Legality

If you are in the public, you do not have an expectation to privacy. "If you are in the public, you do not have an expectation to privacy. And that's been black letter constitutional law for a very long period of time," said then-New Orleans Mayor Mitch Landrieu in late 2017.

Landrieu was speaking at the grand opening of the city's Real Time Crime Center, the live monitoring hub for the city’s burgeoning surveillance camera network and the crown jewel of the city’s $40 million public safety plan.

“These are video feeds of people when they're out in public and there isn't an expectation of privacy in that,” Rafael Goyeneche, a former prosecutor and president of the Metropolitan Crime Commission, told The Lens in an interview.

As a general principle, federal law allows the police to observe public spaces, including through public-facing cameras, without a warrant. But the issue of privacy in public is far more complicated than Landrieu’s blanket proclamation, especially as the Supreme Court has started to wrestle with the implications of modern surveillance technology.

The Fourth Amendment protects citizens from unreasonable government searches, seizures and arrests and forms the legal basis for citizens’ right to a reasonable expectation of privacy. The Amendment forces the government to establish probable cause and obtain a warrant before violating that “reasonable” level of privacy.

The Supreme Court has ruled repeatedly that people don’t surrender all expectation to privacy when they walk out their front door. One recent example is the 2018 Supreme Court ruling in Carpenter vs. US. The case ruled that the government had violated the Fourth Amendment by obtaining 127 days of cell phone location data on the defendant, Timothy Carpenter, without a warrant.

“A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” wrote Chief Justice John Roberts in the majority opinion. “A central aim of the Framers was ‘to place obstacles in the way of a too permeating police surveillance.’ ”

In his opinion, Roberts highlighted how technology was changing the nature of privacy, and forcing the court to “contend with the seismic shifts in digital technology” that have “enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes.”

“We have seen examples where it's clear the real-time crime cameras, although they are on public spaces and high up, their capabilities are so strong they can peer into cars, they can peer into windows of structures and capture what's happening from outside from a fairly long distance into what have historically been considered private spaces,” said Colin Reingold, litigation director for the Orleans Public Defenders.

Reingold argued that even if the cameras only captured public spaces, their power and pervasiveness present new threats to basic expectations of privacy.

“The Fourth Amendment as originally construed never imagined we'd have the technologies we have now, in terms of the government's ability to intrude upon someone's privacy and follow someone in real time wherever they go, doing everything they do,” Reingold said.

Much of the location information that the police collected on Carpenter through his phone records could have been, theoretically, collected without the use of modern technology. But it would have required officers trailing and staking out his locations for 127 days, a dedication of resources that has been traditionally limited by cost and the finite number of law enforcement officers. As Roberts said, the technology used to track Carpenter was “remarkably easy, cheap, and efficient compared to traditional investigative tools.”

And, Roberts wrote, the police were able to pinpoint Carpenter’s location retroactively.

“Whoever the suspect turns out to be, he has effectively been tailed every moment of every day for five years, and the police may—in the Government’s view—call upon the results of that surveillance without regard to the constraints of the Fourth Amendment. Only the few without cell phones could escape this tireless and absolute surveillance.”

Roberts noted that the ruling was “narrow,” and was only meant to address the issue of cell phone records. He explicitly wrote that it did not “call into question conventional surveillance techniques and tools, such as security cameras.”

There aren’t many clear-cut constitutional prohibitions on the warrantless use of mass public camera systems. But privacy advocates and some Supreme Court justices argue that they can present a form of monitoring that is just as intrusive, if not more so, than practices that are covered by the Fourth Amendment, like the collection of cell phone location records.

Not only has the number of surveillance cameras proliferated across the US, the software behind them has grown far more powerful. Software like Briefcam, which the city of New Orleans used until 2019, can instantaneously search through live and archived footage to track different people, cars, outfits, faces and other characteristics across all cameras and automatically show you every recorded instance where that person or object was caught on camera.

With cameras, license plate readers, drones and other modern mass surveillance technology, police can follow and track people without warrants and with little effort, in ways that can be far more revealing than just cell phone location data. And as Robert’s noted, the data can be accessed retroactively, meaning that everyone is effectively being “tailed every moment of every day.”

In the Carpenter case, the issue was the targeted tracking of an individual without a warrant, with the court ruling that the police need to obtain a warrant for someone’s cell phone location data. Public camera and sensor systems, on the other hand, watch everyone and everything that comes into view and don’t require law enforcement to get a judge to sign a warrant.

“We look at where we are now, we're talking about the advent of technologies that are collecting data on everyone all the time, regardless of whether you're suspected of being involved in a crime,” New York-based privacy advocate and attorney Albert Fox Cahn told The Lens. “That to me is fundamentally at odds with our justice system, or the philosophy of our justice system that the government should not be investigating you unless they have good cause to.”

And with new surveillance tools and methods constantly emerging, some are concerned about the court system’s ability to keep up.

“While technological improvements are following a kind of exponential curve upward, the law is a more gradual bell curve lagging far behind,” said Bruce Hamilton, senior staff attorney for the ACLU of Louisiana. “The law has really failed to accommodate that advance, because it's built around this notion that surveillance is limited by human perception. And now that we've augmented human perception with computers and technology, we need to account for that.”

The Katz Test

In a landmark case in 1967, Katz v. United States, the Supreme Court ruled that the FBI violated the Fourth Amendment when placing an audio recorder on the outside of a public phone booth where a man, Charles Katz, conducted illegal sports betting business. The case established several Fourth Amendment principles that are still often cited in modern-day rulings, such as the idea that the Fourth Amendment “protects people, not places.”

The ruling also established a two-part test, sometimes called the Katz test, to determine whether a person’s Fourth Amendment rights were violated.

The first question is whether the individual themself had a subjective expectation of privacy. When Katz was speaking in the phone booth, for example, he didn’t expect anyone to be listening in. That likely would not have been the case if an FBI agent had been physically present and pressing their ear on the phone booth glass.

The second, and more tricky question is whether that subjective privacy expectation is “one that society is prepared to recognize as ‘reasonable.’ “ But trying to establish what privacy values held by society as a whole is no easy task, especially when the public doesn’t know or understand the ways the government is spying on them.

“From a Fourth Amendment context, society can only evolve our interpretation of reasonableness if we know the ways the government is watching,” Reingold said.

But with the secrecy shrouding New Orleans’ surveillance capabilities, and the unforeseen implications of modern technology, Reingold argues that the public may not be equipped to determine where to draw the line.

“All of that is happening behind very closed, very locked doors such that we can't have an informed discussion about what's reasonable,” Reingold said. “We can't have a discussion about what it means to do something in private if we don’t know what the government can see.”

Goyeneche said he had faith that as new surveillance implications emerge, the court system will act as a safeguard against government overreach.

"I think the legal systems help make sure that those technologies are being applied constitutionally,” he said.

But not everyone has the same trust that the courts will adequately address these emerging issues as quickly as technology is being developed and adopted.

“I'm sorry to be cynical about it, but people think of constitutional rights as being sacrosanct things that when they're violated it's this huge deal that will automatically get litigated,” Hamilton said. “But the sad fact is that constitutional rights get violated every day in myriad ways. And we don’t always know about it, and the people whose rights are violated don't always know that they're violated and they don’t always think to challenge them in court.”

Even if the violation is challenged in court, the Supreme Court may choose not to hear the case. Or if it does, it could be years before a ruling comes down, by which time the technology might already be outdated, or be applied by the police in new ways that would have to go through another court challenge.

This is one reason why privacy advocates argue it is vital to pass local legislation and create community control over surveillance — to stop unwanted practices that could take years to stop through the court system, or that may not be covered by the Fourth Amendment at all.

Local New Orleans Laws

In December 2020, New Orleans joined a short list of cities actively regulating its surveillance technology when the City Council passed an ordinance to create an entire new chapter of the City Code dedicated to “surveillance technology and data protection.”

The ordinance was written in partnership between then-Councilman Jason Williams, who is now the Orleans Parish District Attorney, and the Eye on Surveillance Coalition, a privacy and anti-surveillance advocacy group. The ordinance as originally written was based off of model legislation provided by the ACLU through its Community Control Over Police Surveillance program.

The ACLU’s template ordinance creates blanket oversight requirements, including City Council review and approval of new and existing surveillance technology, use policies for distinct technologies and annual reporting. Marvin Arnold, an organizer with Eye on Surveillance, said they also drew from the European Union’s General Data Protection Regulation.

The City Council passed the ordinance in December 2020, but removed almost all the reporting and oversight requirements. It also removed a ban on the use of automated license plate readers.

“We've removed the restrictions on license plate readers, and we've stripped extensive approval and reporting processes as requested by the NOPD,” Williams said during the December council meeting.

What remained was bans on four specific types of surveillance technology, including facial recognition, and new data sharing rules. The ordinance also established a foundation for future privacy laws by creating a new chapter of the City Code and setting official definitions for terms like “surveillance” and “predictive policing.”

But there appears to be an effort to roll back at least some of the ordinance’s new restrictions. Councilman Jay Banks told The Lens in March that the NOPD was working on a policy for using facial recognition. Banks said that it was his intention to revisit the ordinance once that policy was presented to the council and, if the policy was found to be acceptable, reverse the ban.

What the New Orleans ordinance did:

The ordinance bans four types of facial recognition technology that the city cannot “obtain, retain, possess, access, sell, or use.” The city also cannot access the technology through contractors or subcontractors.

Facial recognition: “An automated or semi-automated process that assists in identifying an individual, capturing information about an individual based on the physical characteristics of an individual’s face.”

Predictive policing technology: “The usage of predictive analytics software in law enforcement to predict information or trends about criminality, including but not limited to the perpetrator(s), victim(s), locations or frequency of future crime. It does not include, for example software used to collect or display historic crime statistics for informational purposes.” Cellular communications interception technology (cell site simulator): “Any device that intercepts mobile telephony calling information or content, including an international mobile subscriber identity catcher or other virtual base transceiver station that masquerades as a cellular station and logs mobile telephony calling information.”

Character tracking system: “Any software or system capable of tracking people and/or objects based on characteristics such as color, size, shape, age, weight, speed, path, clothing, accessories, vehicle make or model, or any other trait that can be used for tracking purposes, including BriefCam and similar software.”

The ordinance sets certain rules for how the city collects, stores and shares data from residents.

The ordinance states that “the City shall collect only the minimum amount of personal information needed to fulfill a narrow, well defined purpose.” The city cannot inquire or collect data about someone’s immigration status unless it is required by law or in a few other select circumstances, like determining eligibility for city employment and connecting people to benefits or services.

The city is responsible for protecting data it collects, and must maintain policies to protect the data from unauthorized access.

Any city department that uses surveillance technology, either itself or through a 3rd party, has to designate a “Data Protection Officer” to make sure the department is in compliance with surveillance and privacy laws. The city is required to maintain procedures for using and evaluating automated decision systems, including artificial intelligence, “through the lens of equity, fairness, transparency, and accountability.”

The ordinance gives people the right to opt out of certain automated decision making systems. The ordinance says, “wherever decisions are made based on the identity of an individual, rather than patterns of a general population, such as air traffic control, individuals must have the option to opt out of automated decisions.”

The law prohibits city contractors from cooperating or participating in the surveillance, detention or removal of “persons suspected of being noncitizens.” The prohibition can be waived by the Chief Administrative Officer in certain circumstances.

The city is obligated to give public notice and provide an opportunity for public comment whenever it wants to buy, or receive a donation of, any surveillance data generated and owned by a private source. The same requirement exists if the city wants to sell, or donate, any city-owned data to a private source.

General definitions: Automated decision systems: “Any software, system, or process that aims to automate, aid or replace human decision making. Automated decision systems can include both tools that analyze datasets to generate scores, predictions, classifications, or some recommended action(s) that are used by agencies to make decisions that impact human welfare and the set of processes involved in implementing those tools.”

Surveillance: “the act of observing or analyzing the movements, behavior, or actions of identifiable individuals.”

Surveillance technology: “Any electronic surveillance devise, hardware, or software that is capable of collecting, capturing, recording, retaining, processing, intercepting, analyzing, monitoring, or sharing audio, visual, digital, location, thermal, biometric, behavioral, or similar information or communications specifically associated with, or capable of being associated with, any identifiable individual or group.”

What the City Council removed from the original ordinance: Council approval of surveillance technology: The original ordinance required the City to gain approval from the City Council for future and existing surveillance technology at the city’s disposal. Departments would be required to submit a “surveillance use request” for existing surveillance technology and whenever they add new technology. Council approval for a specific technology would last three years, at which time the department would have to apply for council approval again.

Surveillance use policy: For each approved surveillance technology, the city would have to produce a policy for its use that includes its authorized purpose and uses, as well as what data it collects and how that data is stored.

Annual surveillance reports: Every year, city departments and entities would have to submit an annual report for each piece of approved surveillance technology it’s using. The reports would include, “information about how often the surveillance technology was used, where it was used, and by which agency or department the technology was used. It should also include the demographics of the surveillance technology targets, including but limited to race or ethnicity, gener, and socioeconomic status.” The council could amend or rescind approval for surveillance technology based on the reports.

Surveillance impact reports: Each annual surveillance report would include a surveillance impact report, which would include product information, cost and an assessment of the “potential or realized impacts on privacy and civil liberties, as well as plans to safeguard the rights of the public.”