Constitution Project’s Liberty & Security Initiative
This is a draft cheat sheet. It is a work in progress and is not finished yet.
The Constitution Project’s Liberty and Security Initiative has formulated guidelines to assist local and state officials charged with authorizing, designing, and managing public video surveillance systems. These guidelines will help communities meet the challenge of reconciling Americans’ strong and legitimate interest in protection against terrorism and other dangers with their longstanding and constitutionally-enshrined commitment to individual freedom. In addition, these guidelines can lower the overall cost of a video surveillance system by identifying unnecessary or ineffective aspects of the design and reducing the likelihood of legal challenge to public video surveillance.
I. Core Principles
I. Core Principles Governing the Creation and Design of Public Video Surveillance Systems
Create a public video surveillance system only to further a clearly articulated law enforcement purpose.
Create permanent public video surveillance systems only to address serious threats to public safety that are of indefinite duration.
Ensure that public video surveillance systems are capable of effectively achieving their articulated purposes.
Compare the cost of a public video surveillance system to alternative means of addressing the stated purposes of the system.
Assess the impact of a public video surveillance system on constitutional rights and values.
Design the scope and capabilities of a public video surveillance system to minimize its negative impact on constitutional rights and values.
Create technological and administrative safeguards to reduce the potential for misuse and abuse of the system.
Ensure that the decision to create a public video surveillance system, as well as major decisions affecting its design, are made through an open and publicly accountable process
II. Publicly Accountable Procedures
II. Publicly Accountable Procedures for Establishing Public Video Surveillance Systems
For permanent or long-term public video surveillance systems, conduct a civil liberties impact assessment and overall cost-benefit analysis through a public deliberative process that includes community input.
For temporary public video surveillance systems, demonstrate to a neutral magistrate that the system has no greater scope or capabilities than reasonably necessary to achieve a legitimate law enforcement purpose.
III. Principles and Rules for Use
III. Principles and Rules for Use of Public Video Surveillance Systems
Once a public video surveillance system is authorized, no additional approval is necessary to use the capabilities of the system for “observation.”
“Record” footage from public video surveillance systems only to the extent necessary to further the system’s stated purposes.
Under most circumstances, individuals may be “tracked” or “identified” by a public video surveillance system only pursuant to a warrant: (a) law enforcement must obtain a warrant prior to using a public video surveillance system to track or identify an
individual; (b) law enforcement must obtain a warrant prior to using a “watch list” to automatically identify individuals, except when using a federal anti-terrorism watch list.
A public video surveillance system may be used for legitimate law enforcement purposes other than its original purpose, subject to certain restrictions: (a) no additional approval is required for incidental use of the system; (b) law enforcement must obtain administrative approval for secondary use of “pre-archival” stored video surveillance footage; (c) law enforcement must obtain a warrant for secondary use of “archival” stored video surveillance footage.
Employ technological and administrative safeguards to reduce the potential for misuse and abuse of the system: (a) provide safeguards for use of stored video surveillance data; (b) provide safeguards for personnel with access to a public video surveillance system; (c) provide public notice of surveillance where appropriate.
Prohibit, to the extent possible, sharing of public video surveillance data with third parties, including private litigants, and restrict sharing with other governmental entities.
Establish mechanisms to protect the rights of identifiable individuals captured on video surveillance data.
Apply to any law enforcement use of privately collected video surveillance data the same standards that apply to public video surveillance data.
Provide appropriate remedies for those harmed by misuse or abuse of public video surveillance systems.