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3LEGAL IMPLICATIONS OF VIDEO SURVEILLANCE ON TRANSIT SYSTEMS By Larry W. Thomas, The Thomas Law Firm, Washington, DC I. INTRODUCTION Video surveillance is widely used in public trans- portation.1 In fact, since the 1990s most transit agen- cies that have provided passenger rail service have used video surveillance, âsome as early as the 1970s.â2 Initially, transit agencies used video surveillance to manage or to control overcrowding, nonpayment of fares, fires, accidents, and injuries.3 For example, the Port Authority Transit Corporation in New Jersey used video surveillance primarily to assist patrons who were having difficulty with automatic fare collec- tion and secondarily to deter and apprehend fare- evaders.4 As discussed in part II of this digest, transit agencies now use video surveillance to deter crime, to defend against fraudulent claims, to investigate acci- dents, and of course, to defend against terrorism.5 Indeed, the value of video surveillance has increased markedly because of the threat of terrorism.6 Video cameras may be located in stations and on boarding platforms, in railcars and on buses, in railyards and parking areas, and in other transit areas.7 In the United States, Chicago has one of the nationâs most extensive and advanced surveillance networks, making Chicago residents âsome of the most closely observed in the world.â8 As of 2011, the city had spent over $60 million on its âintegrated camera networkâ and installed approximately 10,000 surveillance cameras on trains and in buses.9 The Chicago Transit Authority already had over 3,000 cameras, with approximately twenty at each station.10 From 2014 to 2015, according to Chicago Mayor Rahm Emmanuel, the increase in surveillance in Chicago resulted in a 32% decrease in crime on buses and trains and a 72% reduction in fare evasion.11 For 2015, there was a reduction in reported âincidentsâ to a level of seven incidents for every 10 million rides.12 Seventy-two transit agencies responded to a survey conducted for this digest. The transit agen- ciesâ responses are discussed throughout the digest and are summarized in Appendix C. All respondents to the survey reported conducting video surveil- lance. Although the San Francisco Bay Area Rapid Transit District began using video surveillance in 1972,13 many transit agencies began using video surveillance in the 1980s.14 However, the number of agencies having video surveillance systems increased significantly in the 1990s and continued to increase thereafter.15 1 Video Surveillance in Public Transportation, http:// www.masstransitmag.com/article/12171666/video- surveillance-in-public-transportation (last accessed Aug. 22, 2017), hereinafter cited as âVideo Surveillance in Public Transportation.â 2 Dorothy M. Schulz & SuSan Gilbert, ViDeo SurVeil- lance uSeS by rail tranSit aGencieS, (Transit Cooperative Research Program, Synthesis 90, Transportation Research Board, 2011), p. 57, [hereinafter TCRP Synthesis 90], http:// onlinepubs.trb.org/onlinepubs/tcrp/tcrp_syn_90.pdf (log in) (last accessed Aug. 22, 2017). 3 Id. at 10. 4 Id. at 11 (citing L. Siegel & M. Molof, Policing Urban Mass Transit Systems (A National Evaluation Program, Phase 1 Report by the MITRE Corp), LEAA, Department of Justice, Washington, D.C. (1979)). 5 Id. at 10, 12â13, and 38. 6 The Constitution Project, Guidelines for Public Video Surveillance: A Guide to Protecting Communities and Pre- serving Civil Liberties, (2006) at 3, hereinafter referred to as âGuidelines for Public Video Surveillance,â https://www. law.berkeley.edu/files/Video_surveillance_guidelines.pdf (last accessed Aug. 22, 2017). 7 TCRP Synthesis 90, supra note 2, at 24â25. 8 Guidelines for Public Video Surveillance, supra note 6, at 6 (footnote omitted) (internal quotation marks omitted). 9 ACLU of Illinois, Chicagoâs Video Surveillance Cam- eras: A Persuasive and Unregulated Threat to Our Privacy (2011), hereinafter referred to âACLU Report,â https://www. aclu-il.org/sites/default/files/field_documents/video_ camera_surveillance_in_chicago.pdf. 10 Id. at 10. 11 Press Release, Mayorâs Press Office, City of Chicago, CTA Announce Crimes on CTA Decreased 25 Percent on 2015 (Jan. 27, 2016), http://www.cityofchicago.org/city/en/ depts/mayor/press_room/press_releases/2016/january/ Crimes-CTA-Decreased.html (last accessed Aug. 22, 2017). 12 Id. 13 See Appendix C, transit agenciesâ response to question 2. 14 Id. 15 See id. See also, Karen Landers, A Practical Approach to Video Surveillance TechnologyâSan Diego Metropolitan Transit System, DRI.org Civil Rights and Governmental Technology Tort Liability CLE Program, at 243, (2015), hereinafter referred to as âLanders,â (stating that since approximately 2010, the San Diego Metropolitan Transit System has upgraded and expanded its video surveillance network and that by 2015, the network included cameras on approximately 587 buses and 107 light rail vehicles and in 34 of 55 stations).
4The transit agenciesâ responses identified the areas, facilities, and equipment that are subject to video, as well as audio, surveillance.16 For example, the Department of Transportation and Public Works (DTPW) in Miami identified the [p]assenger platform/waiting areas at Metromover and Metrorail platforms, entry and exit points of Metromover and Metrorail stations, select passenger parking facilities, critical operational areas of the DTPW system, currency collection and control areas, operations control areas for all system modes, inventory storage areas, bus entry areas at maintenance facilities, and maintenance areas/yards, inside select buses, rail cars, and automated guideway vehicles, and select common areas of office spaces or maintenance areas.17 The transit agenciesâ responses may be compared to another survey conducted of seventy-four transit providers in thirty countries that found that almost all providers use video surveillance.18 Transit agen- cies reported having video surveillance cameras in stations, on rolling stock, at depots, in rail yards, and in other areas.19 Video surveillance reportedly improves passengersâ perception of security, increases actual security, and results in fewer crimes, acci- dents, injuries, and medical emergencies.20 Part II of the digest discusses transit agenciesâ reasons for installing a video surveillance system, as well as the policies that govern the audio and video surveillance. Part III examines the privacy risks that may arise when transit agencies conduct public video surveillance. Even though the use of public video surveillance appears to be constitutional under present law, a transit agency, nevertheless, depend- ing on the circumstances, could be sued for allegedly violating a personâs reasonable expectation of privacy, violating a statute regulating the use of video surveillance, or violating a state common law right to privacy. This digest, therefore, discusses core principles that transit agencies may consider that strengthen the agenciesâ defenses to potential claims. The risk to privacy varies according to whether video surveillance is conducted only in real- time, is of long duration or permanent, records and archives video data, or permits the identification and tracking of an individual. Part IV addresses whether there are privacy rights under the United States Constitution that apply to transit agency use of video surveillance. This digest discusses the expansion of privacy rights after the Supreme Courtâs decision in Gris- wold v. Connecticut.21 Eventually, however, the Supreme Court and other courts began to narrow privacy rights. There are judicial precedents hold- ing that warrantless searches are permissible under the Fourth Amendment when an individual has no reasonable expectation of privacy or has a substantially reduced expectation of privacy, such as when traveling on highways or public transit. Even if a person has no reasonable expectation of privacy in a public place, there is an argument that an individual still retains a reasonable expectation of anonymity. Part V addresses the issue of whether public video surveillance violates a right to privacy under state constitutions that protect an individualâs right to privacy or under a state supreme courtâs decision recognizing a right to privacy. Some states also recognize an implied cause of action for a violation of a state constitutional or judicially recognized right to privacy. Even in some states that provide for a constitutional right to privacy, it may be necessary to balance a privacy right against a stateâs compel- ling interest in collecting or disclosing public video surveillance data.22 In brief, however, â[m]eaningful legal strictures on government use of public surveillance cameras inâ¦the United States are non-existent.â23 There presently is no general constitutional right to privacy that is implicated by transit agenciesâ use of video surveillance. Except to the extent discussed in parts IV and VIII, the Supreme Court and other courts have not addressed transit agenciesâ use of video surveillance in public areas or spaces.24 There are judicial precedents that provide some guidance 21 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). 22 Images collected by video surveillance are also referred to as data. See James A. Snyder & Angela Morelock, Elec- tronic Data Discovery: Litigation Gold Mine or Nightmare, 58 J. Mo. B. 18, 19 (2002); Lieke Jetter & Stephen Sharon, Roundtable: Beyond IRBS [Institutional Review Boards]; Designing Ethical Review Processes for Big Data: Selected Issues Concerning the Ethical Use of Big Data Health Ana- lytics,â 72 WaSh & lee l. reV. 394 (2016). 23 Christopher Slobogin, Symposium: Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 MiSS. L. J. 213, 234 (2002), hereinafter referred to as âSlobogin.â 24 Olivia J. Greer, Note: No Cause of Action: Video Surveillance in New York City, 18 Mich. telecoMM. tech. l. reV. 589, 599 (2012) (footnote omitted), hereinafter referred to as âGreer.â 16 See Appendix C, transit agenciesâ responses to question 3. 17 See id. 18 Video Surveillance in Public Transportation, supra note 1. Approximately two thirds of the agencies respond- ing stated that they use network internet protocol (IP) cam- eras; that about half âhave a hybrid surveillance system, consisting of a mix of analogue and network/IP cameras;â and about one quarter rely on analogue cameras. Id. 19 Id. Video may be recorded, viewed in real time, or both. Id. 20 Id.
5on the limits of video surveillance,25 but apparently no court has held that the use of video surveillance by law enforcement or other agencies to monitor activity on public property is an unreasonable search or otherwise violates the Fourth Amendment or a right to privacy.26 Part VI discusses whether there are federal and state statutes that apply to video surveillance, and more specifically, to transit agenciesâ use of video surveillance. The Privacy Act of 197427 applies to federal agenciesâ collection of information on indi- viduals and regulates the agenciesâ release of data, particularly of personally identifiable information (PII). However, no cases were located for this digest involving a claim under the Privacy Act based on an agencyâs use of public video surveillance. As discussed in this digest, there are some state statutes that regulate video surveillance of the public or in the workplace. In sum, however, although there are some statutes of limited scope, there is no comprehensive federal or state legislation regulating the use of video surveillance.28 One commentator has surmised that â[s]tatutes and regulations generally lag behind technological development,â but â[c]onstitutional law typically develops at an even more glacial pace.â29 Part VII analyzes whether video surveillance is legal when it includes audio surveillance. Thus, the digest discusses the federal Wiretap Act30 and the Stored Communications Act (SCA).31 Part VII also addresses state laws that regulate the interception of electronic and oral communications and of stored data. Appendix D is a modified compilation of federal and state laws on audio and video surveillance. Part VIII discusses video surveillance in the workplace, including state statutes that regulate or prohibit surveillance in some areas, such as a rest- room, locker room, or other areas where an employee has a reasonable expectation of privacy. State stat- utes may require that employers give notice to employees of the presence of video surveillance. Although in some states video surveillance of tran- sit vehicle operators may violate state law, the Federal Transit Administration (FTA) has received at least one report recommending that audio and video surveillance be installed on buses to deter assaults on transit operators.32 Under federal law as well as the law in some states, when employees belong to a union, an employerâs use of video surveil- lance is a subject of mandatory bargaining. Part IX analyzes whether members of the public or transit employees have rights of privacy under state common law. One claim that seems possible, depending on the circumstances, is for intrusion upon seclusion, a privacy tort that does not require a showing that data were disclosed to the public via the media. The intrusion upon seclusion claim is for an individualâs psychological distress caused by the intrusion itself. Part X discusses the use of video surveillance in tort litigation involving claims brought by or against transit agencies and the use of video surveillance in accident and criminal investigations. Part XI shows that, in general, video surveillance data are subject to the federal or a stateâs Freedom of Information Act (FOIA)33 or other state public records disclosure law. However, there are several possible exceptions that may preclude a disclosure of surveil- lance data, such as statutory exemptions for personal data, data relating to a pending law enforcement investigation, or data on public infrastructure. Appendix A to this digest is a list of transit agen- cies responding to the survey, Appendix B is a copy of the survey conducted of transit agencies, Appendix C is a summary of the transit agenciesâ responses to the survey, Appendix D is a compendium of state laws on video and/or audio surveillance, and Appen- dix E provides a copy of policies, practices, and other documents that transit agencies provided in response to the survey on their use of video surveillance. 25 Id. at 607 n.135 (citing Katz v. United States, 389 U.S. 347, 351 (1967) (holding that the Fourth Amendment protects individuals who have an expectation of privacy recognized as reasonable by society); Dow Chem. Co. v. United States, 476 U.S. 227, 238, 106 S. Ct. 1819, 1827, 90 L. Ed. 2d 226, 237â38 (1985) (suggesting that zooming with a video camera could require a warrant); United States v. Knotts, 460 U.S. 276, 283â84, 103 S. Ct. 1081, 1086, 75 L. Ed. 2d 55, 63â64 (1983) (finding that a radio transmitter attached to the defendantâs property that indicated the defendantâs location to law enforcement offi- cers did not constitute an unlawful search within the meaning of the Fourth Amendment but suggesting that systems that make possible âtwenty-four hour surveil- lance of any citizenâ and âdragnet-type law enforcement practicesâ potentially raise Fourth Amendment concerns)). 26 Guidelines for Public Video Surveillance, supra note 6, at 11. 27 Pub. L. No. 93-579, 88 Stat. 1896. 28 Greer, supra note 24, at 599. 29 Guidelines for Public Video Surveillance, supra note 6, at 10. 30 18 U.S.C. Â§Â§ 2510â2522 (2017). 31 Pub. L. No. 99-508, 100 Stat. 1848, (1986), (codified at 18 U.S.C. 121 Â§Â§ 2701â2712 (2017)). 32 See Part VII. F. 33 Pub. Law No. 89-487, 80 Stat. 250 (1967) (codified at 1 U.S.C. Â§ 552 (2017)).