How Far Can Public Video Surveillance Go?

New surveillance technologies are challenging the Courts and the fourth amendment

By all accounts, 2008 was a boom year for the large-scale wireless video surveillance industry. “This is a modern version of the California gold rush, except that people are bringing cameras instead of pickaxes and shovels,” says Stan Schatt, vice president of ABI Research.
Wireless video technology has allowed cities large and small to adopt high-tech video surveillance systems to enhance public safety, deter crime and act as a force multiplier for local law enforcement. Some research suggests that 75 percent of cities with active or planned wireless networks are either already running or planning to implement public safety applications. With public opinion increasingly tilting in favor of video surveillance systems, we can only expect to see larger and more advanced systems in the future.
For decades, cities have used basic video surveillance systems in public areas with little fear that they would run afoul of the Fourth Amendment prohibition against unreasonable searches and seizures. Long-standing Supreme Court decisions held that there is no reasonable expectation of privacy in things and actions in public view. As video surveillance technology continues to improve and merge with other surveillance technologies, however, older Court standards regarding the Fourth Amendment may prove less and less applicable. Cities currently operating or considering public video surveillance systems may be tempted to employ exciting new surveillance technologies, but they should proceed with caution as Fourth Amendment challenges may be just around the corner.

Fourth Amendment Basics
The Fourth Amendment of the United States Constitution protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” Government activities that qualify as a “search” must be accompanied by a properly issued warrant based on probable cause. If government video surveillance is not a “search” under the Fourth Amendment, then no warrant is required.
The United States Supreme Court has defined “search” broadly, such that even non-invasive surveillance may qualify. A “search” is not just a “physical intrusion into [a] given enclosure,” but rather whenever a reasonable expectation of privacy is infringed. Whether an individual can claim a reasonable expectation of privacy rests on two questions: (1) has the individual shown that “he seeks to preserve [something] as private?” and (2) is the individual’s subjective expectation of privacy “one that society is prepared to recognize as ‘reasonable’?”

This content continues onto the next page...