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Photo Cop: The New Big Brother

K. Decourcey / Chron Watch | April 5 2006

Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face -- forever.

--George Orwell, 1984

Time heals all wounds, as the saying goes. But in doing so it sometimes soothes us into becoming comfortable with that which we should not, like the frog that languishes in a pot of water slowly coming to a boil.

Incrementalists – the passive-aggressive tyrants who gnaw away our liberties bit by bit – thrive on time’s palliative effect on outrage and its hazing effect on memory to fulfill their agendas. Were it not for their patience in achieving their goals, the citizenry would leap from their boiling pot.

While most Americans are familiar with Orwell’s novel 1984 and are justifiably terrified of one of its central characters known simply as Big Brother, fewer fully grasp what it was that Orwell was trying to convey in three of his works (1984, Animal Farm, and tangentially Homage to Catalonia) that focus on the State.

Orwell’s message regarding the State is simply this: if you go too far to the Left or the Right, you come around to tyranny. Who would deny that every ideology has its proponents who would push their agenda to rabid extremism?

The term Big Brother still alarms most freedom-loving Americans by evoking the image of a dictatorial police state and an agent in storm boots watching our every move for any reason to pounce upon us. The looming threat of Big Brother is supposed to be enough to control not only our behavior but our thoughts as well.

In describing the modus operandi of Statists, Orwell coined the term newspeak to denote the use of warm, cozy terms that express the opposite of the concept they refer to. By using cozy terms, the people drop their guard and are less likely to question the meaning behind them and are more susceptible to being mislead.

The use of video cameras to monitor our activities has long been symbolic as the most visible intrusion of Big Brother into our lives. We’ve gotten used to being monitored while on private property, whether it’s using an ATM or a gas pump. By some estimates the average American is recorded by videotape no fewer than seven times a day.

But video surveillance on private property is not the same as by the government. The property owner pays for the surveillance and you don’t have a right to access their property. When you do, you do so with their permission and they are able to set some rules. If you don’t want to be monitored, you can choose not to access their property.

The debate over the government’s use of electronic surveillance to monitor the citizenry, however, is just beginning to heat up.

The most recent and evident example of the government’s intrusion into our lives is the use of video cameras at intersections to witness and generate traffic citations. Washington and Oregon states have also begun to float the idea of using GPS systems to monitor each driver and to assess highway taxes based upon mileage and driving habits, with added fees for those who drive during rush hour. If this is not a clear violation of the people’s liberty to come and go as they please, nothing is. Does anyone doubt that Incrementalists will employ this system to cite for other traffic violations if they are put into place?

The GPS proposal comes on the heels of an attempt by police to use heat-sensitive cameras to monitor people through the walls of their homes. Infrared surveillance was finally ruled unconstitutional by the U.S. Supreme Court in Kyllo v. United States. But it has been approved by the Canadian Supreme Court, which may serve as a vanguard of the challenge we face.

Of course, as with most intrusive programs, traffic surveillance is being put into effect for our own good to catch dangerous drivers. This is yet more newspeak that deludes the citizenry into not only tolerating but embracing a faceless overseer.

Despite the hazing effect of Incrementalism, it is obvious that a drastic change is taking place in the executive branch of our government. The executive branch is implementing surveillance of the citizenry in a fishing expedition for misdemeanors. That is part of the atrocity.

Yes, atrocity.

In 1984 every dwelling has a large monitor with a speaker and camera. The monitor continually displays an image of Big Brother and broadcasts propaganda while the camera monitors the occupant. You can turn the monitor down, but you can never turn it off. It is constantly monitoring each citizen.

Just like traffic cameras and GPS surveillance.

The city of Minneapolis was recently handed a setback to their Stop on Red ordinance, their version of traffic surveillance. They implemented video cameras to capture the license-plate information and issue citations to vehicle owners whose vehicles did not come to a complete stop at the signals of high-accident intersections.

Like typical Statists, Minnesota employed newspeak in naming the video program they instituted as part of the Stop on Red ordinance. They named the program Photo Cop.

Photo Cop is not a cop at all. It is not even a person. The term misleads the citizenry into believing there is an actual officer present, a living, reasoning human being. But there is not.

And Photo Cop does not take photos, despite the artistic or festive association with that term. It is a video camera that constantly monitors the citizenry passing through particular areas of several municipalities.

By allowing ourselves to be fooled into accepting terms like Photo Cop, we come to accept that any form of electronic surveillance is the equivalent of a reasonable, deputized officer witnessing an alleged infraction (the issuing of a summons is merely an accusation, not a guilty verdict) of the law and enforcing it.

The crux of this use of newspeak is that an officer is not present at the alleged infraction and that the citation is being issued automatically – at the rate of 26,000 over a nine-month period in the case of Photo Cop.

All this for a misdemeanor.

What should particularly outrage freedom-loving Americans and especially those who claim to support law and order, is that Minneapolis knew it could not legally implement Photo Cop. State representatives rejected a bill for state approval of the ordinance several times over the years, as Howard Bass, an attorney fighting the ordinance for the ACLU, pointed out.

How has the executive branch become so comfortable with their authority that they enact an ordinance specifically rejected by the legislature? They got there the same way the citizenry came to accept such a brazen affront to law and order: through Incrementalism.

District Judge Mark Wernick ruled that the manner in which the cameras were used is a violation of the Minnesota State Constitution because the municipality issued summons to the owners of the vehicles caught on camera running red lights. Judge Wernick ruled that this was a violation of the owners’ rights to due process as it assumed the owners were the drivers who committed the infractions and made them prove their innocence.

In explaining his decision, Judge Wernick reasoned that other cities (such as Portland, Oregon and Washington, D.C.) that implemented ordinances using devices similar to Photo Cop did so after receiving authorization from their state legislatures. Although Judge Wernick ultimately ruled correctly in this case, this part of his reasoning should cause some concern.

The reasoning expressed in Judge Wernick’s ruling is a good example of why we should not trust the courts – or any of the three branches of government – to protect our liberties

Law enforcement already has the technology (digital photography, multiple cameras, and face-recognition software) that could have prevented the constitutional violation Judge Wernick described.

Judge Wernick’s implication that approval by the state legislature would have validated the ordinance is troubling, for he should have looked at violations not only of the Minnesota State Constitution but also of the U.S. Constitution.

Had the ordinance specifically targeted minorities for citation of traffic violations and had the state legislator approved the ordinance, this would not have made it Constitutional. Hopefully Judge Wernick would have ruled against it as a violation of the Civil Rights Act.

One clause of the Fourth Amendment prohibits unreasonable searches. Many of the annotations that have come to comment upon and legally define that clause focus on the need for probable cause and for searches to be strictly defined in terms of time, place, and suspect.

The Berger and Katz cases severely limited the government’s use of electronic devices for surveillance. Berger v New York overturned the Olmstead ruling that allowed blanket electronic surveillance to gather evidence of suspected criminals. In overturning the Olmstead ruling, Justice Clark, writing on behalf of the five-judge majority, made three observations criticizing the Olmstead ruling that are of particular relevance to the discussion of surveillance of the citizenry in public spaces:

“… [Under the Olmstead ruling] eavesdropping is authorized without requiring belief that any particular offense has been or is being committed; nor that the ‘property’ sought, the conversations, be particularly described.”

“During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard to their connection with the crime under investigation.”

“Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute’s blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures”

As we do not allow the government to kick in doors to exact unlawful searches of those they suspect of criminal activity – even if their searches netted criminals – we certainly wouldn’t tolerate them kicking in the doors of the innocent at random in hopes of discovering criminal activity.

Justice Clark essentially pointed out the Constitutional principle that part of our unalienable right to liberty includes not being monitored by the government, that the government does not have a right to gather information about the citizenry at-large.

The court ruled in Katz v. United States that “the Fourth Amendment protects people – and not simply ‘areas’ – against unreasonable searches and seizures.”

Shouldn’t surveillance of the citizenry in public areas – where there is no targeted suspect but only ordinary people – be confined to a similar spirit of what constitutes just and unjust searches?

The Sixth Amendment guarantees the accused in criminal prosecutions to a fair and speedy trial. The issuing of 26,000 summonses over a nine-month period – when the backlog of the court system is common knowledge – hardly promises that the trials of the accused will be speedy. They will be put on hold for extended periods. And the accused will be presumed to be guilty and will suffer the consequences until they prove their innocence.

The Sixth Amendment also states that the accused have a right to be confronted with the witnesses against them and to have a compulsory process for obtaining witnesses in their favor.

Who would be the witness testifying against those accused by systems like Photo Cop, the computer program that runs the system? Someone miles from the scene of the alleged infraction stating what they reviewed on videotape? And who could the accused find to aid them in their defense since they are informed of their alleged offense long after it supposedly occurred? No one keeps tabs on where they go and who can serve as witnesses should they be cited long after the fact.

If we found it necessary to do so, who would call that freedom?

Perhaps the most compelling constitutional argument against Photo Cop and any other electronic surveillance of the people is based upon the combined spirit of the Fifth and Ninth Amendments.

Judge Wernick ruled against Photo Cop deciding that the due process of the law had been violated. While that is correct, the Fifth Amendment states that the no one is to be deprived of life, liberty, or property, without due process of law. This, combined with the Ninth Amendment (“the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”) indicts the surveillance of the citizenry at-large.

The most critical issue in regard to blanket surveillance and our Constitutional rights is that a monitored citizenry is not a free citizenry. The monitoring of those not engaged in illicit activities in public spaces puts the hot breath of the government threateningly upon our necks and smothers the spirit of freedom that law-abiding people should be able to enjoy. Such a people are not enjoying true freedom.

In this regard, Photo Cop and each of its variants is depriving people of liberty without due process. Of those who were accused of having violated the stop-on-red law, 3000 lost their driving privileges. The state is now giving them their driving privileges back because of the ruling. But that does not undo having unjustly deprived them of their liberty. Were the government to install monitors throughout our public spaces, how many more violations of our liberties would they unrightfully commit?

Photo Cop did not prevent rolling stops or accidents, rather only issued so many summonses that its creators must have hoped the accused would pay the fines without judicial contest. If so, this indicates that Photo Cop is not an officer intended to serve and protect but one intended to make each citizen feel the constant presence of virtual police watching each of us – not to protect us, but to intimidate us and levee fines when municipalities want revenue.

The brilliance and originality of the U.S. Constitution is in its limiting of what the government is allowed to do. Nowhere does it state that the government has the right to monitor and database the activity, conversations, and associations of innocent citizens enjoying their freedom.

Some will make the tired and fallacious argument that if you are doing nothing wrong, then you should have nothing to fear in the government watching you. This is a straw-man argument because it sets up those who are defending privacy as having suspicious activities they are seeking to hide and then uses that alleged suspicion to defend keeping an eye on them. This is just another technique the Incrementalists use to intimidate the populace, to prevent them from raising an objection to the prying eye of the government.

Anyone who would consider this a valid argument ought to try living in their homes for a month with no curtains on their windows. They also ought to ask whether they would want everything they’ve said in private conversation in public areas and written in email to be made public. If they would not and if they are engaged in no suspicious activity, then they are admitting that they, too, want and enjoy their privacy.

Enjoying freedom does not mean you have something to hide. To the law-abiding, it is the reward of good citizenship not to be monitored as you enjoy your freedom.

Further, this should only be accepted as a valid argument if law enforcement would consent to mounting video cameras in every police cruiser and in every precinct and having constant video feeds to cable channels so that teams of citizens can monitor police behavior around the clock. This must also apply to the offices, chambers, and meeting rooms of our legislators and judges.

Others may argue that the video camera at the intersection is no different than an officer on the street corner. If the Incrementalists could have their way, video cameras would record every square inch of public grounds. This isn’t like having an officer on every corner. It’s like having an officer tailing you wherever you go.

Who would dare call this freedom?

Aside from the technological and constitutional issues of monitoring the citizenry in public spaces, there is the issue of Orwell’s vision of the future.

The motive behind this type of surveillance is not the same as monitoring known or suspected terrorists and others reasonably suspected of being involved in felonious crimes. Surveillance is necessary in those cases. What we are discussing is a blanket monitoring of the citizenry.

The intrusion of the government into our lives using electronic surveillance is alarming precisely because they are monitoring us for trivial reasons, for misdemeanors and taxes.

Those who firmly believe in law and order must be careful about the rabid extremism of wanting to catch and punish every minor, technical infraction. There is a difference between the letter of the law and the spirit of the law. There are so many laws on the books, we’d be hard-pressed to find anyone who does not violate technicalities on a daily basis.

It would be nothing short of despotism for the government to monitor each of us 24 hours a day to ‘catch us in the act’ and then make us prove our innocence.

What kind of society would this be were the government to oversee the minutiae of our daily lives and issue citations for every petty infraction of the letter of the law? There’s a reason that ‘fighting city hall’ has become cliché for a dreaded and fruitless undertaking. Fighting city hall for the citations that would be issued through surveillance of the citizenry in public spaces would be worse than fruitless… it would be Sisyphean.

Who would dare call this freedom?

Do the people not have the unalienable right, according to the Ninth Amendment, to be free of the suspicious eye of the government monitoring our every move in public spaces?

When Thomas Jefferson penned the Declaration of Independence, he did not ask a judge to affirm his statement that all men are endowed by their Creator with certain unalienable rights. Our Founding Fathers knew this as a universal truth. They drafted the Declaration of Independence and the Constitution in the spirit of these unalienable rights.

This is the essence of the Constitution, the freedom of the people and the limitations of governmental power. The spirit of the Constitution is not only to be free, but for good citizens to feel free whether in private or public spaces.

This is the spirit that energized a people and propelled a fledgling nation to the status of a world power in a hundred years. This is a freedom worth fighting for and dying to protect for posterity. Without the spirit of freedom, ‘liberty’ and ‘constitutional republic’ are merely cozy terms.

Whether Photo Cop is successful in catching those who commit the heinous crime of a rolling stop, or whether it can be legally implemented by twisting the meaning of ‘unreasonable search’ is irrelevant to the Statists who support this type of surveillance – surveillance that is more appropriate in Cuba, the former Soviet Union, and in Red China, than the United states. Their goal is to get us used to being monitored wherever we are, to eliminate the very concept of privacy from our thoughts.

The fact that Photo Cop was implemented for traffic violations is a clear illustration of this point. Up to this point, traffic violations have been handled differently than other infractions. When you are caught violating a traffic law, technically the officer can place you under arrest. When an officer issues a summons, it is a courtesy extended in good faith to let you go about your day and to address the legal issue later.

But more importantly, up to this point, when you commit a traffic offense, the officer allows you to explain yourself and uses reasoning to determine whether your infraction is deserving of a let-go, a warning, or a citation.

We need the police and they are good people for the most part. They are the ones putting themselves in harm’s way to protect us and who are upholding the laws our elected representatives supposedly put in place to protect us and safeguard our liberties.

What makes America unique from all other nations is that we are the government. We always have been. That is what enables us to put faith in our system while watching it with a healthy mistrust.

Photo Cop and similar programs seek to leapfrog over the courtesy of summonses in hopes that the accused will defer their right to a day in court and will simply pay the fine. These measures are thus a cold-hearted attempt to extract revenue from the people through purely mechanical means. This is no way to instill faith in the people for their government.

The difference between an officer being on the scene of a citation and a video tape serving as witness and accuser seems slight, but it is not. The human factor is what enables our government to act humanely, to make decisions based upon reasoning and compassion rather than purely on technicalities. This is what enables the citizenry to trust the executive and judicial branches of government and to abide willingly by the laws enacted by their representatives.

The day that we allow our government to watch our every move ‘because we have nothing to hide’ or because they may catch a law breaker or two is the day we set up an us-and-them opposition between the citizenry and government that leads to an unhealthy mistrust.

That is the day we cease to be a government of, by, and for the people and the government becomes our ruler.

Just as the populace is wise to suspect a government that does not trust its citizenry with the means to defend themselves, so a citizenry should not trust a government compelled to monitor them in public spheres.

In the incremental growth of the State, liberals and conservatives must work together to reign in the rabid extremism of both their ideologies. For the draconian measures they support for the furtherance of their own ideology can equally be used against them if fascists of an opposing ideology come to power.

Liberals and conservatives in this country must not depend upon the courts – or any one of the three branches of government – to safeguard our liberties. We the people must protect liberty with our own vigilance and activism. We must be the ultimate check and balance on each of the three branches.

We must work together to prevent the obliteration of the spirit of liberty that is the essence of the Constitution, to ensure that we can live our lives free from virtual shackles, and to repel the future of a boot stamping on a human face – forever.

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