吃瓜大本营

There has been a lot of attention recently to the issue of audio recording being added to surveillance cameras on public buses. This issue first came onto our radar in 2009, but resurfaced again in Maryland in October (see this October Baltimore Sun ). In December the and reported that the practice is spreading widely across the United States.

In recent decades video surveillance cameras have become commonplace in our public spaces鈥攁 trend that appears bound to increase as cameras get cheaper, smaller, and easier to connect, and as images get easier to store. The arc is long for the chilling effects of cameras but over time, if the trend continues, they will have unfortunate effects on our experience of public places.

But if we start allowing the addition of audio surveillance to all those cameras, that will be an enormous and significant new assault on our privacy鈥攐ne that will really reshape the character of public life in America.

I spoke recently with my ACLU colleague David Rocah, staff attorney at the ACLU of Maryland, who has been on top of this issue since it first arose there. He told me how it has unfolded:

In July 2009, the MTA [Maryland Transit Administration] from the state attorney general on whether turning on the audio recording capability of the pre-existing video cameras on the agency鈥檚 buses would violate the state wiretap act. Once the request became publicly known, reporters immediately called us, and we expressed our view that the audio recording would be an illegal invasion of privacy. There was also opposition expressed by important state legislators from both parties. The MTA quickly decided to shelve the proposal.

The , and , we鈥檝e seen legislation that would have not only authorized the MTA to turn on audio recording, but required it. We and others , and it has never made it out of committee, and never gone anywhere.

Then, in October of this year, the MTA announced that despite that history, they were just going to go ahead and do it, as a pilot program on 10 buses, with the intent to expand it to their entire fleet.

This time we affirmatively sent out a saying 鈥測ou shouldn鈥檛 do it.鈥� Legislators reached out to us concerned about the invasion of privacy and expressing their interest in introducing legislation to prohibit it. Now it looks like bills will be offered that will say audio cannot be turned on all the time, but only by bus operators in response to some safety incident on the bus. The most protective option would have been to just prohibit audio recording altogether, but this proposal seems to me to be adequately privacy protective. So that鈥檚 where things stand now.

A basic question about this audio recording, of course, is its legality. In Maryland, David hopes that this can be addressed through legislation, not litigation. We do think it鈥檚 illegal, but, given the problematic state of today鈥檚 Fourth Amendment jurisprudence, it would not be a slam dunk in the courtroom. David, who has of course been thinking about the legal issues around this practice, explains:

The primary claim would be under the state wiretap act, which prohibits recording a 鈥減rivate conversation鈥� without consent. So the question would be whether this is a private conversation, which the courts have said is one where there鈥檚 a 鈥渞easonable expectation of privacy.鈥� Normally, you would borrow from Fourth Amendment jurisprudence, where courts frequently say that the fact that something takes place in public means that there isn鈥檛 a reasonable expectation of privacy.

But I think this type of situation and context hasn鈥檛 actually been addressed by the courts. It鈥檚 too simplistic to say, 鈥渂ecause it鈥檚 a public place, you can鈥檛 have any reasonable expectation of privacy, since when you鈥檙e in public you always run the risk that someone may be nearby who will overhear it.鈥�

The usual circumstance where a third party recording comes up in a public place is when someone happens to hear something, and happens to be recording. But that鈥檚 not the same as recording that鈥檚 pervasive and continuous, like what the MTA is doing. On each bus there are six cameras鈥攕o if they go through with this that would be six microphones, and logic tells you that six mics on a bus are going to pick up most of what is said on the bus.

This, it seems to me, is a different situation鈥攚here the government is destroying the possibility of saying something private in a public place. In reality there have always been lots of circumstances where you could be private even though you鈥檙e in a public space, in the sense that if you鈥檙e the only two people on a bus, and the only other person is the driver up front. You could talk in a low voice to your heart鈥檚 content, and the driver would never hear you, and you would know who鈥檚 on the bus, and so you could have a private conversation and be perfectly assured that no one would overhear. And I don鈥檛 think the government should be in the business of destroying that possibility.

You could argue that at some level it鈥檚 trivial to talk about it in the context of only public transportation鈥攈ow important is it really to have private conversations on buses? But what鈥檚 at stake here is the principle of the government audio-surveilling our public spaces, and creating a situation where we can鈥檛 have a confidential or private conversation unless we lock ourselves up in our houses. And that鈥檚 inimical to the Fourth Amendment. I don鈥檛 think there are any cases involving that kind of pervasive audio monitoring. But the Supreme Court has left open鈥攊n cases like US v Knotts and US v Jones鈥攖he argument that there鈥檚 a crucial distinction between happening to overhear something, and pervasive surveillance.

This is not only a legal issue but also a policy issue, of course. Aside from the question of how the Fourth Amendment applies here, is that really the kind of America we want to create? Those who glibly assert that 鈥測ou have no privacy in public鈥� are writing off an entire realm of freedom that Americans have always enjoyed: the right to come and go outside the home without being followed, the right to lose themselves in the crowd, and, yes, the right to a private conversation in a public area.

David makes one other point about the audio recording:

The MTA鈥檚 postion is 鈥渢his is all about passenger safety.鈥� Many of the people who ride buses at least in Baltimore tend to have legitimate concerns about their safety. We definitely understand that. But audio recording adds nothing in terms of safety. It simply means that the largely poor and African-American people who ride buses there, many of whom have no alternatives鈥攈ave less privacy than everybody else.

They say, 鈥渋t鈥檚 helpful to have audio to understand why a particular incident happened.鈥� My response is, it鈥檚 still a crime to hit somebody no matter what was said. Perhaps hearing the words would make a difference in the rare cases when we鈥檙e talking about hate crimes鈥攖he fact that someone was using a racial slur could allow for additional charges, or to substantiate a claim that the person was responding to a true threat. But there鈥檚 no reason that witness testimony shouldn鈥檛 be enough in such cases.

And in any case, the solution that we鈥檙e supporting would still allow the bus driver to turn the audio recording on if a crime was happening.

In short, audio recording on buses would throw important privacy principles out the window for very little benefit鈥攂asically, to allow prosecutors to add additional hate-crime charges where they already have video of an assault, and to support witness testimony with audio recordings of the first seconds of an incident before the bus driver is able to activate recording.

Is it really worth changing the fundamental privacy structure of America鈥檚 public places for those two rare cases?