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by
Angelo J. Pompano
The purpose of this unit is have students consider how many times a day their privacy is compromised by unseen video cameras and to have them understand that neither the 4th Amendment of the Constitution nor any statutory provision really protect them. The unit is concerned with privacy as it relates to closed circuit television used in surveillance by both government agencies and private corporations. It is intended to be used with 8th grade social studies classes but may be adapted for use with other grade levels and subject areas. It is aligned with the Reading, Writing and Speaking Content Standards of the City of New Haven.
The Technology The technology of video equipment has gotten to the point where the units can be activated by motion detectors and can tape in color even at night. One reason why the use of video surveillance is becoming so prevalent is because cameras are shrinking, thus making it easier to conceal the equipment. Video surveillance cameras can be so small that they can be hidden almost anywhere in the workplace and even worn on clothing. These little devices are capable of zooming in on the smallest of details and can pan and tilt.
A drawback to miniaturization however, is that smaller cameras result in blurrier images. Technology is addressing this problem by developing software to clear up out of focus video. According to Albert Janjigian of STAT Resources, software is being developed to bring those fuzzy pictures into sharp focus.”
- The PVSS (Personal Video Surveillance System) is the size of a badge and can project images of arrests to video recorders in a patrol car.
It remains to be seen if manipulated images will be questioned as valid evidence. Who is to say that when an image is “made sharper” it doesn’t become distorted to the point where it changes a person's features, resulting in misidentification? One thing that video does have in its favor is that it records what it “sees” and unlike the human mind does not forget.
- The lack of stringent laws governing video surveillance (also) makes it an attractive option for businesses and city agencies. For example, it's illegal in many states to secretly tape-record a conversation, but secretly videotaping someone is perfectly legal.
It is commonplace for the audience of the nightly news to view footage of bank or store hold ups. Oftentimes this leads to the arrest of a suspect. Cases such as these make it hard to argue that video surveillance cameras should not be used.
- A bank ATM camera filmed a Ryder truck outside Oklahoma City’s federal office building just before the blast (April 1994) that killed 167 people. That clue helped police track down Timothy McVeigh.
Since 1993 police in Tacoma, Washington have been using video cameras mounted on lampposts and telephone poles to monitor an area plagued by gangs, drug dealers and prostitutes. One of the most extensive video surveillance systems in the country has been in use in Baltimore, Maryland since 1996. Both cities report a drop in crime in those areas under surveillance.
According to a 1996 California Research Bureau report on public-video surveillance, as reported by Alex Salkever in the article Too Many Unseen Cameras? the overwhelming majority of cities that use video in the US say it has helped cut crime. Of course it can be argued that the surveillance cameras do not actually reduce crime, but instead, shift it somewhere else.
- Frank Russo, a retired police commander and the public safety director for the Downtown Partnership of Baltimore, the merchant association that spearheaded the surveillance project, says that besides making law-abiding people feel safer, the cameras are in part responsible for an 11 percent drop in crime in the area during the first year of operation.
According to the article, a new generation of cameras, which can “see” through clothing and even building materials, is not far off. These devices will be capable of not only revealing if a person has a weapon under their clothing, but can produce a precise image of intimate anatomical details.
- Would we tolerate the prospect that police might someday be armed with a device that would enable them to conduct the functional equivalent of a strip search on some unsuspecting citizen from a distance of up to 60 feet away?
We do not have to look to the future to find cases of abuse of video surveillance equipment. Serious problems exist today.
- In Florida the general manager of the Apalachicola Times' newspaper extended a legitimate system to include a hidden video camera in his employees' bathroom. It was found that the camera was not against the law.
- Employees of the Dunkin' Donuts chain used its video-surveillance technology to listen in on customers. The company was forced to remove the cameras.
- The management at Boston's Sheraton Hotel was recording workers as they changed clothes in a locker room on the pretext that it was investigating suspected drug use by its workers.
- In Concord, Calif., a JC Penney employee discovered that a guard was showing videotape in which he zoomed in on her breasts. He made the tape with the store's ceiling cameras.
It is no wonder that critics of the use of this technology by law enforcement agencies feel that the harm outweighs the good. In fact, some police departments such as in Oakland, California have rejected the idea of video surveillance when officials proposed installing video cameras very similar to those now in use in New Haven.
- In England - the most videotaped society in the world because of IRA terrorism- B-grade filmmakers have raided footage from public video cameras to make risqué movies, often featuring unsuspecting couples
What irks the critics most is that as laws now stand, there are few restrictions on monitoring the activities of others with the use of a video camera.
- The police department withdrew the proposal, concluding that they could not find credible evidence that video surveillance was effective in fighting crime and that the negative impacts would outweigh any benefits," says John Crew, an American Civil Liberties Union lawyer who worked on the case.
The same holds true for police surveillance videos. "The law, as it exists today, would appear to allow the use of any of this new technology by police without the prospect of any judicial supervision."
The critics not withstanding, video surveillance devices in public do not seem to violate any constitutional principles. If these devices were set up to gaze into a private dwelling, however, that would be a different story.
The United States Supreme has decided in a long line of cases, most notably in Katz v. United States 389 U.S. 347, 88 S.CT.507 (1967), that there is no expectation of privacy in a public place. The Court ruled that the limits of Fourth Amendment protections against an illegal search did not stop at a physical trespass into a constitutionally protected area. However, some protection is suggested in that the court set forth two tests that since 1967 have been the reference point for other decisions. The first test is expectation of privacy and the second is reasonableness of government search. Neither test is explicitly in the 4th Amendment. However, the 4th Amendment does speak of unreasonable searches and seizures.
Up until this case in 1967 the court used to focus heavily on property rights. Charles Katz had been convicted in federal district court of bookmaking based on an eavesdropping device attached to the outside of a public telephone booth without a warrant. The Supreme Court threw out his conviction. Justice Potter Stewart writing for the majority declared, "The Fourth Amendment protects people, not places." Katz holds that "What a person knowingly exposes to the public,” is not a subject of Fourth Amendment protection. But what he “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”
Therefore it would follow that a person in public cannot have a reasonable expectation of privacy from video surveillance cameras.
____If it's done in a public place, and it's there purely for public safety purposes, it's not a problem," says George Trubow, a professor at John Marshall Law School in Chicago and director of the school's Center for Information Technology and Privacy Law.
____ Still, some people question whether the use of video surveillance cameras in public areas is reasonable police action vs. unreasonable police infringement of the 4th Amendment. There is enough concern that the American Bar Association has issued standards that take into consideration the authorization, purpose, and duration of the surveillance, the notification of the community, and use of the images. Sheldon Krantz, a Washington, D.C. attorney, chaired the task force that developed the standards. Under ABA standards, video surveillance cameras and other detection devices can only be used to "see" into a particular area if the Fourth Amendment allows a traditional search of the area.
Under those standards, the use of such devices would be permitted if they are reasonably likely to achieve a legitimate law enforcement objective, have been approved by a politically accountable public official, and have been presented to the public, which must be given an opportunity for comment.
The standards have been published in a volume titled ABA Standards for Criminal Justice Electronic Surveillance Third Edition, Section B: Technological-Assisted Physical Surveillance.
Still, if you consider surveillance a search, it is one thing to be searched electronically if there is probable cause. But the indiscriminate surveillance of the general public seems to violate the constitutional right to privacy as interpreted by the Fourth Amendment.
John Henry Hingson III is a criminal defense lawyer in Oregon City, Oregon, and a past president of the National Association of Criminal Defense Lawyers. He claims that the rights of the innocent are being sacrificed in the name of law enforcement.
This may not be the case for long, however. Even if the right of privacy from unauthorized videotaping is not covered by the Constitution, a right may be protected by statutory means. Florida lawmakers have passed a bill which creates criminal penalties for secretly videotaping, recording or filming people where they have an expectation of privacy.
- "The weapons of war are now being used against American citizens for civilian law enforcement," he says. "And the casualties of this war are the constitutional rights of the innocent."
This is a step in the right direction and will protect people in places such as restrooms. However, it does not protect citizens who do not realize they are being videotaped when they are in a public place, which is where most surveillance takes place.
Background information from this paper, readings from magazines and journals, and information acquired from the Internet and field trips should be presented to the students for several days to several weeks prior to the project of writing the amendment is begun. Once the teacher determines that the class understands the meaning of privacy, and what privacy "rights" are now covered by the Constitution or statute, as well as the technology involved, the project may be started.
I feel that these lessons are appropriate for the eighth grade. In higher-grade levels the teacher may decide to be more creative and allow the students to experiment with video cameras under supervision in appropriate and tasteful settings. Of course before doing this all permissions by parents and administration should be in place.
1. To gain a general understanding of the technology involved in closed circuit television.
2. To debate the benefits of closed circuit television as opposed to the invasion of personal privacy.
3. To understand the technology of video surveillance.
5. To understand that video technology has benefits but at the same time can have an effect on the privacy of individuals.
Field Trips
It is suggested that the class take a field trip to the Department of Traffic and Parking at 200 Orange Street to see the video monitors that watch traffic at several intersections in the city.
Another possible field trip is to visit one of the city schools such as Wilbur Cross High School or Career High School to see the video security systems employed at those schools.
____ Assignment
Update the 4th Amendment to include video surveillance. (or write a new Amendment to the Constitution which protects the invasion of privacy by video surveillance equipment.)
Description:
This lesson is a culminating activity to be used after the students have read, discussed, and analyzed the 4th Amendment, Supreme Court cases and articles relating to the video surveillance and the 4th Amendment. It allows the students to become aware of the main ideas and importance of the 4th Amendment as it relates to video surveillance.
Grade Level: Appropriate for 8th grade
Goal: The purpose of the activity is to ask students to look critically at the 4th Amendment. Do they think it applies to video surveillance?
Objectives: By the end of the activity, the students will:
A: Be able to identify the main points of the 4th Amendment
B: Compare and contrast the language of the 4th Amendment to the rulings and determine if they apply to video surveillance
C: Evaluate the 4th Amendment in terms of importance to their daily lives.
Materials: Copy of the 4th Amendment, magazine articles on video surveillance
Procedure:
Step 1: Read the 4th Amendment. Read and Katz v. United States, and articles from the bibliography. Then using the Internet find related articles.
Grade 8 Content Standard 1.0
Reading
Before:
Establish a purpose for reading (in this case reading for information)
Skim and scan text for information.
Design questions to focus on the selection.
During:
- Preview and predict what will be included
Use graphic organizers, and note-taking techniques to organize information
Predict, reread, sequence, infer, paraphrase and ask questions
Construct meaning through initial understanding and interpretation
Compare and contrast selected texts
Expand general and specialized vocabulary through reading and writing
After:
Construct meaning by analyzing elaborating and responding critically.
Respond to materials read by demonstrating a critical stance.
Distinguish fact and opinion in non-fiction text
Step 2:
Inform the students that they will be role-playing a present day Constitutional Convention that must update the 4th Amendment to include video surveillance. (or to write a new Amendment to the Constitution which protects the invasion of privacy by video surveillance equipment.) Break the class into groups of 3 or 4 students and tell them that each group must write a version of the amendment. (For a variation, they might be assigned to write a law that adheres to the 4th Amendment and the doctrine of reasonableness but take into consideration modern day technology of video surveillance.) Grade 8 Content Standard 2.0
Writing
Students will demonstrate strategic writing behaviors:
Apply writing strategies developed in previous grade levels.
Use standard English grammar, vocabulary, punctuation and sentence structures in writing
Select text forms to suit purpose and audience
Write to define, clarify and develop ideas and express selves creatively.
Expand vocabulary through word choices
Write in a manner that reflects focus, organization and coherence, using a variety of supporting evidence and elaborative details.
Write neatly and legibly an/or use technology for writing
Before:
Establish a purpose for writing.
Determine and plan for a specific audience.
Establish tone, theme, point of view, and type of writing.
Design questions that focus on selection to be written.
During:
Write first draft.
Use a wide range of words that convey meaning to expand vocabulary.
Plan and write revision
Elaborate on ideas, give examples and add originality to writing.
Check for logic, sequence, content, coherence, style, verb tense and format.
Use analytic rubric to assess and edit revised work for spelling, grammar, capitalization and punctuation.
Edit and write final draft
After:
Reread work to selves and others.
Exhibit and/or publish writing
Step 3: After the small groups have competed their task, bring the class back together. Each group then presents their proposed law. Step 4: Give time for informal debate and discussion over the various proposed laws.
Step 5: The large group must formally debate and vote on the amendments they proposed.
Step 6: After the debate and vote hold a class discussion where the students are allowed to express their feeling as to how they felt about the activity.
Grade 8 Content Standard 3.0
Speaking
Students will demonstrate strategic speaking skills before, during and after speaking.
Before:
Establish a purpose for speaking.
Identify and plan for a specific audience.
Design questions to prepare for speaking.
Use graphic organizers that will organize information for speech.
Select focus, organization and point of view in an oral presentation.
Write speech in logical, sequential order.
List of relevant questions that might be asked and prepare responses.
During:
Demonstrate confidence and poise as a speaker.
Look at the audience.
Speak in a clear, audible voice.
Speak with appropriate inflection, tone, rate and volume.
Present speech in logical, sequential order.
Participate in group discussions by answering questions, responding to comments and by sharing ideas and concerns.
Use appropriate and meaningful gestures, expressions, props, etc.
Respond to audience questions, comments, verbal and non-verbal clues.
Demonstrate appropriate language of social interaction skills.
Demonstrate appropriate langue and literacy skills.
Demonstrate appropriate language and thinking skills.
Use Standard English in daily discussions and to communicate orally.
After:
Respond to audience questions, comments, verbal and non-verbal clues.
Reflect, use assessments and confer with others and plan improvement.
View selves as effective speakers.
- The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable researches and seizure, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Katz v. United States
- -The Fourth Amendment to the United States Constitution
Internet Access
Field trip to the Department of Traffic and Parking at 200 Orange Street
Alderman, Ellen, and Caroline Kennedy. The Right to Privacy. New York: Vintage Books, 1997.
This book provides a good overview to the issue of privacy. It discusses cases involving privacy and television news coverage.
This news release lists the standards of the American Bar Association for Criminal Justice Electronic Surveillance.
Discusses the implications of video surveillance on the right to privacy.
Reports on the abuse of video surveillance and the lack of federal regulations.
Jackson, Estelle. "Privacy: Who's Watching, Nine Digits: An 'Open Sesame' to Your Private Life." Richmond Times-Dispatch, September 13, 1992, pp. A1+.
This article provides a general discussion of privacy, including video.
Federal lawmakers are accused of giving in to private interests while ignoring the privacy of American citizens.
A good source for showing students the prevalence of video monitoring.
This article discusses the video camera as a tool for social justice.
Discusses the installation of a hidden video camera in a newspaper's employee bathroom.
Rosner, Bob. "How Do You feel About Video Surveillance at Work?" Workforce, October 1999. Vol. 78 Issue 10, p26, 2p.
Discusses the feelings of employees about being observed by video cameras at work.
This article provides many examples of video surveillance abuses. It also reports on the use of cameras by cities to help stop crime.
Swope, Christopher. "Community Policing: The Electronic Posse." Governing Magazine, March 1996, pp. 39-40.
In some high crime areas citizens wielding video cameras have helped the police to deter crime. While this may be effective it raises privacy issues.
This article discusses a 1993 attempt by congress to clamp down on worker monitoring.
Carr, Diane. “New Surveillance Technology Standards To Guide Law Enforcement Now Available From The American Bar Association.” American Bar Association News Release, October 26, 1999.
This news release lists the standards of the American Bar Association for Criminal Justice Electronic Surveillance.
Discusses the implications of video surveillance on the right to privacy.
Matthews, Robert. "You Are Being Watched." Focus Magazine, October 1997, pp. 34-39.
- Reports on the abuse of video surveillance and the lack of federal regulations.
A good source for showing students the prevalence of video monitoring.
Noack, David. "Newspaper's Secret Toilet Camera Not Against Law." Editor and Publisher, May 16, 1998, Vol. 131 Issue 20, p11.
Discusses the installation of a hidden video camera in a newspaper's employee bathroom. Rosner, Bob. "How Do You feel About Video Surveillance at Work?" Workforce, October 1999. Vol. 78 Issue 10, p26, 2p.
Discusses the feelings of employees about being observed by video cameras at work.
Salkever, Alex. "Drawing A Line: Too Many Unseen Cameras?" The Christian Science Monitor, June 5, 1998, pp. 1+.
This article provides many examples of video surveillance abuses. It also reports on the use of cameras by cities to help stop crime.
Hancock and Kalb, p. 52.
Alex Salkever, "Too Many Unseen Cameras?" Christian Science Monitor Vol. 90 Issue 133, June 5, 1998, p.1
Hancock and Kalb, p52
Mark Hansen, "No Place to Hide," American Bar Association Journal, (Aug.1997), p44.
Salkever, Alex, p.1
New Haven Register, week of June 4, 2000.
Mark Hansen, p. 44
David Noack, "Newspaper's Secret Toilet Camera not Against Law," Editor & Publisher, 05/16/98, Vol. 131 Issue 20, p11, 1p, 1c
Alex Salkever, p. 1.
Hancock and Kalb, p52.
Hancock and Kalb, p52.
Alex Salkever, p.1.
Alex Salkever, p. 1.
Hancock and Kalb, 1.p.
Mark Hansen, Mark, p. 44.
David M. O'Brien. Constitutional Law and Politics: Civil Rights and Civil Liberties (v.2 of Constitutional Law and Politics) 4th ed., NY, W.W. Norton, 2000.
David M. O'Brien
David M. O'Brien
Mark Hansen, p. 44.
The sale of the tape of the aftermath of the Columbine Massacre set to music is an example of what some consider the misuse of such equipment.
ABA Standards for Criminal Justice Electronic Surveillance Third Edition, Section B: Technological-Assisted Physical Surveillance. (Acquired from the Internet)
Mark Hansen, p. 44.
This is the current (2000) Grade 8 Reading Standard used by the New Haven Public School System. Only those parts that apply to this unit are list.
- David Noak, p. 11
This is the current (2000) Grade 8 writing Standard used by the New Haven Public School System. Only those parts that apply to this unit are list.
This is the current (2000) Grade 8 Speaking Standard used by the New Haven Public School System. Only those parts that apply to this unit are list.
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