Introduction I. Is Camera Surveillance a Search? II. When Should Camera Surveillance Be Authorized? III. Should Technology's Capacity to Deter Police Abuse Factor into Reasonableness Analysis? Conclusion
In his provocative article, Crime, Surveillance and Communities, Professor I. Bennett Capers argues, contrary to Supreme Court precedent, that camera surveillance of public spaces is a Fourth Amendment search. (1) But he also argues that such surveillance should be permitted even in the absence of probable cause, so long as it is "reasonable." (2) His third contention is that reasonableness analysis in this context ought to take into account not only the extent to which cameras can prevent crime, but also the extent to which the community will benefit from the ability of the cameras to deter police brutality and document evidence of racial profiling and other abuses of discretion. (3) Professor Capers hypothesizes that this ability to monitor the police will enhance government legitimacy and thus cooperation with the police. (4) I have three observations about his article, corresponding to the three main threads of his argument.
I. IS CAMERA SURVEILLANCE A SEARCH?
First, Professor Capers argues that people should be able to expect privacy even in public, based on what he calls a "nonconventional reading" of the Fourth Amendment. (5) He points out that many of the Court's cases, from Katz v. United States (6) onward, suggest that surreptitious eavesdropping of conversations--even those that occur in public--is a Fourth Amendment search when none of the parties to the conversation consents to the eavesdropping and no one else is in a position to hear it with the naked ear. (7) Based on that case law, he contends, "citizens are not required to assume the risk that they will be monitored by a watching device when no duplicitous eye is actually present." (8)
There are two possible problems with this analysis. First, of course, in most situations involving camera surveillance, members of the public will be able to view with the naked eye what the camera sees. Even on streets that tend to be largely abandoned, a few people are usually about, which presumably would mean that human eyes, duplicitous or not, are often present. Furthermore, the Supreme Court has been quite willing to assume that members of the public could have seen what police technology observes even when that conclusion requires a heavy dose of imagination. For instance, in its "flyover" cases, the Court has held that no search occurs even when the police use airplanes and powerful cameras to spy on curtilage, much less the public streets, on the theory that any member of the public could have done the same thing. (9) And the Court has been willing to reach this conclusion even when, in fact, members of the general public are not likely to be flying as low as the police did in these cases, hot likely to possess magnification devices of the type the police possessed, and not likely to be as interested in the particular property the police targeted.
Second, even if this initial hurdle to applying the "uninvited ear" cases to camera surveillance can be overcome (perhaps on the ground that no one could possibly have seen whatever the camera captures), the analogy fails because a properly operated camera system would put pedestrians on notice that it is there. Notice is hot only a sensible aspect of a surveillance regime designed to deter, but is also constitutionally required under the Supreme Court's cases. (10) If such notice exists, neither surreptitious nor duplicitous 'Peeping Tom-ism' can occur. (11)
If camera surveillance is a search, it is because, as I have previously argued, a right to anonymity in public exists even when the government gives notice of its intent to watch. (12) That right is based on a due process right to locomotion, (13) a First Amendment right to association and expression, (14) and, most importantly, a Fourth Amendment right to feel secure from unjustified government observation of daily activities (15)--the latter an interest that has been rejuvenated by the Supreme Court's recent decision in United States v. …