Smile, You're on Cafe Camera
Games, gangs, and surveillance
If you want to check your e-mail in Garden Grove, California, get your ID ready, sign in, wave to the nice security guard, and smile for the camera. Late last month, the state's 4th District Court of Appeal reversed a lower court and upheld a local ordinance imposing a raft of restrictions on when and how Internet cafes in the city may operate, including a rule that, as a bilious dissent put it, "literally forces a 'Big Brother' style telescreen to look over one's shoulder while accessing the Internet." Other communities have enacted similar rules, and more are considering following suit.
Officials argue that the regulations are necessary to prevent violence, that gangs congregate in Internet cafes to face off in multiplayer shooter games whose gore occasionally splashes into the city's distinctly un-virtual reality. Police Captain Kevin Raney compares the regulations to similar rules passed to restrict the hours of pool halls, and when minors may enter them. And indeed, 2002 saw a spate of breathless articles making the irresistible link between the simulated savagery of games like Counterstrike and the gang-related stabbing of 20-year-old Phong Huu Ly just over two years ago.
Business at the cafes had been booming: In the span of two years, the number of Internet cafes in Garden Grove rose from just three to more than 20. The clientele, many of whom are immigrants, include young men from Little Saigon who show up to exercise twitchy thumbs, but also older folk without Internet connections at home who come in late at night to correspond with family in Vietnam, where clocks run 16 hours ahead of California time. "The problem" said City Manager George Tindall, "is these places were going into operation faster than we could get a handle on them."
But does the fault really lie in the cafes? As the dissent in the decision observes, only three of the 23 Net cafes in the city have experienced the "gang related violence" that prompted the law—five incidents in late 2001 were recorded in the police memorandum that provided the impetus for the new rules. Moreover, most of the incidents occurred, not in the cafes, where a camera or security guard might make some difference, but outside in the parking lots, or even farther away, a distinction elided by the police memorandum, which according to the appeals court ruling noted crimes "in or near" the cafes.
So why has Garden Grove decided that the problem is not gangs, nor even a few trouble spots in need of special police attention, but cyber cafes per se? "Those of us in the area think it's obvious," says Ron Talmo, the Western State University law professor who argued the case, "They're young and they're Asian." In a heavily Vietnamese area, Talmo suspects that council members are simply worried about any place where young Asian men tend to congregate, even when a specific business hasn't been linked to gang activity.
Diane Vo is adamant that her Vietnam Internet Center is one such business, and fears that the new rules will force her to close up shop. Vo, who also hosts a local AM radio talk show, is the lead plaintiff in the challenge to the Garden Grove ordinance, and hopes to appeal the court's decision—if she can afford it. "If I had known they would do this," says an emotional Vo, who rents out her computers at the rate of $2 per hour, "I wouldn't have put all my savings into this business to try to give the Vietnamese community access to the Internet."
In addition to installing an expensive surveillance system, Vo says she is now unable to serve customers during the late hours—daytime in Vietnam—when many of them want to log on. In an attempt to comply with the new rules, Vo also became licensed as a security guard, but the Garden Grove City Council, she says, amended their regulations after the fact to prevent owners from acting as guards: She doubts she can afford to hire another guard to do the job. Vo also says that, since mounting her challenge, police have come into her business to demand proof-of-age from clients in their 30s, an attempt to enforce the new curfew that she finds suspiciously aggressive.
But Talmo and Vo don't merely claim that the regulations make it rough for small business owners—they also say that the new rules aren't narrowly tailored to ensure public safety, that they burden free speech and violate customer privacy. Vo draws unfavorable comparisons to the treatment of similar establishments in communist Vietnam. The question, as Stanford University Law professor Lawrence Lessig puts it, is "whether to treat the cafes as more like pool halls or more like libraries. It seems to me they're more like libraries."
The appeals court doesn't entirely deny the existence of free-speech interests in the cyber cafes. They struck down a "use permit" requirement that would have demanded that the owners of both new and existing Net cafes seek advance approval from the city before opening their doors. Yet with respect to the other rules, the court seemed reluctant to second guess the council's judgment. "That has to be wrong," says Talmo. "I've never seen an opinion that says judges can't look beyond an ordinance to see if it's supported in fact," which is to say, whether violence at a few Net cafes justifies such sweeping restrictions on the modern equivalent of the public square. Justice David Sills' vitriolic dissent put it rather more forcefully: "This is the way Constitutional rights are lost. Not in the thunder of a tyrant's edict, but in the soft judicial whispers of deference."
Part of the problem is that privacy jurisprudence is built on the shifting sands of "reasonable expectations." Talmo summarizes the court's reaction to the surveillance requirement as: "We're already on tape so much, what's the big deal?" But Lessig argues that the court is mistaken when it suggests that surveillance cameras violate our expectations of privacy no more than a wandering employee with a good memory. "Privacy," says Lessig, "is a function of the searchability of information about you. That's a systematic problem with the way courts think about privacy and technology."
How searchable are those tapes and user logs? Talmo says he stopped stressing the mandatory cameras—which his client has already installed—after the city stipulated that nothing in the statute required that the tapes be available for inspection without a warrant. Yet as John Berlau observed in a November reason cover story, current privacy jurisprudence recognizes no Fourth Amendment interest in records maintained by third parties. Government can therefore perform a kind of two-step, first requiring monitoring by businesses, and then independently requiring those businesses to make their records available, since citizens have no "reasonable expectation of privacy" in such records. Could user logs and videotapes of user activity be seized under the business records provisions of the PATRIOT Act? Since such seizures are secret, we may never know.