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Councilmember Kathy Patterson
Chair, Committee on the Judiciary, Council of the District of Columbia
Privacy vs. Security: Electronic Surveillance int he Nation’s Capital

March 22, 002




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Thank you for the opportunity to testify today on behalf of the Council of the District of Columbia. I am Councilmember Kathy Patterson. I represent Ward 3 and serve as chair of the Council Committee on the Judiciary, which has oversight responsibility for the Metropolitan Police Department and criminal justice issues generally.

Deputy Mayor Kellems and Police Chief Ramsey will, I am sure, give you an overview of what is in place today in the District of Columbia in terms of the photo surveillance technology employed at the Metropolitan Police Department Synchronized Operations Command Center. I would like to share the perspective of the legislature.

First, surveillance including photo surveillance is a longstanding and legitimate tool for law enforcement in the District of Columbia, as it is elsewhere. The D.C. Code, for example, includes a definition of the term "law enforcement vehicle" that includes surveillance as a law enforcement activity (Section 50-702 in the Alternative Fuels Technology Amendment Act of 1993). The Council-passed Drug Related Nuisance Abatement Act of 1999 permits the Court to issue an order to abate a nuisance that would include "use of videotaped surveillance of the property and adjacent alleys, sidewalks or parking lots." And our Courts have long had the authority to issue warrants for "electronic surveillance in connection with crimes and offenses committed within the District of Columbia" (Section 11941, effective July 29, 1970).

What is at issue today is whether technology itself has blurred or moved the line between what is longstanding and legitimate law enforcement use of surveillance, and what is an unwarranted and potentially illegal violation of privacy rights. Surveillance cameras mounted on District buildings now could monitor the movements of individuals up to and including creating images that can be scanned into a computer and used much as fingerprints are used today.

It is fair to say there are two distinct and divergent reactions to this use of technology: those who fear a loss of privacy and those who see ready advantage in the use of cutting edge technology as a crime-fighting tool.

First, many District residents have been horrified at the potential intrusion into their lives and space. Guy Gwynne, on behalf of the Federation of Citizens Associations of the District of Columbia, testified before the Council Judiciary Committee on February 25, as follows: "We have federal and state laws against wiretapping, with heavy penalties. Obviously we cannot omit having the same sort of citizen protection extended to the new technology and its largely undefined legal status. Any new legislation must start from the premise: Is broad continuous surveillance necessary, and, also, is it legally defensible? Video surveillance can easily become an intrusive search without a warrant and without probable cause or individualized suspicion."

The Federation is recommending legislation to define the legal use of video surveillance, including protections of privacy and security of file tapes, to provide for swift destruction of tapes without value as evidence, and civil and criminal penalties for anyone who abuses a surveillance system. Mr. Gwynne concluded: "In the absence of such legislation, the public cannot systematically be protected from abuses of privacy. The use of hidden cameras could undermine people's expectation of anonymity in their private affairs. Justice Louis Brandeis's thought still holds: the most precious right of civilized people is the right to be left alone."

Another witness before the Judiciary Committee on February 25 was Mara Verheyden-Hilliard, cofounder and attorney with the Partnership for Civil Justice and lead attorney in a case brought against the District by individuals protesting international economic policy. She asserted that the Metropolitan Police Department has been "surveilling law abiding political protestors for nearly two years now, well before September 11" including the demonstrations during the International Monetary Fund meetings in 2000 and 2001.

Ms. Verheyden-Hilliard asked: "Why is it that we assume that the hundreds of thousands of residents of this city, and hundreds of thousands of people who come to this city to work or as tourists, law abiding people, should be subject to extreme surveillance and tracking without probable cause, without even reasonable suspicion?" She asks, further: "Are we going to willingly give DC and federal law enforcement the ability to track our movements on foot and in our cars, log our associations with other people, read our correspondence over our shoulders?"

At the same Council hearing the ACLU of the National Capital Area summarized experiences in other jurisdictions with camera surveillance. The Oakland, California police department used surveillance cameras in public places for three years but concluded that "there is no conclusive way to establish that the presence of video cameras resulted in the prevention or reduction of crime." Detroit, said the ACLU, took 14 years before deciding to abandon its surveillance camera system in 1994. And Tampa, Florida, used facial recognition technology for several months and abandoned the system last summer. Said the ACLU: "It never identified a single face in its database of suspects."

I have here summarized the viewpoint of many District residents who were very concerned at the notion of surveillance cameras mounted on buildings around the city. Other residents support the concept and simply want to know what steps they can take to ask to have surveillance cameras mounted in their neighborhood - on their block and on their corner. They desperately want the surveillance technology as a potential deterrent to neighborhood crime.

In 1996 parents at the junior high school my children attended, Alice Deal Junior High School, raised money to install a closed-circuit television system as a security measure in what is the city's largest junior high school. To date, the D.C. Public Schools have installed video monitoring systems in 20 elementary schools and 56 junior and senior high schools, with broad support from parents and residents. According to school system officials, they are moving forward to have monitoring systems in place in all of the 163 schools and other sites, paid for in part with federal emergency preparedness funds.

The Georgetown Business Association paid for surveillance camera technology at Wisconsin and M Streets for use during special events in that neighborhood. My colleague, Councilmember Sharon Ambrose, takes the view that the new guidelines Chief Ramsey and his staff are drafting for MPD's use of surveillance technology should include a public procedure a neighborhood could follow to secure exactly the same technology other D.C. residents fear.

The Council of the District of Columbia adopted emergency legislation earlier this month to require that the guidelines drafted by the MPD come before the Council for review. That resolution reflected the divergent viewpoints of our citizens, stating, "Maintaining a balance between the need for effective law enforcement and the need to protect the privacy of the citizens of and visitors to the District of Columbia is an important public policy issue for the District's elected leaders to consider." This clearly is an issue calling for extensive and wide reaching public discussion, and an issue for elected leaders to review. I anticipate that the Council will hold a public hearing on the specific guidelines drafted by the MPD.

The Council as a body has taken no position on the use of video surveillance, and I suspect we reflect the same divergent opinion as our constituents. I myself agree both with those concerned about privacy rights and those who wish to use technology to the maximum extent possible to promote public safety. Having seen the pictures available at the SOCC, it is easy to understand the potential use of video surveillance in a District-wide evacuation; in a major fire, or another large-scale emergency. The use in protests is another issue; the potential use of image scanning is another more difficult issue. It is my responsibility, and that of my colleagues and Mayor Williams, to find the appropriate balance between privacy and public safety, and establish that balance in public policy.

Having noted that the Council will review the issue of video surveillance in the near future, I would also respectfully suggest to this Committee that if the Congress is not already looking at the issue of new technology and its impact on public policy, that it do so. How the nation uses technological advances is not just a local issue. Our use of technology has ramifications for intelligence, antiterrorism planning, and law enforcement at the national level, and it has clear potential impact on continued protection of Constitutional rights.

To illustrate the national nature of the issue, I am sure you are aware of the Supreme Court decision last summer in which the high court came down on the side of privacy rights against law enforcement surveillance - but on a S-4 vote. In Kyllo vs. United States the high court overturned a decision by the 9`' Circuit in San Francisco and ruled that police use of a thermal imaging device to detect patterns of heat coming from a private home is a search that requires a warrant. Justice John Paul Stevens dissented: he held that that the police activity in the Oregon case "did not invade any constitutionally protected interest in privacy." This is a critical issue: and a fascinating one when you consider how the traditional voting patterns on the court shifted on this particular case.

We all have our work cut out for us in discussing and debating how - and whether - we use advances in technology, for what purpose, and with what result on behalf of residents.

Thank you, and I would be happy to answer any questions.

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