Crime, Surveillance, and Communities

ABSTRACT We have become a surveillance state. Cameras--both those controlled by the state, and those installed by private entities--watch our every move, at least in public. For the most part, courts have deemed this public surveillance to be beyond the purview of the Fourth Amendment, meaning that it goes largely unregulated--a cause for alarm for many civil libertarians. This Article challenges these views and suggests that we must listen to communities in thinking about cameras and other surveillance technologies. For many communities, public surveillance not only has the benefit of deterring crime and aiding in the apprehension of criminals. It can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes not how we can use the Fourth Amendment to limit public surveillance, but rather: "How can we use the Fourth Amendment to harness public surveillance's full potential?" Introduction I. Watching You II. The Fourth Amendment Problem A. A Conventional Reading of the Fourth Amendment B. A Non-Conventional Reading of the Fourth Amendment III. The Fourth Amendment Solution Conclusion INTRODUCTION Quite simply, we have become a surveillance state. Cameras--both those controlled by the state, and those installed by private entities--watch our every move, at least in public. For the most part, this public surveillance is unregulated, beyond the scope of the Fourth Amendment. To many civil libertarians, the extent of public surveillance infringes upon our rights of privacy and anonymity, and as such should be cause for alarm. On the other side of the debate, law and order advocates argue that mass surveillance is a necessary tool in deterring crime and apprehending criminals. The goal of this Article is not to settle this debate, but rather to call attention to the benefits of mass surveillance that are too often left out of the discussion. This Article also urges that we listen to communities. For many communities, public surveillance not only deters crime and aids in the apprehension of criminals; it can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes not how we can use the Fourth Amendment to limit public surveillance, but rather, how can we use the Fourth Amendment to harness public surveillance's full potential? This Article proceeds as follows: Part I gives a brief overview of the extent to which we already live in a state of perpetual surveillance. Part II then turns to the Fourth Amendment and to the general consensus that surveillance cameras in public are not subject to Fourth Amendment regulation. It then offers another reading of Fourth Amendment cases, one that suggests that mass surveillance should be subject to constitutional regulation. Although my argument is one for regulation, I am in fact in favor of more surveillance, not less. I make the reasons for this stance clear in Part III. I. WATCHING YOU To say that we are now being watched is to put it mildly. Consider New York City, which recently partnered with Microsoft Corporation to roll out a new public surveillance device called the Domain Awareness System. (1) Described as something "straight out of a sci-fi novel," (2) the Domain Awareness System aggregates and analyzes information from approximately 3,000 surveillance cameras around the city and allows the police to scan license plates, cross-check criminal databases, measure radiation levels, and more. (3) Moreover, this surveillance system operates continually--twenty-four hours a day, seven days a week. (4) As New York City Mayor Michael Bloomberg said when he announced the new surveillance system--which in fact had already been in use for perhaps a year (5)--"We're not your mom-and-pop's Police Department anymore. …