The technology has drawn the ire of political heavyweights across the spectrum -- from ultra-conservative Congressman Dick Armey (R-Texas) to the American Civil Liberties Union. The firestorm of protest, which has included demonstrators wearing Groucho Marx glasses parading before the cameras, underscores an increasingly important issue in the wired world: How much privacy can we expect in public places that are rapidly being transformed by technology?
CASTLE OR FORTRESS? To date, the law affords little privacy protection in public areas. According to the Fourth Amendment, a man's home is his castle. Outside the home, however, citizens don't have a "reasonable expectation" of privacy. That concept may have to be refined. As technology evolves, privacy is eroding -- not just in the cyberworld but everywhere. We need to expand our notion of privacy in light of new technologies such as facial-recognition software. Otherwise, we'll soon find that no one can "reasonably" expect any privacy at all.
Privacy protection is at its zenith inside the home -- as long as no one can see inside. Likewise, a person's car trunk, garden, or phone line. The courts have long required law-enforcement officials to seek explicit judicial consent before tapping the phones of private citizens. "The courts see privacy as equivalent to secrecy," says Daniel Solove, a professor of Fourth Amendment Law at Seton Hall University. "Once you expose something to someone else, you lose all rights to privacy."
Take the 1989 case, Riley v. Florida. The Pasco County Sheriff's office received an anonymous tip that marijuana was being grown on private property. However, the investigating officer couldn't observe the contents of a greenhouse on the property, which was enclosed on two sides and obscured from view on the other sides by trees and shrubs. To get a better look, the officer twice circled over the property in a helicopter at the height of 400 feet and made naked-eye observations through openings in the greenhouse roof. In a 5-4 ruling, the Supreme Court concluded that the Fourth Amendment didn't protect Riley's privacy because anyone traveling in the public airways at the legal altitude of 400 feet would have been able to view the illegal plants.
TURNING UP THE HEAT. That was a close ruling. So was Kyollo v. United States, a 5-4 ruling from June, 2001. In it, the court registered -- for the first time -- a concern about the growing use of sophisticated technology surveillance. Justice Antonin Scalia wrote the majority opinion, which held that the government acted unreasonably when it aimed a thermal-imaging device at a suspect's house and surmised, from the high levels of heat on the exterior walls, that he was using lamps to grow marijuana inside. Justice Scalia declared that when government agents use surveillance technology that isn't ordinarily used by the general public to explore details of the home, the surveillance is unreasonable without a search warrant.
Privacy advocates see the judgment as a victory. But the verdict fails to draw a decisive line between what is public and private. For example, what happens when heat-imaging detectors cost $50 at Wal-Mart? Does it become permissible then? By the same token, current case law fails to reflect the increased transparency of our lives today. People send private e-mails from airport kiosks, make private cell-phone calls in public parks, and use instant-messenger systems for private conversations. Clearly, one can't have the same expectation of privacy as in their bedroom, but what are the limits in these cases?
Using cameras to enforce traffic laws has helped reduce violations
One sensible approach would be putting in place the same privacy principles advocates call for in the online world: notice and choice. Well-placed signs informing people in Ybor City about the facial-recognition cameras would be a step in the right direction. Another example: In Colorado, the Department of Motor Vehicles want to run facial-recognition software across the state drivers' license database to prevent identity theft. The idea would be more palatable if each citizen could choose if he wants a digital likeness on file.
"We don't need to be modern-day Luddites. We need to say what kinds surveillance technology are appropriate and under what circumstances," says Mike Pheneger, secretary of the Florida chapter of the American Civil Liberties Union.
Moreover, surveillance should be more narrowly targeted. The Ybor City incident is scary because the cameras track every passerby indiscriminately. By contrast, posting well-marked cameras at street intersections to catch red-light runners lets every driver know that this activity is illegal and dangerous. A study by the Institute for Highway Safety showed that red-light running violations dropped 42% after cameras were introduced in Oxnard, Calif. Similarly, violations declined about 40% in Fairfax, Va., after one year of camera enforcement. Red-light cameras are also acceptable because, in many ways, they do the job better than the police: A cop chasing a red-light runner may be forced to run the light himself, putting other drivers and himself in danger.
POWER VS. PRIVACY. Some experts don't believe surveillance technology is an invasion of privacy at all. "We need to stop thinking it's a privacy issue. This is a concern about government power," says Eugene Volokh, a professor of Fourth Amendment Law at the University of Southern California. Volokh argues that technology increases police power to enforce questionable laws. Better to evaluate the laws themselves, he argues, than the technology that makes it possible to bust lawbreakers.
I disagree. Electronic surveillance is more prevalent than people realize and it's only going to proliferate. It may be perfectly legal. But that doesn't make it right. At the heart of this debate is this question: What kind of society we want to live in? Justice Louis Brandeis characterized privacy or the "right to be let alone" as "the most comprehensive of the rights of man and the right most valued by civilized men." In our search for answers, that strikes me as a good place to start. Black covers privacy issues for BusinessWeek Online. Follow her twice-monthly Privacy Matters column, only on BW Online