ACLU testimony on Surveillance System before DC City Council

Testimony of Stephen M. Block, Legislative Counsel of the American Civil Liberties Union of the National Capital Area before the Committee on the Judiciary of the Council of the District of Columbia On the MPD’s Camera Surveillance SystemFebruary 25, 2002

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A police official acquaintance recently wondered whether -following September 11- police have “received too much permission”? In other words, in the name of fighting terrorism, have some law enforcement agencies crossed the line and weakened the freedoms that are the foundation of this country? This question was dramatically posed on February 13th, in Washington, D.C. when the Wall Street Journal informed us of the Metropolitan Police Department’s camera surveillance system. Why did the MPD assume that it had “permission” to establish such a system without consulting the citizens and their representatives on the District Council?

At first blush, there is a major discrepancy between the WSJ’s report and the system as the MPD described it to the ACLU at a briefing on February 19th. In terms of the available video technology, what was shown to us at MPD headquarters was modest. Whether the police could identify persons and read license plates from the fuzzy images on the large display screens is uncertain. The question is not what is currently in place in Washington, D.C., but what is contemplated. The WSJ stated: “. . . the plans in Washington go far beyond what is in use in other American cities.”

Chief Ramsey told us that presently the MPD’s system would be networked with the camera systems in the public schools and the METRO system. The department expects to have linkages to cameras used for traffic control, and to place cameras in areas such as Georgetown and crime-infested neighborhoods. Thus the disconnect between what we saw at police headquarters on February 19th and the WSJ’s report comes down to what capabilities are planned for the District’s system.

Presumably, one reason that the police department has proceeded with its camera surveillance system without consulting the Council or the public is that what it is now doing arguably does not violate any law. Since there is only visual surveillance and not monitoring of sound, the protections against wiretapping do not come into play. Further, courts have held that there is a diminished expectation of privacy when one is in public places. From this, it is inferred that camera surveillance on the street does not violate any constitutional right of privacy. But however the courts ultimately decide this question, the legal answer is not a sufficient answer.

Citizens have every right to determine to what extent they should be required to give up their privacy when outside of their homes. The District is a wonderful city because here we have a right to be anonymous and not to be observed by the government. If you want to have pink and gray hair, this is a place where you can be whoever you are. The MPD assumed it had “permission” to establish a camera surveillance system without consulting the Council and the public, when it did not. Lest there be any doubt on this score, consider the reaction of Representative Constance Morella, Chair of the House Government Reform subcommittee on the District. Announcing that she would call a hearing, she expressed “concern that the pendulum between security and privacy is beginning to swing too far in one direction. These surveillance programs are advancing without the appropriate and necessary public debate about their consequences.” I would also invite your attention to William Safire’s piece in the February 18th edition of the New York Times, which I am attaching.

Proponents of camera surveillance systems begin with the assumption that these systems are effective in fighting crime. But consider the experience of Oakland, California. For three years, the police department advocated the use of surveillance cameras in public places. The department had technology that could read the fine print on a flyer from hundreds of yards away, and that could recognize a license place or a face from more than a mile away.

In a report to the City Council, Chief of Police Joseph Samuels, Jr., stated that his department had hoped to be “. . . among the pioneers in the field of taped video camera surveillance” but ultimately found that “. . . there is no conclusive way to establish that the presence of video surveillance cameras resulted in the prevention or reduction of crime.”

Detroit Michigan took 14 years before it decided to abandon its surveillance camera system in 1994 citing high maintenance and personnel costs and mixed results.

A similar lesson is to be drawn from Tampa Florida’s experience with facial recognition technology. In use for only several months, the city abandoned the system last August. It never correctly identified a single face in its database of suspects.

The point is that before we divert human resources and money to hi-tech systems in the name of enhancing public safety, we must be confident that there will be a real benefit. That case has yet to be made for setting up a comprehensive surveillance system for the District. It is not a foregone conclusion that the centrally managed, networked system that MPD is contemplating will reduce crime. Resources are limited. The question, as always, must be: what are the competing alternative uses for those resources. MPD has the burden of persuading the Council and the public that its camera surveillance system will diminish crime.

If the Council gives the Metropolitan Police Department permission to construct the system it contemplates, about which we obviously have great reservations, it should enact a statute comparable to the Electronic Communications Act to protect us from illegal video surveillance. Voluntary guidelines will always be weak and unenforceable.

In many ways, camera surveillance is an even more intrusive form of search than an audio wiretap. It can be used to record intimate and private conduct. Recall the case of an MPD official who used the department’s license database to blackmail men visiting gay clubs. His extortion racket would have been greatly enhanced if he had a video film of the visits.

The Orwellian nightmare is not a distant fantasy. The movement to establish a standardized digital driver’s license and their sale to commercial entities could create a huge database that could feed into computerized facial recognition systems.

We understand that the police department is moving to set up a procedure to record racial and ethnic data at traffic stops to determine if officers are engaging in wrongful profiling. Camera surveillance systems can be used for the same illegitimate purpose. In Brooklyn New York as elsewhere, police officers were caught using their zoom lenses to leer at women on the street.

At our meeting on February 19th, Chief Ramsey promised that within 30 days he would share with community organizations such as the ACLU a draft of regulations to control the use and prevent the abuse of the surveillance camera system. We urge the Judiciary Committee to convene a hearing so that others and we can provide our analysis of the proposed regulations. While this should have been done before the surveillance camera system was launched, late is better than never.

Thank you.