By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy and Technology Project at 11:06am
There has been a lot of attention recently to the issue of audio recording being added to surveillance cameras on public buses. This issue first came onto our radar in 2009, but resurfaced again in Maryland in October (see this October Baltimore Sun article). In December the Washington Post and The Daily reported that the practice is spreading widely across the United States.
In recent decades video surveillance cameras have become commonplace in our public spaces-a trend that appears bound to increase as cameras get cheaper, smaller, and easier to connect, and as images get easier to store. The arc is long for the chilling effects of cameras but over time, if the trend continues, they will have unfortunate effects on our experience of public places.
But if we start allowing the addition of audio surveillance to all those cameras, that will be an enormous and significant new assault on our privacy-one that will really reshape the character of public life in America.
I spoke recently with my ACLU colleague David Rocah, staff attorney at the ACLU of Maryland, who has been on top of this issue since it first arose there. He told me how it has unfolded:
In July 2009, the MTA [Maryland Transit Administration] sought an opinion from the state attorney general on whether turning on the audio recording capability of the pre-existing video cameras on the agency's buses would violate the state wiretap act. Once the request became publicly known, reporters immediately called us, and we expressed our view that the audio recording would be an illegal invasion of privacy. There was also opposition expressed by important state legislators from both parties. The MTA quickly decided to shelve the proposal.
The following year, and each year since, we've seen legislation that would have not only authorized the MTA to turn on audio recording, but required it. We and others opposed that legislation, and it has never made it out of committee, and never gone anywhere.
Then, in October of this year, the MTA announced that despite that history, they were just going to go ahead and do it, as a pilot program on 10 buses, with the intent to expand it to their entire fleet.
This time we affirmatively sent out a press statement saying "you shouldn't do it." Legislators reached out to us concerned about the invasion of privacy and expressing their interest in introducing legislation to prohibit it. Now it looks like bills will be offered that will say audio cannot be turned on all the time, but only by bus operators in response to some safety incident on the bus. The most protective option would have been to just prohibit audio recording altogether, but this proposal seems to me to be adequately privacy protective. So that's where things stand now.
A basic question about this audio recording, of course, is its legality. In Maryland, David hopes that this can be addressed through legislation, not litigation. We do think it's illegal, but, given the problematic state of today's Fourth Amendment jurisprudence, it would not be a slam dunk in the courtroom. David, who has of course been thinking about the legal issues around this practice, explains:
The primary claim would be under the state wiretap act, which prohibits recording a "private conversation" without consent. So the question would be whether this is a private conversation, which the courts have said is one where there's a "reasonable expectation of privacy." Normally, you would borrow from Fourth Amendment jurisprudence, where courts frequently say that the fact that something takes place in public means that there isn't a reasonable expectation of privacy.
But I think this type of situation and context hasn't actually been addressed by the courts. It's too simplistic to say, "because it's a public place, you can't have any reasonable expectation of privacy, since when you're in public you always run the risk that someone may be nearby who will overhear it."
The usual circumstance where a third party recording comes up in a public place is when someone happens to hear something, and happens to be recording. But that's not the same as recording that's pervasive and continuous, like what the MTA is doing. On each bus there are six cameras-so if they go through with this that would be six microphones, and logic tells you that six mics on a bus are going to pick up most of what is said on the bus.
This, it seems to me, is a different situation-where the government is destroying the possibility of saying something private in a public place. In reality there have always been lots of circumstances where you could be private even though you're in a public space, in the sense that if you're the only two people on a bus, and the only other person is the driver up front. You could talk in a low voice to your heart's content, and the driver would never hear you, and you would know who's on the bus, and so you could have a private conversation and be perfectly assured that no one would overhear. And I don't think the government should be in the business of destroying that possibility.
You could argue that at some level it's trivial to talk about it in the context of only public transportation-how important is it really to have private conversations on buses? But what's at stake here is the principle of the government audio-surveilling our public spaces, and creating a situation where we can't have a confidential or private conversation unless we lock ourselves up in our houses. And that's inimical to the Fourth Amendment. I don't think there are any cases involving that kind of pervasive audio monitoring. But the Supreme Court has left open-in cases like US v Knotts and US v Jones-the argument that there's a crucial distinction between happening to overhear something, and pervasive surveillance.
This is not only a legal issue but also a policy issue, of course. Aside from the question of how the Fourth Amendment applies here, is that really the kind of America we want to create? Those who glibly assert that "you have no privacy in public" are writing off an entire realm of freedom that Americans have always enjoyed: the right to come and go outside the home without being followed, the right to lose themselves in the crowd, and, yes, the right to a private conversation in a public area.
David makes one other point about the audio recording:
The MTA's postion is "this is all about passenger safety." Many of the people who ride buses at least in Baltimore tend to have legitimate concerns about their safety. We definitely understand that. But audio recording adds nothing in terms of safety. It simply means that the largely poor and African-American people who ride buses there, many of whom have no alternatives-have less privacy than everybody else.
They say, "it's helpful to have audio to understand why a particular incident happened." My response is, it's still a crime to hit somebody no matter what was said. Perhaps hearing the words would make a difference in the rare cases when we're talking about hate crimes-the fact that someone was using a racial slur could allow for additional charges, or to substantiate a claim that the person was responding to a true threat. But there's no reason that witness testimony shouldn't be enough in such cases.
And in any case, the solution that we're supporting would still allow the bus driver to turn the audio recording on if a crime was happening.
In short, audio recording on buses would throw important privacy principles out the window for very little benefit-basically, to allow prosecutors to add additional hate-crime charges where they already have video of an assault, and to support witness testimony with audio recordings of the first seconds of an incident before the bus driver is able to activate recording.
Is it really worth changing the fundamental privacy structure of America's public places for those two rare cases?