“The Cameras Are Watching -- And It’s a Good Thing,”

Traffic Enforcement Cameras

(published in the Wall Street Journal, Mar. 26, 2002, p. A22)

Cameras are the hot new law-enforcement tool. I got caught two weeks ago by one that photographs cars entering the intersection as the light turns red. (My ticket just came in the mail.) Washington is setting up hundreds of cameras monitoring streets, federal buildings, Metro stations, and other locations. Police used cameras with face recognition technology at last year’s Super Bowl to catch known fugitives.

Many of my libertarian friends are outraged by these cameras -- creeping Big Brotherism, they say. But the analysis can’t be as simple as “surveillance bad, privacy good”; and at least in some situations, camera systems can promote both security and liberty.

To start, the problem isn’t privacy. These cameras are in public places, where people’s faces and cars are visible to everyone. The camera that caught me saw only what any passerby, and any police officer who might have been at the intersection, could lawfully see. Nor is this an “unreasonable search and seizure,” in the words of the Fourth Amendment: The Supreme Court has recognized that observing things in plain public view isn’t a “search” at all, much less an unreasonable one.

While we should be concerned with protecting our liberty and dignity from intrusive government actions, the red light cameras are less intrusive than traditional traffic policing. The law recognizes that even a brief police stop is a “seizure,” a temporary deprivation of liberty. When I was caught on the camera, I avoided that. I avoided coming even briefly within a police officer’s physical power, a power that unfortunately is sometimes abused.

I avoided the usual demeaning pressure to be especially submissive to the policeman in the hope that he might let me off the hook. I avoided any possibility of being pulled out and frisked, or my car being searched. I didn’t have to wonder if I had been stopped because of my sex or race or age. And while cameras aren’t perfectly reliable, I suspect that they can be made more reliable than fallibly human officers -- so I may even have avoided a higher risk of being wrongly ticketed. (It helps that the photos mailed with the ticket showed me in the driver’s seat, plus my car’s license plate and the precise place my car supposedly was when the light turned red.)

The main concern with cameras must be not individual privacy, but government power. Cameras are a tool, which can be used for good (to enforce good laws) or for ill-to enforce bad laws, to track the government’s political enemies, to gather ammunition for blackmail, and so on.

In this respect, they are like other policing tools: the guns that police officers carry, inter-department communication systems, wiretaps, even police forces themselves. Each of these tools can be abused, and have been abused. But we accept this risk, because the tools are valuable, and because we’ve set up control systems that can help diminish the risk.

So we have to consider each camera proposal on its own terms, and ask what I call the Five Surveillance Questions: What concrete security benefits will the proposal likely provide? Exactly how might it be abused? Might it decrease the risk of police abuse rather than increase it? What robust control mechanisms can be set up to help diminish the risk of abuse? And, most difficult, what other surveillance proposals is this proposal likely to lead to?

This analysis suggests that traffic cameras are a good idea, at least as an experiment. They seem likely to help deter traffic violators. They can’t easily be abused. They decrease the discretionary and sometimes oppressive power of police over motorists. The big unknown is whether, once the cameras are set up, the data will eventually be used not just to catch red-light runners but to photograph and identify all drivers. More about that shortly.

Cameras in public places -- from ATM machines to convenience stores to streetlamps -- are also probably worth experimenting with. They can at least theoretically help catch some street criminals and deter others (though we should always realize that worthwhile-sounding crime control proposals may not work in practice). I’m not sure how much the cameras would help fight terrorism, as some people have suggested; but if they just catch street criminals, that’s not chopped liver.

These cameras pose some risk of government abuse, from petty indignities (such as security guards using cameras to ogle women) to more serious abuse, such as officials trying to find possibly embarrassing behavior by their enemies. But they can also reduce the risk of government abuse: The camera that might videotape a mugging can also videotape police stops of citizens, providing evidence of possible misconduct and maybe even to some extent deterring such misconduct. And videotape evidence can decrease the risk that the wrong person will be arrested.

Connecting the cameras to face recognition software, keeping the recordings indefinitely rather than just recycling them after a few days, and merging the data in a centralized database would indeed pose a greater likelihood of abuse. Slippery slope arguments are often overstated, but in a legal and political system that relies heavily on precedent and analogy, the slippery slope is a real risk. Once voters get used to surveillance, they might become more tolerant of the government processing the data in various ways. And once the government invests money in cameras, voters might want to get the most law-enforcement bang for the buck by having the police store, merge, and analyze the gathered data. This slippage isn’t certain, but it’s not implausible.

But even if slippage happens, it’s important that the potential for abuse is limited and limitable. The danger isn’t the government looking into homes, or tapping private telephone conversations. Rather, it’s that cameras in public places will be abused by officials who want to harass or blackmail their political enemies.

There are such rotten apples in government. If you think that there are very many, and that law enforcement is fundamentally corrupt, you should oppose any extra tools for the police, since in your perspective the tools would more likely be used for ill than for good. But I don’t take so dim a view. I think that for all its faults, law enforcement is filled mostly with decent people. And more importantly, good law enforcement is vitally necessary to the safety of citizens, of all classes and races.

Instead of denying potentially useful tools to the police, we should think about what control mechanisms we can set up to make abuse less likely. And we should recognize that some surveillance tools can themselves decrease the risk of government abuse rather than increase it.

* * *

Here are answers to a few questions that I was asked after I wrote this (which were of course not published in the Wall Street Journal):

Q [Confrontation Clause]: “It is my understanding that in a court, one has the right to be confronted by one's accuser. I've assumed this is why a police officer issuing me a ticket must appear in court to identify me as the accused when I choose to dispute the ticket. If this is so, then I am at a loss to explain how a camera can act as an accuser. Do we just assume it is a failsafe device and that we can disregard constitutional requirements, or does the provision about being confronted by one's accuser only apply in certain kinds of cases? While I quite agree with you that it does avoid the unpleasantness of being stopped, I am troubled by the deeper potential issue.”

A: The Sixth Amendment secures a criminal defendant the right to “be confronted with the witnesses against him.” That means the government can't just bring in an affidavit from someone saying "I saw Volokh kill Doe" -- it has to bring in the witness so that my lawyer can cross-examine him, and ask, for instance, where he was when he supposedly saw this, why he thought it was me, whether he might have misremembered, and so on.

But physical evidence is admissible even though it itself can’t speak, or be cross-examined. If the bullet came from my gun, the bullet can be introduced as evidence. If I left my driver's license at the scene, the license can be introduced as evidence. If a private person videotaped my shooting Doe, the videotape can be introduced as evidence.

Precisely because these aren't "witnesses" but are rather physical evidence, the Sixth Amendment doesn’t directly apply to their admissibility. Of course, real people who are asked to explain why the bullet matches up to my gun, or where and how the videotape was taken, or when and how the street-corner cameras were properly calibrated, must indeed appear in court, where I can cross-examine them.

Q [Self-Incrimination Clause]: “[Could] the state . . . meet its burden without someone to testify against you, since under the Fifth Amendment you cannot be required to testify against yourself? I guess since the camera took a picture of you and it was recognizable, the state could bring in the people who operate the cameras, but they have no live witness who could testify that he saw you driving. Also, if those cameras are, as I suspect, on automatic pilot, there is a question as to who could be qualified to testify.”

Likewise, others have asked questions more or less like the following: Doesn’t this whole process violate the presumption of innocence, since once the photo is introduced, you’d have to prove that the driver wasn’t you or that the camera was miscalibrated?

A: If I’m a criminal defendant, then I am indeed presumed innocent, and I have no legal obligation to testify. But this presumption simply means that the government bears the burden of introducing enough evidence that the factfinder (the judge or the jury) can conclude, beyond a reasonable doubt, that I’m guilty.

So if I’m accused of murder, I’m presumed innocent. But once the government puts on, say, an eyewitness who swears that he saw me do the deed, the jury then has enough evidence from which it may convict me (if it believes the eyewitness).

At that point, if I want to avoid conviction, I have to put on some evidence that casts doubt on the witness’s story -- perhaps that he’s blind, or that I saw where he was standing and he couldn’t have seen the events clearly from there, or that he is biased against me, or that I was elsewhere at the time. I might even want to testify, if I think my testimony will help cast doubt on the government’s case.

The burden of proof technically remains on the government. But since the government has put on enough evidence from which a reasonable factfinder could convict me, I naturally have to do some work to undermine that evidence, if I want to be acquitted.

Likewise with the cameras. The photograph, coupled with evidence that the camera is properly calibrated (i.e., takes the picture when the light turns red, and not 2 seconds before), is pretty powerful evidence that I’m indeed guilty. If I want to be acquitted, I’d have to introduce some evidence that undermines the government’s evidence (e.g., the person in the driver’s seat is actually a friend of mine to whom I lent the car).

But that’s just the normal way that all trials work: Once the government introduces enough damning evidence against me, I do as a practical matter end up having to try to clear myself. That’s inevitable, and not unconstitutional.

Q [Slippery Slope to Outlawing Disguises]: “If cameras lead to legislation outlawing appearance modification -- head dresses, hair, glasses, etc. then they will have lead to a significant reduction in liberty. Since they can only work legally if they can identify drivers (for some of the offenses) they have to be supported by outlawing such modifications if they are to work.”

A: As I mention in the op-ed, I take slippery slope concerns seriously. This argument points to an example of the “enforcement need slippery slope” phenomenon (see Volokh, Mechanisms of the Slippery Slope, Part II.B), and such slippery slopes are a real concern: When a law is enacted, some voters become more committed to seeing it enforced, and might thus end up approving enforcement mechanisms that they might have opposed at the outset.

I don’t think bans on head dresses, changed hair styles, glasses, or big hats will be really likely -- too many people wear them, and the public outcry against this would be too great. But I do think that people will indeed start wearing such mild disguises in order to protect themselves against camera-based tickets; and this will probably lead to calls to make car owners rather than drivers responsible for tickets (with an exception for when the car is reported stolen), much as they are now with parking tickets. Such a change may also involve changing routine traffic enforcement from a system of criminal fines to a system of civil fines, as I’m told already takes place in some states.

So I do think there’s a risk (though not a certainty) of a slippery slope. But the bottom of the slope -- the same system used now for parking tickets -- doesn’t seem that troublesome. We might want to impose some control mechanisms, for instance excluding camera-based tickets from the count of “points” that could lead drivers to lose their license, on the theory that owner liability is good enough for a parking or traffic fine, but not good enough for the generally more serious penalty of stripping someone of their license. But the important point is to find such control mechanisms, rather than to throw out the useful enforcement device.

Q [Underenforcement as a Good Thing]: Is perfect law enforcement really good? Would we want to have every one going 36 in a 35 mph zone be busted?

A: Sometimes, perfect law enforcement is a lot better than the current highly imperfect law enforcement. The red-light-running laws are a good example.

Other laws, it’s true, are set up in particular ways precisely because people expect that they’ll be underenforced. Speeding laws are one example: “We need a limit of 35, because then people will drive 45; if we raise it to 45, then people will drive 55,” a common argument goes.

But I think that broader and more evenhanded enforcement will generally (not always, but usually) lead to improvements in the law. If lots of citizens get pulled over for speeding, and the limit also ends up making everyone else drive too slowly, City Hall will react.

Yes, the bureaucrats do like getting the money from the traffic fines, but their bosses like to get re-elected. When enforcement is widely spread, and not focused on just a few people, the political reaction is likely to be quite strong.

Q [Lengthen the Yellow Lights]: Wouldn’t it be better to solve the red-light-running problem by lengthening the yellow lights?

A: I agree in principle that one should look carefully at the law being enforced, and inquire whether it really is the sort of law that we’d like to enforce better -- or whether there’s a possible solution that doesn’t involve more enforcement.

But in practice, I don’t think this objection really applies here. In nearly 20 years of driving in Los Angeles (though I realize the situation might be different in some other cities), I don’t recall any cases where the yellow was so short that I didn’t have enough time to stop before the light turned red.

Rather, my experience is that people who enter the intersection right after the light turned red (like me, sometimes) do so because they saw the light was yellow, and chose to accelerate when they could have safely slowed down instead. So if you lengthen the yellow, people would just compensate: When they see, even from a distance, that the light has just turned yellow, they’ll know that they have a few extra seconds; and so they’ll try, as they do now, to zoom through the intersection before the light turns red. My sense is that there’ll be about as much red-light-running as before. Certainly there’ll be plenty of red-light-running, enough to cause quite a few accidents.

Q [Right to Put on a Defense]: “Isn't a real problem with the red light cameras that they effectively deprive the individual of an opportunity to put on a defense, since by the time you get the ticket in the mail you probably have no way of remembering the event -- which you would have a very clear memory of if an officer had pulled you over?”

A: When I got ticketed, I knew that I’d probably been caught, because I saw the camera flashing as it took the photo. But say this wasn’t so (and it might not be so for future cameras, or even for some cameras today); and say that you therefore don’t remember exactly what happened by the time you get and fight the ticket.

Even given this, I strongly suspect that the factfinding process at trial would be more accurate, even given your lack of recollection, than it would have been with a traditional traffic stop. People are notoriously bad at observing and remembering exactly what happened. Just how fast were you driving? Exactly where were you the moment when the light turned red? Few motorists can know this with any accuracy even a minute or two after the fact; and even police officers are probably not very good at this sort of thing.

So the question isn’t “Is the camera perfectly reliable?,” but “Which is more reliable: the camera, with no observation by the police and little recollection by the motorist, or the observation and memory of the police officer and the motorist, without the camera?” I think the answer will generally be the camera -- assuming, of course, that it’s properly calibrated, but it’s easier to verify the camera’s calibration than the police officer’s observational acuity.

Nor is this one of the rare situations where Constitution -- or justice -- forbids a certain trial process even when it’s more accurate than the alternatives. You do have the constitutional right to put on your defense; but there’s no constitutional right to be sued or prosecuted only for those things that you remember. If the government has sufficient reliable evidence that you violated the traffic law, it can properly punish you even if you can’t recall all the details.