The Miami Police Department’s New Public Surveillance Cameras: Could the Constitution Prevent “Big Brother’s” Short Term Visit From Becoming Permanent?

BY BRENDAN M. STUDLEY — Living in Downtown Miami is a slice of paradise for many of Florida’s sun-kissed residents and tourists alike. With beautiful sandy beaches and year-round warm weather, residential paradises like Miami are far and few between. But the next time you venture out for a night on the town or some fun in the sun, keep in mind that you may no longer be under your own supervision.

This is because the Miami Police Department is moving forward with “plans to install approximately 400 new security cameras to monitor various areas of the city through 200 closed-circuit TV screens.” Additionally, these cameras are equipped with facial recognition technology. Has the old-fashioned concept of privacy been changed permanently?

Some are saying that privacy is not being invaded by the surveillance cameras, while others contend the opposite. For example, placing a premium on safety, some say it is worth the minor intrusion in privacy, especially because the cameras are in public areas. But when has surveillance crossed the figurative “line” of privacy? In fact, it could reasonably be asked where the so-called “line” actually is. The debate has been growing as more people learn that “Big Brother” may be quickly working his way into all of our families.

Large cities like Boston, New York, and London have implemented similar initiatives. In fact, Boston’s network of security cameras contributed to the capture of the suspects in the Boston Bombing tragedy in April of 2014, and London’s cameras were helpful in capturing suspects in the London bombing in 2005 as well. Shortly after the Boston incident, former New York City Mayor Michael Bloomberg expressed his view that cameras may become the new normal:

We have to understand that in the world, going forward, we’re going to have more cameras . . . it’s different than what we are used to . . . the people who are worried about privacy have a legitimate worry, but we live in a complex world where you’re going to have to have a level of security greater than you did back in the ‘olden days’ . . . our laws and our interpretation of the Constitution, I think, have to change.

In support of former-Mayor Bloomberg’s views, some say that the Constitution should be a living, breathing document that is malleable to modern developments.

Others, including Supreme Court Justice Scalia, aggressively assert the opposite:

[People who think that the Constitution is a living, breathing document] want the whole country to do it their way from coast to coast. They want to drive one issue after another off the stage of political debate . . . . Every time you insert into the Constitution—by speculation—new rights that aren’t really there you are impoverishing democracy. You are pushing one issue after another off the democratic stage.

Moreover, scholars of Benjamin Franklin may recall his oft-quoted statement, “[t]hose who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Importantly, though, Miami’s new surveillance system is quite small, especially when compared to Britain’s. Miami is planning on installing 400 cameras, whereas the British Security Industry Authority estimated that there are about 6 million cameras strategically placed around the area’s schools, hospitals, and other places. That statistic amounts to approximately one camera for every eleven people in the United Kingdom. The controversy in Britain regarding their cameras appears to be similar to the controversy Miami is experiencing. For example, Nick Pickles—the director of the privacy campaign, Big Brother Watch—indicated that the report on the number of cameras in Britain shows that “there are people in positions of responsibility who seem to think ‘1984’ was an instruction manual,” and that it’s a “stark reminder of how out of control our surveillance culture has become.”

Indeed, in response to challenges to the surveillance becoming a bit too invasive, the police there will have to make signs informing motorists they may be recorded in certain circumstances. However, even though enforcement may need to disclose the presence of surveillance cameras, one can infer that such efforts intimate that the cameras are not coming down. Despite privacy-based arguments, Lord Taylor—the minister for criminal information—indicated that the surveillance cameras, when implemented effectively, are “crucial tools for cutting crime and protecting the public,” but still need to be implemented with “proper framework or oversight.”

Further arguments in support of the cameras include the well-known “if you have nothing to hide, you should feel fine with the cameras” belief. Indeed, the New York Times indicated that “Americans overwhelmingly favor installing video surveillance cameras in public places, judging the infringement on their privacy as an acceptable trade-off for greater security from terrorist attacks.” When positioned against privacy arguments, however, the discussion becomes more sensitive. For example, Representative Adam Schiff—a member of the House Intelligence Committee who previously was a federal prosecutor—indicated that the problem with these security cameras stems from the Constitution: “It was part and parcel of the Fourth Amendment right to be free of unreasonable searches and seizures. We’ve always expressed a strong constitutional preference for privacy, for not giving the government unbridled authority, even to protect us.” Therefore, the question has become focused on constitutionality: “As police gain the ability to technologically monitor individuals’ public movements and activities, does the Fourth Amendment’s protection against ‘unreasonable searches’ place any hurdles in their way?”

Nevertheless, it does not appear that there will ever be a reasonable expectation of privacy in public activities—some would urge there never was one to begin with. It would be difficult to convince a court that a person could have a reasonable expectation of privacy in their public activities, especially following the Supreme Court’s decision in Katz v. United States. Katz held that the Fourth Amendment applies where the citizen has manifested a subjective expectation of privacy and that expectation is one that society accepts as objectively reasonable. Despite that, new constitutional questions may arise as a result of the installation of these security cameras. Some people are uncomfortable that their every move is under surveillance when they are in public. Additionally, what if these cameras can see through windows into private homes? Does that cause issues? The question then becomes whether people have a reasonable expectation of privacy in their homes; and, of course, people do. Well, sometimes.

Even if a security camera could see into a person’s home through a window, it is likely that a person on the sidewalk or in an adjacent building could just as easily see inside. Thus, there would be no reasonable expectation of privacy under Katz. Additionally, Katz also indicated that what “a person knowingly exposes to the public, even in his own home or office, is not subject to Fourth Amendment protection.” Other privacy-related cases like California v. Greenwood import similar notions. Greenwood explained that a warrantless search and seizure of garbage bags left at the curb outside of a house did not violate the Katz expectation of privacy test in part because the trash was exposed to the public. Consequently, it appears likely that surveillance in public would not cause constitutional issues, even if the cameras could see inside a home.

However, in Kyllo v. United States, the Supreme Court asserted that when the government employs a “device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” Because the cameras employed in Miami have facial recognition capabilities and other technology upgrades like “ShotSpotter” technology—the cameras could perhaps be considered similar to the thermal imaging technology that was at issue in Kyllo. As a result, one could attempt to argue that the cameras’ technology is not in the general public’s use and could therefore be a violation of privacy if used to see inside homes. Still, it would probably be difficult to convince a court that someone who leaves their windows unveiled in a busy downtown area like Miami could reasonably expect privacy for their actions within the windowed room, thus failing the Katz test.

For better or worse, these cameras appear to be a permanent addition to the Miami family. It is important to remember, however, that the new cameras are not merely there to observe your trips to the supermarket. It is probably fair to say that the Miami Police Department does not give a “you know what” about your daily comings and goings. Instead, equipped with “ShotSpotter” technology—a “network of sensors and GPS signals that are placed on strategic rooftops”—the Miami Police want to protect you and prevent crimes. The ShotSpotter technology pays close attention to certain noises, and if activated by something—like a gunshot—the technology “will help the city fight crime” before anyone could even think to report it. These cameras will likely be seen as a reasonable compromise between privacy and security despite any constitutional argument to the contrary.   Those who oppose the cameras may be merely hanging on to an antiquated view of privacy. Reconsideration of such anachronistic views is the likely path for the future.

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