Security Safety
Resume:
CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
An Overview on the Guidelines for
Closed Circuit Television (CCTV)
For Public Safety and Community Policing
Promulgating the Responsible Use of CCTV Technology in
Security and Public Safety Applications
Prepared by
Richard W. Chace
Executive Director
Security Industry Association
Alexandria, VA
E- mail: abqfwb@r.postjobfree.com
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Table of Contents
Forward 3
Overview of Guideline Development 5
CCTV for Public Safety and Community Policing Guideline 10
Building Productive Public-Private Partnerships 18
Supplemental Legal Information 21
Sample Case Study 47
Resources 49
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Forward
The CCTV for Public Safety and Community Policing Guideline has taken three
years to complete and would not have been possible without the commitment and support
of the International Association of Chiefs of Police s (IACP) leadership, staff and Private
Sector Liaison Committee. The IACP has been outstanding and uncompromising in their
quest to positively effect how technology can be most appropriately and responsibly used
in furthering the causes of law enforcement. The Security Industry Association (SIA)
feels fortunate to have made such an historic partnership with this prestigious
organization, which responsibly addresses the issues associated with the use of closed
circuit television (CCTV).
The achievements of the Private Sector Liaison Committee (PSLC), under the
steady leadership and direction of Chief Michael Shanahan, have been truly outstanding
and beyond reproach. The members of the PSLC unselfishly give of their valuable time
and knowledge to work on programs designed to improve law enforcement s interaction
with the private sector. In similar character, the members of the PSLC s CCTV Sub-
committee, under the strong and careful leadership of Chief Steven R. Harris (also a
former president of IACP), have rallied to draft and shepherd the many revisions of the
CCTV for Public Safety and Community Policing Guideline to completion and
widespread dissemination.
Specifically, the guideline would not be in existence today if it were not for the
dedication and expertise of the following people: Chief Michael Shanahan (Ret d); Chief
Steven R. Harris, Redmond, Washington; Thomas M. Seamon, CPP former Vice
President of Public Safety University of Pennsylvania and the CCTV guideline s primary
architect; Robert Bickel, Professor of Law at Stetson University and the CCTV Sub-
committee s primary legal advisor and author of the CCTV Legal Memo; Richard Chace,
Executive Director of the Security Industry Association and coordinator of the 1999
CCTV Summit and author of CCTV for Public Safety compendium; Richard Moe; Vice
President of the Interpro Group; Ira Sommerson, President, Loss Management
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Consultants; Marene Allison, Vice President Loss Prevention at Great Atlantic & Pacific
Tea Co.; Chief Joseph Dunne, New York City, New York; Chief Michael Brassfield, Fort
Lauderdale, Florida; James Harris, President, Regent International Solutions; Ronald
Schwartz, CEO Universal Atlantic Systems; Ronald Spiller, Executive Director, Security
Industry Association; Lessing Gold, Esquire, Mitchell, Silberberg & Knupp, LLP; Jeffrey
Blum, Vice President of Strategic Planning, Ultrak; Chief Bruce Glasscock, Plano,
Texas; Daniel Rosenblatt, Execut ive Director, International Association of Chiefs of
Police; Eugene R. Cromartie, Deputy Executive Director, International Association of
Chiefs of Police; Charlie Higginbotham, Director of Information and Services Division,
International Association of Chiefs of Police; John Firman, Research Coordinator,
International Association of Chiefs of Police; Jeffrey Higginbotham, Chief Legal
Counsel, International Association of Chiefs of Police; and the many participants in the
1999 CCTV for Public Safety and Community Policing Summit.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Overview of Guideline Development
The manufacturers and distributors of closed circuit television (CCTV) security
products, represented by the Security Industry Association (SIA), and members of the
law enforcement and public safety communities, represented by the International
Association of Chiefs of Police (IACP) and the National Sheriffs Association (NSA), are
committed to enhancing the quality of life of the local community by integrating the best
practices of public and private policing with state-of-the-art security technology.
Several United States and European public safety models have demonstrated that
closed circuit television (CCTV) is a critical component of a comprehensive public safety
and security plan. Although, in the U.S., the constitutionality of CCTV use in public
areas is well established, there are nonetheless concerns within the public arena with
regards to the implications of CCTV use on privacy and civil rights. To consider these
issues and develop a guideline regarding the appropriate use of CCTV technology within
the public sector of the local community, SIA and the IACP Private Sector Liaison
Committee conceived a CCTV Summit. The Summit involved CCTV manufacturers, law
enforcement organizations, civil liberty organizations, tort and constitutional lawyers,
state and federal regulators, state and federal legislators, and local citizens groups.
At present (January 2001), there are an estimated 2 million + video cameras in use
around the country for the purpose of promoting public safety and security. Many of
these cameras have been in use for years in applications such as Automatic Teller
Machines (ATM s) and traffic regulation. Despite the prevalence of CCTV use on the
national and local levels, there have been (prior to the Spring 1999 CCTV Summit) no
consistent policies or procedures guiding the use of this equipment. Given the ethical,
legal and other important issues implicated in the use of CCTV technology in the public
sector, the members of SIA, IACP, and NSA recommend that public safety officials and
law enforcement agencies adopt some or all of the following written guideline to assist
and facilitate in the use of CCTV technology within the local community.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Background of Closed Circuit Television (CCTV) Use
CCTV has been widely used in public areas by law enforcement and private
security organizations in the United States. Currently, CCTV technology is being used
by city police departments, such as New York and Baltimore, and on University
campuses, such as the University of Maryland at College Park and the University of
Pennsylvania. Much of the existing CCTV use at the local level is currently being used to
monitor traffic; especially traffic signal-controlled intersections and to observe and
sanction aggressive driving.
Critics of CCTV uses in the public sector have raised two constitutional issues: 1.)
the Fourth Amendment guarantee against unreasonable searches and seizures, and 2.) the
right of personal privacy, a ge neric term encompassing various rights recognized to be
inherent in the concept of ordered liberty under the Fourteenth Amendment. The clearly
established constitutionality of CCTV use in public areas rests on the concepts of public
area and reasonable expectation of privacy, as defined extensively in case law.
Generally, public areas are those areas open for public use, including unenclosed areas
(public streets, sidewalks, and parks, etc.) and enclosed areas (building lobbies, corridors
and elevators, etc.) To qualify as a constitutionally protected reasonable expectation of
privacy, the individual must have an actual expectation of privacy and that expectation
must be one which society recognizes as reasonable.
The courts have consistently found that an individual does not have a reasonable
expectation of privacy when he or she is in a public place. Behavior and activity
exhibited in a public area is obviously available for observation by others. Police
observation of activities conducted in plain view in a public place, therefore, does not
violate the Fourth Amendment guarantee against unreasonable search and seizure,
regardless of whether the observation occurs through the physical presence of a person at
the scene or through the assistance of CCTV technology. Similarly, there is no violation
of personal privacy rights under the Fourteenth Amendment when an individual s public
behavior is observed by a video camera.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
However, it is important to re- iterate, regardless of the green- light given by
current law, responsible and ethical use CCTV technology as a public safety and security
tool is critical to the success of current and future public safety applications of CCTV and
other technologies. SIA, IACP and the NSA are firmly committed to promoting such use
and strongly urge all law enforcement agencies actively using or contemplating the use of
CCTV technology to use the CCTV for Public Safety and Community Policing guideline.
Common Questions and Answers
1.) Will there be security cameras in public bathrooms or other areas designated
as public, where an individual may expect privacy?
No. Despite the name public restroom or public bathroom, the proposed
guideline recognizes these spaces in which one has a reasonable expectation of
privacy. The proposed guideline prohibits CCTV use in areas where there is a
reasonable expectation of privacy, as defined by existing law. This guideline
would, however, permit CCTV use in the hallway or area outside a public
restroom or similar use facility.
2.) How will CCTV use change the way law enforcement patrols and interacts
with my community; will such use supersede law enforcement s current
means of street patrol?
The proposed guideline advocates that each law enforcement agency coordinates
the intended purpose and focus of its CCTV program with the community in
which the CCTV program will reside. This exchange of information and
knowledge should clearly define and outline what problems the CCTV program
was designed to address. This should then become part of a public document
distributed to the community. It is recommended that these programs subscribe to
existing laws and accepted procedures of evidentiary gathering.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
However, if an individual(s) is/are perpetrating a crime in a public area they may
still be stopped or addressed by law enforcement, but not necessarily due to the
operation of CCTV equipment. The use of CCTV technology in public areas is
intended to be a force-multiplier designed to assist law enforcement in the
execution of their duties.
3.) How do I know law enforcement is not using CCTV technology to track my
normal daily activities and movements?
The proposed guideline places a great deal of emphasis on individual privacy and
rights. Subsequently, the vehicles/tools used to store image data are subject to
specific handling protocols. In order to gain public support of CCTV use, law
enforcement agencies should adhere to a specific operational guideline,
specifically the CCTV for Public Safety and Community Policing guideline. This
guideline, amo ng other specifics, clearly states that normal CCTV-obtained
images should be purged on a regular basis and retained in accordance with
applicable public record laws. This affords law enforcement a fail-safe in case an
image obtained through CCTV technology becomes a piece of evidence. Law
enforcement, as a general rule, can only use its time and resources to identify
instances that require action based upon just cause.
4.) Who wrote this draft guideline?
The proposed guideline has been developed over the last two years through
numerous discussions and meetings by the International Association of Police
Chief s (IACP) Private Sector Liaison Committee whose members include
representatives of the law enforcement, public/private security professional,
CCTV manufacturer, legal and regulatory communities. This committee
considered the ethical, social, legal and practical implications of CCTV use for
safety and security purposes. A draft guideline was constructed based on the
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
committee s discussions, the University of Pennsylvania s CCTV Monitoring and
Recording of Public Areas for Safety and Security draft policy, and the United
Kingdom s Metropolitan Police Service Public Place CCTV Systems Guidance
Guideline.
The resulting draft was prepared for discussion and debate at a CCTV Summit in
the Spring of 1999 in Washington, DC. There, over a two-day period, members of
the law enforcement, public/private security professional, CCTV manufacturer,
legal and regulatory communities edited the guideline and offered revis ion
suggestions to key elements of the document. The IACP s PSLC CCTV Sub-
committee reviewed the recommended edits over a two-day period, incorporating
suggested edits into the draft guideline document. The resulting 5th Revision was
presented to the PSLC with the recommendation that the draft be moved into the
three- month Review and Comment Period, starting in June 1999 and ending in
September 1999. The responses from this three- month comment period were then
reviewed by the PSLC CCTV Sub-committee and incorporated as necessary. The
resulting 6th revision was then reviewed for continuity and substance. The final 7th
revision was presented to the full PSLC with recommendation that it be approved
and disseminated to all interested constituencies.
5.) What was the CCTV Summit and who participated?
The two-day CCTV Summit, held April 8-9, 1999, Washington, DC, at the
Capital Hilton, hosted representatives of the CCTV manufacturer, public/private
security, law enforcement, legislative, regulatory, civil- libertarian, and legal
communities who came together to develop a consensus CCTV for Public Safety
Operational Guideline document.
The goal was to create a document that discusses the privacy and legal issues
associated with the public safety and community policing applications of CCTV
technology.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Security Industry Association
And
International Association of Chiefs of Police
Number 9
Last Revision Date: 1/1/00
GUIDELINE: Closed Circuit Television (CCTV) for
Public Safety and Community Policing
PURPOSE: The purpose of this document is to provide
guidance to law enforcement in the
responsible use of overt closed circuit
television (CCTV) cameras in public areas,
without a court order, for the purpose of
safety and security.
GENERAL PRINCIPLES:
A. In promulgating these guidelines, the security industry and law
enforcement agencies seek to establish voluntary parameters
restricting the non-court-ordered use of CCTV to public
places, to enhance public safety and security in a manner
consistent with accepted rights of privacy.
B. Except in situations of the investigation of a crime committed
by a person(s) whose description is known, CCTV programs
must not be based on individual characteristics, or
classifications, including race, gender, sexual orientation,
national origin, or disability.
C. These guidelines are intended to demonstrate that the security
industry and law enforcement communities are committed to
enhancing the public s quality of life by integrating the best
practices of public and private policing with the responsible
use of technology.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
D. The principle objectives of any CCTV program should
include:
1.) Enhancing public safety;
2.) Preventing/ deterring crime and public
disorder;
3.) Reducing and removing the fear of crime;
4.) Identifying criminal activity;
5.) Identifying suspects;
6.) Gathering evidence;
7.) Documenting police actions to safeguard
citizen and police officer rights;
8.) Reducing the cost and impact of crime to the
community; and
9.) Improving the allocation and deployment of
law enforcement assets.
E. CCTV use for safety and security purposes should be
conducted in accord with accepted legal concepts regarding
privacy, and in a professional, and ethical manner. Personnel
involved in CCTV use should be appropriately trained and
closely supervised in the responsible use of this technology.
Violations or breaches of any program protocols should result
in appropriate discipline and may subject those involved to
civil or criminal liability under applicable state and federal
laws governing CCTV video monitoring.
F. Initial and ongoing needs assessments should be conducted as
a part of any CCTV for safety and security program or
protocol. Such needs assessments should consider that CCTV
is only one of many tools available in protecting the public s
safety and that other alternatives may be more appropriate or
cost effective.
G. Information obtained from CCTV use should be used
exclusively for safety and law enforcement purposes.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Information in any form obtained through the use of a CCTV
program, or CCTV technology should be handled according to
accepted law enforcement procedures and legal rules
governing the handling of evidence. Dissemination of such
information should be conducted in accordance with
applicable State and Federal laws. Unusable or non-case
specific video or digital image data should not be retained, and
should be purged from data storage within an appropriate
time, and in conformance with governing State and federal
legal and public policy requirements.
H. Law enforcement agencies should actively seek consultation
and input from their community prior to implementing any
CCTV program, or any significant expansion or alteration of
such a program.
RESPONSIBILITIES
A. Law enforcement agencies implementing a CCTV program
shall be responsible to oversee and coordinate the use of
CCTV for public safety and security purposes, and shall
establish a liaison with their community regarding the
program s policies and procedures.
B. Each law enforcement agency implementing or using a CCTV
program should identify a responsible party for the
i mplementation and oversight of the CCTV program. The
designated CCTV oversight officer shall be charged with
facilitating input from and conducting consultations with the
community. Such consultations should identify the positive
aspects of CCTV use, and should work toward securing
community support for CCTV use in public places to enhance
public safety and security.
C. Any local law enforcement agency implementing a CCTV
program should monitor relevant law and security industry
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
practices to ensure that their CCTV program is consistent with
appropriate industry standards and legal protections.
E. Each local law enforcement agency implementing or using
CCTV in public places should conduct ongoing program
needs assessments and periodic review of CCTV camera
locations, perimeter view, monitoring, training, and
administration.
D. All local law enforcement agency personnel involved in the
application, use or monitoring of CCTV installations,
collection of video or digital data, or other aspects of CCTV
use shall receive appropriate training, including but not limited
to the ethical limits of CCTV use, and instruction in applicable
civil and criminal law. Law enforcement agencies and the
security industry shall assist in the establishment of standards
or criteria for such training programs.
H. All operators and supervisors involved in use of CCTV in
public places will be responsible to perform their duties in
accordance with applicable law, department or agency policy,
and this guideline.
LOCAL LAW ENFORCEMENT IMP LEMENTATION
GUIDELINES:
A. All existing public safety and security uses of CCTV
technology should be brought into compliance with this
guideline.
B. Local law enforcement agencies implementing or conducting a
CCTV program shall establish and enforce operating
procedures that implement this guideline.
C. Any local law enforcement agency implementing a CCTV
program should consider posting signage at appropriate
locations notifying citizens that the location may be using
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
CCTV technology. The posting and content of signage should
be reviewed with agency legal counsel.
D. Any use of CCTV to observe locations consisting of
residential or commercial housing should limit the view
available to that which is only available to the unaided vision
of an officer that may be on sight. Furthermore, any view of
any residential or commercial housing area must not violate
reasonable expectations of privacy, as current case law or
statute defines that term or concept.
E. Any monitoring center of a local law enforcement agency
implementing a CCTV program must be configured to prevent
camera operators from tampering with or duplicating recorded
information. Law enforcement agency policies must provide
for discipline where this guideline is violated, and must notify
all agency personnel that the unauthorized or illegal use,
viewing, dissemination, or duplication of video recordings,
images, or data, may subject the offending officer to civil or
criminal liability.
F. Recorded analog videotape and collected digital video images
should be stored for an appropriate time period, consistent
with established policy and public records laws, and then
should be erased or deleted, unless retained as part of a
criminal investigation or civil or criminal court proceedings.
G. Videotapes and digital video images should be stored in a
secure location with access, controlled and logged, limited to
authorized personnel as defined and designated by the agency.
H. Law enforcement agencies using CCTV must establish and
implement programs for the training of personnel involved in
the use of CCTV, including camera control operators. Such
training shall include technical training related to all
equipment and technology used in the program, and shall
include all aspects of this guideline.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
I. Camera control operators must not use CCTV to track/observe
individuals based on characteristics of race, gender, ethnicity,
sexual orientation, disability or other classifications protected
by law.
TECHNICAL PROCEEDURAL GUIDANCE:
A. In constructing a CCTV program it is necessary to establish
each individual program s Operational Requirements . These
requirements should include:
1.) Identification of areas requiring CCTV use;
2.) Assessment of the number of cameras, their
locations and optimum required positions;
3.) Evaluation of existing light levels and
positioning of artificial and natural lighting
sources in both day and nighttime conditions;
a nd
4.) Choice and identification of the most appropriate
camera technology and equipment in relation to
the proposed operating environment.
B. A system review or audit should be undertaken periodically by
accredited and/or qualified personnel, and measured against
the specifications developed by each CCTV program s
respective Operational Requirements . Any such audit must
also include an assessment of the CCTV program s
compliance with this guideline, including an ongoing
assessment of the involvement and support of the community.
C. Any CCTV program must include a system management plan
that provides for:
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
1.) Formulation of control room location,
configuration, and staffing;
2.) Development of the CCTV program s functional
mission and operational protocols;
3.) Assignment of a supervisor to oversee the
operation of control rooms, system equipment,
monitors and data collection/storage procedures;
4.) Formulation of security protocols for control
rooms, related personnel, equipment and any
other component of the CCTV program s
system;
5.) In cases of real-time monitoring, formulation of
incident response protocols;
6.) Assessment of power supply and backup
requirements; and
7.) Formulation and establishment of a routine
system maintenance/upgrade program.
POTENTIAL APPLICATIONS OF CCTV IN PUBLIC AREAS:
Legitimate public safety and security purposes may include, but are not
limited to, the following:
Purpose Example Uses:
Protection of Persons and Property Patrol of building
perimeters, entrances and
exits, public
lobbies/corridors/
elevators, public docks,
public storage areas;
Monitoring of Access Control Systems Monitoring of restricted
access transactions at
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
entrances to public
buildings and other public
a reas;
Verification of Security Alarms Confirming, prior to
deployment of resources,
public building intrusion
alarms, trips on exit-door
controls, hold-up alarms;
Video Patrol of Public Areas Remotely observe or
document activity at
transit stops, parking lots,
public streets, shopping
areas, public parks, school
playgrounds, and vehicle
intersections;
Criminal Activity Remotely observe or
document instances of
robbery, burglary,
prostitution, vandalism,
street crimes, or loitering;
Traffic Regulation or Control Remotely observe and/or
document red light
running, aggressive
driving, and pedestrian/
vehicle traffic at
intersections and on major
Highways.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Building Productive Public Private Security Partnerships
For the past ten years the Security Industry Association (SIA) has been working
with the International Association of Chiefs of Police (IACP) as a member of their
Private Sector Liaison Committee (PSLC). This sixty member super-committee has been
the breeding ground for such industry initiatives as the Model States Program, CCTV for
Public Safety and Community Policing Summit, Standards for Mobile Security devices
and most recently the Guide for Preventing and Responding to School Violence. In short
the PSLC has been a bridge by which the private sector can interact with law
enforcement and it s a bridge that has been used to successfully increase the security
industry s stature and value within that community.
In the Spring of 1999, in an unprecedented move, the IACP agreed to partner with
SIA to co- host a Summit designed to address the issues associated with the use of CCTV
in public safety applications. Through prior meetings with key members of the PSLC,
SIA was able to deduce that law enforcement was hesitant to institute widespread CCTV
programs due to perceived liability and operational issues.
Concomitantly, SIA was aware of outside attempts to limit law enforcement s use
of CCTV technology through the courts and certain state legislatures and was concerned
that these actions would severely limit this industry s accessibility to a viable CCTV
market.
In response to their respective and mutual concerns, SIA and the IACP drafted the
CCTV for Public Safety and Community Policing Guideline. This guideline has evolved
through 8 revisions, with the 9th approved in early 2000 by the full PSLC and referred to
the Board of Directors of the IACP with the recommendation that it be disseminated to
police agencies across the country. This guideline has been reviewed by law enforcement,
CCTV manufacturers, Department of Justice officials, Congressional leaders, Municipal
leaders, Civil Libertarian groups, members of the general public, and Constitutional and
tort lawyers. The guideline builds upon a vast reservoir of public safety and legal
knowledge and experience and serves as a How To document for those law
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
enforcement and private sector entities seeking to implement a CCTV for Public Safety
program.
This three- year effort and comprehensive guideline document has worked to
preserve the threatened public safety CCTV market. Perhaps it is not clear to CCTV
manufacturers and dealers how dangerously close the CCTV industry has come to losing
the public safety market due to the litigation efforts of civil libertarian groups over
privacy and security issues. One of the ways to counter such efforts is to promulgate the
use the CCTV for Public Safety guideline as an educational and management tool.
The guideline clearly spells out the intent to responsibly promote the use and
instruct in the application of CCTV technology while partnering with law enforcement.
Additionally, the document recommends ways to institute a CCTV program and how to
build one from the ground up.
It is has been vital that the CCTV industry understand it must develop and
cultivate working relationships with law enforcement and public safety entities prior to
any sales pitches. Six years worth of research, data and personal interaction
demonstrating this fact should be respected. Law enforcement agencies are traditionally
strapped for funding and information; such agencies are wary of the security industry and
the promises made about products and services. The industry may dangle the CCTV
carrot in front of public safety officials noses extolling the force- multiplying virtues of
the technologies, but it often fails to outline the need to invest in public outreach and
education prior to installing or even purchasing the equipment. Perhaps, even worse the
industry over-sells and convinces municipalities and agencies that they need more
technology rather than more attention to responsible use of less technology.
Industry data reveals that law enforcement agencies place a higher value on
practical information such as to validate or instruct that posting an officer at that
intersection during peak traffic hours may solve their red light-running problem.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
However, if such resources do not exist, then a less high tech and an inexpensive B/W
fixed camera may be the first step in addressing the problem.
Is this a simplistic approach? Of course. But the point is clear: To responsibly sell
to law enforcement at partnership must be established. Just because manufacturers build
a product and sell it, does not mean law enforcement agencies can use it or will buy it.
Dealers and manufacturers must demonstrate they are committed to responsibly
addressing public safety issues for the long term and can be relied on to provide the right
information; even if means offering a lower-tech version of a high-tech product.
The manufacturers and dealers of CCTV technology and equipment can
demonstrate their commitment to, and gain trust with law enforcement by participating
with groups such as the Virginia Police & Private Security Alliance (VAPPSA) or the
Area Police/Private Security Liaison (APPL) in New York. There are such public/private
groups in all states whose sole purpose is to develop better working relationships between
law enforcement and the security industry.
The Security Industry Association has worked hard to cultivate the trust and
respect of the law enforcement community by funding and spearheading such initiatives
as the CCTV for Public Safety Guideline program. Now it is up to the manufacturers and
dealers of CCTV equipment to avail themselves of this foundational work and provide
the services and equipment law enforcement wants, rather than what we think they want.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
Supplemental Legal Information on CCTV
Legal Issues Related To Silent Video Surveillance 1
A Brief Paper on the Subject of
Constitutional Law & Policy Issues, and Tort Liability Issues
Related to the Use of Silent Video Surveillance
To Enhance Policing, and Premises or Employer Security
Prepared by Robert D. Bickel 2
to Facilitate a Discussion of the Subject at a Special Conference
Arranged by
The Security Industry Association and
The Private Sector Liaison Committee
Washington, D.C., April 8, 1999
Introduction to Constitutional Law and Privacy Issues
Legal dialogue among scholars in the fields of constitutional law and
the common law of privacy has been ongoing for more than a decade. Early
articles on the constitutionality of video surveillance3 documented the first
series of projects, and raised constitutional issues that have been the subject
of real outcomes described in the most recent legal commentary.4 Thus, in
ten short years, the legal literature has drawn some fairly solid conclusions,
based upon both theory and experience. Similarly, tort law (particularly
negligence law) has begun to examine the use of video security systems in the
1
This memorandum is not intended to provide specific legal advice as to situations in which video
surveillance is challenged. Rather, the memorandum is an attempt to summarize selected legal
commentary and judicial decisions on the subject.
2
B.A., Univ. of South Florida, J.D., Florida State University. Professor of Law, Stetson University.
3
J. Granholm, Video Surveillance on Public Streets: The Constitutionality of Invisible Citizen
Searches, 64 U. Det. L. Rev. 687 (1987).
4
Q. Burrows, Scowl Because You re On Candid Camera: Privacy and Video Surveillance, 31 Val.
Univ. L. Rev. 1079 (1997).
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
context of a landowner s duty as landlord, school, commercial business, etc.
to take reasonable measures to deter criminal activity on the landowner s
premises. This outline attempts to summarize the dialogue and identify the
most critical legal and policy issues arising from the use of video surveillance.
History
Quentin Burrows notes that video surveillance technology was
introduced in certain cities as early as 1956, to assist police in reducing crime
on public streets. Early projects included the use of video technology in1966 in
Hoboken, N.J., and 1971, in Mt. Vernon, N.Y.5 Both Borrows and Jennifer
Granholm have described these early projects as generally unsuccessful,6 and
Burrows paints a similar picture of the later 1982 project in Dade County,
Florida.7 Granholm adds that, while many citizens may have been willing to
trade privacy for safety 8 and thus did not mind being watched, some officers
were concerned that cameras would be used to monitor the police officer, and
that criminals would quickly learn to simply avoid areas within camera range.9
5
See Q. Burrows, footnote 4, supra., p. 1103. Burrows describes projects in Hoboken, N.J., Orlean,
N.Y., Mt. Vernon, N.Y. and in Times Square. He indicates that all of these first systems were
dismantled when found to be ineffective, or when they failed to produce significant numbers of
convictions, citing G. Robb, Police Use of CCTV Surveillance: Constitutional Implications and
Proposed Regulations, 13 U. Mich. J.L. Reform 571 (1980). Granholm s article was inspired by the
introduction of a significant video surveillance program in Detroit in 1986, and also describes the
alleged failure of the early Hoboken and Mt. Vernon projects.
6
Granholm notes that the Mt. Vernon project produced no convictions, and the Hoboken project led to
only one arrest in five years. See Granholm, supra., at 688. Burrows reports that the Dade County,
Florida project, which was monitored by local volunteers on a 24-hour basis, was discontinued in 1984,
with no convictions. Q. Burrows, supra., at 1082.
7
Burrows notes that although the Dade County project planned to use police employees, community
employees, mostly elderly, were used instead, and that the project also experienced significant
equipment failure. Burrows, supra ., at 1082.
8
Burrows, supra., at 1103, citing Robb, supra ., at 574.
9
Granholm, supra., at 689. See e.g., Gross v. Taylor, 1997 WL 535872 (E.D.Pa. 1997).
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However, Burrows describes subsequent projects in Anchorage,
Baltimore, Camden, N.J. (street surveillance of Westfield Acres Housing
Projects); Dover (cameras installed in 1993 to monitor the downtown area);
South Orange, N.J. (seven cameras monitored by police station personnel);
Heightstown, N.J. (cameras installed to monitor trouble spots in housing
project); Los Angeles (privately funded program using cameras mounted on
apartment buildings to monitor adjacent streets, and using volunteers);
Virginia Beach (ten low light sensitive cameras on street light poles at busy
beach areas); Tacoma, Boston, Kinston, N.C., Memphis, San Diego s Balboa
Park, Ft. Lauderdale, and the Ybor City district of Tampa, Florida.10 He
reports that many of these projects can be described as successful in producing
arrests and convictions, reducing criminal activity, and that they can be
managed in ways that minimize the risk of intrusive surveillance or taping.11
According to several legal writers, the criticism of these projects is not
that they cannot be implemented so as to withstand constitutional challenge,
but that they are costly and ineffective in bringing about arrests and
convictions, and that they add to the negative image of policing by creating a
big brother is watching you environment on city streets, and places of public
accommodation and employment. Privacy concerns are supported by the
citation of cases, as well as newspaper accounts of the abusive use of
10
Burrows, supra., at 1106-1108. For descriptions of the Ybor City project, see R. Danielson, Police
Cameras May Soon Scan Ybor, St. Petersburg Times, May 24, 1996, 1996 WL 7117611; I. Hathaway,
Decision Delayed on Video Surveillance in Ybor, Tampa Tribune, May 24, 1996, 1996 WL 10228767;
and R. Danielson, Smile, Ybor: You re on Crime Camera, St. Petersburg Times, June 7, 1996, 1996
WL 7119969.
11
Burrows, supra., at 1122-24. Among cited examples of widely publicized successes are the use of
video in the apprehension of the suspects involved in the bombing of the Oklahoma City Federal
Building; the Bugler case, in which video surveillance helped police apprehend two boys who murdered
a two year old child; the thirty percent drop in crime in Boston housing projects, and significant arrests
in Camden, N.J., Memphis, Tennessee, and Tacoma, Washington, as a result of the installation of video
surveillance technology. He notes that cities may discourage the unauthorized or abusive use of video
by simply avoiding the use of tapes, or recycling them after a certain number of hours.
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CCTV for Public Safety and Community Policing Guidelines and Supplemental Information
surveillance technology by police and private security.12 Finally, commentators
cite the recent exploitation of police video for profit as a reason for limiting the
use of video surveillance and the video-taping of police activity.13
It may be that the interest in video surveillance has persisted because of
its growing use in foreign countries. Burrows reports that England has
installed more than 150,000 cameras, in more than 75 cities, in response to
rising street crime. However, he also reports that many video clips are sold as
bootleg films on the pornography market. Similar accounts are described in
France, where police are given broad powers to install street video
surveillance, and in Australia, Ireland and Scotland.14
In sum, the history of video surveillance has reaffirmed the common
sense notions that all law-abiding citizens are vitally interested in efforts to
reduce street crime, crimes in places of public accommodation and other
vulnerable places ( .g ., ATM machines).15 However, these same citizens are
e
12
Burrows at 1110, citing, e.g., Doe v. B.P.S. Guard Serv., Inc ., 945 F.2d 1422 (8th Cir. 1991)[Security
guards filming of fashion models undressing back stage at convention center]; cf. Oregon v. Owczarzak,
766 P.2d 399 (Ore. App. 1988), Michigan v. Dezek, 308 N.W.2d 652 (Mich. App. 1988), and Michigan v.
Hunt, 259 N.W.2d 147 (Mich. App. 1977)[Police video surveillance of public restrooms]; and newspaper
accounts of police abuses of surveillance video. In 1972, Justice Douglas dissented from the Supreme
Court s decision not to grant a writ of certiorari in Williamson v. United States, 405 U.S. 1026, a case in
which the federal appellate court had approved the electronic interception of communications between
a police informant and the suspected operator of a whiskey still. Justice Douglas observed that,
although electronic eavesdropping had been justified as a necessary means of combating organized
crime, it was actually used by government agencies, including the Army, to conduct surveillance of
United States Senators and Representatives, the ACLU, the NAACP, the Urban League, and college
black studies programs and anti-war groups. See e.g., Chicago Lawyers Committee for Civil Rights
Under Law, Inc. v. City of Chicago, No. 76 C 1982, 1985 WL 3450 (N.D.Ill. 1985).
13
Examples include television shows that feature police chases and graphic conduct by suspects, and
911 rescues that feature graphic video of serious injury or death. Such graphic video, it is argued, may
cause emotional or physical injury to suspects, victims, and their families. But cf. Vega-Rodriguez v.
Puerto Rico Telephone Company, 110 F.3d 174 (1st Cir. 1997), holding that fear of employees that
employer s silent video surveillance of open work areas might be expanded to restrooms, creating
potential privacy invasion, is not ripe for judicial review until there is a factual basis for such concerns.
14
Burrows cites numerous press accounts of the sale of videotapes of criminal activities, and footage
from hidden cameras on streets and in shopping malls and public toilets. See Burrows, supra., footnotes
156-176, also describing similar concerns in Australia about cameras in public toilets, and in Scotland
about private surveillance of couples making love and people undressing in changing rooms.
15
See, e.g., Dunnigan v. Keane, 137 F.3d 117 (2d Cir. 1998)[State court may admit videotape from
bank ATM CCTV to identify assailant who robbed plaintiff and then attempted to use her ATM card, so
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worried about the unethical use (viewing, sale, etc.) of surveillance video by
police and private security, its inherently indiscriminate and invasive
character,16 and whether, in any event, the cost of broad-scale video
surveillance projects will be justified by meaningful increases in arrests and
convictions, and a generally significant decrease in criminal activity.17
Federal Law
The right of privacy is based in both constitutional law and common
law. 18 As a constitutional right, it derives from the First, Third, Fourth, Fifth,
Ninth, and Fourteenth Amendments, and from specific provisions of state
constitutions.19 In Katz v. United States,20 the Supreme Court held that the
long as identification is reliable].
16
See opinion of Judge Richard Posner in United States V. Torres, 751 F.2d 875 (7th Cir. 1984),
permitting the use of targeted surveillance video only when the need for surveillance of criminal
activity outweighs concerns for privacy; in accord, United States v. Biasucci, 780 F.2d 504 (2d Cir.
1986)[Affidavit supported use of video surveillance]. Granholm notes, however, that these cases
involved surveillance of private premises, not public streets. See Granholm, supra., at footnote 25.
17
See L. Linden, City of Oakland Will Not Use Street Surveillance Cameras, 110 Los Angeles Daily
Journal, No. 182, p.3, September 19, 1997, noting a 3-1 vote of the Oakland City Council Public Safety
Committee not to proceed with a plan for 50 video cameras to scan streets with zoom lenses. Noting
the Council s opinion that such surveillance was legal, the article emphasizes that the ACLU,
merchants, and local media had described the plan as Orwellian and a violation of the California
Constitution s explicit right of privacy. The article also noted one committee member s opinion that the
cost of the cameras could be used to pay for more police officers.
18
Electronic surveillance is not unconstitutional per se. S ee U.S. v. Martinez, 498 F.2d 464 (6th Cir.
1974), cert. denied, 419 U.S. 1056. See 18 U.S.C.A. 2510. See also State v. Diaz, 706 A.2d 264
(N.J.Sup. 1998)[Neither federal or state constitutions are implicated by parents arrangement with
private firm to install a videotape surveillance system in their home to record the conduct of a nanny
hired to care for their children, citing United States v. Jacobsen, 466 U.S. 109 (1984)].
19
See, e.g., Vega-Rodriguez v. Puerto Rico Telephone Company, 110 F.3d 174, 183 (1st Cir. 1997),
holding that while employee surveillance by public employers raises Fourth Amendment concerns, the
Ninth Amendment and Fourteenth Amendment cases do not support a cause of action precluding video
surveillance of work areas. The court held that the Fourteenth Amendment privacy rights c ases
generally protect the autonomy of the individual in making significant personal decisions relating to
marriage, contraception, family relationships, and the like.
20
389 U.S. 347 (1967).
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government s electronic interception of the defendant s conversation in a
telephone booth violates his right of privacy, if the defendant had an actual
(subjective) expectation of privacy, and that expectation is one that society
would recognize as reasonable.21 This subjective and objective test has
continued to be the theoretical benchmark in video surveillance cases,22 but
post-Katz cases substantially weaken the expectation of privacy outside the
home.23 Indeed, Burrows and Granholm conclude that the Fourth Amendment
is generally not supportive of a constitutional challenge to silent video
surveillance of public streets, sidewalks, and parks, because persons do not
have a reasonable expectation that they will be free of observation in such
public settings.24
Granholm argues however that a citizen has some reasonable
expectation regarding the extensiveness of technology used to observe her even
in public places. Thus, she might have a reasonable expectation that the
technology used to observe her in public places would not be so intrusive as to
21
Both Granholm and Burrows note that Katz refused to limit search and seizure protections to cases
of physical intrusion, holding instead that the Fourth Amendment protects people, not places. See
Granholm, supra., footnote 24. Canada has recognized Katz in its interpretation of its own
constitutional search and seizure law, holding that, where an individual has a reasonable expectation
of privacy, the Charter of Rights and Freedoms would prohibit an unrestricted, warrantless use of
surveillance video. See Santiago Wong v. Her Majesty the Queen, 3 S.C.R. 36 (1990).
22
See People v. Smith, 360 N.W.2d 841 (1984)[defendant s reasonable expectation of privacy will be
determined by totality of circumstances], cited in Granholm, supra., at footnote 26.
23
Burrows, supra ., citing Dow Chemical Co. v. United States, 476 U.S. 227 (1986)[aerial photography
by EPA of company s complex]; Texas v. Brown, 460 U.S. 730 (1983)[police officer s use of flashlight to
illuminate inside of motorist s car during routine driver s license checkpoint]; Florida v. Riley, 488 U.S.
445 (1989)[aerial surveillance of greenhouse]; California v. Ciraolo, 476 U.S. 207 (1986). In Ciraolo, a 5-
4 majority of the Supreme Court held that, although defendant had erected a ten foot fence around his
back yard with the intent to obstruct a view of his marijuana growing activity, officers who observed his
plants while flying in a private plane at an altitude of 1000 feet did not violate defendant s reasonable
expectations of privacy. The court held that the Fourth Amendment protection of the home was never
meant to preclude observations that may be made by law enforcement officers from public
thoroughfares. Thus, a homeowner s steps to restrict some views does not preclude an officer s
observations from a public vantage point where he has a right to be and which renders [defendant s]
activities clearly visible. Defendant s subjective expectation of privacy was therefore not objectively
reasonable. 476 U.S., at 213-14.
24
Granholm, supra., at 694-95; Burrows, supra ., at 1090.
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focus upon the letter she is reading, or the movement of her lips, or the
recording of her words as she walks with a companion.25 Granholm s
argument is based upon her reading of the plain view doctrine search and
seizure cases.26 She argues that although courts have held a view open to
outsiders mitigates the suspect s reasonable expectation of privacy reliance
on the plain view doctrine is misplaced where video surveillance includes
enhancement features such as telescopic lenses, or film recording devices.27
Granholm insists that the plain view doctrine is based upon the premise that
the discovery of the evidence in question is inadvertent. She then reasons
that, where an enhanced video device is deployed to observe activity, the
observation is intrinsically advertent, adverse, and intrusive. 28 However, this
aspect of Granholm s argument predates Supreme Court decisions approving
aerial searches in drug cultivation cases.
L. R. Willson and Sons v. Occupational Safety & Health Review
Commission,29 considers both the issue of expectation of privacy and
Granholm s concern for enhancements such as zoom lenses. In Willson, the
Secretary of Labor cited the company for OSHA violations after discovering
25
Granholm, supra ., at 695. Granholm argues that this limitation of video and audio surveillance is
the essence of a reasonable application of the Supreme Court s decision in Katz.
26
Citing Coolidge v. New Hampshire, 403 U.S. 443 (1971), limiting the doctrine to situations where
police seize an object pursuant to a prior, valid search, i.e., pursuant to a warrant, or a judicially
recognized exception to the warrant requirement. Granholm, supra., at 697 and footnotes 42 and 43.
27
Granholm s distinction has merit. In Vega-Rodriguez v. Puerto Rico Telephone Company, 110 F.3d
174 (1st Cir. 1997), the court observed that arguments justifying video surveillance of streets
emphasize the constitutional parity between observations made with the naked eye (by an officer who
could be assigned to the street) and observations recorded by an openly displayed video camera having
no greater range than the officer s naked eye.
28
Granholm, supra., at 697. She explains that, if a video camera can zoom in to focus on facial
expressions, a license plate, etc., the camera s capability exceeds the senses of the policeman on the
beat, and any argument that the camera is simply an extension of the policem
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