Traffic Enforcement Cameras
Prof.
Eugene Volokh, UCLA School of Law
(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.