manager
Joseph Samuels, Jr., Chief of Police
Earl Warren Chapter of the ACLU
Dan HoSang, PUEBLO
NOTES
(1) According to Privacy International, some video surveillance systems using Forward Looking Infrared Radar (FLIR) can or will soon be able to detect activity not only in darkness but behind walls as well.
(2) Of course, the more limitations put on the range of the cameras and their technical abilities, the less effective they may become. Technical limitations may also make the cameras more vulnerable to vandalism or acts of civil disobedience from those who may object to their presence.
(3) Again, according to Privacy International, at least one CFR system is already being used in the UK. See also, Matthew May, "Surveillance: Someone to Watch Over You," Telegraph, May 22, 1996, for a more thorough discussion of this techn