Legal Implications of Video Surveillance on Transit Systems (2018)

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7Transportation Authority gives notice on its buses and in its transit centers of its use of video surveil- lance.47 As for whether any part of an agency’s video surveillance system is kept secret, six agencies (8.33%) stated that they keep part of their video surveillance system secret (e.g., hidden cameras) from the public or from employees. However, sixty- four agencies (88.89%) reported that they do not keep any part of their systems secret.48 Some state statutes specify when the use of video surveillance is lawful.49 For example, in New York, a state statute provides that video surveillance that otherwise would be unlawful is lawful when law enforcement personnel are engaged in the conduct of their authorized duties, when a written notice is posted conspicuously on the premises stating that a video surveillance system has been installed for the purpose of security, or when video surveillance devices are installed in such a manner “that their presence is clearly and immediately obvious.”50 Appendix E includes copies of some of the notices of video or of audio and video surveillance used by transit agencies. Additionally, a transit agency’s website may state whether and how the agency gives notice to the public of video surveillance.51 III. PRIVACY RISKS ASSOCIATED WITH TRANSIT AGENCIES’ USE OF VIDEO SURVEILLANCE A. Standards and Guidelines for Video Surveillance Although a public transit agency’s video surveil- lance of public areas and the agency’s workplace appears to be constitutional, a transit agency’s video surveillance system could be challenged because of an alleged violation of a person’s reasonable expectation of privacy in a specific area, a violation of a statute, or a violation of a person’s common law right to privacy. Although there is an absence of governing legisla- tion or “legally enforceable guidelines,”52 a transit agency may have a more robust legal defense to a claim for wrongful video surveillance when the agency shows that prior to adopting a system, the agency assessed the system’s impact “on constitu- tional rights and values,” sought to minimize any negative effects that the system could have on affected individuals, established “technological and administrative safeguards to reduce the potential for misuse and abuse,” and implemented a video surveillance system after a thoroughly “open and publicly accountable process.”53 Transit agencies responding to the survey described the process their agency used when deciding to implement a video surveillance system, including any public hearings or other non-agency participation. However, no tran- sit agency responding to the survey reported having either public hearings or any non-agency participa- tion in the decision-making process.54 The American Bar Association’s Standards on Technologically Assisted Physical Surveillance recommend that video surveillance be utilized only “‘when a politically accountable governmental authority concludes that the surveillance will not view a private activity or condition and will be reason- ably likely to achieve a legitimate law enforcement objective.’”55 Thus, a transit agency’s use of video surveillance should be proportional to the agency’s need for surveillance and embrace certain “core prin- ciples”; for example, a system should be adopted only for “a clearly articulated law enforcement purpose” to address “serious threats to public safety…of indefi- nite duration”56 and after the agency’s consideration of alternatives, including their costs.57 Although there apparently are no decisions in which the courts have adopted the foregoing standards and core principles, these are the kinds of principles that courts could adopt as technology and the law continue to evolve on public video surveillance.58 Eight transit agencies (11.11%) responding to the survey stated that they adopted a video surveil- lance system for a clearly stated law enforcement purpose or purposes.59 Eighteen transit agencies (25%) 47 See Appendix C, Ann Arbor Transportation Authori- ty’s response to question 16. The Authority’s website also advises that the agency use video surveillance, http:// www.theride.org/How-to-Ride/Safety-Security (last accessed Aug. 22, 2017). 48 See Appendix C, transit agencies’ responses to question 17. Two agencies (2.78%) did not respond to the question. 49 See Appendix D, Compendium of Federal and State Statutes on Audio and Video Surveillance. 50 N.Y. Penal coDe § 250.65(1) (2017). 51 See, e.g., Butler Video Surveillance Policy, supra note 44, ¶ I and Greater Portland Transit District Surveillance Camera Policy, supra note 44. 52 Greer, supra note 24, at 606. 53 Guidelines for Public Video Surveillance, supra note 6, at xii. 54 See Appendix C, transit agencies’ responses to ques- tion 6. 55 Slobogin, supra note 23, at 294 (quoting American Bar Association, Standards for Criminal Justice-Electronic Surveillance (3d ed.)). 56 Guidelines for Public Video Surveillance, supra note 6, at xii. 57 Id. 58 See Slobogin, supra note 23, at 294–95. 59 See Appendix C, transit agencies’ responses to question 8. Sixty-three transit agencies (87.50%) responding to the survey said that they had not adopted a video surveillance system for a clearly stated law enforcement purpose or pur- poses. One agency (1.39%) did not respond to the question.

8likewise stated that they adopted the use of video surveillance to address a serious potential threat or threats to public safety of indefinite duration.60 Finally, fourteen agencies (19.44%) considered alternatives prior to adopting the use of video surveillance.61 B. Long-Duration or Permanent Video Surveillance The risk to privacy by video surveillance depends on whether video surveillance is used to observe an individual’s activity in real-time, whether the surveillance is of long-duration or even permanent, whether an agency records and/or archives data for a limited or an indefinite period, and/or whether video surveillance is used to identify and track a specific individual. As for identifying and tracking an individual, only twelve transit agencies (16.67%) responding to the survey reported having a video surveillance system that is able to identify and/or track a specific individual.62 Other reports and commentaries on privacy and public video surveillance argue that an agency should incorporate “technological and administra- tive safeguards [that] reduce the potential for misuse and abuse” of video surveillance63 and that protect individuals whose images and activities are captured by video surveillance.64 Fifty-six transit agencies (77.78%) responding to the survey reported that they have adopted technological and/or admin- istrative safeguards to prevent the misuse or abuse of their surveillance system.65 For example, the Ann Arbor Transportation Authority reported that whenever someone other than the local police requests video surveillance data, which are encrypted, the individual must make 60 See Appendix C, transit agencies’ responses to ques- tion 9. Fifty-one agencies (70.83%) reported that they did not adopt a video surveillance system to address a seri- ous potential threat or threats to public safety of indefi- nite duration. Three agencies (4.17%) did not respond to the question. 61 See Appendix C, transit agencies’ responses to ques- tion 10. Fifty-two transit agencies (72.22%) did not con- sider other alternatives. Six agencies (8.33%) did not respond to the question. 62 See Appendix C, transit agencies’ responses to ques- tion 14. Fifty-seven agencies (79.17%) stated that their system is not capable of identifying or tracking an individ- ual. Three agencies (4.17%) did not respond to the question. 63 Guidelines for Public Video Surveillance, supra note 6, at xii. 64 Id. at xiii. 65 See Appendix C, transit agencies’ responses to ques- tion 7. Twelve transit agencies (16.67%) have not adopted technological and/or administrative safeguards. Four agen- cies (5.56%) did not respond to the question. 66 See Appendix C, Ann Arbor Transportation Authority’s response to question 7. 67 See id. 68 See id. 69 See Appendix C, Sacramento Regional Transit District’s response to question 7. 70 See id. 71 See id. 72 Guidelines for Public Video Surveillance, supra note 6, at 16. 73 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012). 74 Id. at 419, 132 S. Ct. at 958, 181 L. Ed. 2d at 927 (emphasis supplied). 75 Id. at 430, 132 S. Ct. at 964, 181 L. Ed. 2d at 934 (emphasis supplied). a FOIA request.66 Also, unless the Authority makes a special copy that converts data to a format that may be viewed, for example, on a Windows Media Player, one must have the required software to view the Authority’s surveillance data.67 Internally, only select employees may save and make copies of video surveillance records.68 The Sacramento Regional Transit District stated that only a limited number of staff members are allowed to access and download video surveillance data.69 Public areas may be viewed by the District’s employees via their intranet; however, the ability to manipulate a camera’s view is limited to select supervisors and personnel assigned to the District’s security operations center.70 Downloading is limited to a few select managers, one person in risk manage- ment, and the staff of the security operations center.71 A permanent video surveillance system arguably poses a greater risk to privacy.72 In United States v. Jones,73 involving the use of a global positioning system (GPS) device attached to a vehicle, Justice Alito stated in a concurring opinion, first, that the issue in the case was “whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”74 Second, Justice Alito stated: To date…Congress and most States have not enacted stat- utes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated. Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.… But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.75

9was used to establish probable cause for a series of warrants for the use of GPS-monitoring. In Garcia-Gonzalez, a federal district court in Massachusetts noted that prior to Jones, supra, the courts had approved without a warrant the use of video surveillance of areas that were exposed to public view.85 Although the court denied the defen- dant’s motion to suppress the evidence, the court discussed at length judicial opinions, including Justice Alito’s concurring opinion in Jones that had “expressed substantial Fourth Amendment concern regarding continuous video surveillance.”86 The court decided, however, that its denial of the defendant’s motion was compelled by controlling precedent in the First Circuit.87 It may be noted that the Jones case involved a GPS and long-term monitoring of a vehicle driven by the defendant, not video surveillance of a public place or even of a home or its backyard. C. Recording and Archiving of Video Surveillance Data The Supreme Court or a lower court could hold that there are constitutional limits on the recording or dissemination of information collected on the public.88 Of the transit agencies responding to the survey, sixty-seven agencies (93.06%) reported that they retain and/or archive video surveillance images or data.89 One reason that the recording or archiving of video surveillance data is more central to the Fourth Amendment is that the creation of a digital record “transforms an ephemeral event into a permanent record.”90 In a dissenting opinion in United States v. White,91 Justice Harlan stated, The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. It goes beyond the impact on privacy occa- sioned by the ordinary type of “informer” investigation upheld in Lewis and Hoffa. The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores 76 Guidelines for Public Video Surveillance, supra note 6, at 16. 77 Id. 78 2014 N.C. App. LEXIS 1363, at *1, 238 N.C. App. 363, 768 S.E.2d 201 (Dec. 31, 2014 filed) (Unpublished). 79 Id. at *10. The defendant made a “plain error” argu- ment because the defendant failed to object at trial to the admission of evidence of video surveillance. Id. at *8. 80 813 F.3d 282, 285 (6th Cir. 2016). See also, United States v. Wymer, 654 F. App’x 735, 744 (6th Cir. filed June 29, 2016) (holding that photographs and brief video clips taken from a pole camera of stolen trucks or trailers were admissible because the defendant did “not have a reasonable expecta- tion of privacy in this area that was both visible by ‘any per- son traveling on the roads surrounding the [property]….)’” 81 Houston, 813 F.3d at 290. 82 Id. at 287–88. 83 2015 U.S. Dist. LEXIS 116312, at *1 (D. Mass. Sept. 1, 2015). 84 Id. at *6. One source argues that permanent systems should be used only when there are serious threats of “indefinite duration” to public safety, such as “a persistent threat of terrorist attack”76 and/or when there is a potential danger to critical public infrastructure, such as public transportation networks and public utility facilities and the people using them.77 In various contexts, however, the courts have upheld the use of long-duration or even permanent video surveillance of areas that are observable also by members of the public or by law enforcement agents. For example, in State v. Deese,78 the court upheld the admission of public transit surveillance that showed the defendant on a bus route to the victim’s house in possession of incriminating evidence linked to the crime.79 In United States v. Houston, the Sixth Circuit upheld Houston’s conviction for possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The conviction was secured primarily on the basis of video surveillance over a ten-week period by a camera installed on top of a public utility pole.80 The video surveillance did not contravene the Fourth Amendment because the defen- dant did not have a reasonable expectation of privacy. The images that were captured were the same views that anyone has at the same location. Addressing Justice Alito’s concern in Jones, supra, the court stated that “the surveillance here was not so comprehensive as to monitor Houston’s every move….”81 Thus, the court held that the duration of the surveillance did not violate the Constitution.82 In United States v. Garcia-Gonzalez,83 two law enforcement agents used two pole cameras to surveil the defendant’s home. The images captured were visible to any passerby or to an agent in a car using binoculars.84 No warrant was obtained for the use of the pole cameras; however, the video surveillance 85 Id. at *10. 86 Id. at *25. 87 Id. at *29 (citing United States v. Bucci, 582 F.3d 108 (1st Cir. 2009)). 88 See Slobogin, supra note 23, at 302. 89 See Appendix C, transit agencies’ responses to ques- tion 12. Three agencies (4.17%) stated that they do not retain and/or archive images. Two agencies (2.78%) did not respond to the question. 90 Marc Jonathan Blitz, The Fourth Amendment Future of Public Surveillance: Remote Recording and Other Searches in Public Space, 63 aM. u.l. reV. 21, 55 (2013), hereinafter referred to as “Blitz”; see also, Slobogin, supra note 23, at 220. 91 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971).

10 the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.92 In Whalen v. Roe,93 the Court stated that it was “not unaware of the threat to privacy implicit in the accumulation of vast amounts of personal informa- tion in computerized data banks or other massive government files”94 and that in some circumstances there is a “duty to avoid unwarranted disclosures” and recognize “that in some circumstances that duty arguably has roots in the Constitution.”95 Some states, such as California and Colorado, have laws regarding the retention of video surveillance. In California, when a transit agency that is operated by a city or a city and county installs a new security system, the transit agency must only purchase and install equipment that is capable of storing recorded images for at least one year. There are statutory exceptions to the requirement, for example, when an agency is unable after a “diligent effort” to identify a security system capable of storing recorded data for one year.96 Moreover, unless one of the statutory exceptions applies, “video recordings or other record- ings made by security systems operated as part of a public transit system shall be retained for one year.”97 In Colorado, passive surveillance includes images recorded by transit facilities.98 Colorado requires that only a custodian may have access to a passive surveillance record beyond the first anniversary after the date of the creation of the passive surveillance record, and up to the third anniversary after the date of the creation of the passive surveillance record, if there has been a notice of claim filed, or an accident or other specific inci- dent that may cause the passive surveillance record to become evidence in any civil, labor, administrative, or felony criminal proceeding, in which case the passive surveillance record may be retained.99 …The custodian of a record must document who accesses a record and the reason or reasons for the person’s access.100 One source argues that an agency should record and archive video surveillance data only to the extent necessary for a system’s stated purposes, that there should be protections for the “the rights of identifiable individuals captured on video surveillance data,” and that there should be safeguards for the security of data that are recorded.101 Safeguards should include identi- fying personnel authorized to have access to data and restricting the sharing of data with other governmen- tal entities or with third parties.102 In that connection, fifty-four transit agencies (75%) responding to the survey stated that they share surveillance images or data with other agencies or departments.103 Sixty- seven transit agencies (93.06%) share video surveil- lance data with law enforcement agencies without a subpoena.104 Forty-four transit agencies (61.11%) share video surveillance or data with private litigants.105 Finally, it has been argued that there should be no secret public video surveillance systems because of the lack of accountability of government authori- ties and of individuals’ understanding of the “impli- cations of their actions.”106 Of the transit agencies responding to the survey, sixty-four agencies (88.89%) reported that they do not keep any part of their video surveillance system secret.107 D. Use of Technology to Identify and Track an Individual Technologies that permit facial recognition and identification and the tracking of an individual again arguably pose a greater risk to privacy.108 In responding to the survey, fifty-one transit agencies (70.83%) reported that their video surveillance system includes “pan-tilt” cameras and/or the ability to “zoom-in” on a person or persons of interest.109 92 Id. at 787, 91 S. Ct. at 1143–44, 28 L. Ed. 2d at 478–79 (1971) (Harlan, J., dissenting). 93 429 U.S. 589, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977). 94 Id. at 605, 97 S. Ct. at 878, 51. L. Ed. 2d at 77. 95 Id. 96 cal. GoV’t coDe § 34090.8(a) and (a)(1) (2017). 97 cal. GoV’t coDe § 34090.8(b)(1)–(3) (2017). 98 colo. reV. Stat. § 24-72-113(1) (2017). 99 cal. GoV’t coDe § 24-72-113(2)(a) (2017). 100 Id. 101 Guidelines for Public Video Surveillance, supra note 6, at xiii. 102 Id. at xiv. 103 See Appendix C, transit agencies’ responses to ques- tion 15(a). Sixteen agencies (22.22%) said that they do not. Two agencies (2.78%) did not respond to the question. 104 See Appendix C, transit agencies’ responses to ques- tion 15(b). Three agencies (4.17%) do not. Two agencies (2.78%) did not respond to the question. 105 See Appendix C, transit agencies’ responses to ques- tion 15(b). Twenty-five agencies (34.72%) do not. Three agencies (4.17%) did not respond to the question. 106 Guidelines for Public Video Surveillance, supra note 6, at 23. See also, Adam Schwartz, Chicago’s Video Surveil- lance Cameras: A Pervasive and Poorly Regulated Threat to Our Privacy, 11 N.W. J. tech. & intell. ProP. 47, 51 (2013). 107 See Appendix C, transit agencies’ responses to ques- tion 17. Six agencies (8.33%) keep part of their video sur- veillance system secret (e.g., hidden cameras) from the public or employees. Two agencies (2.78%) did not respond to the question. 108 Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amend- ment to a World that Tracks Image and Identity, 82 tex. l. reV. 1349, 1354 (2004) (footnote omitted), hereinafter referred to as “Video Surveillance and the Constitution of Public Space.” 109 See Appendix C, transit agencies’ responses to question 18. Twenty agencies’ systems (27.78%) do not have such capa- bility. One agency (1.39%) did not respond to the question.