Is Privacy Overrated?

Reason Magazine
Is Privacy Overrated?
The merits, drawbacks, and inevitability of the surveillance nation
Katherine Mangu-Ward

"Have you ever attended a political event? Sought treatment from a psychiatrist? Had a drink at a gay bar? Visited a fertility clinic?" A report on the proliferation of surveillance cameras-more than 4,200 below 14th street-from the New York Civil Liberties Union asks: Would you have done those things if you had known you were being watched?

The answer, for most people, is yes. Though we may shy away from the idea of someone spying on our private lives, most people believe that we live in a country where rights are generally respected, and so we go about our business without fear. However, the report notes:

There is only limited recognition in the law that there are some places into which a surveillance camera is not allowed to intrude. And there are virtually no rules that prohibit police or private entities from archiving, selling or freely transmitting images captured by a video surveillance camera. The courts have yet to address the fundamental privacy and associational rights implicated by the phenomenon of widespread video surveillance.

In short, they're worried about what will happen when New Yorkers no longer have an expectation of some degree of privacy in the public sphere. And they're right: There is almost no privacy left in America, especially in cities. Sooner or later, you won't be able to go anywhere without being tracked.

Debate about the use and abuse of surveillance cameras is worthwhile, but it is also worth keeping in mind the ways in which we benefit from the death-by-a-thousand-cuts that privacy suffers every day. While raising legitimate concerns about the camera boom in New York, the report ignores the significant gains to consumers living in a transparent society--both convenience and security--and the ways in which proliferation of video surveillance public and private can protect citizens from police misbehavior or other miscarriages of justice (for a more thorough look at the upside of zero privacy, see Declan McCullagh's cover article in the June 2004 isssue of reason.)

Let's revisit the frightening picture painted by the New York Civil Liberties Union. For a session at the psychiatrist's office or the fertility clinic, you would have paid with a credit card, right? If you bought a round of drinks at the gay bar, would you have hesitated to hand your card to the bartender, even to leave it with him to run a tab? To get there, you might have taken the subway using your registered, traceable Metro card. Or perhaps you drove, zipping past tollbooths in an EZ Pass lane, pitying the poor suckers waiting to pay with old-fashioned, anonymous cash. If you were concerned about getting lost, you could have used your phone's GPS, leaving a wake of signals and records about your location and habits.

Perhaps you would have stopped to pick up some cash at an ATM before your outing. There, you would have created another digital record, stamped with the time and place of your withdrawal in the bank's records. And that mirror above the ATM where you checked out your hair? It's concealing a camera, there to protect you from anyone inspired to lift your newly-acquired cash or force you to take out more at gunpoint, or at least help identify and catch the mugger later. ATM cameras have been in general use for many years.

Your credit card, EZ Pass, and bank records can all be subpoenaed when necessary. So do a few thousand city cameras really represent a new invasion of our privacy? Hardly. My credit card company has long known where I buy underwear, but I don't lay awake nights worried that prosecutors might demand knowledge of my preferences in skivvies. The ways in which that information can be accessed by the state are circumscribed by decades of legal precedent. We should remain vigilant that those precedents aren't eroded, and we should work to strengthen protections where necessary, but the collection of the information in itself is an unstoppable force, mostly for good--I like that I can sift thorough records ofeverything I have purchased in the last three years.

New York already boasts three or four thousand cameras, mostly private, and the number will only continue to grow. The biggest boom will be in government cameras, though. The New York City police recently announced plans to create “a citywide system of closed-circuit televisions” operated from a central control center, funded primarily by federal anti-terrorism money.

Admittedly, this is where the surveillance nation gets dicey. Concerns about misuse of public cameras by authorities are reasonable and violations should be punished--there are several cases wending their way through the courts now which are expected to set standards for how severely abuse of video can be punished, and what the proper parameters are for its use. But much of the abuse of the cameras often takes innocuous forms: a deputy police commissioner rewinding tape to locate his lost keys or keeping an eye on his kids as they walk home from school. This type of behavior should not be confused with serious infractions.

And of course, cameras can and should also protect citizens from police misbehavior. Several protesters at the 2004 Republican convention in New York, for example, have beaten charges of resisting arrest with video evidence from private and public cameras. A few more cameras on the street when police fired 50 rounds at Sean Bell in Queens might have helped determine what really happened on the night of November 25th.

There have been several smaller occasions where do-it-yourself video privacy violations have paid off, as in the case of recent LAPD brutality caught on a mobile phone or handheld camera. Think Rodney King meets YouTube. In these cases, private cameras provided a check on police. Added surveillance of police also carries another benefit: police are smart enough to know to be careful when they are being taped, even when they're being taped by their own colleagues. The report relates an interview with off-duty police officers at a labor demonstration. "A special NYPD unit was assigned to film the police officers as they demonstrated. 'That’s Big Brother watching you,' said one police demonstrator outside Gracie Mansion. Said another: ' sends a chill down a police officer’s back to think that Internal Affairs would be taping something.'"

Police concerned about who's watching them will generally be police more prone to good behavior.

More worrying than the boom in public cameras, though, is a recent proposal to require New York's hundreds of night clubs to install cameras on the premises. When businesses chose to install cameras for their own purposes, the cameras usually benefit consumers in the long run--with increased security or convenience. But when the city mandates the installation of private cameras, patrons are less likely to benefit. Such mandates can and should be fought as infringements on privacy and property.

Whether or not cameras deter illegal behavior is a legitimate debate, and it's true that cameras in the London subways system didn't deter bombers in July 2005. But perhaps it should have-the video footage led to the speedy identification and capture of the four bombers . The next terrorists (those not hoping for 72 virgins, anyway) might be inclinded to rethink their plans.

If you're inclined to avoid the cameras, go ahead. Here's a map of the known cameras in the city to help you plan your route or figure out which way to angle your fedora to shade your face. The NYCLU report is concerned that the cameras are often disguised, that they "remain hidden to the untrained eye." But in the same sentence, the report notes that "the corner deli" or other shopkeepers often operate cameras. Small shopkeepers have been using security cameras for many years, but even the most paranoid among us still go in to pick up some beef jerky when we pay for our gas. Our behavior suggests that we are already at peace with having our images captured on video.

Of course, issues like required surveillance on private property and protections for citizens who want to film police should be aired in the public square. Police occasionally arrest bystanders for taping a police encounter, an activity that should clearly be protected. But the debate shouldn't ignore the fact that the kind of personal privacy many worry about losing to street corner cameras has already mostly been lost to credit cards, EZ Passes, and cameras in your ATM or deli. And more cameras and records, not fewer, may be the best guarantee against abuse of police power in the age of zero privacy.

Katherine Mangu-Ward is an associate editor of reason.