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Dow Jones & Company Inc Mar 26, 2002 Cameras are the hot new law-enforcement tool. I got caught two weeks ago by one that photographs cars entering the intersection as the light turns red. (My ticket just came in the mail.) Washington is setting up hundreds of cameras monitoring streets, federal buildings, Metro stations, and other locations. Police used cameras with face recognition technology at last year's Super Bowl to catch known fugitives.
Many of my libertarian friends are outraged by these cameras -- creeping Big Brotherism, they say. But the analysis can't be as simple as "surveillance bad, privacy good"; and at least in some situations, camera systems can promote both security and liberty.
To start, the problem isn't privacy. These cameras are in public places, where people's faces and cars are visible to everyone. The camera that caught me saw only what any passerby, and any police officer who might have been at the intersection, could lawfully see. Nor is this an "unreasonable search and seizure," in the words of the Fourth Amendment: The Supreme Court has recognized that observing things in plain public view isn't a "search" at all, much less an unreasonable one.
While we should be concerned with protecting our liberty and dignity from intrusive government actions, the red light cameras are less intrusive than traditional traffic policing. The law recognizes that even a brief police stop is a "seizure," a temporary deprivation of liberty. When I was caught on the camera, I avoided that. I avoided coming even briefly within a police officer's physical power, a power that unfortunately is sometimes abused.
I avoided the usual demeaning pressure to be especially submissive to the policeman in the hope that he might let me off the hook. I avoided any possibility of being pulled out and frisked, or my car being searched. I didn't have to wonder if I had been stopped because of my sex or race or age. And while cameras aren't perfectly reliable, I suspect that they can be made more reliable than fallibly human officers -- so I may even have avoided a higher risk of being wrongly ticketed. (It helps that the photos mailed with the ticket showed me in the driver's seat, plus my car's license plate and the precise place my car supposedly was when the light turned red.)
The main concern with cameras must be not individual privacy, but government power. Cameras are a tool, which can be used for good (to enforce good laws) or for ill -- to enforce bad laws, to track the government's political enemies, to gather ammunition for blackmail, and so on.
In this respect, they are like other policing tools: the guns that police officers carry, inter-department communication systems, wiretaps, even police forces themselves. Each of these tools can be abused, and have been abused. But we accept this risk, because the tools are valuable, and because we've set up control systems that can help diminish the risk.
So we have to consider each camera proposal on its own terms, and ask what I call the Five Surveillance Questions: What concrete security benefits will the proposal likely provide? Exactly how might it be abused? Might it decrease the risk of police abuse rather than increase it? What robust control mechanisms can be set up to help diminish the risk of abuse? And, most difficult, what other surveillance proposals is this proposal likely to lead to?
This analysis suggests that traffic cameras are a good idea, at least as an experiment. They seem likely to help deter traffic violators. They can't easily be abused. They decrease the discretionary and sometimes oppressive power of police over motorists. The big unknown is whether, once the cameras are set up, the data will eventually be used not just to catch red-light runners but to photograph and identify all drivers. More about that shortly.
Cameras in public places -- from ATM machines to convenience stores to streetlamps -- are also probably worth experimenting with. They can at least theoretically help catch some street criminals and deter others (though we should always realize that worthwhile-sounding crime control proposals may not work in practice). I'm not sure how much the cameras would help fight terrorism, as some people have suggested; but if they just catch street criminals, that's not chopped liver.
These cameras pose some risk of government abuse, from petty indignities (such as security guards using cameras to ogle women) to more serious abuse, such as officials trying to find possibly embarrassing behavior by their enemies. But they can also reduce the risk of government abuse: The camera that might videotape a mugging can also videotape police stops of citizens, providing evidence of possible misconduct and maybe even to some extent deterring such misconduct. And videotape evidence can decrease the risk that the wrong person will be arrested.
Connecting the cameras to face recognition software, keeping the recordings indefinitely rather than just recycling them after a few days, and merging the data in a centralized database would indeed pose a greater likelihood of abuse. Slippery slope arguments are often overstated, but in a legal and political system that relies heavily on precedent and analogy, the slippery slope is a real risk. Once voters get used to surveillance, they might become more tolerant of the government processing the data in various ways. And once the government invests money in cameras, voters might want to get the most law-enforcement bang for the buck by having the police store, merge and analyze the gathered data. This slippage isn't certain, but it's not implausible.
But even if slippage happens, it's important that the potential for abuse is limited and limitable. The danger isn't the government looking into homes, or tapping private telephone conversations. Rather, it's that cameras in public places will be abused by officials who want to harass or blackmail their political enemies.
There are such rotten apples in government. If you think that there are very many, and that law enforcement is fundamentally corrupt, you should oppose any extra tools for the police, since in your perspective the tools would more likely be used for ill than for good. But I don't take so dim a view. I think that for all its faults, law enforcement is filled mostly with decent people. And more importantly, good law enforcement is vitally necessary to the safety of citizens, of all classes and races.
Instead of denying potentially useful tools to the police, we should think about what control mechanisms we can set up to make abuse less likely. And we should recognize that some surveillance tools can themselves decrease the risk of government abuse rather than increase it.
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Mr. Volokh, a professor of law at the University of California, Los Angeles, is the author of "The First Amendment" (Foundation Press, 2001).
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