This week's Legal Currents column, which is published in The Daily Record, is entitled "Lady Law Is Not Entirely Inflexible." The article is set forth in full below, and a pdf of the article can be found here.
My prior articles can be accessed here.
I always thought that George Orwell’s novel 1984 was, at most, a disturbing work of fiction.
Inexplicably, in the wake of 9/11, many aspects of the horrifying and surreal society described in Or-well’s most famous novel have become reality in America.
Pervasive video surveillance is one of the more obvious and disturbing manifestations of this fictional work. In many cities across America, intricate video surveillance networks, both publicly and privately owned, are being established to capture the day-to-day activities of ordinary citizens.
By way of example, in 1998 there were only 769 surveillance cameras in New York City. Today, it is estimated that there are more than 10,000, with more being added each day. At this rate, the city will soon catch up to London, which has more than 500,000 video surveillance cameras monitoring citizens’ every move.
Other cities throughout the country are following in step and our fair city of Rochester is not immune to the phenomenon: In November 2006, Roch-ester was awarded funding to establish a video surveillance network and the Rochester Police Department is in the process of implementing a surveillance system.
Some fear that at this rate, in just a few years, the United States will soon have more surveillance cameras within its borders than the 4 million video cameras currently installed throughout Britain.
Proponents of video surveillance contend “video never lies.” Recent court decisions suggest that the appropriate inquiry is not whether video is truthful, but rather, what isthe meaning of the images portrayed on video?
In the recent U.S. Supreme Court decision, Scott v. Harris, no. 05-1631, the answer to this inquiry was, not surprisingly, that reasonable minds can differ. In Scott, the court viewed videotape of a high speed chase and concluded that: “[W]ith regard to the factual issue [of] whether respondent was driving in such fashion as to endanger human life … [r]espondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.”
The decision was reached despite the fact that the 11th Circuit Court of Appeals viewed the tape and concluded there were issues of fact concerning that issue, as Justice John Paul Stevens did in his dissent.
Similarly, in a recent First Department decision, Rivera v. City of New York, 2007 N.Y. Slip Op 04153, videotape of a protest, which resulted in arrests the plaintiffs alleged were unlawful, was viewed by a jury, the trial court and the First Department.
The jury concluded that the arrest was unlawful and awarded $80,375,000 to the plaintiffs. The trial court agreed with the jury’s factual findings, but determined the award to be excessive, reducing it to $635,000.
The First Department, after watching the same videotape viewed by the jury and the trial court, vacated the judgment and dismissed the complaint against the defendants, concluding that: “Any rational person, objectively looking at the video and reviewing the other evidence, would find the police more than justified in their concern that this episode might escalate into violence.”
It would seem that the lesson to be learned is that while a video never lies, interpretations of its content can be drastically different.
In the post-9/11 era of increasing video surveillance, is it the new rule of law that, when facts can be gleaned from videotape, the interpretations of judges on higher courts trump the less rational perspective of lower court judges and juries? Will the need for juries and lower courts be erased with the advent of increasingly invasive and pervasive video surveillance? Will appellate judges take on the role of Big Brother and decide the facts for us?
For the sake of our country and our judicial system, I certainly hope not.
Here's a disturbing CNBC video on how American's lives are being monitored by our government and by private parties.
And, the following video is an NBC report on the use of "talking" video surveillance cameras in the UK. The wave of the future for the US, perhaps? Let's hope not.