Local legislation mandating the use of surveillance cameras and identification scanners by cabarets and dance halls

The New York Civil Liberties Union (NYCLU), state affiliate of the American Civil Liberties Union, has approximately 48,000 members across the state. The NYCLU is devoted to the protection and enhancement of those fundamental rights and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

We present testimony today regarding a legislative proposal that would require cabarets and public dance halls to install video surveillance cameras at entrances and exits (Int. 442). We also address a companion bill that would require that these same entities utilize electronic scanners to validate that patrons are of legal age to enter cabarets or dance halls and to be served alcohol (Int. 441).

We wish to acknowledge that the staff of City Council Speaker Christine Quinn, the lead sponsor of the legislation that we address today, has solicited our comments on the proposed legislation prior to its introduction. We appreciated that gesture, and we want to thank the Speaker and the chairpersons of the Public Safety Committee and the Consumers Affairs Committee for the opportunity to elaborate upon our analysis of the proposed legislation, which is now pending before the Council.

The proposed legislation raises important questions of public policy regarding the effectiveness of various initiatives to enhance public safety. Does the use of video surveillance cameras deter crime? Do video surveillance cameras provide greater public safety protection than the deployment of police or private security professionals? What are the relative costs and benefits of deploying trained security professionals as compared with video technology? Will legislation mandating the installation of video technology have the effect of shifting resources from the employment of security personnel to the installation of video surveillance technology? Would this shifting of resources provide the optimum value for each security dollar spent?

These questions have not been given serious consideration. The qualitative and quantitative information needed to answer these questions has not been developed. Absent this information, there is simply no way to determine whether the proposed legislation will accomplish its public safety objectives.

As to one critical question – Does the use of video surveillance cameras deter crime? – the answer is clear. We simply don’t know. While surveillance images may assist in criminal investigations (after the fact), there is a dearth of evidence on the issue of whether video surveillance actually prevents or deters crime.

A comprehensive British study, published in 2002, found that the presence of closed circuit television (CCTV) surveillance had little or no effect on crime in public transportation or city centers, and had no effect on violent crimes. Researchers examined twenty-two controlled and peer-reviewed scientific studies that analyzed the use of surveillance cameras in British and North-American cities. Of the five studies conducted in American cities, including two in New York City, not one found a reduction in crime attributable to video surveillance.

Whatever the public safety rationale for mandating the use of video surveillance cameras, there is an equally compelling interest that the City Council must take into account: the civil liberties of New Yorkers. This government interest involves the protection of personal privacy, freedom of speech and association, and due process of law.

The proliferation of video surveillance technology implicates personal freedom in the most intimate, and most public, sense. It is our view that the proposed legislation, as drafted, will seriously compromise that freedom.

Before explaining why our analysis of the legislation leads us to this conclusion, we first address the view that concerns about personal privacy are unfounded. There are proponents of video surveillance who contend that surveillance cameras will observe only conduct in which an individual has no expectation of privacy. Council Member Peter Vallone, Jr., has expressed this view, as has the NYPD’s Paul J. Browne.

This rationale, however, reflects a highly circumscribed notion of what personal privacy is; it also reflects a limited understanding of the sophistication of current video surveillance technology.

Consider these examples of the police department’s use of video surveillance cameras as a law enforcement tool.

• The NYPD archived hundreds if not thousands of hours of surveillance images captured during the 2004 Republican National Convention. Some of these images, involving protected First Amendment activity, were published by the New York Times as an “unofficial archive of police videotapes” four months after the RNC.
• A police department videotape of a suicide that occurred in the Morris Houses, in the Bronx, found its way onto an Internet site devoted to pornography and violence.
• A WABC-TV Eyewitness News investigation of the police department’s VIPER unit featured City Council Member Hiram Monserrate, a retired police officer, who described observing police officers engaging in video voyeurism – peering into the apartments of public housing residents and focusing cameras on women.

These incidents demonstrate that video images of persons who engage in lawful political protest could end up on a video “watch list” maintained by the NYPD; that highly sensitive personal conduct can quite easily be turned into images stored in a video archive; and that conduct that one may reasonably expect to be private can be captured on videotape and distributed at warp speed to the farthest reaches of the Internet.
Int. 442 includes provisions that are intended to prevent such abuses. However, the proscriptions are framed so vaguely that they will provide few if any constraints upon the uses to which these video images may be put. Any government agency can have access to the video images created by a cabaret or dance hall based upon a most nebulous rationale: “furtherance of a law enforcement or training purpose.” What’s more, once a cabaret or dance hall turns over videotape recordings to a government agency, there are no time constraints upon how long those images may be retained.

And who will determine when this law enforcement purpose arises? The agencies and agents of law enforcement, presumably. It is therefore not difficult to imagine the nature of the law enforcement purposes that might lead the NYPD to direct a night club to turn over its video tapes: monitoring of individuals who patronize clubs in a neighborhood that falls within an area the NYPD has designated as an “Impact Zone”; archiving images of cabaret patrons pursuant to an investigation of noise or crowd levels; or video surveilling of individuals who patronize political events sponsored by a cabaret or club.

There also seems to have been insufficient consideration given to the potential for mischief, or worse, regarding the mandate in Int. 441 that cabarets and dance halls use identification scanners to establish that patrons are of legal age. ID scanners are capable of recording and collecting highly sensitive personal information, including name, address, age, date of birth and social security number. A night club that carelessly disseminates or provides access to such information could facilitate identity theft, stalking, as well as unauthorized police investigation or surveillance. But the legislation includes no clear prohibition of such conduct; nor does the bill require penalties for violating such a prohibition.

We have appended to this testimony analysis and recommendations regarding specific provisions in Int. 441 and Int. 442. However, these comments do not reach a larger and more general concern with the legislation. The City Council proposes to mandate that private night clubs install video surveillance cameras without having undertaken a thorough analysis or developed a well-defined rationale for this initiative. This legislation is advanced even as we are witnessing in New York City the creation of a massive video surveillance infrastructure, which involves video technology owned and operated by government agencies and by private entities. The NYCLU takes the position that the City Council should not proceed with the proposed legislation without first undertaking a comprehensive analysis that addresses the scope and purpose of video surveillance cameras; training and supervision of personnel charged with operating and maintaining video technology; clear rules and procedures regarding retention, storage and destruction of video surveillance images; and explicit prohibitions of unlawful video surveillance practices, and penalties for violators of those prohibitions.

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Comments and recommendations regarding specific provisions in Int. 441 and Int. 442

Re: Int. 441, proposed subdivision 8, amending Section 20-359 of the administrative code

The NYCLU recommends amending this provision to address the following issues:

• Clarify that the “holder” of information encoded in a driver’s license or identification card (and the personal identifiers encoded therein) may not be the person to whom the card was issued.

Recommend amending as follows: ” Identification scanner shall mean a device capable of reading the information encoded in a driver’s license or state issued identification card and calculating, based upon such information, the following: the name, age and license number of the individual to whom such license or identification card was issued; the expiration status of the license or identification card; and indication whether the person to whom the license or identification card is under twenty-one, or under eighteen.

• State that the owner/operator of a cabaret of public dance hall is prohibited from recording or retaining information obtained from an identification (“ID”) scanner. As drafted, this section of the legislation prohibits cabarets or public dance halls from using ID scanners that “record or retain” the personal identifiers as described above; this provision does not prohibit such entities from retaining or transferring such information. There is a question as to whether it is even possible to purchase an ID scanner that does not have the capability to record or transfer information obtained from an ID scanner; or whether, upon purchasing a scanner, its capability to record or transfer information can be disabled. However, leaving these technical issues aside, the legislation must clearly state that the owner/proprietor of a cabaret or dance hall has the legal obligation not to record or transfer the information obtained by means of an ID scanner. (See below, draft language regarding the prohibition on the retention or dissemination of video surveillance cameras.)

• The legislation must include penalties and sanctions for violating the prohibition upon recording or transferring information obtained by an identification scanner. This information, should it be shared or disseminated, could place in serious jeopardy the individual to whom the license or ID card has been issued. Consequently, as a public safety matter the city must impose penalties sufficiently severe to deter the recording or disseminating of information obtained by an ID scanner.

Re: Int. 442, proposed amendment of Title 20 of the administrative code, adding new section 20-360.3

• Paragraph 1. Recommend that this paragraph prohibit the videotaping of residences or businesses that are adjacent of contiguous to cabarets or public dance halls.

Video surveillance cameras may have the capacity to pan, tilt and “zoom” (that is, provide highly focused, detailed images), making it possible for cameras installed at the entrances or exits of cabarets and dance halls to capture images far from those specific locations. The legislation must therefore make explicit that the videotaping mandated by this legislation is restricted to the entrances and exits of cabarets and public dance halls, and that videotaping beyond those restricted areas is prohibited.

• Paragraph 8. Recommend limiting the mandated operation of video surveillance cameras to the hours during which a cabaret or public dance hall is “open do the public,” as opposed to during “hours of operation.”

This proposed amendment to Paragraph 8 of Int. 42 would permit the videotaping of patrons who enter or exit a club when it is open for business, but would prevent the unwarranted videotaping of persons who pass by or stand in front of the premises when closed to the public – at which times those individuals would have little expectation that they would be subject to video surveillance.

• Paragraphs 9 – 11. Recommend amending these provisions to provide that –

Para 9: The recordings made by video surveillance cameras installed and maintained pursuant to this section shall be indexed by dates and times and preserved for 15 days.

Para 10: Video recordings made by video surveillance cameras installed and maintained pursuant to this section shall be recorded over and destroyed after 15 days unless a request has been made for specified video images pursuant to subpoena for the purpose of conducting an investigation of a suspected act of criminal wrongdoing.

[New] Para 11: A subpoena issued to a cabaret or public dance hall requesting video recordings shall be issued simultaneously to the commissioner.

[ALTERNATIVE DRAFT LANGUAGE: Government agencies authorized by this section may issue a subpoena to cabarets and public dance halls requesting videotape surveillance recordings for the purposes of ensuring compliance with the provisions of this section and for conducting investigations of a suspected act of criminal wrongdoing. Videotape images obtained pursuant to this paragraph shall be destroyed within ninety days unless a court of law grants additional time before the video surveillance recordings must be destroyed.]

Paragraphs 9 and 10 of Int. 442 are intended to place constraints upon the unauthorized or inappropriate access to and use of video images obtained by cabarets and public dance halls pursuant to this new law. However, the “law enforcement” rationale for requesting video images from cabarets or dance halls is unduly vague and therefore unenforceable. It will not serve to constrain the improper use of video images; it may well become a pretext for such conduct. Likewise the “training purpose” justification for turning over to government agencies the video images of cabaret or dance hall patrons is so indefinite as to its meaning that this provision alone could, as a practical matter, become the exception that swallows the rule.

There is further ambiguity in paragraphs 9 and 10 that all but eliminates any constraints upon the dissemination of video images obtained pursuant to this legislation and the manner in which those images may be used. Once a cabaret or dance hall releases a video surveillance image to the police, the department of consumer affairs, or to any government agency that asserts a “law enforcement purpose,” the legislation places no constraints upon the subsequent uses of the video images by that government entity. The video images may be retained indefinitely and disseminated further without legal constraint or consequence.

• Paragraph 11. The provision of this paragraph that requires a log of requests for, access to, and dissemination or use of recorded video materials must be made applicable to any government entity to which video images may be provided by a cabaret or dance hall pursuant to paragraphs 9 and 10. Absent the broader application of this provision, its intent is subverted.

The enforcement of this paragraph is further compromised by the vague and overly broad “law enforcement” exception. (See, above, analysis of paragraphs 9 and 10.) What’s more this provision broadens the law enforcement exception by also permitting an exemption from the requirement to secure video surveillance recordings in response to “security purposes.” This term is arguably even less precise than “law enforcement purpose.” When read together, these vaguely worded exceptions make this provision all but unenforceable.

• Paragraph 13. To provide meaningful oversight and accountability for the video surveillance procedures mandated in this legislation, it must be amended to required that (1) the audit requirement is both regular and random; (2) the audit includes any government entity to which cabarets or public dance halls provide access to video surveillance images; and (3) the responsibility for auditing and managing the audit process should be vested in the department of investigation. Limiting the audit to licensees exempts from accountability any and all conduct involving the use of video images once a cabaret or dance club has turned those images over to a city agency.

• Paragraph 14. This provision vests in the commissioner of consumer affairs authority to suspend or revoke a cabaret or dance hall license for any violation of this proposed law. The legislation provides no procedural due-process checks upon this extraordinary authority. This provision must be amended to provide for due process proceedings, and to provide for revocation of a license only upon an egregious infraction or multiple infractions of the law.