Public Privacy: Camera Surveillance and the Right to Anonymity
Christopher Slobogin
University of Florida Fredric G. Levin College of Law
Abstract
The primary thesis of this paper is that the advent of sophisticated technology that allows the government to watch, zoom in on, track, and record the activities of anyone, anywhere in public, twenty-four hours a day, demands regulation. A second thesis is that if the legislative and executive branches are unwilling to undertake that regulation, courts should step in, using the Fourth Amendment. The paper begins by documenting the current status of public camera surveillance. Based on an analysis of the panoptic effects of government surveillance–among them “anticipatory conformity,” fear that private facts will be exposed, and decreased loyalty to a surveillance-driven government–it then argues that the courts should recognize a constitutional right to anonymity in public places. More specifically, it argues that camera surveillance can chill speech and association, infringe on the rights to movement and repose, undermine the general right to privacy and infringe the Fourth Amendment interest in avoiding unregulated government intrusions. To bolster the latter point, it provides results of a study I conducted to ascertain how the public views overt, systematic camera surveillance. The paper then imagines what regulation of camera surveillance would look like. It uses as a springboard the Supreme Court’s roadblock jurisprudence, which prohibits such seizures unless there is individualized suspicion or unless the checkpoint is aimed at dealing with a significant, difficult-to-detect problem (such as illegal immigration) or an activity that immediately threatens life and limb (such as drunk driving). This caselaw, the paper argues, should be read to limit camera systems to areas with significant criminal activity, and to require individualized suspicion (although not necessarily probable cause) for targeted surveillance. The paper then discusses issues connected with implementing a public surveillance regime. Based on Fourth Amendment and related constitutional jurisprudence, it contends that politically accountable officials should make the camera location decision (an application of the exigency principle), that government must provide notice of the surveillance and regulate the disclosure and maintenance of surveillance records, and that enforcement of these rules requires both direct sanctions on violators and periodic dissemination of information about surveillance practices. It also discusses application of these precepts to other types of public surveillance. Finally, it briefly explores the role of the courts in bringing all of this to fruition.
Biography
Christopher Slobogin occupies the Stephen C. O’Connell Chair at the University of Florida Fredric G. Levin College of Law and is visiting Stanford Law School in 2006-07. He is a graduate of Princeton University and the University of Virginia School of Law. He has authored over 20 articles on search and seizure issues, as well as a casebook and a treatise on criminal procedure. He served as Reporter for the American Bar Association’s Standards on Technologically-Assisted Physical Surveillance and has been named to an ABA Task Force that will address “transaction surveillance.” His book, Virtual Searches: Government Surveillance and What to Do About It, will be published by the University of Chicago Press next year.
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