Is video surveillance Constitutional? Court opinions vary.

Video surveillance of the public on our streets, in our places of work, in stores and even from our front doors is becoming ubiquitous, and in the views of some, dangerous.

The perceived threat to Constitutionally protected privacy rights are the focus of a growing number of legal actions and rulings at both the state and federal courts.

Close up of CCTV camera over defocused background

Last fall, a group of acknowledged activists in San Francisco sued the city, challenging the police department’s use of privately owned street cameras to surveil people protesting against police brutality toward Black people. The case has yet to be resolved.

Similar lawsuits have been filed in other state and federal jurisdictions throughout the country that are so far failing to offer a clear legal standard that would govern use of public surveillance programs.

Pierre Lemieux, a Canadian economist, warns that today’s surveillance technologies present a real and present danger to democracy, citing a quote from Benjamin Franklin: “Those who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

In a series of legal actions, the American Civil Liberties Union is asking the courts to limit the use of video surveillance by government and law enforcement. As early as 2002, the ACLU insisted pervasive video surveillance was not effective, is easily abused, is largely unregulated, and can have “a chilling effect on public life” and the peoples’ right to protest.

The use of video cameras allow law enforcement to identify everything from cars running red lights to protest participants and crimes happening in real time. They also capture ordinary citizens as they go about their lives.

For example, according to a CBS News report, Chicago’s network of some 15,000 public and private cameras allows officials there to monitor both criminal and non-criminal activities within the city’s 232-square miles.

Recent news stories about the FBI’s efforts to identify participants of the Jan. 6 attack on Congress illustrate just how important video technology, from high-definition security cameras to personal cell phone videos posted on social media, has become to law enforcement.

As with many legal issues, state video surveillance laws differ widely, while the U.S. Congress has been largely silent on the issue.

Most states allow video surveillance in public places as well as in the workplace and at homeowners’ front doors. Some states specifically prohibit cameras anywhere people have a reasonable expectation of privacy, particularly in hotel rooms, bathrooms and bedrooms. Others require that the public be notified when video cameras are being used.

With video surveillance regulation largely unsettled, the courts are often left to set rules.

San Francisco, Portland sued over video surveillance of protests

In May, 2020, the San Francisco Police Department began using the city’s downtown business district’s high definition camera network in real time to watch and record protestors. The private network operated by the Union Square Business Improvement District includes more than 400 cameras that recorded and archived video footage, largely to curtail property crimes.

Police used the camera footage to watch and identify Black Lives Matter protestors, prompting the ACLU of Northern California and the Electronic Frontier Foundation to file a lawsuit to require police to first seek approval of the city’s Board of Supervisors as required by a 2019 city ordinance.

The lawsuit alleges the police department “has a long and troubling history of targeting individuals for unlawful surveillance based on, among other attributes, their race, ethnicity, religion, socioeconomic status, sexuality, gender identity, and political activism.”

The use of video surveillance “invaded Plaintiff’s privacy, chills them from participating in and organizing future protests, and undermines their ability to recruit activists and organize protests,” the lawsuit alleges.

The city’s reply to the lawsuit denies all the allegations, adding that if the allegations are upheld it “would compel San Francisco to act in a manner contrary to public policy.”

In an August, 2020, letter to the city’s Board of Supervisors, police Chief William Scott wrote that the videos helped his department arrest 33 looters who set buildings on fire and injured at least one officer.

The chief later stressed that although his department “supported First Amendment activities,” the protests led to “violence and criminal activity” that “threatened the spirit of peaceful protests and the safety of protestors, residents, and first responders.”

A similar lawsuit was filed by the American Civil Liberties Union of Oregon against Portland for its police department’s practice of live streaming camera footage over the internet during Black Lives Matter protests. The ACLU maintains the police violated Oregon law prohibiting law enforcement from collecting and maintaining data on people based on their political or social activities.

Federal court rulings on electronic surveillance

Increasingly, the courts are considering Fourth Amendment issues involving a variety of electronic surveillance techniques used by the police and government. But, given the rapid evolution of technology, this has resulted in mixed and sometimes contradictory rulings.

The Fourth Amendment protects people against unreasonable searches. It states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In 2018, the U.S. Supreme Court held that warrantless collection of location data from cell phone records violated the Fourth Amendment, since it did not meet the allowable emergency “need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm, or prevent the imminent destruction of evidence.”

Previously, the Court had ruled in 2014 that it was unconstitutional to obtain information from a smartphone without first getting a warrant.

“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant,” wrote Chief Justice John Roberts.

These rulings led the U.S. District Court in Massachusetts to rule in 2018 that police violated the Fourth Amendment when, without a warrant, they trained a surveillance camera on a home to compile an eight-month long video log of the homeowner’s comings and goings and the license plate numbers of guests.

However, the U.S. Court of Appeals for the First Circuit overturned that ruling in 2020 when it ruled that the government did not need a warrant to place a pole camera outside of a defendant’s home since the images failed the “reasonable expectation of privacy” test.

Yet in another case, the Massachusetts Supreme Court ruled such surveillance cameras violate the home dwellers’ rights to privacy, particularly if left up for a lengthy time.

Ongoing legal issues over video surveillance

Despite legal challenges, electronic surveillance programs continue to be used by local, state and federal authorities. In January, the New York Times revealed that the Defense Intelligence Agency has purchased information from commercial databases to investigate the movements of Americans.

According to an agency memo, the “D.I.A. does not construe the (Supreme Court) decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes.”

Others challenge this view.

The American Civil Liberties Union and the ACLU of Maryland are suing the Baltimore Police Department over its wide-aerial surveillance program that the ACLU says puts “virtually all Baltimore residents under constant, aerial surveillance.”

The plane-based program covers a 32-square mile area and utilizes cameras developed by the military for use in Iraq and Afghanistan.

“Putting residents under continuous, aerial surveillance will impact the privacy rights of everyone, but it is especially dangerous for Black and Brown communities. Baltimore is a city with a terrible history of racism and lack of accountability for abuses by police. It’s the last place a novel system of mass surveillance should be tested,” David Roca, senior staff attorney at the ACLU of Maryland, said in April, 2020.

The lawsuit has been rejected three times in different courts, most recently by the U.S. Court of Appeals for the Fourth Circuit, which ruled in November 2020 that the program’s technical limitations that result in people being rendered as dots on a map failed to create a violation of the Fourth Amendment.

In June 2020, Democratic members of the U.S. House of Representatives sent a letter notifying Homeland Security of its “grave concern” over the “chilling” use of Predator Drones to “surveil and intimidate peaceful protestors who were exercising their First Amendment rights to protest the murder of George Floyd by the Minneapolis Police Department.”

Another state case involving police use of video cameras is before the Colorado Supreme Court. At issue is whether the Colorado Springs police violated the Fourth Amendment when they surveilled a suspect’s home with a pole-mounted camera without first getting a warrant.

The state’s Court of Appeals had overturned Rafael Phillip Tafoya’s conviction when the District Court denied the defendant’s motion to suppress evidence produced by the camera. The appeals court ruled the videos violated the Fourth Amendment.

Similarly, the Alaska Court of Appeals ruled in September, 2020, that law enforcement in that state cannot use drones for aerial searches of property without first getting a warrant. The state’s Supreme Court has not weighed in on the matter.

In New Orleans, the Louisiana Supreme Court upheld a lower court ruling requiring the city to publicly disclose the locations of its public surveillance cameras.

The Supreme Court of Virginia has ruled that Fairfax County police are allowed to operate a camera surveillance program that logs the date, time and location of license plates of cars passing by, reversing a lower court ruling that the program violated state privacy laws.