ACLU of National Capital Area testimony on Surveillance System before DC City Council

Testimony on behalf of the American Civil Liberties Union of the National Capital Areaby Stephen M. Block, Legislative Counselbefore the Committee on the Judiciaryof theCouncil of the District of Columbiaon Legislation ConcerningMPD’s Camera Surveillance System December 12, 2002

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Background

In considering the legitimacy of the Metropolitan Police Department’s general video surveillance program, we must remember that it was initiated well before September 11, 2001. MPD mounted its cameras to track domestic protesters who came to the Nation’s Capital to petition the government. The claimed use of general video surveillance to fight terrorism and ordinary crime was an afterthought.

We begin with the premise annunciated by Justice Louis D. Brandeis that “The right of the people to be let alone [is] the most comprehensive of rights and the right most valued by a civilized [people].”[1] But it is now argued that in today’s world, we must sacrifice individual liberty because of the greater need for public safety. In the context of our consideration of general video surveillance, this is a false choice.

The Claims for General Video Surveillance

Let’s remember that when the Wall Street Journal first broke the story that MPD had set up a general video surveillance program, the Mayor and Chief of Police declared that they wanted a British-style system for Washington, D.C. In London, there are 150,000 cameras, so many that on average each person there is captured by the CCTV 300 times in the course of a single day. We also need to recall that the British turned to general video surveillance because of the I.R.A.’s bombs. Let’s learn from the British experience that teaches us that general video surveillance –spying on law-abiding people in parks, plazas, and other public places– is not effective either at fighting terrorism or ordinary crime. Oakland California and Detroit Michigan among other American cities reached the same conclusion. Moreover, money spent on MPD’s general video surveillance program is money not spent on community policing, which we know is effective.

We are also told that the police need general video surveillance to manage their personnel during “major events” such as demonstrations, marches, and other constitutionally guaranteed expressive activities. But prior to the advent of today’s high-powered video technology, the police department has always been able to deploy its forces using officers on the ground, on rooftops, or in helicopters overhead. Even if there were some marginal utility in being able to use general video surveillance to observe and record persons exercising their First Amendment rights, the chilling effect on freedom of expression would not be worth the cost.

In sum, the principal reasons offered on behalf of general video surveillance –terrorism, crime fighting, and crowd control– do not survive scrutiny.

The Council’s Choices

The Anti-Surveillance Bill

In considering legislative proposals for general video surveillance, the Council should choose the bill that promotes individual liberty and public safety, not a false claim of public safety at the expense of individual liberty.

The Anti-Surveillance Bill prepared by the ACLU (attached) is based on the premise that general video surveillance -spying on law-abiding persons- is not legitimate. By carefully defining general video surveillance, the Anti-Surveillance Bill ensures that closed circuit television technology is used only where it enhances public safety and is minimally intrusive on individual privacy.

The Anti-Surveillance Bill directly and clearly prohibits “”general video surveillance”” by the District of Columbia government.[2] The definition focuses on video surveillance used as a dragnet in public areas, capturing all law-abiding persons who pass before the cameras.[3] To permit the uses of video technology that are otherwise lawful, “general video surveillance” is defined so as not to include:

· CCTV to investigate specific criminal suspects;[4]

· CCTV to provide building security;[5]

· CCTV to record motor vehicles running red lights or speeding.[6]

· CCTV for real-time traffic control;[7] and

· CCTV in police cars to monitor officers’ interactions with the public.[8]

In addition to prohibiting general video surveillance, the Anti-Surveillance Bill also:

· Requires the removal of all general video surveillance devices already deployed;[9]

· Limits access to the live video feeds of other public or private entities to images of “exigent circumstances threatening the life or safety” of persons, only if the camera operated by the outside entity would be lawful if operated by the D.C. Government.[10]

· Prohibits the use of “Biometric technology or software in conjunction with any general video surveillance.”[11]

· Provides for administrative and criminal sanctions and for a private cause of action for violations of the Act.[12]

Bill 14-946

Unfortunately, Bill 14-946, the Limited Authorization of Video Surveillance and Privacy Protection Act of 2002, is a proposal that does not advance public safety but does seriously harm individual liberty.

The bill proceeds from the premise that general video surveillance -spying on law-abiding people in parks, plazas, and other public places- is legitimate. The bill attempts to narrow the writ for general video surveillance by specifying permitted uses. And recognizing that general video surveillance undermines civil liberties, Bill 14-946 includes various procedural requirements for its use. This effort to limit general video surveillance has produced an overly complex bill, which is confusing.

Apart from the fundamental flaw of Bill 14-946 –the legitimization of general video surveillance, this bill should be rejected because it:

· Authorizes video surveillance to monitor constitutionally protected expressive activities such as demonstrations and marches.[13] As noted, the rationale that CCTV is needed for this purpose to deploy police forces is not valid.

· Authorizes video surveillance to fight ordinary crime.[14] The bill authorizes two pilot projects to evaluate the effectiveness of video surveillance for this purpose,[15] even though additional study of this question is unnecessary and therefore wasteful. As noted, British and Australian scholars and several American cities have carefully studied this question and concluded that general video surveillance is not an effective crime-fighting tool. These studies inform us that criminals will operate below the cameras’ vision or go elsewhere (the “displacement effect”). While the purpose of the pilot studies is to determine whether cameras can cause a change in the crime rate, there is no requirement for all the variables that could affect the crime rate to be controlled. Such variables would include improved street lighting, a change in policing (number of officers, use of foot patrols, etc.), the assistance of Orange Hats, and public safety education.

· Authorizes the installation of an unlimited number of permanent cameras. The mere presence of surveillance cameras changes behavior. Even if a camera is not in use, and even if it does not have a sign that “”it is in operation,””[16] the mere presence of a camera induces social conformity.[17] According to section 3, the use of cameras to monitor “”major events,”” traffic, and neighborhood crime is to be “”temporary.”” That section, read with the definition of “”video surveillance,””[18] permits the permanent installation of cameras for these “”temporary”” uses. To install as many permanent cameras as it wants for these uses, the police department is only required to provide public notice of its intention to “”deploy””[19] them. [20] As to the requirement to give notice of “”the planned duration of the deployment,””[21] the police department need only state: “”indefinite.””

· Allows Business Improvement Districts,[22] which have the power to levy taxes, to engage in general video surveillance even when the D.C. Government could not lawfully do so.[23]

· Authorizes the use of CCTV for traffic control without safeguards to prevent such use to be converted to general video surveillance.[24]

· Authorizes a court to approve a previously unauthorized use of video surveillance.[25] Presumably, this is an attempt to preclude any challenge in a criminal case to evidence obtained from an otherwise unauthorized video surveillance. Such evidentiary questions should be left to the court hearing the criminal case to determine if the police overstepped their authority.

In contrast to the straightforward approach of the Anti-Surveillance Bill, Bill 14-946 also presents the following uncertainties:

· Must MPD obtain a court order to use its surveillance cameras. Bill 14-946 requires a court order to use cameras with “telescopic zoom capability that is of such a high magnification that it enables the facial recognition of the individuals being videotaped.”[26] That limitation provides no guidance, because facial recognition depends on the distance the subject is from the camera. Moreover, facial recognition may also be possible by using software to enhance a recorded image. The bill is thus confusing as to whether MPD must obtain a court order to use its existing 14 cameras or any others to be installed

· If video surveillance is authorized, may the police also record? “Video surveillance” is defined to include “viewing or recording,”[27] but the bill also employs the undefined term “videotape surveillance” in some sections[28] but not others[29]. The matter is further confused by section 10 that limits “recording of video surveillance.”

Conclusion

To its credit, Bill 14-946 tries to prevent general video surveillance from being abused. But the effort proceeds from the fatally flawed premise that general video surveillance -spying on law-abiding persons in parks, plazas, and other public places- is legitimate. The result is a complex and confusing legislative proposal that serves neither the interest of civil liberties nor the interest of public safety.

All who live, work, and visit the District of Columbia will best be served by a law that carefully defines “general video surveillance” and then prohibits it. Such an approach would permit the use of CCTV for legitimate law enforcement purposes, if otherwise lawful. We urge the Council to use that as its legislative paradigm and to adopt the Anti-Surveillance Bill.

Thank you for your consideration.

[1] Olmstead v. United States, 277 U.S. 438 (1928).

[2] “District of Columbia government” includes all Business Improvement District corporations. Sec. 3(b).

[3] Sec. 3(c) “General video surveillance” means the use of remotely-operated cameras to view or record activities occurring in outdoor public areas such as streets, sidewalks, parks and plazas.

[4] Sec. 3(c)(i): “the use, if otherwise lawful, of cameras to view or record the suspected criminal activities of specific individuals who are under surveillance because they are suspected of engaging in, or being about to engage in, a criminal act;”

[5] Sec. 3(c)(ii): “the use, if otherwise lawful, of cameras to monitor the exterior entrances and surfaces of District of Columbia government buildings for security purposes;”

[6] Sec. 3(c)(iii): “the use, if otherwise lawful, of cameras to detect and record motor vehicles violating the traffic laws, when such cameras are activated by such violations and when such cameras are not capable of identifying the occupants of such vehicles;”

[7] Sec. 3(c)(iv): “the use, if otherwise lawful, of cameras at points of traffic congestion for the purpose of real-time traffic control, so long as such cameras are not capable of identifying individuals or license plate numbers;

[8] Sec. 3(c)(v): “the use, if otherwise lawful, of cameras installed on police vehicles to record the interactions between police officers and persons stopped or detained.”

[9] Sec. 4(b).

[10] Sec. 4(c).

[11] Sec. 4(f).

[12] Sections 6 and 7.

[13] Sec. 3(a).

[14] Sec. 3(e).

[15] Sec. 11.

[16] Sec. 4(a)(4)(I).

[17] See article by George Washington University Law Professor Jeffrey Rosen, New York Times Magazine, October 7, 2001.

[18] Sec. 2(10) ‘””Video surveillance’ means use of a lawfully positioned camera as a means of viewing or recording activities or conditions other than those occurring within the sight or immediate vicinity of a government official or agent thereof who is aware of such use.””

[19] Sec. 2(3) ‘””Deploy’ means to install or place a video surveillance camera in a particular fixed location.””

[20] Sec. 4.

[21] Sec. 4(a)(2).

[22] D.C. Official Code Title 2, Chapter 12, Subchapter VIII.

[23] Bill 14-946 authorizes the Mayor to use video surveillance, e.g., sec. 3. There is no definition of “Mayor” that would limit the use of CCTV by Business Improvement Districts.

[24] Sec. 3(b).

[25] Sec. 7(b).

[26] Sec. 6(c).

[27] Sec. 2(10).

[28] E.g., sections 3, 4, and 5.

[29] E.g., sections 7, 8, and 9.