1.14.23 – Louisiana Illuminator – BY: MICHAEL ISAAC STERN, VERITE – NEW ORLEANS
As local law enforcement collects more and more video surveillance footage from public spaces, government agencies are being forced to grapple with whether the public should be allowed to see it.
And not everyone is on the same page.
“It’s a really tough issue, and most public bodies haven’t figured it out yet,” Scott Sternberg, an attorney who represents media organizations in Louisiana, told Verite. “It’s just such an emerging area.”
The topic is ripe for contradiction and hypocrisy. The same government that insists there is no expectation of privacy in public argues the opposite when asked to release the footage. The system can be readily accessed by prosecutors to charge crimes but is not practically available for those seeking to prove their innocence. And a mayor who has supported expansion of the program took a different stance when she found herself caught on tape.
The city of New Orleans, which has added hundreds of new crime cameras in recent years, has adopted a strict policy that shields nearly all the footage it collects from public view.
But the French Market Corp., a city-controlled nonprofit that maintains a separate surveillance network in the French Quarter, considers its footage to be public records and readily provides access to anyone.
Both policies likely violate the state’s public records law, though in different ways, according to Sternberg and another attorney who spoke with Verite.
Deciding if and when to release surveillance footage is also a balancing act between guarding an individual’s privacy and the need to hold government accountable, said Katie Schwartzmann, a professor with the Tulane University Law School’s First Amendment Clinic.
“The idea of making records of a person’s whereabouts publicly available through a public records request offends our values around privacy and personal autonomy,” Schwartzmann told Verite. “But exempting those records from the public records law and having the government have singular access to such information is also highly problematic.”
That tug of war will likely only accelerate as more surveillance systems are set up around the state.
Although New Orleans likely has the most extensive camera system in the state, cities like Baton Rouge, Lafayette and Shreveport have all been beefing up their own surveillance networks over the last year.
When the mayor becomes a surveillance target
The issue was front and center in November, when Fox 8 News published a report that examined hundreds of hours of surveillance footage to track Mayor LaToya Cantrell’s use, and alleged misuse, of a city-owned apartment in the French Quarter. The mayor’s comings and goings were captured by a surveillance camera operated by the French Market Corp. and obtained by the station through a public records request.
The administration blasted the Fox 8 report as a violation of the mayor’s privacy. A spokesperson told Fox 8 that “the surveillance and its subsequent publication of the mayor is irresponsible and puts her and her family’s safety at risk.” In a press conference, Cantrell said the surveillance was “very inappropriate” and “in violation of me as a human being.”
As the target of surveillance, Cantrell took issue with being watched. But as mayor and previously as a city councilwoman, Cantrell has championed the expansion of the city’s surveillance network. The camera network was launched in 2017 under then-Mayor Mitch Landrieu and has steadily grown since. By 2021, the city had access to roughly 1,000 camera feeds, including city-owned cameras and private cameras linked into the system through the SafeCam Platinum program.
Both the Landrieu and Cantrell administrations have waved off concerns from privacy advocates, often telling the public that they have “no right to privacy” in public places.
But as The Lens reported in 2019, the city had internal concerns about the camera systems’ potential for abuse when it crafted a public records policy that shields nearly all of its surveillance footage from dissemination.
“In addition to privacy concerns, this policy ensures that public safety cameras are not utilized by ill-intentioned individuals for things like stalking, harassment, racial profiling, and witness intimidation,” a spokesperson told The Lens at the time.
Privacy advocates told Verite that the concerns from the administration about releasing footage to the public mirror their concerns about setting up the surveillance system in the first place. The dangers of making footage public, they argue, are inherent to the existence of the surveillance system.
“It’s hypocritical to say these systems are only dangerous when exploited by the public,” Albert Fox Cahn, a New York-based privacy advocate, told Verite. “This always poses a risk. As long as this data is being collected, the risk is there.”
In fact, there is a history of police officers and government officials elsewhere using surveillance tools to harass, stalk and extort people.
Cahn also said that the questions about public records highlight a broader issue inherent to government surveillance programs: unequal access to footage. Police and prosecutors can use the system to build cases against suspects more easily than the suspects can use it to defend themselves. And while the city of New Orleans uses its cameras to watch the public and monitor its own employees, the city’s policy largely prevents the public from using them to hold government officials accountable.
“So there are real challenges with making the records public, and also problems with keeping them exempt and in government-hands only, to use and release as only the government sees fit,” Schwartzmann said. “Anti-surveillance advocates would surely say this is why the cameras should not exist at all.”
The city vs. the French Market Corp.
The city of New Orleans has hundreds of cameras filming 24 hours a day that feed footage into the city’s surveillance hub, called the Real Time Crime Center, or RTCC. The city stores all that footage for 30 days. Public safety agencies then search through that footage to find what they need for investigations and prosecutions. That selected footage is then flagged and archived so it isn’t deleted after 30 days.
Under the city’s policy, only footage that has been archived is considered public. Even if unarchived footage is within the 30 day window and still stored by the city, it won’t be handed over in response to a public records request.
The city’s legal justification for denying those public records requests appears to contradict the public records law, Sternberg and Schwartzmann told Verite.
“Residents may be troubled that video capable of constantly monitoring their whereabouts is accessible to everyone, but that information is already in the possession of the government through the cameras,” Schwartzmann said.
The state public records law generally defines any record created, used or retained by the government as a record accessible to the public. There are a number of exceptions, including certain sensitive information — like public employees’ Social Security numbers — and records that could compromise an ongoing criminal investigation.
I am generally skeptical that this data should be collected in the first place.
– Albert Fox Cahn, privacy advocate
But the city doesn’t claim a legal exemption when it denies records for unarchived footage. It argues that the footage isn’t a public record at all.
That’s a hard claim to justify, Sternberg said.
“It’s a public record,” he said.
An attorney with the city’s Law Department, Tommy Milliner, told Verite that although all footage is created and stored by the city, it isn’t officially “retained” or “used” until it is archived.
“The cameras are on, but there is no public record until the government uses it or preserves it,” he said. “So if there isn’t an accident, or a crime, or something of that nature, it isn’t used.”
Schwartzmann questioned that logic.
“This seems flatly wrong on the face of the public records law,” she said. “The law makes public any record in the possession of the public body, which the RTCC footage certainly is. During the 30 days that it maintains the footage, that material is clearly in the possession of the public body.”
Beyond the fact that the footage is created and stored by the city, there is also no way to prove that footage wasn’t viewed. RTCC workers are constantly watching live video, whether or not it is eventually archived. And in order to archive footage, police officers and RTCC employees need to search through hours of video — either manually or using software — to find what they need.
Asked about situations in which footage is used, but not archived, Milliner said “I don’t know if that happens or not.”
Sternberg said the likely reason the city claims the unarchived records aren’t public records — rather than arguing that they are public records exempt from disclosure — is to avoid a legal requirement to store public records for a minimum of three years. That would pose a problem for the city’s policy of deleting the footage after just 30 days. That retention requirement applies to all public records, even exempted ones.
Though the French Market Corporation said it considers all footage it collects to be public, the agency deletes everything after 45 days, a spokesperson told The Lens. As Milliner pointed out, that violates the three-year requirement in the law.
“If the French Market Corp. takes the position that it’s a public record, and then writes over it after 30 days, then they’re violating the public records law by their own logic,” Milliner said. “It would become phenomenally expensive if you were to require all that footage to be on databases and retained for three years. … If you started taking the position that all camera footage raw data is public record, it would probably lead to increased cost and a cut back on those things.”
Sternberg agreed, although he commended the French Market Corp. for being one of the only public bodies that, he says, actually tries to comply with the public records law.
Citing a privacy exemption for surveillance footage would also directly contradict one of the city’s main arguments in favor of building the system — that the cameras do not pose any privacy concerns because there is no expectation of privacy in public. (Privacy advocates and attorneys vehemently deny the oft-repeated claim that there are no constitutional privacy protections in public places.)
Sternberg said he understood the concerns about storage costs and privacy concerns, but at the end of the day the public records law is there for an important reason, and that governments need to comply.
“If they don’t want it to be a public record, they shouldn’t be creating the recordings,” he said.
For many privacy advocates, the right solution is what Sternberg said: don’t make the recordings to begin with.
“I am generally skeptical that this data should be collected in the first place,” Cahn said.
In general, Cahn and other privacy advocates aren’t in favor of making surveillance footage public record.
“I’m worried about the dangers of unchecked public access,” Cahn said. “Certainly we can see in this moment of heightened political polarization, we see armed political movements and insurgencies that target people. We can see victims of intimate partner violence and stalking being targeted. And we can see commercial aggregators doing bulk collections.”
There are also privacy concerns about the requirement to store public records for three years.
“The longer you keep data the greater the risk of abuse,” Cahn said. “The longer the data is held, the more data is collected, the more power it gives the government to retroactively recreate our lives.”
Whether surveillance footage is public record will become a bigger question as more and more cities adopt surveillance technology. For now, without clear guidance in the law or any major court rulings on the subject, individual government bodies are having to draw their own conclusions and set their own policies.
“They’re kind of in a pickle, because the law didn’t really contemplate this,” Sterberg said.
Milliner agreed that it’s tricky because “at the time the public record law was written, you didn’t have a billion cameras intruding on your privacy throughout the city, throughout the country.”
Sternberg said he isn’t aware of any current efforts in the state legislature to carve out special rules for surveillance data, but that he wouldn’t be surprised if that happened at some point.
“I’m sure someone will propose some changes at some point,” Sternberg said. “The exceptions to the law grow every year, and I’m sure they’ll come for this at some point.”
This article first appeared on Verite and is republished here under a Creative Commons license.