“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness… They conferred against the Government the right to be let alone — most comprehensive of rights and the right most valued by civilized men.” ~ Justice Louis D. Brandeis (1856-1941)
The rapid spread of public surveillance cameras represents something far more consequential than a new piece of police technology. It represents a fundamental change in the relationship between the individual and the state.
These cameras allow government agents to record, identify, catalog and retroactively track the movements of people who have committed no crime, are suspected of no wrongdoing and have done nothing to invite government scrutiny. That’s not public safety. It’s an assault upon individual privacy.
Privacy is not a privilege granted by government. It is an aspect of personal liberty that government exists to protect. It is a natural human right protected from the government in the Bill of Rights. The fact that a person leaves his home and travels upon a public road does not mean that he has surrendered that right.
There is an enormous moral and constitutional difference between a police officer who happens to observe a person in public and government surveillance that automatically and systematically records that person’s vehicle, location and movements; and stores that information for future use.
A free society doesn’t just protect people from crime; it protects them from arbitrary government. The presumption is liberty. Government is the negation of liberty. A person should not have to establish his innocence before the government leaves him alone. The burden always belongs to the government to justify all intrusions into personal liberty. Police cameras reverse that principle. They collect information about everyone the camera views and leave it to individuals to challenge the collections afterward.
The Constitution requires articulable suspicion connecting the person being surveilled to a legitimate law-enforcement objective to justify public surveillance. A vague assertion that the technology might someday help solve a crime or enhance public safety does not meet that standard.
The view that personal privacy and public safety are in equipoise — that they are merely two competing interests of equal moral and legal weight from which government officials are entitled to choose subjectively their preferred balance — is the core of authoritarianism.
Safety is one of the legitimate purposes for which government exists. Privacy is among the personal liberties that government exists to protect. It cannot be taken away without judicial approval. Government cannot justify violating a natural right merely by asserting that doing so might make people safer. If that were so, there would be no meaningful boundary on any governmental power.
There is a profound difference between investigating a specific crime through constitutionally authorized surveillance and constructing a permanent infrastructure of suspicionless surveillance. The former begins with evidence and seeks information relevant to a particular governmental purpose. The latter begins with everyone and waits for the evidence.
When 7,000 American police departments have these systems with no legislative approvals, we have the police making policy judgments. They are deciding that the government should possess a new capacity to observe innocent people, what information should be collected, how long it should be retained, who should have access to it and what purposes may justify searches; all this irrespective of the Constitution.
Those are not merely administrative questions. They are questions about personal liberty.
If elected legislators believe that such surveillance is necessary, they should publicly debate it, enact specific legislation mandating warrants, establish meaningful limitations and accept responsibility before the voters. The decision should not be buried in a police procurement process or treated as an ordinary equipment purchase.
Liberty cannot depend upon the benevolence, restraint or good intentions of government employees. The premise of the Constitution is that government power must be limited, checked and divided because government officials are human beings who possess power and will inevitably have incentives to abuse it.
The answer is not better government surveillance. The answer is what the Fourth Amendment requires: No government surveillance without search warrants.
The constitutional question cannot be reduced to whether someone was physically standing in a public place. A police officer seeing a car pass by is one thing. A government database capable of reconstructing months of a person’s movements is something fundamentally different.
The difference is the difference between observation and surveillance.
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