May 1, 2001 - Under the Articles of Confederation, the early federal government had no strength to govern the newly formed states of the United States of America. After several proposals for reform, the Constitutional Convention met in Philadelphia in 1787 to create the document that became the foundation for the United States government to operate. The Constitution delegated extensive powers to the central government, especially economic and war powers, but reserved many powers for the individual states.

But because the Constitution granted the federal government so much power, as compared with the earlier Articles of Confederation, several states began to demand a list of amendments to guarantee individual rights against intrusion by the federal government. The Constitution did not include a Bill of Rights. Thanks to the efforts of our fourth president, James Madison, who relied heavily on George Mason’s Virginia Bill of Rights, on September 25, 1789 Congress gave us 12 amendments to the Constitution of the United States.

We’ve all heard about our fifth amendment right, our first amendment right, and the second amendment right. But there’s another amendment that has been receiving a lot of attention lately. Especially in the light of our latest technology, including surveillance cameras, wiretapping equipment, and other forms of "spying." That is the Fourth Amendment. Which reads something like this...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Much controversy has arisen over this "article" lately, and even the courts themselves are struggling with a way to interpret this law.

Some violations are obvious. In January of 2000, only one week after a videotape voyeur law went into effect in California, a man was arrested for his "upskirt camera." Mark David Perelli put a hidden camera in a shopping bag, and videotaped a woman down her skirt and under her blouse. Then he put the bag in front of the woman while she was trying on some shoes, and she recognized the camera. She confronted Perelli and he fled the store. But not without being pursued by an undercover police officer.

During the 2001 Superbowl, fans were secretly scanned with a biometric scanner known as FaceFinder as they entered Raymond James Stadium in Tampa, Florida. No notice or disclosure was given, and no one had the option of not entering the arena. The people’s faces were digitized, and then sent to a national database where their profiles were matched against known criminals and terrorists.

Many names have been bantered around because of this technology; the most famous is that phrase, "Big Brother." Cameras are also popping up in businesses such as supermarkets, restaurants, shopping malls, and offices.

In May of 1997, the American Civil Liberties Union (ACLU) was so alarmed by the Oakland City Council’s decision to put up security cameras that they sent a letter asking them to reconsider, citing such things as "legal issues, impact on public safety, fiscal considerations, and the British experience with surveillance," and the ever popular "threat to the rights guaranteed by the Fourth Amendment."

Oakland later decided against the system, but several other cities are very aggressive in their use of surveillance cameras. Namely the city of New York. In New York a new group of citizens has organized, calling themselves the Surveillance Camera Players (SCP). They’re not a theater group; instead they’re campaigning to have surveillance cameras taken from the public places of New York City. Again, under the Fourth Amendment.

But not everyone is against surveillance, for many reasons.

What makes this difficult is "How does the law interpret the Fourth Amendment?" Especially in light of all this technology. And that is where the issue has gotten sticky.

One of the issues that has come up is the idea of the right to privacy, wherever someone is, namely parks and public streets. But the Supreme Court ruled in "Katz vs. United States" that "the Fourth Amendment protects people, not places," and "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."

The Supreme Court has adopted a two-part test to determine whether or not policy activity constitutes a search of an individual: (1) Has the individual manifested a subjective expectation of privacy? And, (2) Is society prepared to recognize that expectation as reasonable or legitimate?

So in essence, and there are many more court cases than there is room to mention here, the prevailing view of the courts is that video surveillance does not violate the Fourth Amendment.

But, it does get tricky, and that’s where caution should be exercised. One of the major considerations of the court was location. If the area of surveillance is considered public, such as outside on the streets, then they were more willing to say that it wasn’t a violation of the Fourth Amendment. But if the camera was prying into a place that was considered to be private, especially someone’s house (through the windows, not necessarily the house front), then that would in fact be a violation of the Fourth Amendment.

It’s also been ruled in some court cases that because the public wasn’t "aware" of the presence of the camera, then it was in fact a violation of the Fourth Amendment. But that’s in public places such as businesses, streets, buildings, and parks.

Most of the X10 customers use their XCam2s, motion detectors, and other surveillance equipment to protect their homes, which is absolutely allowed by the Fourth Amendment. They keep an eye on their homes while they’re away, using XRay Vision over the Internet, they use motion sensors to find out who’s stealing something, or vandalizing their house. These are very much protected by the courts, and in some cases X10 customers have used their videotape of criminal activities in their own homes to get an arrest on the perpetrators.

Spying on people on the other hand is a whole other ball of wax, and even in situations like that, the courts have struggled to find a satisfactory interpretation. But a recent "post-order" customer survey showed that only 1% of our customers had any intention at all of "spying" on anyone.

So what are the rules here? Well, they change from state to state. For example, Connecticut is much stricter than even the federal laws. And California has been known to come down on the stricter side from time to time. The important thing here is to watch after your own yard, your own house, and keep them out of the bathroom and other places where anyone should be "expecting a reasonable amount of privacy." If you’re spying on your neighbors, make sure it’s because they’re doing something illegal in your yard, and make sure that you’re watching them only in your yard.

There’s much more that can be said on this issue, and we are looking forward to going into more detail. Perhaps we’ll run a series of articles addressing this subject. In the meantime, this is just a basic overview of the laws that will affect anyone with a camera, who uses it to view "the public."

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