What's legal when it comes to cameras?

EXCLUSIVE VIDEO: What Lancaster's street security cameras show

We asked two national and local experts in surveillance law.

Clifford Fishman is a professor at The Catholic University of America's Columbus School of Law, Washington, D.C.; a former New York City assistant district attorney; and author of "Wiretapping and Eavesdropping."

Lancaster attorney Len Brown serves part time as a judge advocate in the U.S. Army Reserve. Brown works in the Joint Operations Center, which oversees military activity in and around Washington, D.C.

Here, Fishman and Brown weigh in on legal issues related to the Lancaster Community Safety Coalition and video surveillance in general.

Public vs. private

Since the late 1960s, the U.S. Supreme Court has used the term "reasonable expectation of privacy" to define when police surveillance or searches violate the Fourth Amendment.

Now it's the key legal concept in determining what surveillance cameras may — or may not — record.

People expect privacy in their homes and properties. But they can't have that expectation on public streets and sidewalks, Brown and Fishman say.

The Supreme Court, Fishman says, has taken the general approach that what a person knowingly exposes to the public — even in his own home or office — is not constitutionally protected.

While out in public, he says, people have virtually no right to privacy of any kind from visual surveillance.

No federal law governs video surveillance by private citizens or organizations like the coalition, he and Brown say. And virtually no federal law — other than the Fourth Amendment — covers police video surveillance.

"The courts have claimed that using a video and audio recorder by a citizen is protected by the First Amendment," says Brown, a West Point graduate and an attorney with the Lancaster law firm of Clymer & Musser.

Even police officers are not exempt from being videotaped and audiotaped, he says.

Shoppers entering a business with surveillance cameras also have no reasonable expectation of privacy.

"You go in, knowing that what you do and say is being taped, or you don't go in," Brown says.

The coalition cameras do create at least one potentially troublesome area, Brown and Fishman say. Some may be mounted high enough to peer over fences into backyards, which could be an invasion of privacy.

What's legal?

State laws strictly regulate audiotaping. But there is no legal counterpart for videotaping.

"There's really debate over everything," Brown says of videotaping.

Fishman blames politics for the lack of clear videotaping laws.

The large and powerful telecommunications industry wants to protect its customers, which motivates specific legislation against wiretapping or bugging, he says.

On the other hand, " … the Justice Department likes the law the way it is, because it allows visual surveillance of public conduct," Fishman says.

Private citizens using video cameras must follow the same guidelines governing surveillance programs operated by municipalities.

If a person films a neighbor's property, that's not necessarily illegal, he says. If that person points the camera toward the street curb, and it films people walking by, that's fine, too, he says.

But the line may be crossed, he says, if the camera operator follows someone and continues filming him, particularly after that person asks him to stop.

Such an encounter could be harassment, Brown says.

Still, no one monitors what business owners and private citizens film with their cameras, he says.

"There's really nothing anyone can do, until someone finds out [the camera operators] are abusing the cameras."

Eye on the monitors

Regulations covering individuals who monitor camera feeds is a major concern in surveillance operations, Fishman and Brown agree.

One of Brown's jobs at the military's Joint Operations Center is to monitor what camera operators are viewing.

In the absence of clear regulations and oversight, there is the potential for voyeurism and invasion of privacy, Brown says.

Fishman says municipalities with surveillance programs generally regulate who can access the cameras and recordings, and when, if ever, recordings can be copied, released or used in court, he says.

But no regulatory scheme is perfect, he says. Some breaches are almost inevitable.

"I believe most people are well-intentioned," Brown says. "But not everyone has good intentions."

What's the solution?

Brown and Fishman have different ideas for reducing the intrusiveness of city-wide surveillance programs.

Keep the cameras turned off until a 911 call comes in, Brown says, then turn them on in that specific area.

"At least you have a justifiable purpose for having the cameras on at that point," he says.

Fishman suggests putting cameras only in areas where crime is prevalent, instead of simply saturating a city, in hopes of catching criminal activity.

As surveillance programs grow in number across the country and camera technology improves, it's important that decisions about surveillance are made in public, he adds.

"This is something that we, as a society, need to discuss and decide," in debates that are productive and well-moderated, he says.

"Once the debate gets captured by the extremes on both sides, people in the middle just tune out."

csmedley@lnpnews.com