Logosm.gif (1927 bytes)
navlinks.gif (4688 bytes)
Hruler04.gif (5511 bytes)

Back to Privacy vs. Security main page

Ronald Goldstock, on behalf of the American Bar Association
Privacy Vs. Security: Electronic Surveillance in the Nation’s Capital
March 22, 2002

Home

Bibliography

Calendar

Columns
Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars

DCPSWatch

DCWatch Archives
Council Period 12
Council Period 13
Council Period 14

Election 1998
Election 2000
Election 2002

Elections
Election 2004
Election 2006

Government and People
ANC's
Anacostia Waterfront Corporation
Auditor
Boards and Com
BusRegRefCom
Campaign Finance
Chief Financial Officer
Chief Management Officer
City Council
Congress
Control Board
Corporation Counsel
Courts
DC2000
DC Agenda
Elections and Ethics
Fire Department
FOI Officers
Inspector General
Health
Housing and Community Dev.
Human Services
Legislation
Mayor's Office
Mental Health
Motor Vehicles
Neighborhood Action
National Capital Revitalization Corp.
Planning and Econ. Dev.
Planning, Office of
Police Department
Property Management
Public Advocate
Public Libraries
Public Schools
Public Service Commission
Public Works
Regional Mobility Panel
Sports and Entertainment Com.
Taxi Commission
Telephone Directory
University of DC
Water and Sewer Administration
Youth Rehabilitation Services
Zoning Commission

Issues in DC Politics

Budget issues
DC Flag
DC General, PBC
Gun issues
Health issues
Housing initiatives
Mayor’s mansion
Public Benefit Corporation
Regional Mobility
Reservation 13
Tax Rev Comm
Term limits repeal
Voting rights, statehood
Williams’s Fundraising Scandals

Links

Organizations
Appleseed Center
Cardozo Shaw Neigh.Assoc.
Committee of 100
Fed of Citizens Assocs
League of Women Voters
Parents United
Shaw Coalition

Photos

Search

What Is DCWatch?

themail archives

Press release Statement

AMERICAN BAR ASSOCIATION
NEWS RELEASE

Release: Immediate
On-line: www.abanet.org/media

Contact: Ross Brown
Phone: 202/662-1094

E-mail: brownr@staff.abanet.org

VIDEO SURVEILLANCE MUST STRIKE BALANCE BETWEEN LAW ENFORCEMENT NEEDS, PRIVACY CONCERNS, ABA SAYS

WASHINGTON, D.C., March 22, 2002 - As Washington, D.C., prepares to install what has been described as the largest network of video cameras in the country, an American Bar Association representative will urge Congress to pay careful attention to the competing goals of security and privacy as it reviews the program.

In testimony prepared for delivery before the U.S. House Committee on Government Reform, Ronald Goldstock, chair of the ABA Criminal Justice Section Standards Committee, also stressed the importance of government accountability, saying, "Accountability is a multi-pronged effort that includes administrative rules; internal regulations; periodic review by law enforcement agencies; and providing the public general information about the type of surveillance being used and the frequency of its use."

Goldstock was among the prosecutors, criminal defense lawyers, law enforcement officials, judges, privacy experts and academics who worked together to develop the ABA standards for the use of technologically-assisted physical surveillance. The standards, intended to provide guidance on how and why to use these technologies in law, enforcement, were adopted as ABA policy in 1998.

Heightened concerns about security, especially since September 11, have led the District of Columbia government to plan greatly enhanced use of surveillance technology to monitor residents, visitors, businesses and public buildings in the nation's capital. Members of Congress and others have expressed concern that such use may adversely affect the privacy rights of individuals.

In his testimony, Goldstock noted that the surveillance standards "are grounded in the competing governmental and individual interests implicated by technologically assisted physical surveillance. On the one hand, it can facilitate the detection, investigation, prevention and deterrence of crime, the safety of citizens and officers, the apprehension and prosecution of criminals, and the protection of the innocent.

"On the other hand, technologically-assisted surveillance can adversely affect individuals' privacy - including the general expectation of public anonymity .... Unregulated, these techniques can lead to a stifling police presence affecting the guilty and innocent alike."

The American Bar Association is the largest voluntary professional membership association in the world. With more than 400,000 members, the ABA provides law school accreditation, continuing legal education, information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public.

Back to top of page


STATEMENT OF
RONALD GOLDSTOCK
on behalf of
THE AMERICAN BAR ASSOCIATION

before the
Subcommittee on the District of Columbia of the
COMMITTEE ON GOVERNMENT REFORM
U.S. HOUSE OF REPRESENTATIVES

on the subject of
VIDEO SURVEILLANCE IN THE DISTRICT OF COLUMBIA

March 22, 2002

Madam Chair and Members of the Subcommittee:

My name is Ronald Goldstock. I am appearing on behalf of the American Bar Association at the request of its President, Robert E. Hirshon. The American Bar Association, the world's largest voluntary professional organization with more than 400,000 members; is the national representative of the legal profession. I appreciate the opportunity to appear before you to voice the Association's views on the use of video surveillance cameras.

Since August, 2000, I have served as Chair of the American Bar Association's Criminal Justice Section Standards Committee. I previously had served as a Committee member and as a Criminal Justice liaison to the Committee's Task Force on Law Enforcement and Technology. I am also a former Chair of the ABA's Criminal Justice Section.

The mandate of the Standards Committee is to continually review, recommend revisions to, and implement the ABA Criminal Justice Standards. The Standards are a multi-volume set of recommendations for criminal justice policymakers and practitioners. They span the entire spectrum of the criminal justice process, from the Urban Police Function through Legal Status of Prisoners. When the seventeen-volume first edition was published in the late 1960's, Chief Justice Warren Burger hailed the effort as "the single most comprehensive and probably the most monumental undertaking in the field of criminal justice ever attempted by the American legal profession in our national history." In the years since, several new volumes have been added, a second edition has been completed, and a third edition is well underway.

The first and second editions of the Standards contained detailed guidelines for conducting electronic eavesdropping of communications. The drafters of those Standards had considered including guidelines for the use of video surveillance and other technological means of solving and preventing crime, but had concluded that such standards would be premature. In 1995, the Committee decided that the time for such standards had come. It was clear that law enforcement use of technologically-assisted physical surveillance was increasing both in scope and complexity. It was also clear that there was little guidance from the courts or elsewhere, not simply in terms of specific rules but also with respect to the competing values to be weighed in making decisions about how and when to use these technologies in law enforcement. Accordingly, the Standards Committee created the Task Force on Technology and Law Enforcement. The charge to the Task Force was twofold: (1) to suggest revisions to the second edition Standards on electronic surveillance of private communications and (2) to develop proposed guidelines for the use of other "technologically-assisted physical surveillance." The Standards resulting from that second charge are the subject of my testimony today.

The Task Force was comprised of prosecutors, criminal defense lawyers, law enforcement officials, judges, privacy experts, and academics. In its efforts to identify and assess the primary constitutional and policy issues raised by the use of technologically-assisted physical surveillance, it consulted scores of organizations, ranging from national law enforcement agencies and local police departments to technology experts and advocates for individual privacy.

Following a two-year drafting effort, the proposed Standards underwent vigorous review by the Standards Committee, the Criminal Justice Section Council, and ultimately the ABA House of Delegates. They were approved as ABA policy in August 1998.

The technologically-assisted physical surveillance standards - the TAPS Standards, as they came to be called -- addressed tracking devices, illumination devices, telescopic devices, detection devices and video surveillance. I urge the subcommittee to review our printed publication for the detailed recommendations that I will only briefly describe here. The sections on the General Principles and on Video Surveillance are extremely relevant to the issues before this subcommittee and are appended to the subcommittee members' copies of my written testimony.

The TAPS Standards are grounded in the competing governmental and individual interests implicated by technologically-assisted physical surveillance. On the one hand, the Standards recognize such surveillance can be an important law enforcement tool. It can facilitate the detection, investigation, prevention and deterrence of crime, the safety of citizens and officers, the apprehension and prosecution of criminals, and the protection of the innocent. The Standards therefore recognize the need lo allow such surveillance.

On the other hand, technologically-assisted surveillance can adversely affect individuals' privacy. While the most fundamental aspects of privacy are protected by the Fourth Amendment, there are other highly-valued aspects - including the general expectation of public anonymity -- that are not. As the economics of "surveillance by gadget" get cheaper and cheaper and the techniques themselves become increasingly sophisticated, the temptation is to use them more and more. Consequently, there is a very real danger that, unregulated, they can led to a stifling police presence affecting the innocent and guilty alike. The Standards therefore call for balancing the needs of law enforcement with the privacy interests of individuals to determine when the technological surveillance is warranted and the extent to which it should be regulated.

As noted above, there are a number of legitimate law enforcement interests in technological surveillance. In determining the weight to be given to them in any given case, the particular interests should be specified and a determination made as to the extent the surveillance would be likely to further them. The nature and extent of the crime to be detected or deterred and the harm to be protected against by the surveillance should also be assessed.

Privacy interests to be weighed include the nature of the place, activity, condition or location to be surveilled. There are also privacy interests in the availability and sophistication of the technology and the extent to which it enhances the natural senses, as well as in the physical scope of the surveillance. Whether the proposed surveillance is overt or covert is also an important consideration.

If the interests of law enforcement outweigh privacy interests, the Standards allow the use of video and other technologically-assisted physical surveillance subject to certain considerations. The Standards, for example, prohibit selecting the subjects of surveillance in an arbitrary or discriminatory manner. They require that any particular surveillance technique be capable of doing what it purports to do, and be used by trained officers. Further, they require that the technological surveillance be conducted solely for specified objectives and be terminated when those objectives are achieved. Appropriate notice is required. If the objective of the surveillance is deterrence, this entails advance notice so that people who do not want to be subjected to the surveillance can avoid it. If there has been a court order authorizing surveillance, it entails post-surveillance notice. The Standards also require that information obtained by the surveillance be used only for designated lawful purposes, and that protocols be developed for maintaining and disposing of surveillance records. Finally, the Standards require law enforcement agencies to prepare written instructions and train their officers about the requirements and rules of implementing various types of surveillance.

The Standards distinguish between video surveillance of private activities and long-term public video surveillance. While the former generally requires a judicially-authorized warrant, the latter is permitted when a politically accountable law enforcement official or governmental authority concludes that the surveillance will not view a private activity and will be reasonably likely to achieve a legitimate law enforcement objective. If deterrence rather than investigation is the primary objective, the public should be notified of the intended location and general capability of the camera and must have the opportunity, both prior to the initiation of the surveillance and periodically during it, to express its views. Covert and "short-term" overt video surveillance of public places are generally permissible if they will not view a private activity and are reasonably likely to achieve a legitimate law enforcement objective.

Finally, the Standards recognize the importance of holding government officials accountable for the use of technologically-assisted physical surveillance technology. Accountability is a mufti-pronged effort that includes administrative rules, using the exclusionary sanction when, and only when, it is mandated by federal or state constitutions or legislation; internal regulations; periodic review by law enforcement agencies of the scope and effectiveness of the surveillance, and providing the public general information about the type of surveillance being used and the frequency of its use.

Conclusion

The very issues your subcommittee is examining today have been examined in great depth by an ABA Criminal Justice Section Task Force on Law Enforcement and Technology. Comprised of a wide range of criminal justice professionals and privacy experts, the Task Force came to consensus on a detailed set of recommendations that subsequently underwent a rigorous review by the Criminal Justice Section Standards Committee, the Criminal Justice Section Council and the ABA policymaking House of Delegates. In the interest of the District of Columbia residents, visitors, and law enforcement officials, I urge your careful attention to the ABA Standards on Technologically Assisted Physical Surveillance* as consideration is given to establishing what was described in your letter inviting the ABA to participate in-this hearing as "the largest network of surveillance cameras in the United States." Thank you.

*"The "black letter" Standards are available on-line at: www.abanet.org/crimiust/standards.

Back to top of page


Send mail with questions or comments to webmaster@dcwatch.com
Web site copyright ©DCWatch (ISSN 1546-4296)