Make Sure the Video Camera Doesn't Lie
Newsday, October 23, 1988

By Gary T. Marx | Bio | Back to Main Page

The privately made videotape of police beating demonstrators during the recent disorders in Tompkins Square Park illustrates an important point about modern surveillance technology: We should evaluate the morality in the way people use the technology, not the technology itself. Critics concerned with the fragility of our liberties often miss the mark in focusing on technology as the problem, rather than upon the way it is applied. The same tools that destroy liberty can also protect it.

Those worried about the Orwellian potential of information technologies most come to terms with the fact that without the incriminating tapes secretly recorded by President Richard Nixon, Watergate would have remained a case of breaking and entering; and without the back-up computer records in National Security Council files Oliver North thought he had erased, we would know far less about the Iran-contra affair.

By providing alternate sources of information, such technologies can aid democracy and help keep government accountable. The rapidity with which New York City officials condemned police behavior in the Tompkins Square Park incident is undoubtedly related to the fact that they actually saw videotaped scenes of violence on network television.

But we should temper our optimism about using video technology to protect liberty. Video technology can beguile us into confusing image with reality because the video record more fully approximates real experience. As video technology becomes more important to the criminal justice system, whether used by authorities or private citizens, seeing should not unreflectively lead to believing.

Video can distort in a number of ways. Falsification may involve staged events using look-alikes or merely high-tech editing. In a murder-for-hire case, the FBI substituted an agent for a real hit-man and then, using video imaging technology, severed the head from a picture of the intended victim and produced a photo making it appear that the intended victim was dead.

Editing can involve the deletion of material that counters the image the producer seeks to communicate. Technical analysis can reveal deletions and insertions.

But a more serious problem lies in the editing that takes place in deciding when to record. John DeLorean's attorney, conceding his client's appearance on the video tapes used by the prosecution, noted that DeLorean's family was threatened with harm if he did not go along with the plan that put him in front of the camera.

And naive suspects can be manipulated to obtain a recorded "confession" to a crime.

A suspect was asked to help authorities by pretending that he was the perpetrator and to answer such questions as "Why did you do it?" Manipulation can also create an unwarranted appearance of innocence by recording "alibis" on tape.

Even with appropriate skepticism, I admit to mixed feelings about the increased availability of video recorders, without a better defined public morality regarding their uses. There is a danger of surveillance creep. Given the presumed advantages of videotaping, why not make a record of everything? Think how crime would decrease were a visual record of all our interactions available.

We need better laws and guidelines. There can be little quarrel about videotaping in public places. But what if it is done with a hidden camera? What about videotaping in quasi-public places such as a shopping mall, an industrial park or a university campus? Few questions will be raised if a department store has visible video cameras in its loading docks, but what about cameras in its changing rooms or employee lounges?

Presumably video recordings made in the home are consensual, but what happens when a couple breaks up? Do our privacy protection laws need to be changed to take account of the new situations created by video? Should videotaping, now largely exempt from legislation, be subject to the same legal requirements as audiotaping, or to even more stringent standards, since it is more invasive? Can a First Amendment right to freedom of expression via video be balanced with a Fourth Amendment right to protection from unreasonable searches?

we will have to address such questions, if video technology is to help protect rather than destroy liberty and privacy.

Gary T. Marx, a sociology professor at the Massachusetts Institute of Technology, wrote "Undercover: Police Surveillance in America" (University of California Press.)

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