We have become a surveillance state. Cameras--both those controlled by the state, and those installed by private entities--watch our every move, at least in public. For the most part, courts have deemed this public surveillance to be beyond the purview of the Fourth Amendment, meaning that it goes largely unregulated--a cause for alarm for many civil libertarians. This Article challenges these views and suggests that we must listen to communities in thinking about cameras and other surveillance technologies. For many communities, public surveillance not only has the benefit of deterring crime and aiding in the apprehension of criminals. It can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes not how we can use the Fourth Amendment to limit public surveillance, but rather: "How can we use the Fourth Amendment to harness public surveillance's full potential?"
Introduction I. Watching You II. The Fourth Amendment Problem A. A Conventional Reading of the Fourth Amendment B. A Non-Conventional Reading of the Fourth Amendment III. The Fourth Amendment Solution Conclusion INTRODUCTION
Quite simply, we have become a surveillance state. Cameras--both those controlled by the state, and those installed by private entities--watch our every move, at least in public. For the most part, this public surveillance is unregulated, beyond the scope of the Fourth Amendment. To many civil libertarians, the extent of public surveillance infringes upon our rights of privacy and anonymity, and as such should be cause for alarm. On the other side of the debate, law and order advocates argue that mass surveillance is a necessary tool in deterring crime and apprehending criminals.
The goal of this Article is not to settle this debate, but rather to call attention to the benefits of mass surveillance that are too often left out of the discussion. This Article also urges that we listen to communities. For many communities, public surveillance not only deters crime and aids in the apprehension of criminals; it can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes not how we can use the Fourth Amendment to limit public surveillance, but rather, how can we use the Fourth Amendment to harness public surveillance's full potential?
This Article proceeds as follows: Part I gives a brief overview of the extent to which we already live in a state of perpetual surveillance. Part II then turns to the Fourth Amendment and to the general consensus that surveillance cameras in public are not subject to Fourth Amendment regulation. It then offers another reading of Fourth Amendment cases, one that suggests that mass surveillance should be subject to constitutional regulation. Although my argument is one for regulation, I am in fact in favor of more surveillance, not less. I make the reasons for this stance clear in Part III.
To say that we are now being watched is to put it mildly. Consider New York City, which recently partnered with Microsoft Corporation to roll out a new public surveillance device called the Domain Awareness System. (1) Described as something "straight out of a sci-fi novel," (2) the Domain Awareness System aggregates and analyzes information from approximately 3,000 surveillance cameras around the city and allows the police to scan license plates, cross-check criminal databases, measure radiation levels, and more. (3) Moreover, this surveillance system operates continually--twenty-four hours a day, seven days a week. (4) As New York City Mayor Michael Bloomberg said when he announced the new surveillance system--which in fact had already been in use for perhaps a year (5)--"We're not your mom-and-pop's Police Department anymore." (6)
The Domain Awareness System is just the latest example of New York's use of surveillance technology. The use of video surveillance as a crime prevention and detection tool dates back to at least 1973, when cameras were installed in Times Square. (7) By 1983, there were approximately seventy-six cameras monitoring Columbus Circle in New York City, and another 136 in Times Square. (8) By 1997, as part of then-Mayor Rudy Giuliani's broad crime-prevention program, cameras also dotted Central Park, subway stations, and numerous "high crime" public housing projects. (9) As of 2006, there were nearly 4,200 public and private surveillance cameras in lower Manhattan alone, a five-fold increase from 1998. (10) By 2010, the number had increased such that if you were in a public space in lower Manhattan, the odds would be "pretty good" that you were being watched. (11) The same is true of Times Square. As one journalist noted:
In Times Square, perhaps more than any other place in the city, our movements are being recorded a hundred different ways: from a few stories up the side of the Bertelsmann building, from inside the plate glass of the Bank of America branch, as we pass through turnstiles of a subway station, at the point of purchase in seemingly every store.... [Cities] used to be places to lose yourself in the thrilling anonymity of a crowd.... It's hard to adjust to the idea that cities--New York in particular, and Times Square most of all--are now places where unseen watchers can monitor your every move. (12) The prevalence of surveillance technology is not unique to New York City. In Washington, D.C., the Metropolitan Police Department has plans to consolidate cameras owned by city agencies (estimated to number more than 5,200) into one network called the Video Interoperability for Public Safety. (13) The network will allow the police to monitor not only their own cameras, but also those belonging to other agencies such as the public school system, the public housing system, and the parks system. (14)
Chicago's Operation Virtual Shield includes at least 2,250 cameras, 250 of which have biometric technology. (15) Baltimore's CitiWatch had at least four hundred cameras equipped with low light, pan, tilt, and zoom capabilities by 2007. (16) Even small towns have turned to camera surveillance: according to a 2006 survey, at least two hundred towns and cities in thirty-seven states reported either actual use of video cameras, or plans for their use. (17) In addition to video cameras, municipalities may choose to employ license plate readers and automatic license plate recognition programs that incorporate GPS data. Financial support for such programs typically comes from the federal government, which is currently "the principal funder of car tracking." (18)
This is not just an American phenomenon. By some estimates, Great Britain, "the champion of CCTV surveillance," (19) has access to between "two and three million cameras ... creating more video images per capita than any other country in the world." (20) British civilians can even earn cash rewards by watching live-streamed CCTV footage on their home computers and assisting the police in apprehending criminals. (21)
Yet, the number of cameras tells only hall the story. Cameras today go well beyond the grainy images we tend to associate with the cameras used on television programs like America's Most Wanted. Today's cameras are often enhanced by facial recognition technology. (22) As Laura Donohue recently explained:
Complex algorithms measure the size, angle, and distance between features, enabling identification based on facial characteristics. Paired with video, this technology allows governments to observe and record actions in public space and to recall this information for any number of reasons. Such remote tracking is not the equivalent of placing a tail on a suspect. It requires no suspicion of any individual; it functions as warrantless mass surveillance. It is inexpensive. It has perfect recall. And it generates terabytes of new knowledge. (23) There is even a new device called MORIS--the Mobile Offender Recognition and Identification System--attachable to an iPhone. It allows an officer, with little more than a wave of his iPhone, to scan someone's iris and do facial recognition comparisons. (24)
For many, the widespread use of cameras conjures images of Big Brother in George Orwell's 1984, though the surveillance in Orwell's dystopia may seem largely low-tech compared to what exists now. It is also suggestive of Foucault's re-imagining of Bentham's physical panopticon to a less visible but more oppressive one: that societal networks themselves are emblematic of a larger carceral society. (25)
Cameras are everywhere. The question is what to do about it.
THE FOURTH AMENDMENT PROBLEM
The Fourth Amendment, which on its face protects individuals from government searches, is the source of numerous debates, many of which concern broad questions about the scope of government power. The Fourth Amendment "problem" regarding public surveillance, however, is actually quite specific. As the Supreme Court has interpreted the Fourth Amendment, monitoring individuals outside the sanctuary of their homes--as we take the dog for a walk, drive the kids to soccer practice, or pick up the dry cleaning--simply is not a "search" within the meaning of the Fourth Amendment. (26) This is true whether we are picking up the dry cleaning, running to a dental appointment, or in fact sneaking off to an adult bookstore or running drugs.
To fully understand the issue of the lack of regulation of public surveillance, some understanding of Fourth Amendment jurisprudence is useful. Part II.A accordingly provides a brief overview of Fourth Amendment cases that, at least under any conventional reading, would seem to leave surveillance cameras outside of the Fourth Amendment's purview. Part II.B then offers an unconventional alternative reading of the amendment.
A Conventional Reading of the Fourth Amendment