US Video Surveillance Laws Examined

By John Honovich, Published Nov 20, 2009, 07:00pm EST

In the US, surveillance falling under the legal classification of a 'search' is illegal. Determining when video surveillance is deemed a search is the key to understanding its legality.

This is based on the 4th Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." [emphasis added mine]

Determining whether a search is unreasonable is based on a legal test for an "expectation of privacy" and the case law coming from it.

According to Glen Fewkes at Fox Rothschild [link no longer available], the "courts are especially likely to base their decisions on whether the surveilled things or actions were held out to public view in any way and on the level of intrusiveness of the surveillance technology. " [cited from SIW article on how far public video surveillance can go [link no longer available]]

In airports and border crossing, Fewkes claims that individuals do not need to actively give their consent to be searched because "they have 'consented' to such searches by virtue of choosing to fly in an airplane or crossing the border."

While the US Supreme Court has generally provided broad coverage of video surveillance including aerial photography of private property (see Dow Chemical vs the United States).

In the case, the Court does note potential limitations:

"It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of the facility's buildings and equipment. The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems."

This raises a concern directly towards high definition and megapixel cameras. As the resolution of cameras increase, they will certainly be capable of providing significantly enhanced detail beyond human vision. At that time will the court view them as simply commonly available equipment or tools that require a warrant to use?

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