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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.
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