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11 As for cameras with capabilities for facial recog- nition, identification, and automatic tracking, one source asserts that such technologies are highly invasive because they permit surveillance that exceeds the power of normal observation of individ- uals in public.110 Cameras with pan-tilt-zoom (PTZ) capability raise privacy concerns because they permit operators to target individuals, for example, because of their race or attractiveness.111 The ability to retain and/or disseminate images permits private activities and moments to be displayed publicly.112 Some localities, such as New York City, reportedly prohibit the use of PTZ technologies.113 Unless there is a reasonable suspicion of criminal activity, Pitts- burgh prohibits the use of PTZ cameras and auto- matic tracking and identification.114 Nevertheless, under current constitutional juris- prudence, a warrant generally is not required to use public video surveillance to identify or track someone whose image is captured by video surveillance.115 In United States v. Dionisio,116 the Supreme Court stated, The physical characteristics of a personâs voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public. Like a manâs facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reason- able expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.117 Thus, notwithstanding some privacy concerns, as this digest discusses, there appear to be few stric- tures on transit agenciesâ use of video surveillance. IV. WHETHER THERE IS A RIGHT TO PRIVACY UNDER THE UNITED STATES CONSTITUTION THAT APPLIES TO THE USE OF VIDEO SURVEILLANCE A. Evolution of Privacy Rights This part of the digest addresses whether under current Supreme Court precedent an individual has a constitutional right to privacy with respect to a public transit agencyâs use of video surveil- lance. In brief, the answer appears to be no, because there simply âare no explicit privacy guarantees in the Constitution.â118 Presently, persons in public settings, including persons on highways and those using public transit, have no privacy interests of constitutional dimen- sion. The courts have held that the Fourth Amend- ment does not apply to the videotaping of individuals in âpublic environments,â119 a view that âhas been adopted by virtually every state and federal court to address the issue.â120 As it is, privacy law in the United States is a âdisorganized body of law,â121 partly because there is no âcomprehensive national regulatory structure.â122 Instead, privacy rights are created sporadically for a specific reason, often in response to changes in tech- nology.123 Most privacy law in the United States is a matter of state law and to some extent a stateâs common law, at least insofar as transit agenciesâ use of video surveillance is concerned. 118 Alexandra Fiore & Matthew Weinick, Undignified in Defeat: An Analysis of the Stagnation and Demise of Pro- posed Legislation Limiting Video Surveillance in the Workplace and Suggestions for Change, 25 hofStra lab. & eMP. l. J. 525, 533 (2008), hereinafter referred to as âFiore & Weinick.â 119 Video Surveillance and the Constitution of Public Space, supra note 108, at 1378. 120 Id. at 1379, & n.62 (citing United States v. Sherman, 990 F.2d 1265 (9th Cir. 1993) (no expectation of privacy on a mountaintop); State v. Augafa, 992 P.2d 723, 724 (Haw. Ct. App. 1999) (no expectation of privacy at a bar); State v. Holden, 964 P.2d 318, 321 (Utah Ct. App. 1998) (no expec- tation of privacy in a front yard); People v. Lynch, 179 Mich. App. 63, 69â70 (1989) (finding no expectation of privacy in the common area of a public restroom); and Sponick v. City of Detroit Police Depât, 49 Mich. Ct. App. 162, 198 (1973) (no expectation of privacy in a public tavern)). 121 Alain J. Lapter, How the Other Half Lives (Revisited): Twenty Years since Midler v. For A Global Perspective on the Right of Publicity, 15 tex. intell. ProP. L. J. 239, 247 (2007). 122 Frank Douma & Jordan Deckenbach, The Challenge of ITS for the Law of Privacy, 2009 u. ill. J.l. tech & Polây 295 (2009), hereinafter referred to as âDouma & Deckenbach.â 123 Thomas Garry, Frank Douma, & Stephen Simon, Intelligent Transportation Systems: Personal Data Needs and Privacy Law, 39 tranSP. L. J. 97, 102 (2012), hereinaf- ter referred to as âGarry, Douma, & Simon.â 110 ACLU Report, supra note 9, at 22. 111 Id. at 21â22. 112 Id. at 23â24. 113 Id. at 23 and 35 n.113 (citing NYPD, N.Y., Public Security Privacy Guidelines, at Part III(C) (effective Apr. 2, 2009) (stating that â[f]acial recognition technology is not utilized.â) Washington, D.C., and Salt Lake City prohibit PTZ aiming at or magnification of activities protected by the First Amendment without reasonable suspicion. Id. at 22 and 35 n. 111 (citing D.C. Code Mun. Regs., tit. 24, ch. 25, Metropolitan Police Department Use of Closed Circuit Television, at Â§ 2501.3; Salt Lake City Police Department, Public Space Cameras Policy, at 4, Restric- tion #3 (Feb. 18, 2009). Denver prohibits discriminatory PTZ use. Id. at 22 and 35, 112 (citing Denver Police Depart- ment, Operations Manual, Closed Circuit Television Policy, at Â§ 119.01(2)(b) (revised Jan. 2009)). 114 City of Pittsburgh, Pennsylvania Code of Ordinances Â§ 681.02(e) (2017). 115 United States v. Garcia-Gonzalez, No. 14-10296, 2015 U.S. Dist. LEXIS 116312, at *1 (D. Mass. Sept. 1, 2015) (holding that a warrant was not required to use cameras that tracked the defendant near his home). See Guidelines for Public Video Surveillance, supra note 6, at 27. 116 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973). 117 Id. at 14, 93 S. Ct. 771, 35 L. Ed. 2d 79.
12 Privacy rights have been defined as the right both to control the dissemination of oneâs information124 and the right to be free from government intrusion.125 Although a âcluster of constitutional rightsâ protects citizens from various forms of government intrusion, decisions by the United States Supreme Court in recent years have narrowed an individualâs zone of privacy protected by the United States Constitution.126 An article published in 1890 by Samuel D. Warren and Louis D. Brandeis entitled âThe Right to Privacyâ127 articulated a basis for a right to privacy in the United States.128 Although some courts after the Warren and Brandeis article held that privacy rights are fundamentally rooted in natural law,129 other courts rejected claims that a right to privacy exists.130 A leading case on privacy rights is the United States Supreme Courtâs 1965 decision in Griswold v. Connecticut131 in which the Court held that there is a right to privacy under the Constitution.132 In Gris- wold, the petitioners were physicians who had provided their patients with contraceptives in viola- tion of Connecticut law.133 When the petitioners argued that the Connecticut statute violated the Fourteenth Amendment, the Court agreed that the petitioners had âstanding to raise the constitutional rights of the married people with whom they had a professional relationship.â134 However, the Court also held that there is a constitutional right to privacy, because the âspecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.â¦ Various guarantees create zones of privacy.â135 Thus, the âright of associationâ is guaranteed by the First Amendment; the âright of the people to be secure in their persons, houses, papers, and effectsâ¦against unreasonable searches and seizuresâ is secured by the Fourth Amendment; and a âzone of privacy which government may not force [a person] to surrender to his detrimentâ exists under the Fifth Amendment.136 Because the constitutional guarantees created a zone of privacy, a âgovernmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.â137 In a concurring opin- ion, Justice Goldberg stated that, because personal liberties are grounded in âtraditions and conscience,â peopleâs liberties are ânot confined to the specific terms of the Bill of Rights.â138 After the Griswold decision, the Supreme Court and lower courts at first interpreted the scope of privacy rights to include a âseemingly disparate clus- ter of constitutional rights against government intru- sion.â139 As privacy rights evolved after Griswold, they came to include protection against âgovernment intrusion into a personâs mind and thought processes,â140 âintrusion into a personâs zone of private seclusion,â141 and âintrusion into a personâs right to make certain personal decisions, such as whether to use contraceptives or have an abortion.â142 However, more recently the Supreme Court and other courts have limited the zone of privacy estab- lished by the Griswold case and its progeny.143 In 1987, in Borucki v. Ryan,144 the First Circuit agreed 124 J. Thomas McCarthy, 1 the riGhtS of Publicity anD PriVacy, 2017 ed. at Â§ 1.6, p. 9 n. 4 (citing United States Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 761, 109 S. Ct. 1468, 1775â76, 103 L. Ed. 2d 774, 788 (1989)), hereinafter referred to as âMcCarthy.â 125 Ken Gormley, One Hundred Years of Privacy, 1992 WiS. l. reV. 1335, 1361 (1992). 126 McCarthy, supra note 124, at Â§ 5.57, p. 498. 127 Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 harV. l. reV. 193 (1890), hereinafter referred to as âWarren & Brandeis.â 128 McCarthy, supra note 124, at Â§ 1.10, pp. 16â17. The authors posited that an individual should have a legal remedy when the press âoverstep[s] in every direction â¦ the obvious bounds of propriety and of decency.â Warren & Brandeis, supra note 127, at 196. Although Warren and Brandeis recognized six limitations on the right to privacy, they argued that society should uphold an individualâs privacy rights and that a violation of privacy rights should be remediable either by compensation or in rare cases by an injunction. Id. at 219â20. 129 McCarthy, supra note 124, at Â§ 1.16, p. 25, n.1 (citing Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y. 1902)). 130 Id. at Â§ 1.17 (citing Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (Ga.1905)). 131 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965). 132 Id. at 485â86, 85 S. Ct. at 1682, 14 L. Ed. 2d at 515â16. 133 Id. at 480, 85 S. Ct. at 1679, 14 L. Ed. 2d at 512 (citing conn. Gen. Stat. Â§Â§ 53-32, 54-196 (1958)). 134 Id. at 481, 85 S. Ct. at 1679, 14 L. Ed. 2d at 512. 135 Id. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 514 (citation omitted). 136 Id. at 484, 85 S. Ct. at 1681, 14 L. Ed. 2d at 515. 137 Id. at 485, 85 S. Ct. at 1682, 14 L. Ed. 2d at 516 (internal citation omitted). 138 Id. at 486, 85 S. Ct. at 1683, 14 L. Ed. 2d at 516 (Goldberg, J., concurring). 139 McCarthy, supra note 124, at Â§ 5.57, p. 498. 140 Id. & n.1 (citing Ramie v. City of Hedwig Village, Tex., 765 F.2d 490, 492 (5th Cir. 1985)). 141 Id. n.3 (citing Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969)). 142 Id. pp. 498â99. See Paul v. Davis, 424 U.S. 693, 713, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976) and Bowers v. Hard- wick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). 143 James D. Phillips & Katharine E. Kohm, Current and Emerging Transportation Technology: Final Nails in the Coffin of the Dying Right of Privacy, 18 rich. J. l. & tech. 1, 6 (2011â2012), hereinafter referred to as âPhillips & Kohm.â 144 827 F.2d 836 (1st Cir. 1987).
13 that since the Griswold decision a ââright of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.ââ145 Never- theless, the court held that the right to privacy does not emanate from the âpenumbra of other funda- mental rightsâ but is âfoundedâ in the Fourteenth Amendmentâs âconcept of personal liberty.â146 The Borucki court recognized that the Third and Fifth Circuits had held âthat there is an independent right of confidentiality applicable to personal information contained in medical, financial, and other personal records.â147 However, the court held that the â[t]he personal rights found in this guarantee of personal privacy must be limited to those which are âfunda- mentalâ or âimplicit within the concept of ordered libertyâ¦.ââ148 Although the court recognized that â[m]ost of the courts finding a right of confidentiality had used a balancing test to assess violations of that right,â149 the First Circuit held that the plain- tiff âs complaint based on the prosecutorâs disclosure of information about the plaintiff âs competency to stand trial in another case failed to state a claim.150 In 1998, in Kallstrom v. City of Columbus,151 the Sixth Circuit held that it is only when an individu- alâs privacy interest is one of âconstitutional dimen- sionâ that the court will find it necessary to âbalance an individualâs interest in nondisclosure of infor- mational privacy against the publicâs interest in and need for the invasion of privacyâ¦.â152 More- over, as the same court would explain later in 2008 in Lambert v. Hartman,153 the Supreme Court has identified only two types of interests that come within the substantive due process protection of the Fourteenth Amendment. The first interest has to do with âindependence in making certain kinds of important decisions,â such as âmatters relating to procreation, marriage, contraception, family relationships, and child rearing and educa- tion.â154 The second privacy interest recognized by the Supreme Court is âin avoiding disclosure of personal matters.â155 Nevertheless, in regard to a privacy interest in avoiding disclosure of personal data, the Sixth Circuit stated in Lambert that the court had ârecognized an informational-privacy interest of constitutional dimension in only two instances: (1) where the release of personal information could lead to bodily harmâ¦and (2) where the information released was of a sexual, personal, and humiliating natureâ¦.â156 Neither of the two categories seems to apply to transit agenciesâ use of video surveillance for the purposes described in part II of this digest. The Lambert court stated that the holdings in Whalen v. Roe157 and in Nixon v. Administrator of General Services158 had been ânarrowly construedâ so as ââto extend the right to informational privacy only to interests that implicate a fundamental liberty interest.ââ159 The Lambert courtâs analysis appears to impose an additional requirement before a constitu- tional privacy interest would be implicatedâthe stateâs action in disclosing personal data must have âcreated a special dangerâ that led to the plaintiff âs harm or humiliation.160 The Lambert court was clear that the governmentâs disclosure, for example, of a personâs Social Security number does not rise to the level of a âfundamental rightâ or a right that is ââdeeply rooted in this Nationâs history and traditionâ or âimplicit in the concept of ordered liberty.ââ161 As noted, privacy law in the United States is largely a creature of state law. At least one Supreme Court justice has suggested that state legislatures are better suited than are the federal courts to 145 Id. at 839 (quoting Roe v. Wade, 410 U.S. 113, 152, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)). 146 Id. discussing Whalen v. Roe, 429 U.S. 589, 598â99 n. 23, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)). 147 Id. at 845 (citing United States v. Westinghouse Elec- tric Corp., 638 F.2d 570 (3rd Cir. 1980); Plante v. Gonzalez, 575 F.2d 1119, 1132 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S. Ct. 1047, 59 L. Ed. 2d 90 (1979); Duplantier v. United States, 606 F.2d 654, 670 (5th Cir. 1979), cert. denied, 449 U.S. 1076, 101 S. Ct. 854, 66 L. Ed. 2d 798 (1981); and Fadjo v. Coon, 633 F.2d 1172 (5th Cir. 1981)). 148 Id. at 839 (some internal quotation marks and cita- tions omitted). 149 Id. at 848 (citations omitted). 150 Id. at 849. 151 136 F.3d 1055 (6th Cir. 1998) (overruled in part as stated in Frost v. Blom, No. 10-1176, 2011 U.S. Dist. LEXIS 52571, at *12 (W.D. Mo. May 17, 2011) (stating that the Eighth Circuit has rejected the Kallstrom decision because the court âerroneously applied a negligence standard instead of the subjective deliberate indifference standardâ) (citation omitted)). 152 Id. at 1061 (citation omitted). 153 517 F.3d 433 (6th Cir. 2008). 154 Id. at 440 (citations omitted) (internal quotation marks omitted). 155 Id. (citations omitted) (internal quotation marks omitted). 156 Id. 157 Whalen v. Roe, 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977) (Supreme Court unanimously holding that New York State had the right to collect data about indi- viduals and create a database if for the public good and with adequate security measures taken to protect the privacy and identification of individuals). 158 433 U.S. 425, 97 S. Ct. 2777, 53 L. Ed. 2d (1977). 159 Lambert, 517 F.3d at 440 (citation omitted). 160 Id. at 439 (citations omitted). 161 Id. at 443 (citations omitted).
14 decide whether privacy rights should be enlarged. In a concurring opinion in Riley v. California,162 Justice Alito stated, In light of these developments [the growing privacy concerns of modern technology], it would be very unfortu- nate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred.163 Justice Alitoâs opinion is that the âCourt is poorly positioned to understand and evaluateâ sensitive privacy interests arising, for example, from the use of modern cell phones.164 Presently, there is neither a âspecific constitu- tional right to privacy,â nor is there a constitutional right to privacy in oneâs personal or locational infor- mation, such as may be implicated by video surveil- lance systems.165 Thus, there is no constitutional prohibition of the government, or more particularly, of government-owned transit agencies to use video surveillance. Another factor that augurs well for the constitutionality of transit agenciesâ use of video surveillance is that transit agencies give notice to transit customers and others that they are subject to video surveillance.166 In some court decisions, prior notice of government actions has been crucial in upholding their legality.167 B. The Fourth Amendment and a Constitutional Right to Privacy This part of the digest discusses whether a government-owned transit agencyâs use of video surveillance violates a personâs rights under the Fourth Amendment by observing that person in a public place, or even recording and archiving a personâs images for a specified period, without a warrant. Under the Fourth Amendment, âwarrant- less searches are permissible only when an individ- ual has a substantially reduced expectation of privacy.â168 Although the collection or disclosure of video surveillance data by government agencies may raise privacy concerns, the courts have held that a personâs reasonable expectation of privacy is reduced when the privacy interest concerns travel or other activities conducted in public.169 In Katz v. United States,170 the Supreme Court held that because the FBI failed to obtain a warrant prior to listening to and recording the petitionerâs conversations, the petitionerâs conviction had to be reversed.171 Relevant to the issue of the use of video surveillance, however, is that the Katz Court stated that, âThe Fourth Amendment cannot be translated into a general constitutional âright to privacy.â172 Furthermore, âWhat a person knowingly exposes to the publicâ¦is not a subject of Fourth Amendment protection.â173 Although Supreme Court precedents since Katz fail to show a âclear patternâ on what the âacceptable limits of government actionâ are under the Fourth Amendment,174 the Supreme Court âhas not found information about an individualâs activities in public to be protected.â175 A case relevant to whether a government-owned transit agencyâs use of video surveillance could violate the Fourth Amendment is United States v. Knotts,176 a 1983 decision. In Knotts, Minnesota law enforcement officers had placed a beeper in a drum containing chloroform purchased by the respondentâs codefendants to track them from Minnesota to a cabin in Wisconsin.177 The law enforcement agents obtained a search warrant for the cabin, discovered a drug lab on the premises, and charged the respondent with conspiracy to manufac- ture controlled substances.178 The respondent argued that his conviction had to be reversed because the use of the beeper to track his movements violated his right to privacy under the Fourth Amendment.179 The Knotts Court held that there is âno reason- able expectation of privacyâ for âa person traveling in an automobile on public thoroughfares.â180 Thus, 162 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). 163 Id. at 2497, 189 L. Ed. 2d at 456 (Alito, J., concurring). 164 Id. at 2497, 189 L. Ed. 2d at 455. 165 Phillips & Kohm, 143 note 137, at 4. 166 See Appendix C, transit agenciesâ responses to question 16. 167 Slobogin, supra note 23, at 297 quoting United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S. Ct. 3074, 3084, 49 L. Ed. 2d 1116, 1129 (1976), and at 298 quoting Natâl Treas. Employees Union v. Von Raab, 489 U.S. 656, 672, 109 S. Ct. 1384, 1394, 103, L. Ed. 2d 635, 706 (1989). 168 Bourgeois v. Peters, 387 F.3d 1303, 1314 (11th Cir. 2004). 169 Id. at 1314â15 (citations omitted). 170 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Some courts regard the Katz decision as having been abrogated or superseded. See, e.g., State v. Earls, 214 N.J. 564, 70 A.3d 630 (2013) (stating abrogated) and United States v. Koyomejian, 946 F.2d 1450 (9th Cir. Cal. 1991) (stating superseded). 171 Katz, 389 U.S. at 358â59, 88 S. Ct. at 515, 19 L. Ed. 2d at 586. 172 Id. at 350, 88 S. Ct. at 510, 19 L. Ed. 2d at 581 (footnotes omitted). 173 Id. at 351, 88 S. Ct. at 511, 19 L. Ed. 2d at 582 (citation omitted). 174 Phillips & Kohm, supra note 143, at 35. 175 Douma & Deckenbach, supra note 122, at 305. 176 460 U.S. 276, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). 177 Id. at 277, 103 S. Ct. at 1083, 75 L. Ed. 2d at 59. 178 Id. at 277â79, 103 S. Ct. at 1084, 75 L. Ed. 2d at 59â60. 179 Id. at 279, 103 S. Ct. at 1084, 75 L. Ed. 2d at 60. 180 Id. at 281, 103 S. Ct. at 1085, 75 L. Ed. 2d at 62.
15 law enforcement could place a beeper in a container and monitor the movements of the car in which the defendant placed the container.181 The only issue in Knotts was whether the monitoring of the car, not the installation of the beeper in the container, was a violation of the Fourth Amendment. The Court held that the governmentâs action in monitoring the beeper signals was neither a âsearchâ nor a âseizureâ within the meaning of the Fourth Amendment; therefore, a warrant was not required.182 The Court reversed the appellate courtâs reversal of the appel- lantâs conviction.183 Likewise, regarding a transit customerâs public activity, in 1999 in Wyoming v. Houghton,184 the Supreme Court held that a police officerâs search of a passengerâs purse during a traffic stop was a legiti- mate exception to the warrant requirement of the Fourth Amendment. The Court, in an opinion by Justice Scalia, held that although the search intruded on the passengerâs privacy, âthe governmental inter- ests at stake [were] substantial.â185 Furthermore, because a passengerâs privacy interests are âconsid- erably diminishedâ186 when the passenger is travel- ing on a public thoroughfare, the weighing of the passengerâs and the governmentâs interests âmilitate in favor of the needs of law enforcement.â187 Being on a public highway or a public transit system does not obviate completely, of course, a personâs right to a reasonable expectation of privacy protected by the Fourth Amendment. In 2009, in Arizona v. Gant,188 the Court stated that â[a]lthough we have recognized that a motoristâs privacy inter- est in his vehicle is less substantial than in his homeâ¦the former interest is nevertheless impor- tant and deserving of constitutional protection.â189 Thus, in 2012, in United States v. Jones,190 the Supreme Court held that the governmentâs installa- tion without a warrant of a GPS device on a vehicle to monitor the vehicle was a search under the Fourth Amendment. Over a four-week period, the device relayed over 2,000 pages of data, allowing the government to obtain a multiple count indictment. The district court suppressed the admission of data obtained while the Jeep was parked in a garage adja- cent to the Jonesâ residence but allowed the admission of the remaining data on the basis that ââ[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his move- ments from one place to another.ââ191 The District of Columbia Circuit Court reversed the conviction because of the admission of evidence obtained by the âwarrantless use of the GPS deviceâ¦.â192 In an opinion by Justice Scalia, the Supreme Court unanimously affirmed the circuit courtâs decision. Justice Scalia explained that the Court was not aban- doning prior precedent that a violation of the Fourth Amendment occurs when government officers violate a personâs ââreasonable expectation of privacyâ¦.ââ193 Justice Scalia further explained that the Courtâs deci- sion in Jones was entirely consistent with its prior decisions because âthe Katz reasonable-expectation-of- privacy test has been added to, not substituted for, the common-law trespassory test.â194 In other cases, the government had installed a beeper in property that belonged to a third party with the consent of the origi- nal owner of the property and before the property came into the possession of the defendant; thus, in those cases there was no violation of the Fourth Amend- ment.195 In this case, Jones possessed the Jeep before âthe Government trespassorily inserted the informa- tion-gathering device,â a detail that put the Jones case âon a much different footing.â196 Thus, the âphysical intrusionâ that occurred in the Jones case âwould have been considered a âsearchâ within the meaning of the Fourth Amendment when it was adopted.â197 Relevant to this digest is the fact that Justice Scalia stated in Jones that â[s]ituations involving merely the transmission of electronic signals without trespassâ¦ remain subject to Katz analysis.â198 To date, the Court has ânot deviated from the understanding that mere visual observation does not constitute a search.â199 Justice Scalia reiterated that ââ[a] person traveling in an automobile on public thoroughfares has no 181 Id. at 277â80, 103 S. Ct. at 1083â84, 75 L. Ed. 2d at 59â60. 182 Id. at 284â85, 103 S. Ct. at 1087, 75 L. Ed. 2d at 64. 183 Id. at 285, 103 S. Ct. at 1087, 75 L. Ed. 2d at 64. 184 526 U.S. 295, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999). 185 Id. at 304, 119 S. Ct. at 1302, 143 L. Ed. 2d at 417. 186 Id. at 306, 119 S. Ct. at 1302, 143 L. Ed. 2d at 417. 187 Id. at 306, 119 S. Ct. 1303, 143 L. Ed. 2d at 418. 188 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009) (holding that the police are authorized to search a vehicle incident to an arrest only when the person under arrest was unsecured and within reaching distance of the passenger compartment at the time of the search). 189 Id. at 345, 129 S. Ct. at 1720, 173 L. Ed. 2d at 497. 190 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). 191 Id. at 403, 132 S. Ct. at 948, 181 L. Ed. 2d at 917 (citation omitted). 192 Id. at 400, 132 S. Ct. at 946, 181 L. Ed. 2d at 915 (citation omitted). 193 Id. at 406, 132 S. Ct. at 950, 181 L. Ed. 2d at 919 (citations omitted). 194 Id. at 409, 132 S. Ct. at 952, 181 L. Ed. 2d at 921 (emphasis in original). 195 Id. 196 Id. at 410, 123 S. Ct. at 952, 181 L. ED. 2d at 921. 197 Id. at 404â05, 132 S. Ct. at 949, 181 L. Ed. 2d at 920. 198 Id. at 411, 132 S. Ct. at 954, 181 L. Ed. 2d at 922 (emphasis in original). 199 Id. at 412, 132 S. Ct. at 953, 181 L. Ed. 2d at 922 (citing Kyllo, 533 U.S. at 31â32, 121 S. Ct. 2038, 150 L. Ed. 2d at 941).
16 reasonable expectation of privacy in his movements from one place to another.ââ200 A violation of the Fourth Amendment occurs when the government violates a personâs reasonable expecta- tion of privacy without a warrant.201 However, the use by transit agencies of video surveillance does not involve a warrantless physical trespass and search as occurred in the Jones case. Notably, the Jones Court did not decide whether the collection of the same informa- tion electronically and non-trespassorily that is avail- able by visual observation would be an unconstitutional invasion of privacy. The Court stated that an attempt to answer that question in the Jones case would âlead us needlessly in additional thorny problems.â202 Never- theless, the Courtâs opinions in Gant and Jones, supra, illustrate the Supreme Courtâs appreciation of the privacy issues presented by the use of technology to collect and retain data on individuals. In a concurring opinion in Jones, Justice Sotomayor observed that the use of electronic surveillance may ââalter the relation- ship between citizen and government in a way that is inimical to democratic society.ââ203 In 2014, although the case did not involve video surveillance data, the Supreme Court held in Riley v. California204 that, absent a warrant, the police may not search digital information on a cell phone seized from an individual who has been arrested.205 Because cell phones contain âvast quantities of personal infor- mation,â searches of cell phones are distinguishable from other physical searches.206 Searches of cell phones âimplicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.â207 Finally, the Court observed that the âfact that technology now allows an individual to carry such [private] information in his hand does not make the information any less worthy of the protec- tion for which the Founders fought.â208 The courts have upheld the constitutionality of video surveillance on various grounds; for example, public video surveillance is not a âsearchâ within the meaning of the Fourth Amendment.209 Moreover, the Fourth Amendment does not bar all warrantless searches, only warrantless searches that are unrea- sonable.210 Thus, a warrant is not required to conduct public video surveillance because the surveillance of matters that are visible to ordinary observation is not an unreasonable search.211 As one commentator states, the assumption is that courts in the United States are not likely to find unregulated public camera viewing inimical to the Constitution or any other established body of law.â¦ [A]ll courts that have considered application of the Fourth Amendment to cameras aimed at public streets or other areas frequented by a large number of people have declared that such surveillance is not a search, on the ground that any expectation of privacy one might have in these areas is unreasonable.212 Accordingly, the Supreme Court has held that aerial surveillance of a homeâs curtilage or property outside a factory conducted from a plane or helicop- ter is not a search that is subject to the Fourth Amendment.213 The Court has allowed âgeneralized suspicionless surveillance [in] workplaces, schools, 200 Id. at 412, 132 S. Ct. at 953, 181 L. Ed. 2d at 923 (citation omitted). 201 Id. at 406, 132 S. Ct. at 950, 181 L. Ed. 2d at 919. 202 Id. at 412, 132 S. Ct. at 954, 181 L. Ed. 2d at 923. 203 Id. at 416, 132 S. Ct. at 956, 181 L. Ed. 2d at 925 (Sotomayor, J., concurring) (quoting United States v. Cuevas-Perez, 640 F.3d 272, 285 (7th Cir. 2011) (vacated and remanded, 2012 U.S. LEXIS 1667 (U.S., Feb. 21, 2012))). 204 573 U.S.____, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014). 205 Id., 134 S. Ct. at 2485, 2495, 189 L. Ed. 2d at 442, 452. 206 Id. at 2485, 189 L. Ed. 2d at 442. 207 Id. at 2489, 189 L. Ed. 2d at 446. 208 Id. at 2495, 189 L. Ed. 2d at 452. 209 Video Surveillance and the Constitution of Public Space, supra note 108 at 1357 (footnote omitted). 210 Id. at 1359. 211 Id. at 1379. 212 Slobogin, supra note 23, at 235â36, n. 106 (citing United States v. Jackson, 213 F.3 1269, 1281 (10th Cir. 2000) (covert video cameras on a telephone pole overlooking out- side of defendantsâ residences); United States v. Reed, 2000 U.S. App. LEXIS 22684, *8 (9th Cir. 2000) (covert video of shared hallway of an apartment complex); United States v. McIver, 186 F.3d 1119 (9th Cir. 1999) (unmanned video in national forest); Rodriguez v. United States, 878 F. Supp. 20, 24 (S.D.N.Y.1995) (covert video surveillance of activities on public street); Vermont v. Costin, 720 A.2d 866, 867 (Vt. 1998) (covert video of private but unposted fields 150 yards from defendantâs house); State v. Augafa, 992 P.2d 723, 732â33 (Haw. Ct. App. 1999) (video of defendant on public sidewalk using camera on a pole nearby); McCray v. State, 581 A.2d 45, 47â48 (Md. App. 1990) (covert video of defendant crossing the street); Vega-Rodriguez v. Puerto Rico Tel. Co., 110 F.3d 174, 181 (1st Cir. 1997) (covert video of workers in an âopen and undifferentiated work areaâ); Michigan v. Lynch, 179 Mich. App. 63, 445 N.W.2d 803 (1989) (covert video of com- mon area of restroom); Young v. State, 849 P.2d 336, 340â42 (Nev. 1993) (covert video of door-less bathroom stall); Sponick v. City of Detroit Police Dept., 49 Mich. App. 162, 211 N.W.2d 674 (1973) (covert video of defendant talking in public bar); United States v. McMillon, 350 F. Supp. 593 (D.D.C. 1972) (video of backyard not a search); People v. Wemette, 728 N.Y.S.2d 805, 805 (N.Y. App. Div. 2001) (videotaping defen- dant on his open front porch exposed to plain view of public did not infringe any reasonable expectation of privacy); State v. Holden, 964 P.2d 318, 320â22 (Utah Ct. App. 1998) (video- tape of front yard from neighborâs window not a search). But see United States v. Cuevas Sanchez, 821 F.2d 248 (5th Cir. 1986) (prolonged video surveillance of backyard is a search)). 213 Blitz, supra note 90, at *44 (citing Florida v. Riley, 488 U.S. 445, 449â50 (1989) (plurality opinion) (curtilage of a home); Dow Chem. Co., 476 U.S. at 239 (industrial complex); California v. Ciraolo, 476 U.S. 207, 217, 106 S. Ct. 1809, 1814, 90 L. Ed. 2d 210, 219 (1986) (curtilage of a home)).
17 and high security zones, where people are already subject to a substantial degree of oversight and constraint.â214 As one source notes, â[e]ven in the absence of any information that a terrorist attack is âimminentââ¦courts have allowed ongoing suspicion- less searches to detect weapons at airports and federal buildings.â215 C. Whether a Person in Public Retains a Right to Anonymity There are no meaningful constraints on âsophisti- cated technology that allows the government to watch, zoom in on, track, and record the activities of anyone, anywhere in public, twenty-four hours a dayâ¦.â216 Although there may not be a reasonable expectation of privacy in public places, there is some authority for the proposition that most people have a reasonable expectation of retaining their anonym- ity, even in a public place.217 Besides the Fourth Amendment, one argument is that a right to anonymity is protected by the rights of freedom of speech and association guaranteed by the First Amendment and by a constitutional right to travel. In Watchtower Bible & Tract Socây of N.Y. v. Strat- ton,218 based on the First Amendment, the Supreme Court invalidated an ordinance that required a person to obtain a permit, which contained the personâs name, prior to engaging in door-to-door advocacy of a political cause. The Court stated, As our cases involving distribution of unsigned handbills demonstrate, there are a significant number of persons who support causes anonymously. âThe decision to favor anonym- ity may be motivated by fear of economic or official retalia- tion, by concern about social ostracism, or merely by a desire to preserve as much of oneâs privacy as possible.ââ¦The requirement that a canvasser must be identified in a permit application filed in the mayorâs office and available for public inspection necessarily results in a surrender of that anonym- ityâ¦. [T]he Court of Appeals erred in concluding that the ordinance does not implicate anonymity interests.219 In McIntyre v. Ohio Elections Commission,220 Justice Stevens likewise stated that â[t]he decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of oneâs privacy as possible.â221 Nevertheless, based on Supreme Court precedents the First Amendmentâs guarantees of free speech or associa- tion are not âlikely to provide a basis for constitu- tional regulation of most public surveillance, at least when it is visual only.â222 Another argument is that there is a right to anonymity based on a constitutional right to travel, a right that is arguably âcompromisedâ when the public is subjected to video surveillance.223 In Saenz v. Roe,224 in an opinion by Justice Stevens, the Court stated, The word âtravelâ is not found in the text of the Constitu- tion. Yet the âconstitutional right to travel from one State to anotherâ is firmly embedded in our jurisprudence.â¦ Indeedâ¦the right is so important that it is âassertable against private interference as well as governmental actionâ¦a virtually unconditional personal right, guaran- teed by the Constitution to us all.â225 Nevertheless, although video surveillance may inhibit oneâs right to travel, the courts appear to be unlikely to hold that video surveillance of members of the public violates the Constitution.226 The use of video surveillance by transit authorities also appears to satisfy the Supreme Courtâs proportion- ality test, a test that balances an intrusion into oneâs Fourth Amendment rights against a legitimate government interest for the intrusion.227 Dispropor- tionate targeting of individuals, on the other hand, could be held to be unconstitutional.228 To conclude part IV, the courts have not held that individuals have a reasonable expectation of privacy, âat least in that information which they fail to conceal,â when they are in the public realm âin streets, parks, and highwaysâ¦.â229 Present case law strongly suggests that transit agenciesâ use of video surveillance, such as on buses or trains or in stations or on platforms, does not violate the Constitution. Moreover, transit agencies provide customers and other members of the public with notice that they are subject to video surveillance. 214 Video Surveillance and the Constitution of Public Space, supra note 108, at 1362 & n.73 (citing Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) and Skinner v. Ry. Labor Executivesâ Assân, 489 U.S. 602, 627 (1988)). 215 Id. at 1451 (footnotes omitted). 216 Slobogin, supra note 23, at 215. 217 See, e.g., Video Surveillance and the Constitution of Public Space, supra note 108, at 1364. See also, Guide- lines for Public Video Surveillance, supra note 6, at 8 (stating that â[m]ost people expect to remain anonymous in many âpublicâ contextsâ) (footnote omitted). 218 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002). 219 Id. at 166, 122 S. Ct. at 2089â90, 153 L. Ed. 2d at 219â20. 220 514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995). 221 Id. at 341â42, 115 S. Ct. at 1516, 131 L. Ed. 2d at 436. 222 Slobogin, supra note 23, at 253. 223 Id. at 258. 224 526 U.S. at 489, 119 S. Ct. at 1518, 143 L. Ed. 2d at 689 (1999). 225 Id., 526 U.S. at 498, 119 S. Ct. at 1524, 143 L. Ed. 2d at 701 (citations omitted). 226 Slobogin, supra note 23, at 269. 227 Video Surveillance and the Constitution of Public Space, supra note 108, at 1455. 228 Slobogin, supra note 23, at 299, (discussing Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1966)). 229 Video Surveillance and the Constitution of Public Space, supra note 108, at 1357 (footnote omitted).