Yesterday, in response to an article about the growing threats to liberty created by the National Applications Office within the Department of Homeland Security, our reader Jacob posed some important questions about the similarities of the NAO’s spy satellites and police surveillance cameras.
If the police can conduct a patrol the streets, looking for evidence of crime, Jacob wondered, why couldn’t law enforcement use military spy satellites to look down and watch over the United States, just on a larger scale? The idea of satellites watching what we do feels creepy, but is it really unconstitutional? Furthermore, aren’t police already putting up surveillance cameras all over the country? Isn’t a military spy satellite just a big police surveillance camera in the sky?
The answers to these questions can be found through the consideration of an earmark a Republican congressman from Texas, Lamar Smith, stuck into an unrelated piece of legislation yesterday. Representative Smith’s earmark would have the federal government provide a quarter of a million dollars to the police department in Austin, Texas, for the purpose of setting up a series of police spy cameras and a remote viewing center capable of recording and storing the images captured by the cameras. The Austin Police Department plans to set up the cameras to conduct surveillance in two sorts of locations: “pedestrian-heavy” and “high-crime”.
Is this program constitutional? Consider what the Fourth Amendment, in the Bill of Rights, requires of any search conducted by law enforcement or other government agencies:
“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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A. The search is considered unreasonable,
B. There is no search warrant
C. There is no probable cause to suspect criminal activity
D. There is a failure to identify a particular place to be searched
If any one of these four items is missing from the police surveillance operation, it’s violation of the Constitution of the United States of America.
Austin’s plan to install spy cameras in “high-crime” areas might be constitutional, depending on how an area is determined to be “high-crime”. A particular place would be specified for search, presumably with the probable cause of an established pattern of criminal behavior. Most people would consider these cameras reasonable, presuming that they weren’t improperly used, or made permanent. An area that is “high-crime” one year might have no crime at all in other years, after all. If a warrant is sought to authorize the use of spy cameras for a limited time in these areas, the operation could take place within the parameters required by the Fourth Amendment. A good deal of oversight of the operation would be called for, to make sure that abuse of the cameras was not taking place.
The city’s plans for cameras to constantly watch over “pedestrian-heavy” areas does not meet the necessary criteria for constitutionality, however. The selection of these locations for police surveillance cameras is not based on probable cause. It’s probable that crimes will take place in “pedestrian-heavy” locations only to the extent that pedestrians are people, and it’s people who commit crimes. Walking is not reasonably considered a suspicious activity meriting police monitoring. There is no specific crime targeted in these areas.
The justification offered by Lamar Smith for these non-specific police spy operations without probable cause is that, “Police cameras have been shown to reduce crime”. Maybe that’s so, and maybe it isn’t. Regardless of that it, it’s not a constitutional foundation for search. Instant executions of anyone suspected of a crime may be shown to reduce crime, but they’re not something a free society can tolerate.
Fundamentally, that’s the difference between a police camera used for a limited time to target a specific location during the course of a particular crime spree, and the a police camera that films a particular location just because a large number of people walk there. The former is reasonable, and the latter is unreasonable, and therefore not allowed by the highest law of our nation.
Yet, one might argue, police are allowed to patrol the streets, watching in public spaces, just in case a crime is committed. They don’t need a search warrant for that, so what’s the problem with using a camera instead of a police officer’s eyes?
The difference between a camera and the eyes of a police officer is that a camera records and stores information continually, whereas a police officer does not. A police officer driving down the street does not take photographs or video of everyone he sees, and then place that information into a central database. If a police officer did so, he would be engaged in unreasonable and unconstitutional behavior. A police officer is a highly selective information gathering tool. A camera is not.
The people of Austin have good reason to worry about the cameras to be installed in “pedestrian-heavy” areas. These cameras will track people’s movements and activities, even when they are not suspected of any crime. The surveillance cameras will convert the Austin Police Department from a law enforcement agency into a city busybody squad. Worse than that, these anti-pedestrian spying operations will make the Austin Police Department into a citywide Big Brother, intimidating residents from acting freely. People don’t behave normally when they think they might be watched – even if they have no intention of committing a crime.
The military spy satellites of the National Applications Office are like the police cameras that target “pedestrian-heavy” areas – except they’re even worse. The military spy satellites don’t even have the justification of watching over particular areas where people walk. No one outside of a few secretive offices within the government knows where those satellites are watching, and where they aren’t. There’s no particular location, no probable cause, and no search warrant. These satellite spy operations are profoundly in violation of Americans’ constitutional right to protection from unreasonable search and seizure.
Probably, these military spy satellites are not watching your neighborhood right now. However, you could reasonably wonder whether they are. If you attend a protest, a satellite could be taking pictures of the event. If you travel to meet with an activist group, a satellite might be recording your movements. If you’re going to a political rally to support a candidate for public office, a satellite may be storing information about your political affiliation. Maybe not, but you just don’t know.
The spy satellite operations of the National Applications Office place each and every one of us in a panopticon, a virtual prison in which we are treated as criminally suspect, and under constant threat of surveillance, though we’ll never really know whether we’re being spied upon at all. Conditions like this are corrosive to a free society, and so, although it’s created with the of excuse of a need for security, the National Application Office’s panopticon nation is itself the source of a systematic American insecurity.