Light runners

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The Miami Herald recently ran a story under the headline "Light runners will get temporary reprieve".  Reader RS was baffled. Arguments at the Winter Olympics over bobsled design rules? A problem with proposed weight classes for marathon contestants? The deck explains:

Delays in the installation of Miami Beach's red-light camera program has led to a grace period extension for violators and continuing questions about the money expected from the program.

One curious aspect of the general question of surveillance cameras has always interested me. (It's not relevant to these red-light cameras, as I understand their operation, but I'll explain it here anyhow.)

It's against federal law to record a conversation without a court order or the consent of at least one of the parties to the conversation. (Many states have stronger laws, making it illegal to record a conversation without the consent of all the parties involved.) This generally seems to be interpreted to forbid setting up surveillance microphones, even in public places, though the question of when "implicit consent" might be invoked, due to the lack of expectation of privacy, or some kind of notification that recording might be taking place, is a complex one.

But video recording is not considered to be covered by such laws, and therefore setting up surveillance cameras in public and semi-public places doesn't seem to raise any legal issues.

This distinction was underlined for me a few years ago, when there was a dispute about an arrest that took place in the entry-way of a building on my campus. The parties involved disagreed about what was said. There was a surveillance camera that recorded the interaction, including gestures and facial expressions and so on, but of course there was no audio track.

A more recent example is implicit in the Lower Merion High School webcam scandal. The issue there is that LANrev's "Theft Track" system, which school officials used to check up on stray school-provided laptops, activates the computers' built-in webcams. As far as I know, this system doesn't activate the built-in microphones, presumably because if it did, it would be in violation of federal and state anti-eavesdropping laws. In this case, most people seem to regard the webcam activation as a violation of privacy, in a way that surveillance cameras in public places are not.

Note that conversations in sign language would be more completely recorded by such devices, whether webcams or surveillance cameras. And as high-resolution cameras and digital storage come closer and closer to being free, I guess we can expect the quality of these recordings to improve, perhaps to the point where some lip reading might be possible.

Anyhow, I've always found it interesting that the laws and practices dealing with the recording of human interactions seem to be so different for video compared to audio. Is this because people really do see them as different? Or is it because the anti-wiretapping and eavesdropping laws were written before large-scale video surveillance was technically feasible?

People's moral reactions to such things seem to depend very much on the situation and on their own connection to it. Most people are appalled, I think, at the idea of school officials using the built-in microphones in school-provided computers to eavesdrop on students. But when I ask people to imagine that their laptop has been stolen, and that they learn of a hidden feature of its operating system that allows them to activate the webcam and microphone to eavesdrop on the thieves, they have a much more positive reaction.  The question of whose ox is gored also often seems to affect people's reactions to the legal and moral status of various forms of eavesdropping within the family, as discussed here and here.

But anyhow, whatever exactly the constraints of the current law are, I've always thought it was interesting that surveillance cameras are proliferating everywhere, for example in stores and offices, but always (?) without audio.



24 Comments

  1. Rubrick said,

    February 27, 2010 @ 1:52 pm

    The sign-language question is interesting. I would think that anyone whose signed conversation was videotaped without their consent would have a strong case that their rights had been violated. Conversely, if the statute is written specifically to only cover audio recording, I would think they'd have a case that the law was discriminatory against the disabled.

    I'm curious whether any privacy-advocacy groups have seized on this as a possible legal avenue for trying to stop public video surveillance.

  2. Danny said,

    February 27, 2010 @ 2:26 pm

    As for the headline, I would think that punctuating it "Light-runners will get temporary reprieve" would make things much clearer; but then, I've always been a fan of hyphens for compound nouns (and adjectives).

  3. mgh said,

    February 27, 2010 @ 2:28 pm

    I guess the obvious distinction is whether you intercept information intended for some recipient — if your subject is speaking to someone, then "stealing" that information feels different than observing their physical presence (which does not have a recipient).

    For example, I don't think federal law would prohibit recording a public speech act (like a campaign speech to an audience — even a very small audience — and even if the recorder was not part of the intended audience). I think the difference is not so much mode of transmission (audio vs video) as intention of the surveillee (targeted vs broadcast information).

  4. Matt said,

    February 27, 2010 @ 2:52 pm

    I've always thought (with no real legal knowledge) that the reason for the distinction between audio and video recording is that the things we say are much more likely to have legal consequences than what we're seen to do. In a casual conversation it is fairly common to say something that, if it were recorded, could be found to be libel, or slander, or create a contract, to give a few examples. So an audio recording is, legally, a potentially much more consequential invasion of privacy than a video recording.

    [(myl) This is an odd thing to say in reference to a discussion of red-light cameras and store security videos.]

  5. Kenny Easwaran said,

    February 27, 2010 @ 3:13 pm

    I suspect it also has something to do with the much greater information content between what we say and how we look. While there's a lot you can tell about someone by looking at them, you can't get precise linguistic information about them the same way you can when you hear what they say (absent lip-reading and sign language, etc.)

  6. rootlesscosmo said,

    February 27, 2010 @ 3:39 pm

    as high-resolution cameras and digital storage come closer and closer to being free, I guess we can expect the quality of these recordings to improve, perhaps to the point where some lip reading might be possible.

    Some California courts use voice-activated video cameras, with audio miking, to create a record of proceedings (supplementary to the court recorder's transcript.) The camera automatically points at whoever's speaking at any moment. I don't see why microphone-equipped surveillance cameras couldn't do likewise. Maybe the lesson is that what constitutes a "reasonable expectation of privacy" isn't fixed in time or clearly defined.

    [(myl) Given how cheap digital storage is, there's less and less reason to use "voice-activated" recording. But in any case, the reason (as I understand it) that U.S. surveillance apparatus (for example in building entryways) doesn't routinely record audio is not mainly technological, but legal. Specifically, I believe that you would have to take a variety of (perhaps difficult and off-putting) steps to create the circumstances required for implicit consent; whereas you don't need to do any such thing for video recording.

    I presume that none of this applies in a court situation, where it's assumed at least that a transcript is being taken down.]

  7. ShadowFox said,

    February 27, 2010 @ 6:47 pm

    Not to rain on the parade, but one cannot have an expectation of privacy in a public place. The eavesdropping laws protect against recording private conversations without consent–since we don't have videophones that operate without consent, the laws are generally considered to apply to audio recordings. Now, one can set up video surveillance in his own home and that would not be against the law, but not because video recordings are ignored by anti-eavesdropping laws. The basic rule here is "My house, my rules". One cannot make such a recording in someone else's house and hope to use it in court, but in his own, there is no conflict.

    As for video recordings in public places, one should not expect privacy in a public place. The rule still protects against deliberate audio recordings of private conversations in public spaces, but the reason is rules against hearsay, not against eavesdropping. In court, witnesses can testify as what they observed and even to what they believe someone's state of mind might be, but not to what they overheard. The distinction is quite simple and I see no reason why it would not extend to recorded interactions.

    [(myl) This doesn't make sense to me. Rules against hearsay might (do they really?) not allow surreptitious recordings to be used in evidence in court, but they surely wouldn't make it illegal to create the recordings in the first place. But I do believe that I'm breaking the law if I use a hidden microphone and recording device to record a conversation that I'm not a party to, even if it's taking place on the park bench next to mine.]

    Similarly, one should not expect the audio portion of a police-car camera to be thrown out from evidence, because there is zero expectation of privacy in an exchange with the cops. Store surveillance is a bit different–again, you have the issue with the ownership of the premises going against the presumption of privacy, but most surveillance systems only record video precisely guarding against any potential privacy violations (the cost advantage is fairly minor).

    Now, if you really want to get into the weeds on this, you should consider potential VoIP conversation archiving. These are certainly electronic communications that include audio AND video. But there is no presumption of privacy against written communications, so there is no protection for email or chat messages. What exactly is the difference with VoIP–is it more like telephone or more like email? And the question about video becomes even more complicated–and, in this case, there is a legitimate question as to whether there should be a distinction between the treatment of audio and video channels.

  8. ShadowFox said,

    February 27, 2010 @ 6:55 pm

    One caveat–it may be more than hedging in the case of surveillance video not recording an audio channel. There is certainly no expectation of privacy with respect to the image in a public place. If you are there, you know you could have been seen, even if you are sneaking around. But being seen and being overheard are two different things. Although there is no presumption of expectation of privacy, one may still argue that in some places one may qualify for expectation of privacy. For example, even if employers can record the employees in semi-public spaces (e.g., private offices), they cannot record them in places that are traditionally considered "private" for entirely different reasons, e.g., bathrooms, locker rooms, etc. But this is an entirely different legal structure. So there may still be some expectation of privacy even if there is no legal presumption, so it's still a hurdle to defend the actions of recording in court. In general surveillance, you want as few potential hurdles as possible, so not recording audio avoids one of them.

    In our court system we believe in reliability of EYE-witnesses, but not EAR-witnesses. This may not always be just, but that's the experience of 500 years of Anglo-American Common Law. This alone may serve as a distinction between the treatments of audio and video recordings.

  9. Bloix said,

    February 27, 2010 @ 7:37 pm

    The surveillance camera sees no more than a person in the care behind me could see, and there is nothing I can do about that. But when I am in conversation, it's a small matter to modulate my voice so that no third person can hear me. I don't assume in going about my daily affairs that I am not being seen, but I routinely assume that I am not being overheard.

    [(myl) It's a commonplace complaint that people in public places don't modulate their voices so that others can't hear -- this is notoriously true for people talking on cell phones, but in fact it's often also true (maybe even more often true) for live conversations as well. But if I sit on a park bench recording from a concealed microphone that can only pick up what I myself can also hear, I'm probably breaking the law. Whereas (as I understand it) if I do the same with a concealed video camera, I'm not.]

  10. John Roth said,

    February 27, 2010 @ 11:17 pm

    I suspect that there may be a time issue here – the technology to make a concealed audio recording has been available for far longer than the technology to make a similarly concealed video recording. The legal environment has changed significantly in the meantime.

  11. Graeme said,

    February 27, 2010 @ 11:21 pm

    The common law never respected a right to privacy, and as photographic technology was popularised and industrially applied (cinema + photo news magazines) first it followed that precedents quickly affirmed, eg, that there was no moral right in one's image. The principle is congruous with the common law rule that no one owned a view.

    So there's a bit of historical accident (consequent on a visually oriented culture) mixed with an economic set of factors. The privacy movement especially post-war, in contrast, emerged around the time phones and compact recording devices were coming to be common. It's also the case that govt and business relied so heavily in the phone and looked after this interest. Such entities could more easily control their physical line of sight through standard property law.

  12. ShadowFox said,

    February 27, 2010 @ 11:56 pm

    @Graeme
    This is true, but the hearsay exception is quite old, which makes for a huge difference between visual and auditory evidence. The privacy movement you speak of built on a foundation that was already there–and it's quite a different privacy issue from the one that came up through the 1960s. Blaming it on "government and business" interests, to me, at least, seems to be a cheap shot.

  13. Tony said,

    February 28, 2010 @ 3:01 am

    I think overlawyered is the operative word. The world is so litigious you can't go outside or do anything fun or start anything fun/creative without worry if you'll get slap with a lawsuit like this: http://lawblog.legalmatch.com/2010/02/01/libel-suit-over-moldy-apartment-tweet-dropped/

  14. Rob P. said,

    February 28, 2010 @ 8:21 am

    Shadowfox – I'm not sure you understand the rules relating to hearsay. The rule is that one can't present evidence of what someone else said for the purpose of proving that what they said was true – unless a number of exceptions come into play. I can certainly testify that I heard you say, "I killed [the victim]," because of one of the exceptions. I could also testify that I heard you yelling, "Die, [victim], die!" because the fact of your yelling is not intended to prove the truth of your statement. The evidentiary rules relating to hearsay don't come from any difference between eye- and ear- witnesses, but rather to the idea that the court can best determine the truth of a statement if the person making the statement can be observed and cross-examined.

    Moreover, the hearsay rule has nothing at all to say about recordings and their value as evidence.

  15. Noni Mausa said,

    February 28, 2010 @ 8:45 am

    A couple of comments…

    It seems to me that both audio and video recordings are problematic. We have two recent cases here in Canada. In one, two teachers were filmed at a pep rally dance competition and may have lost their jobs — their dance was a lap-dance. (It hit YouTube almost immediately. Of course.) Frankly, I can't envision how they could have thought this was a good idea, since I imagine this would destroy classroom discipline in one swell foop.

    In the other case, police officers were filmed (audio and video) subduing a foreign traveler by taser, an encounter in which the man died. The resulting inquiry found that the sworn testimony of the officers varied considerably from the film, but without the film their story would have gone unchallenged and the dead man's reputation besmirched as a violent alcoholic.

    So, the power of these videos, like all power, cuts both ways.

    But another concern has to do with editing. Audio and video both can be edited or even faked, but still have an effect as powerful as a true recording. We're used to movie scenes cutting from one view to another and don't register the cut, simply seeing a seamless action sequence. Also, because of our specie's focus on visual input, what we see happening we believe happened, at some level.

    So, witness the Acorn films, which were selectively cut to make a hostile case, yet were effective in attacking them despite the original, complete tapes still not being provided. Anyone could be similarly attacked, and once the tapes were out on YouTube they'd have no defense and little recourse. Does an edited tape of a real event count as libel or slander? I am inclined to think so.

    Noni

  16. njkayaker said,

    February 28, 2010 @ 4:21 pm

    I'm going to suggest that the idea is that voice is (implicitly) concidered to have more "informational" content. While people might routinely talk too loud in public, people who are communicating sensitive things tend not to. Anyway, watching what other people are doing can generally be done at a farther distance and less deliberately than listening to what they are saying.

  17. J.W. Brewer said,

    February 28, 2010 @ 6:45 pm

    Many commenters seem to be assuming that some group of legislators sat down one day and consciously decided to distinguish between audio and video. As a few have suggested, it's more likely to be pure historical accident — hidden-camera video surveillance perhaps simply wasn't sufficiently widespread (due to technical limitations) as of 1968 when the primary U.S. statute was enacted to have been included. Once the statute is on the books, inertia takes over, and there may never be the critical-mass political coalition to extend the same or analogous restrictions to video. In terms of a push the other way (to loosen the rules on audio), I take it law enforcement has mostly learned to live with the existing rules (and has gotten various tweaks enacted over the years to deal with changing circumstances), and private citizens interested in unauthorized audio surveillance of conversations between third parties don't seem to have accumulated a lot of lobbying clout.

    [(myl) I think that this analysis is exactly right. In the body of the post, I noted the difference in treatment, and wondered whether the increasing quality of video recording might get to the point where (e.g. via lip reading) the distinction might be eroded in some cases -- as it surely is in functional terms for communication in sign language. I don't know enough about the ways that the statutes are worded or interpreted to guess how this is likely to play out. ]

  18. Skeptic said,

    February 28, 2010 @ 10:49 pm

    "So, witness the Acorn films, which were selectively cut to make a hostile case, yet were effective in attacking them despite the original, complete tapes still not being provided."
    I really wonder why this perception persists. Just do a web search on the site that has the video and include the words "full unedited audio".

    FWIW, until relatively recently in the history of video monitoring, it was relatively easy to economize on storage by reducing the frame rate and by combining the views of 4 cameras to one stream, either by alternation between them or by quad-screen. doing the same to audio does not leave you with anything useful.

    I've seen security footage used on British television in news reports with the lips obscured by fuzzing or blocking effects in order to preserve the speech privacy.

  19. J.W. Brewer said,

    March 1, 2010 @ 12:17 am

    Lest people think that they can do absolutely whatever they want with video cameras in the U.S. as long as the audio is muted, it turns out (although I should stress that this is *not* my area of professional expertise) that there has been some legislative action in the video field, including at the federal level something entitled the "Video Voyeurism Prevention Act of 2004," codified at 18 U.S.C. section 1801. (Title 18 means it's a criminal statute.)

    I should also note back in the audio context that I tend to doubt the scenario where someone is surreptiously recording only what he could already hear in a public place with his unaided ear (i.e. where it should be obvious to the people being overheard that they are, in fact, being overheard) was really what anyone was primarily concerned about, although it's certainly possible that the statute was drafted broadly enough to capture that activity despite the lack of any "reasonable expection of privacy." So get your own context-specific legal advice before pressing the record button.

  20. Graeme said,

    March 1, 2010 @ 9:19 am

    @ Shadowfax. Why is it a 'cheap shot' to state the obvious? The telephone revolutionised, even emancipated large bureaucracies. As information networks, bureaucracies, private and public, care about controlling their internal information and confidences. They certainly don't want unauthorised recordings.

    The resulting legislative sensitivity is not all bad for the little guy either. Eg today, at least in Australia, every call to a corporate call centre is preceded by a polite offer that one is entitled to object to the conversation being recorded. Except almost invariably the reason for the recording is fudged as 'training' or 'quality control' – when the real reason is they don't trust customers to misinterpret the conversation.

  21. quodlibet said,

    March 1, 2010 @ 11:41 am

    @ Graeme – "the real reason is they don't trust customers to misinterpret the conversation".

    I would guess that many customers could be trusted to misinterpret the conversation.

  22. Ren said,

    March 1, 2010 @ 7:10 pm

    Don't you think it has to do with "Cold war" and spies ? The Audio technique became affordable at a time when there was an ennemy to the states (lawmaker). It would have been dangerous to spread the use of recorded informations. While Video technology arrives at a moment when states are willing to get more and better "surveillance" of the population (as the globalised world is thought to be more complex, with more movements and more dangerous…)

    It's just 5 cents thinkings…

  23. Ruth Campbell said,

    March 2, 2010 @ 6:14 am

    Can I add a perspective from England? A few years back, lipread evidence was ruled admissable by English courts – this was inevitably material acquired by 'unauthorised' surveillance. The small community of expert lipreaders who transcribe this material are all deaf, and, as yet, have not developed a professional organization. Their work is in demand, following the trail blazed by Jessica Rees (see http://www.bbc.co.uk/insideout/yorkslincs/series11/week3_lip_reading_crime.shtml).
    By contrast there is a well organized community of hearing professionals who teach lipreading(primarily to deafened adults). They, unlike their deaf lipreading colleagues, are very exercised by the privacy contraint and have consistently refused to transcibe or interpret video speech on precisely the basis expounded by US privacy laws.
    As a (hearing) psychologist with interests in speechreading, I have been intrigued by these different perspectives: I guess that deaf people are used to having their privacy routinely invaded, since much of their communication needs to be mediated (telephone talkers, writers etc). They may therefore find this issue less problematic than their hearing colleagues. Also, deaf lipreaders can see the provision of lipreading skills as a useful source of work – not necessarily in the courts, but (for example) in translating speech for tracheotomy patients who cannot use their voice.

  24. JL said,

    March 3, 2010 @ 8:32 pm

    I don't think you're right that "if I sit on a park bench recording from a concealed microphone that can only pick up what I myself can also hear, I'm probably breaking the law."

    On the contrary, the statute that you link to is said to apply "to all face to face conversations unless they occur in a public place or under other circumstances where the speakers should reasonably have expected that their conversation would be overheard."

    Indeed, the law, unless I'm misreading it, only applies to (a) recording conversations in someone else's home, and (b) recording electronically transmitted conversation — in both of which cases there's a reasonable expectation of privacy. (I don;t know if you can record a conversation in your own home if the person your talking to isn't aware of it, though my guess would be that you can.

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