Closed Circuit Televsion (CCTV) has become a huge issue in privacy law and policy in the U.S. as of late, as cities from San Francisco to Chicago have begun installing surveillance networks in a manner similar to London's CCTV network.
While CCTV holds out the promise of an enhanced security and forensic tool, the jury is still out on whether it actually helps fight crime. Meanwhile, privacy advocates worry about the impact such systems will have our our freedom and civil liberties, especially for those who participate in unpopular, embarrassing, or controversial activities. (E.g., political protests, Alcoholics Anonymous meetings, psychotherapy, HIV testing, rape crisis centers, etc).
In the wake of this trend, the Sixth Circuit Court of Appeals issued a decision in Brannum v. Overton County School Board the other day addressing some of these issues. The case involved 34 Tennessee middle school students who sued various school officials and board members as well as the camera vendor for installing CCTVs in the boys' and girls' locker rooms and then viewing and recording the footage. The students claimed this was in violation of their Constitutional right to privacy under the Fourth and Fourteenth Amendments.
The school defendants moved to dismiss the case claiming qualified immunity in their official capacity. The Court of Appeals denied qualified immunity to the school officials but granted it for the board members. The Court's initial description of the case gives you a pretty good idea of where the ruling was headed:
The images captured by the cameras were transmitted to a computer terminal in [Assistant Principal] Jolley’s office where they were displayed and were stored on the computer’s hard drive. Jolley testified that, in September 2002, he discovered that the locker room cameras were videotaping areas in which students routinely dressed for athletic activities. He said that he immediately notified Principal Beaty of the situation and suggested that the placement of the cameras be changed. But, the cameras were not removed nor were their locations changed for the remainder of the fall semester.
In addition to Jolley receiving the images on his computer, they were also accessible via remote internet connection. Any person with access to the software username, password, and Internet Protocol (IP) address could access the stored images. Neither Jolley nor anyone else had ever changed the system password or username from its default setting. The record indicates that the system was accessed ninety-eight different times between July 12, 2002, and January 10, 2003, including through internet service providers located in Rock Hill, South Carolina; Clarksville, Tennessee; and Gainsboro, Tennessee.
During a girls’ basketball game at LMS on January 9, 2003, visiting team members from Allons Elementary School noticed the camera in the girls’ locker room and brought this to the attention of their coach, Kathy Carr. Carr questioned Principal Beaty, who assured Carr that the camera was not activated. In fact, the camera was activated and had recorded images of the Allons team members in their undergarments when they changed their clothes. After the game, Carr reported the camera incident to the Allons school principal, who contacted Defendant Needham later that evening. Needham immediately accessed the security system from his home and viewed the recorded images. The following morning, January 10, Needham, Beaty, and two other officials viewed the images in Needham’s office by remote access. Needham later stated that in his opinion, the videotapes of the 10 to 14 year old girls contained “nothing more than images of a few bras and panties.” School employees removed the locker room cameras later that day.
The Court went on to find that the students had a reasonable expectation of privacy in the locker rooms, both because those are generally private areas and because the activities they pursued there (undressing and dressing) were of an intimate nature:
Surveillance of school hallways and other areas in which students mingle in the normal course of student life is one thing; camera surveillance of students dressing and undressing in the locker room—a place specifically set aside to offer privacy—is quite another.
...
Given the universal understanding among middle school age children in this country that a school locker room is a place of heightened privacy, we believe placing cameras in such a way so as to view the children dressing and undressing in a locker room is incongruent to any demonstrated necessity, and wholly disproportionate to the claimed policy goal of assuring increased school security, especially when there is no history of any threat to security in the locker rooms.
Finally, the Court ends with a reprimand to the school officials, who tried to claim qualified immunity for pursuing the surveillance activities in good faith:
Some personal liberties are so fundamental to human dignity as to need no specific explication in our Constitution in order to ensure their protection against government invasion. Surreptitiously videotaping the plaintiffs in various states of undress is plainly among them....
Stated differently, and more specifically, a person of ordinary common sense, to say nothing of professional school administrators, would know without need for specific instruction from a federal court, that teenagers have an inherent personal dignity, a sense of decency and self-respect, and a sensitivity about their bodily privacy that are at the core of their personal liberty and that are grossly offended by their being surreptitiously videotaped while changing their clothes in a school locker room. These notions of personal privacy are “clearly established” in that they inhere in all of us, particularly middle school teenagers, and are inherent in the privacy component of the Fourth Amendment’s proscription against unreasonable searches.
Not all that shocking especially given the facts, but in an era of unprecedented surveillance and ubiquitous cameras, it's nice to see a court reaffirm our reasonable expectations to privacy. Of course, questions remain as to how far this zone of privacy extends.
