Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity

Abstract

Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable expectation of privacy in public places. This article, written for a symposium on the intersection of the Fourth Amendment and technology, contests that stance, at the same time it questions whether the traditional, "probable-cause-forever" view of Fourth Amendment protections makes sense in this technological age. Based on an analysis of the panoptic effects of government camera surveillance among them "anticipatory conformity," fear that private facts will be exposed, and possible decreased loyalty to a surveillance-driven government this article first argues that the courts should recognize a constitutional right to anonymity in public places. Although courts have rejected constitutional challenges to public camera surveillance, they have yet to address the constitutionality of overt camera *systems*, with zoom and nightvision capacity and the storage and dissemination advantages that digitization brings. Such camera surveillance can chill speech and association, infringe on the rights to movement and repose, and undermine the general right to privacy. It also infringes the Fourth Amendment interest in avoiding unregulated government intrusions. To bolster the latter point, the article reports a study I conducted to ascertain the relative intrusiveness of overt, systematic camera surveillance in the eyes of the public. The results of a survey of almost 200 prospective jurors indicate that camera surveillance is viewed as more intrusive, to a statistically significant degree, than a number of investigative techniques the Supreme Court has found to implicate the Fourth Amendment, including roadblocks. Building on this latter finding, the article relies heavily on the Court's roadblock jurisprudence in constructing a framework for regulating public camera surveillance. The Court's recent decision in Edmond v. Indianopolis held that a brief seizure at a roadblock set up with the primary purpose of detecting crime may not take place in the absence of individualized suspicion, a significant, difficult-to-detect crime problem (such as illegal immigration), or a crime problem that immediately threatens life and limb (such as drunk driving). The article argues that this caselaw should be read to limit camera systems to areas where a significant crime problem exists, and to require individualized suspicion for targeted camera surveillance. Based on Fourth Amendment and related constitutional jurisprudence, it also contends that the camera location decision must be made by politically accountable officials with public input, that rules governing notice of the surveillance and maintenance and disclosure of surveillance results are mandatory, and that accountability requires direct sanctions on those who violate these rules and periodic dissemination of information about surveillance practices. The article concludes with the suggestion that the traditional Fourth Amendment model requiring probable cause, backed by the exclusion remedy serves neither societal or individual interests well. Surveillance of large numbers of people cannot be justified at the probable cause level, and should not have to be. Nor is the suppression remedy an effective deterrent in this context, since at best it benefits an infinitesimally small number of people subjected to illegal surveillance, and in any event is a poor remedial fit with the types of violations that public surveillance is likely to involve. The dissonance between public surveillance and the individualized suspicion/exclusionary rule model suggests a need for rethinking both the type of justification and the manner of implementation the Fourth Amendment requires.