ACLU Calls on Law Enforcement to Support

April 8, 1999 12:00 am

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ACLU Calls on Law Enforcement to Support
Privacy Laws for Public Video SurveillanceStatement of Barry Steinhardt, Associate Director
American Civil Liberties Union

Thursday, April 8, 1999

WASHINGTON — “Two days ago I moderated a panel on e-mail surveillance at a conference across town attended by 500 civil liberties-minded Internet experts. On my panel was one lone representative of the Justice Department, who had to explain why it was necessary for the government to monitor the Internet. I am sure he felt like the skunk who had wandered into the garden party. Today, I suspect that the tables are turned and it is my role to wear the white stripe, if not the white hat.

But let me assure you that I did not come here today to stink up the party. I greatly appreciate your willingness to hear me out. But, at the same time, I need to be candid with you.

I believe that the people in this room are of good faith. Many of you put greater weight on the criminal statistics evidence than I do, but all of you, I am sure, appreciate the potential misuses and abuses of video surveillance technology.

The premise of this conference is that those abuses can be controlled by voluntary guidelines. That is simply not enough.

If law enforcement use of CCTV is to be greatly expanded — and I hope it will not be– the victims of abuse must be guaranteed rights and the abusers must be subject to legal sanctions.

Federal and state laws create criminal penalties for illegal wiretapping and give the victims substantial civil remedies. Modern video surveillance has all of the same potential dangers as wiretapping. We need analogous laws to the Electronic Communications Privacy Act to protect us from illegal video surveillance.

The fact is, voluntary guidelines will always be weak and unenforceable. Therefore we must urge lawmakers to create real remedies when CCTV is used for political surveillance, or to target people of color, women and sexual minorities Our open records and freedom of information laws will also need to be amended to take into account governmentally organized CCTV campaigns.

In preparation for this meeting, the conference organizers were good enough to send me a speakers’ briefing book, which suggested that ACLU’s main objections to the use of CCTV “centers on the lack of standards and operating/training proposals employed by CCTV monitoring companies.”

That characterization of the ACLU’s position is at best half right. When it comes to law enforcement use of video surveillance, our main concern is not the lack of standards or procedures, but rather that law enforcement is engaged in an intrusive search without a warrant and without probable cause or individualized suspicion.

In many ways CCTV is an even more intrusive form of search than an audio wiretap. CCTV can be grossly abused by recording intimate and private conduct and marking innocent people for tracking solely on the basis of racial, gender or other characteristics. No other technique can record in such graphic detail personal and private behavior.”

Indeed, as one Federal Court noted, “video surveillance is more invasive of privacy than audio surveillance, just as a strip search is more invasive than a pat-down search.”

Even if one assumes, for the sake of argument, that the police will be allowed to use CCTV for surveillance purposes without a warrant, it is not the absence of voluntary procedures or protocols which alarms us. It is the absence of Federal and State laws that limit the scope of CCTV use; that criminally punish those who violate the law and create enforceable civil remedies for the victims of CCTV abuse.

Let me hasten to add, the ACLU does not concede that the routine law enforcement use of CCTV will pass constitutional muster in all jurisdictions and under all circumstances. Even if the federal constitution is interpreted to permit warrantless video surveillance CCTV use by police, the practice may well violate the constitutions of individual states.

In Oakland, for example, where police use of video surveillance was rejected, one of the factors taken into account was that California, along with a host of other states, has a specific privacy provision in its state constitution that act to bar these general searches. Court decisions in Hawaii and Indiana have also called into question the use of video tape evidence obtained without a warrant.

So why is it, then, that the ACLU believes that increasing use of CCTV poses such a significant threat to our civil liberties? A chief concern is that the growing sophistication and power of technology is outpacing already inadequate privacy and criminal laws.

Perhaps I am restating the obvious for this audience, but today’s CCTV technology turns police officers into supermen and -women with powers of observation that extends well beyond what can be seen by the naked eye.

High resolution that goes well beyond ordinary vision is a fact of life. Today’s systems will allow operator to zoom in from over a 100 yards away to read and record the print on political flyers being distributed on public sidewalks. Technology available today includes night vision and systems, which can bring images in complete darkness up to daylight level.

The current technology also includes infra-red, high-sensitivity equipment, and systems operating outside the visible light spectrum. These include Forward Looking Infra-red Radar (FLIR) systems able to detect activity behind walls, and infra-red systems able to detect activities in darkness.

In airports, electromagnetic imaging technologies such as the millimeter wave radar are being tested out as a surveillance method in airports. These high-end x-rays can “see” through a person’s outer clothing, rendering a remarkably detailed picture of the naked body.

As it already has in Britain, all this technology will ultimately converge with sophisticated software programs — such as Computerized Face Recognition (CFR) — to automatically compare faces captured by the cameras with existing databases of facial images. With the advent of digitized drivers license photos and their sale to commercial entities, the technology and databases for CFR is essentially in place.

Alone, and in combination, all these technologies create an almost Orwellian potential for surveillance and virtually invite abuse.

The experience in Great Britain is telling. First, there is the very real issue of racially discriminatory use of CCTV, which is after all ultimately in the control of individuals with all of our faults and prejudices.

A recent report by Hull University highlighted endemic discrimination against blacks, gays, minorities and young people, and the use of CCTV by authorities to track the movement of individuals ‘of interest’ and to monitor public meetings, marches and demonstrations.

It is worth taking a moment to quote from the report, The Unforgiving Eye: CCTV Surveillance in Public Space: “The young, the male and the black were systematically and disproportionately targeted, not because of their involvement in crime or disorder, but for ‘no obvious reason'”, the researchers reported. Also targeted were young people described as “scrotes,” the homeless, and “anyone who directly challenged… the right of the cameras to monitor them….one in ten women were targeted for entirely “voyeuristic” reasons by the male operators, according to the researchers.”

Racial profiling and stereotyping is a reality of the American criminal justice system. Just a few weeks ago, for example, the head of the New Jersey state police, which is under Justice Department investigation for racial profiling on the highways, was fired for remarks suggesting that minorities could be targeted because they were more likely to use drugs. (An assertion, I might add, which is not even factually correct. Minorities are more likely to be arrested, but no more likely than whites to use drugs.)

A study of police stops on a strip of interstate in Maryland gives some insight into the nature of the problem. Over several-months in 1995, a survey found that 73 percent of the cars stopped and searched were driven by African-Americans, while they made up only 14 percent of the people driving along the interstate. While the arrests rates were about the same for whites and persons of color (approximately 28%) the disproportionate number of stops of minorities resulted in a disproportionate number of persons of color being arrested.

In short, we have every reason to believe that police will use video surveillance to target those who they think are more likely to commit crimes and even entrap those they believe have a predisposition to criminal behavior.

CCTV has been used to monitor political activists. In a case brought by students and unions, against City University of New York, a campus security director conceded that a surveillance camera had been concealed in student meeting room to monitor campus political groups.

Also in New York, we saw the extensive video monitoring of the Million Youth March in Harlem. Police recording of persons exercising their constitutional right to speak can have a chilling and intimidating effect. Ordinary people may shy away from political activities if they believe they will be monitored in this way.

Voyeuristic use of CCTV is another concern. Even with protocols that bar peering into windows or targeting women, Great Britain has had its share of Peeping Toms behind the camera.

The potential privacy danger of private use was illustrated in the UK when Barrie Goulding released “Caught in the Act,” a film compilation of so-called “juicy bits” from street video surveillance cameras. The film included sex acts and other intimate contacts, taking in activities of the innocent and law breaker alike.

The British, of course, are not unique in their interest in such matters. Last summer, the New York media followed the story of a police sergeant in Brooklyn who had blown the whistle on fellow officers for their improper use of cameras. According to the officer’s attorney, as quoted in a local paper, “They were taking pictures of civilian women in the area … from breast shots to the backside.”

Now let me anticipate the response from the advocates of law enforcement video surveillance here in the room. Initially, I am sure many of you will say that privacy is not absolute, and that the loss of privacy needs to be balanced against the crime fighting potential of the technology.

But I am not convinced by the available evidence that CCTV use actually cuts crime and I don’t think you should be either.

In evaluating statistical claims about surveillance cameras, other variables affecting the rate of reported crime must be carefully analyzed as well.

For example, can reported reductions in crime in areas where surveillance cameras exist, in fact, more likely be attributed 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?

If new surveillance cameras are mounted at the same time that better lighting is installed or more officers are deployed or neighborhood watch groups are revitalized, how can “success” be attributed to the cameras rather than these other variables?

It is also important to examine whether crime reductions within surveillance areas are offset by crime increases (or smaller rates of decline) in areas not covered by cameras — i.e., the displacement effect.

The evidence from Britain is mixed, at best. I know that you have heard glowing reports of the benefits of CCTV in Britain. The logic, and the statistics, are superficially impressive. But as Privacy International has reported, not all analysts are not convinced.

Three recent criminological reports (Home Office, Scottish Office and Southbank University) have discredited the conventional wisdom about the effectiveness of surveillance cameras. In a report to the Scottish Office on the impact of CCTV, Jason Ditton, Director of the Scottish Centre for Criminology, argued that many claims of crime reduction are little more than fantasy, saying that “all [evaluations and statistics] we have seen so far are wholly unreliable.”

The British Journal of Criminology went even further, describing the statistics as “post hoc shoestring efforts by the untrained and self- interested practitioner.”

In this age of “America’s Funniest Home Videos” and the widespread commercial use of amateur video, we need laws — not guidelines — that protect the privacy and security of tapes and guarantee the swift destruction of tapes without evidentiary value.

When the camera cops act as voyeurs there must be significant civil and criminal penalties. Our open records and freedom of information laws will also need to be amended to take into account governmentally organized CCTV campaigns.

If the people in this room are serious about constraining abuse and protecting rights, I urge you to join with the ACLU and the civil liberties community in a campaign in Congress and in state legislatures to turn these guidelines into law.

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