THE BLOG
05/06/2013 01:15 pm ET Updated Jul 06, 2013

The Boston Bombing, The Right of Privacy and Surveillance Cameras

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We live in a world of ever-shrinking individual privacy. More and more can be learned about us by friends and strangers alike by a quick search on the Internet. Businesses track our searches and our transactions and sell that information to others who can readily piece together a profile of our likes, our interests, the books we read, the movies we watch, and the names of our friends. The practice of using surveillance cameras to record our comings and goings is ever-expanding, and will certainly expand still further after the Boston bombings.

A central question is whether we do -- or should -- care about our privacy. Critics of the right of privacy argue that people have nothing to hide if they don't do anything wrong. The right of privacy therefore protects only wrongdoing and is thus not an important social value. Even worse, they argue, the right of privacy is really nothing more than a right to deceive others about who we really are and is therefore of negative social value.

According to these critics of the right of privacy, if you don't want others to know that you were once arrested for shoplifting or had an abortion or voted for Barack Obama or bought a pornographic novel or met a former lover for a drink or have a learning disability or are gay or spent a drunken weekend in Bermuda or have saggy breasts when naked, then what you are really doing is trying to mislead others into thinking that you are a "better" person than you really are. Why, they ask, should the law protect that interest? To keep such information private from those who would think less of us if they knew the truth, they argue, is just a form of personal false advertising.

Although this argument may be superficially intriguing, it is ultimately unpersuasive. The individual right of privacy is deeply engrained in our culture for many reasons. It protects the ordinariness of life. That is, it enables us to go about our business on a day-to-day basis without having constantly to worry that we will be judged by others now or in the future for everything we do. It enables people to live down their mistakes and to become better persons without forever being captive to the errors of the past. It frees people to make decisions and to lead their lives in ways that they believe to be right without having constantly to justify themselves to others who would condemn their decisions. That is, indeed, an important part of what it means to be free.

The right of privacy also recognizes that, human nature being what it is, we often place too much weight on what we deem to be the mistakes of others, leading us to judge them unreasonably. Indeed, the law recognizes this facet of human nature in many ways. In criminal trials, for example, jurors are prevented from learning of the prior crimes of the defendant, because such knowledge might prevent them from reaching a a fair and unbiased judgment about whether the defendant actually committed the crime at issue trial.

Finally, where the government is involved, there is a special dimension to the right of privacy. If the government could learn everything it wants about every one of us, it would be difficult if not impossible for citizens to keep in mind that the government works for them, rather than the other way around. The right of privacy is thus an essential element is preserving the citizen's own sense of dignity and autonomy vis a vis the government. This is critical to maintaining a system of political self-governance. Indeed, it is for these reasons that the Fourth Amendment expressly guarantees "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

This brings me, finally, to the question of surveillance cameras. There is no doubt that having such cameras in every public place will deter some types of crime. But constant and systematic searches of our homes, our persons, our cars, and our briefcases and purses would also deter some types of crime. The Fourth Amendment, like every constitutional guarantee of individual liberty, comes at a price.

In deciding whether surveillance cameras in public violate the Fourth Amendment, three issues are paramount. First, taken literally, the Fourth Amendment doesn't seem to deal with surveillance cameras because it deals only with "searches and seizures." Video surveillance isn't a seizure, but is it a "search"?

In the 1920s, in Olmstead v. United States, the Supreme Court first confronted the question whether wiretapping constituted a "search" within the meaning of the Fourth Amendment. The Court, over the dissenting votes of Justices Oliver Wendell Holmes and Louis Brandeis, held that at the time the Fourth Amendment was enacted a "search" required a physical intrusion into a physical place, such as a home, an envelope or a pocket. Applying this form of "originalism," the majority therefore held that a wiretap is not a "search" because it does not require the police to enter into the suspect's home.

In 1967, in Katz v. United States, the Supreme Court revisited and overruled Olmstead, holding that "the Fourth Amendment protects people, not places," and that the central question in defining a "search" is whether the government, in attempting to gather information about individuals, intrudes upon "reasonable expectations of privacy." Because people have "a reasonable expectation of privacy in the telephone conversations," a wiretap is a "search" even though it does not involve any physical intrustion into the individual's home or office.

The second question, then, is whether individuals have a reasonable expectation of privacy in their comings and goings in public. An originalist approach would say "no." At the time the Fourth Amendment was enacted no one thought that the police couldn't lawfully observe an individual's movements in public without satisfying the Fourth Amendment. That being so, is there any reason to treat the use of surveillance cameras as a "search"?

Here, I think it is important to consider what I have called the principle of conservation of privacy. With the development of technology, the government has a much greater ability to learn things about us than it could in past. As a practical matter, it was impossible for the government to follow all of our actions in public all the time. That gave us a sense of security and normalcy that in all likelihood the government was not monitoring our every movement and activity. This gave us a certain freedom to move about in public without having to worry that "Big Brother" was watching. A network of pervasive surveillance cameras would destroy that freedom. It therefore, it my view, does intrude upon a reasonable expectation of privacy, as it existed in the past.

Third, if the use of surveillance cameras does, then, constitute a "search" within the meaning of the Fourth Amendment, is the search "reasonable," as the Constitution requires? Here, I would argue that such surveillance on individuals in public is permissible only if the recordings can be accessed by the police only if they obtain a search warrant from a judge who has determined that the police have probable cause to believe that viewing the recording may reveal useful information in a criminal investigation. This seems to me the best way to reconcile the interest in individual privacy with the competing interest in effective law enforcement.