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Donald Zoufal

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04/17/2009

Why is Governance of CCTV Technology an Issue?


As concerns of terror have spread across the United States and around the world, law enforcement agencies are rapidly moving to utilize a range of technologies including CCTV to achieve greater awareness and security. At the same time, government is utilizing emerging CCTV technology for a range of other legitimate government activities like ordinary crime control, traffic management and enforcement, crowd control, directing emergency response assets, and situational awareness in controlling large scale emergency response.  These technologies and the data they collect raise privacy concerns. It is a critical governmental function to administer the use of those technologies to ensure they are related to appropriate government purposes and that individual civil rights are protected.  This article is intended to identify the requirements for policy-based control and auditability to be addressed by a properly enabled surveillance video management system. 


Recognizing Legal Protections for Privacy

Despite suggestions of some commentators, privacy is afforded significant protection by the U.S. Constitution and those protections can and do extend into public areas.  Generally, there is no protected right under the fourth amendment to be shielded from observation in a public space.[1] However, protection of privacy in public has been afforded in some circumstances where the individual can demonstrate a reasonable expectation of privacy in the conduct.[2] Additionally, where enhanced technology is used in public space to observe private property there are clear fourth amendment concerns.[3] Thus, where a CCTV system is developed to observe conduct it needs to be limited in scope to public areas.

 

First amendment rights can also be affected by governmental surveillance activities in the public space.[4] In designing and implementing surveillance systems, administrators must be mindful that if those systems are shown to chill first amendment speech they will not be permitted.  Administrators also need to understand that if systems are designed or operated in a discriminatory fashion, they may well be shut down for violating the equal protection provisions of the fourteenth amendment.

In addition to questions of what kinds of activity and conduct can be observed or recorded on complex digital CCTV systems the development of complex computer systems that can inter-relate large amounts of public surveillance data poses significant issues for administrators.  While the U.S. Supreme Court has not extended constitutional protections to compilations of public data, review of some of those decisions demonstrate concern over privacy implications of massive public data files.[5] Protection of publicly collected CCTV images is already the subject of regulation in the European Union under the auspices of the Data Protection Directive. [6] Statutory and regulatory schemes to protect that data in the U.S. are also being advocated. [7]


Creating and Supporting Policies for Intended and Appropriate Use of CCTV

In response to the legal imperatives, governance of technologically enhanced surveillance programs should include clear written policies limiting use of CCTV equipment to public spaces and prohibiting operator conduct that violates first and fourteenth amendment protected rights and ensure proper training for operators in that regard.  Additionally, there needs to be policy that addresses control, management and dissemination of collected CCTV data.   These policies can be supported by two powerful tools at the disposal of administrators to ensure those policies are followed.

1.  Supervision, Training, Discipline, and Audits.

Policies are not self-actuating.  A properly governed system ensures that the employees operating it are adequately supervised.  Any employee authorized to access the system must be trained and retrained particularly in the legal and ethical obligations in using the system and the data it generates.  Where employees are found to be violating policies and misusing the system or data it generates, they should be disciplined or retrained, as appropriate to the violation. Additionally, internal and external audits should be conducted at regular intervals to ensure system compliance.  Audit results could be made publicly available to afford the type of transparent system operation requested by privacy advocates and to enhance confidence in the rectitude of government conduct.  Given the rapid pace of technology development, the governance strategies of today will doubtless need to be retooled and recalibrated to address the new features and capacities of tomorrow’s technology.  Thus provisions for regular review and update should be included in policy.

2.  Technology Design to Mitigate Privacy Impacts and Enhance Protections 

Administrators can and should shape technology development of their systems to address legal concerns. Administrators must ensure that only appropriate technology is employed at locations and that it is properly maintained and operated. The design of automation in the system can be made to support governance policies in supervision, training, discipline and audit as important operational features.  System automation can and should be designed to limit access by trained operators only to the information and functions in collection necessary for that person to do his or her job.  Access control features should be designed to prevent unauthorized access.  The system should also be designed with a reporting function that allows for the generation of audit reports on issues like access to files or activity by operators.   

 

In addition to the forgoing technology enhancements that are largely available with most digitized systems, administrators should be aware of cutting-edge and developing CCTV technologies that can assist in controlling CCTV usage.   Current technologies like masking, tripwires and some behavioral pattern recognition should be explored and employed, where feasible, to allow the government to focus collection activity in the public space.  Future technologies like anonymization and enhanced video analytics may also add to the ability of system designers to further control and limit CCTV data collection.


Conclusions

As the use of technology enhanced surveillance grows across the country, more and more communities will need to address the issues of CCTV surveillance and data collection and maintenance.  While the use of CCTV systems in public areas and collection of CCTV data are generally permitted under current law there are steps that prudent system administrators can and should take to ensure that their use of technology to prevent, protect and respond to a range of public safety concerns is also consistent with legal protections for privacy.  Policymakers need to develop written policies and supportive supervision, training, disciplinary and audit systems to ensure they control operation and deployment of surveillance systems consistent with privacy values.  Additionally they should work to drive development and adoption of technology to address reasonable privacy concerns.  Technology can then provide government with a responsible approach to CCTV, consistent with privacy interests.  The key requirements for agency policy, for system usage controls, and for system auditability are vital to be addressed by a properly enabled surveillance video management system.

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1. See, Idris v. City of Chicago ___ F.3d ___, Slip Op. 08-1363 (7th Cir. 2009), also cited at  http://caselaw.lp.findlaw.com/data2/circs/7th/081363p.pdf  (accessed 15 April 15, 2009)   (red light enforcement cameras on the public way implicate no protected right under the fourth amendment).

2. See, Katz v. United States 389 U.S. 347 (1967) (audio intercepts of phone conversations from a public phone booth violate fourth amendment protections)

3.See, Kyllo v. United States 533 U.S. 27 (2001) (thermal imaging of a residence from the public way violates the fourth amendment)

4. See, Alliance to End Repression v. City of Chicago, 237 F.3d 799, 801 (7th Cir. 2001) (modification of consent decree limiting City’s ability to conduct surveillance).

5. See, Whelan v. Roe, 429 U.S. 589 (1977) (privacy interests in New York state database of prescription drug and controlled substance use did not implicate constitutional protections) ,and   Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749 (1989)  (no constitutionally protected privacy interest in a “rap sheet” which is a compilation of otherwise public records of arrests)

6. European Union, Data Protection Directive, (officially Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data)  http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:EN:HTML (accessed April 15, 2009)

7. See, e.g., Constitution Project, Guidelines for Public Video Surveillance, (Washington D.C.: The Constitution Project, 2007), http://www.constitutionproject.org/pdf/Video_Surveillance_Guidelines_Report_w_Model_Legislation4.pdf  (accessed April 15, 2009), and, American Bar Association, Criminal Justice Section Standards for Technology-Assisted Physical Surveillance, http://www.abanet.org/crimjust/standards/taps_blk.html (accessed April 15, 2009).

 

 

 

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