'The Judicial Response to Mass Police Surveillance' by Stephen Rushin in
University of Illinois Journal of Law, Technology & Policy (2011) 101-148
argues that
increasingly widespread use of police technologies like surveillance cameras, facial recognition software, and automatic license plate recognition (ALPR) systems threaten to fundamentally reshape our expectations to privacy in public spaces. These technologies are capable of recording copious amounts of personal data in an unprecedentedly efficient manner; I refer to the proliferation of these new technologies as the development of the digitally efficient investigative state. The legislative branch has not acted to address the tangible harms posed by this new technological order. I argue that the courts ought to respond to this burgeoning threat by treading a new doctrinal path to limit the indiscriminate collection of personal data. The courts are institutionally competent to craft an appropriate response and properly positioned to address the unique majoritarian concerns implicated by widespread police surveillance. I also contend that the development of the digitally efficient investigative state should serve as a medium for the courts to more systematically reassess our Fourth Amendment doctrine, in recognition of the transformative and pervasive effects of emerging technologies on individual privacy.
Rushin notes Posner's comment that
Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive ... Should government someday decide to institute a program of mass surveillance of vehicular movements, it will be time enough to decide whether the Fourth Amendment should be interpreted to treat such surveillance as a search.
He concludes that time has come.
The digitally efficient investigative state comes dangerously close to “wholesale surveillance.” The unregulated use of these emerging technologies may incentivize police fishing expeditions, facilitate racial profiling, and corrode any notion of public anonymity. And the legislative branch has not acted to address the tangible harms posed by this new technological order. In wake of the legislative inactivity, I argue that it is finally time for the courts to break from the previous doctrinal trend and act decisively to regulate the efficiency of police surveillance technology. While a judicial response may help ameliorate some of the pressing concerns raised by the digitally efficient investigative state, it should only be the beginning of a broader re-conceptualization of our Fourth Amendment doctrine. I argue, in particular, that we ought to reassess our presumption that individuals have no reasonable expectation to privacy in their public actions. In total, I hope to make two contributions with this Article, one descriptive and one normative. Descriptively, I build a comprehensive account of the digitally efficient investigative state, and normatively I contend that the courts must establish a new doctrinal path to regulate this technological order.
I have divided this Article into four parts. In Part I, I examine the use of ALPR, surveillance cameras with facial recognition, and third-party databases as paradigmatic examples of intrusive, emerging technologies utilized by law enforcement in the digitally efficient investigative state. In Part II, I outline the current Fourth Amendment doctrine on unreasonable search and seizures. Part III considers the constitutionality of the digitally efficient investigative state under Fourth Amendment doctrine. Finally, Part IV argues for a new doctrinal approach to regulate the digitally efficient investigative state and a broader re-conceptualization of our understanding of the Fourth Amendment.
The WA Auditor General has meanwhile released a report [
PDF] on
Use of CCTV Equipment and Information, commenting that -
The popularity and use of Closed Circuit Television (CCTV) has grown rapidly since the technology was first introduced. However, research findings have been mixed on whether CCTV reduces crime and other unwanted behaviour.
CCTV can enhance public perceptions of safety but in reality it is more likely to be of benefit if it is part of a broader crime reduction strategy; is actively monitored; and if police can respond quickly to a developing incident. At the same time, CCTV can be expensive to implement, manage and maintain. Poorly designed systems or systems installed for the wrong purposes may be ineffective and expensive to correct.
Recorded CCTV images can help to identify or eliminate suspects and provide evidence for a criminal prosecution. Use of images and information collected from CCTV needs to be tightly controlled to protect privacy as citizens expect to be able to engage in lawful activities without being unduly monitored.
Some Western Australian government agencies and local governments have installed CCTV in public areas to create safer environments for members of the public and staff, and as an anti-terrorism measure.
Western Australian Police (Police) have sought to improve their information about, and access to, CCTV footage from systems owned by government and the private sector. Their Blue Iris register, captures information about individual CCTV installations so police can readily access footage after an incident. registration is voluntary except for cameras owned by state government agencies.
The focus of this audit was to assess whether decisions to install or access CCTV or to fund local government installations were adequately based and whether the facilities are properly managed and anticipated benefits realised. Five entities in total including three local governments were included in the audit. Follow-the-dollar powers contained in the Auditor General Act 2006 provided the authority for auditing the local governments.
We expected that:
- decisions to install CCTV were part of a planned and coordinated security strategy
- CCTV facilities were managed and monitored to ensure CCTV information is used effectively
- appropriate controls were in place to properly store CCTV information and to protect the privacy of people whose images are captured on CCTV
- benefits from installing CCTV could be demonstrated
- Police had formal agreements for access and use of CCTV information and had effectively
implemented their Blue Iris register.
The report's authors conclude that
Installations and decisions to fund were based on the integration of CCTV into broader security strategies and most facilities we examined are well managed. The public can be reasonably assured that CCTV imagery is secured to protect the privacy of people going about normal lawful business.
The Public Transport Authority (PTA) and the City of Bunbury could demonstrate clear benefits from use of CCTV. However there is a potential to realise greater benefits through better sharing and more strategic use of CCTV information by Police and local governments.
The significant potential of the Blue Iris system is not being realised. Better management, administration and commitment are needed from Police if it is to deliver coordinated and effective use of CCTV information.
Their key findings
are -
- Although initial installations at the entities we examined were piecemeal and experimental, more recent expansions to their CCTV systems have been integrated into broader security strategies. This increases the likelihood that their CCTV will assist crime prevention.
- All the entities had good controls in place to protect the privacy of individuals. We found no evidence of inappropriate use of CCTV.
- Most facilities we examined were well managed. Elements of good practice included:
- the implementation of CCTV was an outcome of the entity’s assessed security needs and involved
integration with broader security strategies
- training courses and manuals to ensure CCTV systems operate as intended and staff have the skills to perform the tasks
- policies and procedures for staff on appropriate operation of CCTV equipment and privacy procedures
- controls in place to restrict access and properly store CCTV information and to protect the privacy of people whose images are captured on CCTV
- regular reviews of the effectiveness of the CCTV equipment including its location and operation and of the capability of the operational staff supporting the equipment.
- PTA and City of Bunbury had Memorandum of Understanding (MoU’s) with Police and were using information gathered from CCTV surveillance to guide policing strategies. As a result they could demonstrate positive impacts from Police responses to CCTV intelligence including a 50% reduction in assaults on trains and a similar reduction in disorderly conduct in targeted areas of Bunbury.
- Cities of Perth and Stirling did not have MoU’s with Police and CCTV intelligence was not being used to guide or assess the impact of policing strategies.
- Police use of CCTV images could be improved by a functional, coordinated and integrated approach. The Blue Iris project was an attempt to fill this gap but its present form has proved unusable which means that there is still a risk that relevant images may not be available for investigations and court. The system is not functional because:
- the completeness, accuracy and utility of data are not reliable. For instance the Police are yet to register 7 000 cameras because they lack the GPS coordinates
- the data is not readily accessible to front-line Police; there has been no training in use of the register offered and investigating staff continue door-knocking for possible CCTV imagery
- it cannot be used for management reporting due to very limited reporting capabilities.
The Auditor General asks "What should be done?", commenting that WA state agencies and local governments -
- need to ensure decisions to install and maintain CCTV are carefully planned, costed and considered as part of a broader security strategy
- should use information gathered from CCTV to monitor effectiveness and enhance crime prevention strategies. This includes closer cooperation with Police through sharing information
- should have appropriate policies, procedures and practice for CCTV equipment and information to ensure the protection of individual privacy
The WA Police should -
- establish formal agreements with agencies and local governments that define appropriate access and use of CCTV equipment and information; and feedback of policing outcomes
- consider and clarify their ongoing commitment to the Blue Iris project.
