Big Brother Is Watching You

Overreaching law enforcement puts privacy rights at risk.

In 1991, George Holliday filmed the LAPD’s arrest and beating of Rodney King. The videotape provoked national controversy. If a similar incident happened today, it might provoke something else: the arrest of George Holliday.

Cell phones and cameras with video-recording capability have become ubiquitous. This has led to an increase in the filming of police officers, which has led to a backlash: Cops have begun arresting those who film them, on charges such as interfering with an investigation—even when the filmer is not interfering and the officer is not investigating.

In one now-famous example, motorcyclist Anthony Graber’s helmet cam was rolling when Graber was pulled over last March by a Maryland State Trooper. The Trooper came out of an unmarked car in plain clothes, yelling, with his gun drawn. Graber didn’t like that—and posted the video on YouTube. In short order he was arrested and charged with felony wiretapping. A judge eventually threw the charges out—six months later.

Such incidents have led to a national conversation about the propriety of videotaping cops, even as dashboard cameras have become standard in squad cars. There seems to be some tension in the assumption that, as Graber’s lawyer put it, "the officer has a privacy expectation, but the motorist doesn’t."

That asymmetry has been underscored by recent rulings over global positioning systems. Last year the Virginia Court of Appeals said Fairfax County police did not violate a suspect’s right to privacy when, without a warrant, they surreptitiously put a GPS device on his vehicle to track his movements. Individuals have no expectation of privacy on the public streets, the court ruled—a position also taken by the Ninth Circuit in California.

Yet this past January, Kathy Byron, a member of Virginia’s House of Delegates, introduced legislation that would have forbidden the use of GPS tracking devices for the purpose of following political candidates. People running for public office "are still entitled to some privacy," she argued.

If ordinary citizens have little claim to privacy in public places, then what about their electronic devices? U.S. border-patrol agents often search the phones and computers of American citizens who cross the border—routinely "accessing email accounts, examining photographs and looking through personal calendars," according to The Constitution Project, a watchdog group. "In some cases, electronic devices were confiscated for as long as a year." And in Michigan, the State Police have high-tech forensic devices enabling them to download information from the cell phones of stopped motorists—something they have been doing without a warrant.

In New York, a cell phone alert system will send text messages with a unique ring tone in the event of a terrorist attack or other emergency. By next year the system will go nationwide, and all new cell phones will be required to contain the special chip needed to relay the messages. Orwell comparisons are overdone, but it is hard not to think of 1984: "The voice from the telescreen paused. A trumpet call, clear and beautiful, floated into the stagnant air. The voice continued raspingly: ‘Attention! Your attention, please! A newsflash has this moment arrived from the Malabar front. Our forces in South India have won a glorious victory. . . .’ "

Soon Americans might have no right to expect privacy even in the privacy of their own homes. Earlier this month the U.S. Supreme Court ruled 8-1 that police officers may force their way into your domicile without your consent, without a warrant, and without what are usually referred to as "exigent circumstances"—e.g., someone inside the home yelling for help. The case, Kentucky v. King, concerned an incident in which police officers chasing a drug suspect ran into an apartment building, smelled marijuana, heard noises they thought might indicate someone was destroying evidence—and broke down the wrong door. This, said the Supremes, was perfectly fine.

Dissenting Justice Ruth Bader Ginsberg asked an apposite question: "How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?"

The Indiana Supreme Court recently issued two rulings of a similar nature. The first said police officers serving a warrant can enter a home without knocking if officers decide they need to. The second said residents have no right to prevent the unlawful entry of police officers into their homes.

Before long the police might not even need to enter your home to search it. Last year Forbes reported that a company called American Science & Engineering racked up $224 million in sales of ZBVs. Those are Z Backscatter Vans, equipped with x-ray machines that can see through walls and clothing. The magazine says the vans have become "powerful tools for security, law enforcement and border control."

Let’s be clear about one thing: Asymmetry is not the same as injustice. The police can pull you over for speeding, but not vice versa—and that is as it should be. The whole idea of having police departments is to allow only certain authorized individuals -- the ones with badges—to raid homes, arrest suspects, and so on. And many of the developments noted above will help law enforcement catch bad guys, which is a good thing.

But it is not the only thing. It is not even the primary thing. Catching bad guys is an ancillary goal for government, whose first duty is to protect the rights of law-abiding citizens. It’s hard for government to do that while simultaneously chipping away at them.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.

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  • Some Guy||

    First?!

  • ||

    A. Barton Hinkle Heimer-Schmidt
    Hey, that's my name, too
    Whenever we go out
    The people always shout
    There goes A. Barton Hinkle Heimer Schmidt
    LALALALALALALA

  • John Jacob JingleHeimer||

    You're stealin' my schtick.

  • ||

    Almanian stole it first.

  • Wanda||

    Second!

  • Tooda||

    Third!

  • ||

    In 1991, George Holliday filmed the LAPD’s arrest and beating of Rodney King.

    I remember reading some years later that Holliday died in a car accident. I tried recently to find out more, but couldn't. It's rather smelly, considering the LAPD took a lot of heat over that video.

  • ||

    Hmmm. As best I can tell, he's still alive, and licensing the tape via a company in Argentina (his birthplace; he emigrated to the US in 1980). He gave an interview in March of this year on the anniversary of the Rodney King event.

  • The Hamilton||

    F tha police. If they don't like being recorded, they should apply for a job in the private sector for which most of them are qualified...flipping burgers at 5 Guys or McDs.

  • BigT||

    All police should be required to video ALL of their encounters with citizens. Absent the video, the cops should be assumed to be unreliable witnesses, and the jury so instructed.

  • mad libertarian guy||

    This.

    I'm not sure why state actors are presumed automatically to be both telling the truth, and even if they aren't lying, that they have an infallible recollection of events.

  • ||

    +1

    The fact that video recording devices are small, cheap and ubiquitous means that there's no excuse for recording all police encounters.

    The police should support this. If they're doing the right things, it will make convictions of genuinely guilty people easier. It would discourage real dirtbags from making cops' lives more difficult, because charges like "resisting arrest" would actually stick, when they're legitimate.

    Why is a small video camera not a required police tool, every bit as much as a pad, a pen, a 2-way radio, etc.

  • ||

    "What'chu talkin bout Willis?"

  • spencer||

    Are you going green by recyling story photographs? or is that just ICONIC?

  • Hooha||

    So, now all criminals have to do to help guarantee victim compliance is impersonate a police officer before forcibly entering your home. Because God help any poor bastard that defends his home/family with lethal force, when it turns out the violent intruder was a cop.

  • Not convinced||

    good point.

  • Nomic||

    I'm still thinking about a friend's home on a farm. He got tired of kids breaking in and stealing stuff while he and his wife were at work.

    If the police try to break his doors in they better bring something more than the two-man ram you see on the viral-swat videos on youtube. The frames are set with leaf springs. Takes the energy out of anything that hits it.

    I wonder how they would view that in reference to resisting unlawful police entry.

  • Realist||

    Fucking deja vu!

  • Doubleu||

    Police will say, "If you are not doing anything wrong you have nothing to worry about." Yet they don't want to be video taped, makes you wonder.

  • Trivial Ends||

    Same thing the ACLU says about drug dealers.

  • WTF||

    What the fuck?

  • Trivial Ends||

    The fact is, video surveillance benefits override the negative "violation of privacy rights". There should be cameras in every home that record evidence should it ever be needed.

  • K S||

    I think I just threw up a little at your comment. Really? Let's imagine some of the negatives, the political party in office currently discovers you are working for its opponent and decides to look for any minor infraction to then arrest you. Since the average American tends to break all sorts of laws everyday, many of which they don't even know are on the books, how hard do you think it would be. I mean, in some places sex in the missionary position is still the only legal way to have sex. These laws are archaic and never followed, but how quick do you think it would be before some politician decided they would be better without you around and used it against you. Clearly you have not considered all the negatives and are naive enough to believe that those who would have access to your private time would use it only the most upstanding manner.

  • Nomic||

    The only power the state really has is to crack down on criminals, so they make the laws impossible to follow so they can crack down on anyone they want. Now we're all criminals!

    If I truly believed all they really wanted to do was keep a record of me 24x7? Feel free, watch me scratch my ass.

    But I don't believe it.

  • Trivial Ends||

    Perhaps you're only focused on the negatives. There is reason to have recorded evidence on the streets, at work, and in the home. It's to protect victims and to distinguish between fact and fiction. If you suspect an employee is not returning from break on time, and you were the boss, do you think having a recording of when the person left/returned would be valuable to dismiss guesswork and speculation? Cameras can also be used for good. Just like the Cameras used by IA to videotape police officers and catch them in a misadventure...

    The reality is that the technology is going to continue to evolve. What is becoming primitive is the idea that some people's lives are somehow special enough to be above the law. (hence the arrests of all these big time white-collar criminals)

    I know what I say is going to set the blood boiling with libertarians and liberals alike, but let's face facts: We all want to know what really happened when there is some obscure crime that lacks evidence.

    I believe it should be mandatory for all home-owners to install a minimal level of government-surveillance on their property so that there is a means to collecting additional data in crime investigation (even when investigating unwarranted entrance by police). The video footage would not be obtainable by or available to the public or (rival politicians *smirks*), and if somebody did gain access to the material for political/social harm (as you described), then that person should be locked away for federal trespass.

    I know "1984" was a scary novel and Eric Blair did invented an amazing narrative to illustrate the evils of socialism, but let's pull our heads out of our asses and realize that video technology is an undeniable benefactor in crime solving. In other words, Orwellian... get over it, and get over yourselves.

  • Emperor Wears No Clothes||

    First comment by Trivial Ends, I wasn't so sure.
    But that second comment. He IS serious.
    Please never get on city council or seek office. I'll have to buy a gun and shoot you. I can't afford the expensive lawyer to help secure my acquittal.

  • Trivial Ends||

    Eh, eventually it'll happen. There's no stopping it, whether it's me or the next guy that says it.

  • Wrecked um' Hell||

    This morning GMA is running a story about in-home video devices. Technology is outrunning liberty and the few politicians who defend it.

  • Mr. FIFY||

    You go first, Trivial Ends.

    Get back to us when you realize what a horrendous mistake you made.

  • ||

    "'...you thought that if I had a quarter of a chance I'd denounce you as a thought-criminal and get you killed off? It's this bloody thing that does it,' she said, ripping off the scarlet sash of the Junior Anti-Sex League and flinging it onto a bough." (Orwell '1984' p121)

  • slutmonkey||

    Video surveillance benefits outweighing privacy violations is not a fact. It's an opinion, that many people do not share with you.

    You'd be closer to being right if there were no such thing as embarrassing moments, bad laws or public workers who take advantage of knowledge of private affairs for their own gain, but there are. There are many.

  • Trivial Ends||

    Hyperbole. Security cameras are abused in private sector and public sector jobs, but the petty incidences of using some of the data for private use is miniscule compared to the benefits of having hard evidence in tracking criminal behavior.

    I've heard all the "privacy" rights arguments, so save them. Stop using the internet (facebook, myspace, email, message boards, etc) that are archived and stored forever in databases that could possibly be used against you if it is linked back to you somehow. Why won't you? Because the pleasures of playing on facebook and message boards outweights the threat of exploitation.

    Just like the benefits of security monitoring systems outweighs the reality that perhaps someone somewhere is laughing at you for doing something silly you wouldn't do in front of strangers. Who cares?

  • jacob||

    You do not see a difference between voluntary and involuntary?

    What was that old saying about giving up liberty for security?

  • Trivial Ends||

    Right. Here's the problem: If you're morally outraged by privacy intrusion, then you're going to be inevitably outraged with voluntary means of exposing yourself to the public too, even by extension of walking into your favorite bar/club and being video taped against your will.

    What's the big dilemma? Should all private and public sector security cameras be outlawed? Should all social networks like youtube be outlawed?

    Perhaps you're just outraged about the notion of government cameras in your home. Would you prefer it if were private citizens who did it? Film your argument between you and your girlfriend through your window and post it on youtube? Lose your camera somewhere and have it posted over all the social networks?

    If you're against government surveillence, you should also be against sites like facebook where people can be easily exploited. What about the gay kid who found his personal life posted all over youtube and killed himself?

    Take the good with the bad.

    The government is already in your home now. Are you saying that you should be able to rape someone, torture someone in your home? Abuse, exploit, kill, maim? Why not, it's your house!

  • ||

    Trivial Ends said:

    "Are you saying that you should be able to rape someone, torture someone in your home? Abuse, exploit, kill, maim?"

    Actually, taken from a very literal standpoint, yes.

    Freedom means the freedom to be evil as well as good.

    Not without consequences, of course, but that does not excuse "prior restraint" - which one can argue that externally controlled surveillance does. As you say, you "take the good with the bad". There is much bad in Freedom - but much, much more good.

    But in government, not so much (mainly due to the nature of people who gravitate towards government - by definition, because they gravitate there due to an innate lust for power, government is the "worst and least" of us). Thus, I cannot ever condone *government* surveillance of my private space/times, because governments are, in the final analysis a "necessary evil"... but still "evil" at the core, and not to be trusted. Only - marginally - tolerated (at least until several hundred thousand years go by and our species evolves enough).

    Now, I have no problem with *internally controlled* surveillance - in fact, my own home is wired six ways to Sunday, with a wireless feed to an off-site secure location. But *I* control who sees it and who doesn't.

    THAT is the difference.

  • tote-road||

    At least Bubs did in Herc's career with a well timed phone call.

  • What a comfort....||

    to know that the spineless Congress Folks with the exception of Paul and a few others are going to renew the Patriot Act for Obama and his Fed enforcers. Harry Reid is a real snake. Every act of police misconduct will be excused for "security concerns". Probable cause out the window. Camera-wielding citizens will be treated as interfering with public safety....and a SWAT vehicle loaded with heavily armed officers will be the normal face of law enforcement.

  • AJ||

    WTF!

  • AJ||

    On Kentucky v. King, it seems that the Supreme Court only ruled that the cops didn't create an exigent circumstance. They didn't rule whether or not there actually was an exigent circumstance. That will be decided in Kentucky Supreme Court. So they may yet decide that cops can't enter a home simply because they smell marijuana. God I hope so. But as for the rest of this stuff in the article, WTF!

  • Jeff Foxworthy||

    You might be a criminal if you hear a knock on the door and start picking up the children's toys before you open the door.

    You might be a criminal because you're taking videoing a police officer to study his tactics in the line of duty.

    You might be a terrorist if you're a tourist taking pictures at a national landmark.

  • Paul||

    The videotape provoked national controversy. If a similar incident happened today, it might provoke something else: the arrest of George Holliday.

    Everyone thinks cops are dumb. They're not. They learned from the Rodney King incident. They now act accordingly.

  • ||

    I don't think cops are dumb.

    I think many of them are evil.

  • Number 2||

    I am shocked -- SHOCKED -- that government officials would demand for themselves the privacy rights they deny to the rest of us! Say it ain't so!

  • ||

    Came here via Instapundit.

    I've followed the arguments concerning the expectation of privacy in the public space and think that the core issue is this: public officials are willing to abridge your privacy and mine, but are not willing to give up theirs. That's no surprise.

    Fixing it requires us either to educate our public officials (yeah, they'll listen to us on this one just as soon as they fix the deficit and the public pensions), or go around them.

    Therefore, I offer a modest proposal for a Constitutional amendment:

    The 28th Article of Amendment:

    Section 1. Congress shall make no law that protects the privacy of an elected public official or public employee in excess of the privacy provided to an ordinary citizen under similar circumstances.

    Section 2. No state shall make a law that protects the privacy of an elected public official or public employee within their state in excess of the privacy provided to an ordinary citizen within their state under similar circumstances.

    This would fix immediately the problems of 1) public officials demanding privacy for themselves that they won't give to us and 2) police officers demanding that the public not observe them (e.g., film them) performing their duties, while at the same time snooping on us.

    Obviously Congress would never propose such an amendment to the states, so citizens, through their state legislatures (and perhaps referendums), would have to exercise their rights under Article V. Having just a few states do so would certainly be a wake-up call to public officials.

    Just a thought.

  • ||

    Just a quibble but "ordinary" citizen feeds the idea that politicians, cops, etc are special. I prefer "private citizen"

  • BigT||

    Section 1. Congress shall make no law that protects the privacy of an elected public official or public employee in the execution of their official duties.

    FIFY

    Public officials deserve special scrutiny, not similar privacy to citizens.

  • TMLutas||

    Indiana AG Zoeller is doing the right thing in seeking a rehearing on one of the Indiana state cases, the one that makes it illegal to resist unlawful law enforcement entry. He still wants his win (and on other grounds, Barnes probably deserves to lose as he was blocking entry to his girlfriend's apartment when she was saying to let the police in) but doesn't like what the Indiana Supremes did anymore than we do.

    What's worrying is the assertion that there is a legal movement, already successful in dozens of states to make illegal the resistance to unlawful law enforcement entry. I think rolling back those other states is just as important as protesting what happened in Indiana.

  • Calion||

    "The police can pull you over for speeding, but not vice versa—and that is as it should be."

    Somebody needs to read up on citizen's arrest rights...

  • ||

    I wonder how the cops will like it when all citizens refuse to assist them... including voting not guilty in the jury box.

  • Navarre||

    It would be nice if more people knew about jury nullification. (hint: look it up)

  • Mr. Mark||

    If somebody illegally forces their way into your home, just kill them.

    Screw the courts. Just hit what you shoot at.

  • JdL||

    You are morally justified in opposing criminal aggression, and to employ whatever level of force is necessary to do so.

    On the other hand, if the criminal aggressors are government thugs, you WILL be killed, as may your family, if present in your home. Then they'll smear you and say you're an example of why they need to be given the power to kill more people, under more circumstances.

    Oh, and your home will magically be transformed into a "compound", which, everyone knows, is the abode of evil people who deserve to be killed.

    Practical if not moral considerations dictate prudence when the thugs come to call.

  • Trivial Ends||

    Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001

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  • JdL||

    Asymmetry is not the same as injustice. The police can pull you over for speeding, but not vice versa—and that is as it should be.

    Strongly disagree. That's how we got to the murderous mess we have today. We can fix it only by insisting that cops have no right do to anything a non-cop is barred from doing.

  • ||

    I'm reasonably conservative, somewhat "law and order," but the whole spectacle of amped-up police officers/SWAT teams in tactical gear busting down front doors, shooting pets, etc. while executing "no knock" warrants on peoples' homes drives me bonkers. And a high percentage of these events are performed against the wrong location. Would not be a good outcome at my place...

  • Erisian||

    "Yet this past January, Kathy Byron, a member of Virginia’s House of Delegates, introduced legislation that would have forbidden the use of GPS tracking devices for the purpose of following political candidates. People running for public office "are still entitled to some privacy," she argued."
    Ahhhhh, the "public" citizen vs those who are normal. If you want to run for public office then your daily lives are cannon fodder for the press, and your expected rights to privacy are extremely diminished. As a private citizen, I never volunteered to have every aspect of my life examined by Big Sis/Brother, reported by the press for the edification of the "workingman" and am entitled to my privacy.
  • Davis||

    This country still dosen't get it. The only way to get results is to usurp power from those who abuse it. Look at Egypt. At least they know how to take care of business when it comes to asshole leaders. People have forgotten that the enemy within is more dangerous than any enemy abroad. It is time for someone to reinstate those militias that truly fought for our freedom centuries ago

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