by Colin Hatcher
Valparaiso University Law Review Summer, 1997
31 Val. U.L. Rev. 1079
SCOWL BECAUSE YOU'RE ON CANDID CAMERA: PRIVACY AND VIDEO SURVEILLANCE
by Quentin Burrows
University of Toronto Law Journal Summer, 2000
50 Univ. of Toronto L.J. 305
PRIVACY AND THE REASONABLE PARANOID: THE PROTECTION OF PRIVACY IN PUBLIC PLACES
Elizabeth Paton-Simpson
Southern California Interdisciplinary Law Journal Winter, 1999
9 S. Cal. Interdis. L.J. 295
FACIAL RECOGNITION TECHNOLOGY, VIDEO SURVEILLANCE, AND PRIVACY
Christopher S. Milligan
PUBLIC VIDEO SURVEILLANCE: IS IT AN EFFECTIVE CRIME PREVENTION TOOL?
By Marcus Nieto, for the California Research Bureau.
"This report examines the various uses of video surveillance and other visual technology by public and private entities to prevent and discourage crime, including law enforcement practices, the conditions which may warrant public video surveillance, the associated legal and constitutional implications, and whether the technology has been effective in preventing crime."
Public Law Research Institute
CONTINUOUS VIDEO SURVEILLANCE AND ITS LEGAL CONSEQUENCES
Extensive report by Scott Sher
PRIVACY IN THE AGE OF VIDEO SURVEILLANCE THIS IS NOT YOUR FATHER‚S CANDID CAMERA
by Angelo J. Pompano, New Haven-Yale Teacher's Institute
Position Paper by the Surveillance Camera Players
"GUERILLA PROGRAMMING OF VIDEO SURVEILLANCE EQUIPMENT"
Interesting proposal by the Surveillance Camera Players, encouraging opponents of video surveillance to stage theatrical performances and other presentations in front of street mounted video surveillance cameras in order to both overload the police with data and to express their dissent.
Position Paper by the Surveillance Camera Players
(1)Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174 (1st Cir. 1997)
Case involving silent video surveillance in the workplace, where the court discussed the issue of continuous surveillance, and upheld the right of employers to use video surveillance on their employees. The court wrote:
"Intrusions upon personal privacy do not invariably implicate the Fourth Amendment. Rather, such intrusions cross the constitutional line only if the challenged conduct infringes upon some reasonable expectation of privacy. To qualify under this mantra, a privacy expectation must meet both subjective and objective criteria: the complainant must have an actual expectation of privacy, and that expectation must be one which society recognizes as reasonable."
"It is simply implausible to suggest that society would recognize as reasonable an employee's expectation of privacy against being viewed while toiling in the Center's open and undifferentiated work area. [The employer] did not provide the workstation for the appellants' exclusive use, and its physical layout belies any expectation of privacy. Security operators do not occupy private offices or cubicles. They toil instead in a vast, undivided space -- a work area so patulous as to render a broadcast expectation of privacy unreasonable. "
"In this instance the nature of the intrusion strengthens the conclusion that no reasonable expectation of privacy attends the work area. Employers possess a legitimate interest in the efficient operation of the workplace, and one attribute of this interest is that supervisors may monitor at will that which is in plain view within an open work area. Here, moreover, this attribute has a greater claim on our allegiance because the employer acted overtly in establishing the video surveillance: [the employer] notified its work force in advance that video cameras would be installed and disclosed the cameras' field of vision. Hence, the affected workers were on clear notice from the outset that any movements they might make and any objects they might display within the work area would be exposed to the employer's sight."
"The appellants concede that, as a general matter, employees should expect to be under supervisors' watchful eyes while at work. But at some point, they argue, surveillance becomes unreasonable. In their estimation, when surveillance is electronic and, therefore, unremitting -- the camera, unlike the human eye, never blinks -- the die is cast. In constitutional terms, their theory reduces to the contention that the Fourth Amendment precludes management from observing electronically what it lawfully can see with the naked eye. This sort of argument has failed consistently under the plain view doctrine, and it musters no greater persuasiveness in the present context"
"Once we put aside the appellants' theory that there is something constitutionally sinister about videotaping, their case crumbles. If there is constitutional parity between observations made with the naked eye and observations recorded by openly displayed video cameras that have no greater range, then objects or articles that an individual seeks to preserve as private may be constitutionally protected from such videotaping only if they are not located in plain view. In other words, persons cannot reasonably maintain an expectation of privacy in that which they display openly. Justice Stewart stated the proposition in no uncertain terms three decades ago: "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Consequently, no legitimate expectation of privacy exists in objects exposed to plain view as long as the viewer's presence at the vantage point is lawful. And the mere fact that the observation is accomplished by a video camera rather than the naked eye, and recorded on film rather than in a supervisor's memory, does not transmogrify a constitutionally innocent act into a constitutionally forbidden one."
"The bottom line is that since [the employer] could assign humans to monitor the work station continuously without constitutional insult, it could choose instead to carry out that lawful task by means of unconcealed video cameras not equipped with microphones, which record only what the human eye could observe."
(2) International Union v. Garner, 601 F. Supp. 187 (D.C. Tennessee 1995)
This case involved meetings to unionize a plant in Middle Tennessee. The mayor, chief of police, and various police officers engaged in surveillance of union meetings held at a public place, recorded the license tag numbers of persons attending the meetings, and then upon checking on the registrations of such license tag numbers, furnished such information to the employer of a number of persons attending the union meeting. The court found no invasion of privacy, holding:
"An individual who parks his car in a public place and then enters a private meeting has a legitimate right to expect that others will not eavesdrop on the meeting. But that individual has no right to expect that persons passing by on the street will not take note of -- and draw inferences from -- the presence of the individual's car parked on the street in plain view for all to see."
"The plaintiffs claim that they had a reasonable expectation that their participation in the meetings and the topics discussed therein were private and that any revelation of this information without their consent was an intentional intrusion upon their privacy. Participation in a union meeting is not a matter of individual solitude or seclusion. As to the plaintiffs' assertion that the defendants unreasonably intruded on the private affairs and concerns, the Court finds that if the plaintiffs truly wanted their participation in the meeting to be private, they would not have left their cars in front of the meeting hall. The cars were in plain view for all to see, and it was not unreasonable for the defendants, in the context of a claim for invasion of privacy, to take note of that fact and to draw inferences therefrom. The plaintiffs do not allege that the defendants wiretapped or in any way eavesdropped on the matters and topics discussed therein."
"[T]he Court finds that a person does not have a legitimate expectation of privacy, solitude, or seclusion in being free from the dissemination of inferences drawn from observations readily perceivable in public view."
(3) United States v. Vazquez, 31 F. Supp. 2d 85 (Dist. Ct. of Connecticut 1998)
This case discusses the constitutional rights of privacy afforded to women entering a clinic that performed abortions, and whether videotapes of them entering were in violation of their rights of privacy. The Court commented:
"Here, the video cameras captured images of potential patients walking on a public street as they entered and exited Summit. Thus, any images filmed by the video camera could also be viewed by members of the general public who were standing or walking in the vicinity of the clinic. Moreover, the videos were made out in the open and during broad daylight. Neither party argues that any ruse or subterfuge was employed to capture the subjects on film. Furthermore, the vicinity of Summit is an area where persons on both sides of the abortion issue exercise their First Amendment rights on a consistent basis. Given these factors, a common law right to privacy does not exist because no one walking in this area could have a legitimate expectation of privacy."
(4) C'Debaca v. Commonwealth, 1999 Va. App. LEXIS 72 (Ct. of Appeals of Virginia 1999)
In this case a man's conviction for using a spy camera to film under a woman's skirt in a public place was reversed by the Virginia Court of Appeals. The court held:
"Although appellant aimed his camera so that the lens pointed up the victim's dress, the victim had no reasonable expectation of privacy while standing on the public fairgrounds. "
(5) Sacramento County Deputy Sheriff‚s Ass‚n. v. County of Sacramento 51 Cal.App.4th 1468, 59 Cal.Rptr.2d 834, (1996)
In this case the court held that sheriff‚s deputies lacked an objectively reasonable expectation of privacy against being videotaped in a jail office. The court held that warrantless video surveillance did not create an unconstitutional privacy invasion because the videotaping was part of a criminal investigation and the deputies had no reasonable privacy expectation in the release room. The Fourth Amendment protection against unreasonable searches and seizures does not extend to jails, visiting rooms in jail, interrogation rooms, police stations, and individual prison cells. A right of privacy is fundamentally incompatible with the close and continual surveillance of inmates and their cells that is necessary to ensure institutional security and internal order. Consequently, the court found no federal or state constitution violations. The court wrote:
"Fourth Amendment jurisprudence reveals a long history of judicial recognition that privacy expectations may be diminished in prison or jail settings, due to institutional security concerns. Although the cases focused on inmates or visitors rather than employees, we will conclude the same principle applies to deputy sheriffs who accept employment in that setting."
"Balancing the institutional security interests against plaintiffs' interests in this case, we do not believe plaintiffs had a reasonable expectation of privacy against being videotaped in the release office of the jail. Even though Prizmich [one of the plaintiffs] was assigned as release officer one day a week and believed he could exclude others, the release office was not exclusively assigned to him and had no lock on the door. The release office was accessible to any number of people, including other jail employees, inmates on cleaning detail and outside personnel."
"That plaintiffs may have believed they could exclude others and may have closed the door when they wanted privacy does not mean they had an objectively reasonable expectation of privacy. That others may have refrained from entering when the door was closed does not mean plaintiffs had a constitutional right to privacy while in the office with the door closed. The test is not whether an individual "chooses to conceal assertedly 'private' activity," but rather whether the intrusion infringes on personal and societal values protected by the Fourth Amendment."
(6) Thompson v. Johnson Community College District, 108 F.3d 1388 (10th Cir. 1997)
In this case a federal circuit court found that college employees did not have a reasonable expectation of privacy in a locker area accessible to anyone who entered the locker room. The employees had alleged that their locker area at the college had been placed under video surveillance in violation of the ECPA‚s Title I and the Fourth Amendment. The court held that Title I of the ECPA does not encompass silent video surveillance. And although individuals can have legitimate expectations of privacy in individual lockers, individuals do not have a reasonable expectation of privacy in the surrounding locker area.
(7) United States v. Taketa, 923 F.2d 665 (9th Cir.1991)
An illegal wiretapping case, which involves discussion of when videotaping may be done without a warrant. The court commented:
"Video surveillance does not in itself violate a reasonable expectation of privacy. Videotaping of suspects in public places, such as banks, does not violate the fourth amendment; the police may record what they normally may view with the naked eye. Persons may create temporary zones of privacy within which they may not reasonably be videotaped, however, even when that zone is a place they do not own or normally control, and in which they might not be able reasonably to challenge a search at some other time or by some other means. "
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