The delicate balance between government surveillance and individual liberties looms ominously over our digitally connected lives. A recent example shows how easily the government can stretch its power in dangerous ways.
An investigative report revealed that since 2020, the City of Rialto has required newly constructed or remodeled commercial and industrial buildings to install exterior video surveillance cameras and provide the Rialto Police Department with access to live video feeds.
This mandate did not come from an enacted city ordinance that typically requires public hearings and a public vote, but by using the city’s Planning Commission to mandate this action prior to issuing a “certificate of occupancy” in the development permit process. Rialto. This is a gross overstep by government authorities and goes against California’s constitutional commitment to privacy. The requirement should be removed and revisited with significant community input.
Californians take their privacy seriously. Unlike the United States Constitution, the California constitution makes privacy an inalienable right. And California has been a pioneer in protecting privacy, passing the first comprehensive data privacy law in the United States in 2018, the California Consumer Privacy Act (CCPA). And before the ink had dried on the CCPA, more than 9 million Californians voted to pass the California Privacy Rights Act (CPRA), which modified and expanded the CCPA’s privacy protections, including establishing the California Privacy Protection Agency to implement and enforce the law.
There is always a tension between privacy and community security, but to stay true to California’s privacy standard, any government actions that claim to increase community security must have factual evidence to support those actions.
However, studies have shown that surveillance cameras do not deter most types of crime as a standalone solution. That hasn’t stopped law enforcement agencies from creating residential and commercial surveillance camera programs to build a network of surveillance in communities across the United States.
These programs differ from Rialto in that they are voluntary. In these cases, community members may choose to share access to their surveillance cameras with their local police department. The Rialto Police Department also has a similar voluntary program for residences and businesses that fall outside the scope of Planning Commission requirements.
However, if a business owner did not want to share their surveillance video footage with the police, officers would need to obtain a search warrant in order to view the footage. This is the case throughout the country. But for some Rialto business owners who just wanted to receive their certificate of occupancy, their right to deny law enforcement access may be gone.
Some might argue that this is okay because there is no reasonable expectation of privacy in a public area. In general, that would be correct, but US courts have recently grappled with the impact of technology on a person’s reasonable expectation of privacy in public areas, especially when law enforcement electronically monitors and collects data. Indeed, many courts would likely express skepticism about mandatory constant law enforcement access to video surveillance cameras. Furthermore, forcing a private company to install surveillance cameras and provide access to their live feed is arguably the same as the government physically occupying private property to obtain information, which would be unconstitutional.
Even outside of the pervasive shadows of government surveillance, serious concerns about data security and privacy must also be considered. Threats like hackers are constantly lurking, and video surveillance footage needs to be stored for a long period of time. The risk of unauthorized access or leaks of hours of surveillance footage is undeniable.
Even if data security protections are put in place, there are still risks. Law enforcement networks with large security budgets have been breached, which does not bode well for small businesses with limited budgets. Any leaked footage can be used in combination with other data sources, such as social media, and even synced with facial recognition software to cause significant damage to a person’s privacy. But there are also internal threats. Even with oversight protections, law enforcement personnel can still misuse databases and access live streams for non-investigative purposes.
Small businesses and cities like Rialto are the perfect soft targets for bad actors because they are likely under-resourced and ill-prepared for a cyber attack. Using technology to improve community safety is good, and the Rialto Police Department has been at the forefront of this. But even the most praiseworthy efforts can cross constitutional boundaries and must be checked, as is clearly the case with Rialto.
Steven Ward is a Resident Security and Privacy Fellow of the R Street Institute’s Cybersecurity and Emerging Threats team. He received a JD from the University of California, San Francisco, School of Law, and has 10 years of law enforcement experience. He writes to [email protected].